Pointing gun at innocent persons in an arrest situation was not a seizure of them

It is not unreasonable under the Fourth Amendment for officers to draw and point their weapons at innocents while trying to diffuse a domestic violence situation. The plaintiffs’ subjective motives are irrelevant (“Thus, just as we objectively examine a police officer’s conduct under the Fourth Amendment, Brigham City, Utah v. Stuart, ___ U.S. ___, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006), the Reeves’ subjective motives behind their failure to submit are irrelevant.”). Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007).*

The officer had justification for the stop and then reasonable suspicion to patdown three people in a vehicle stopped at 2:30 a.m. for officer safety. The suppression order was reversed. United States v. Rice, 483 F.3d 1079 (10th Cir. 2007):

The record discloses a number of facts justifying the pat-down search:

(1) Rice was one of three people in a car driving around a high crime area of Tulsa at 2:30 on a Tuesday morning, a time when there were no other cars or people around;

(2) the car proceeded along two residential blocks, slowing intermittently in a manner that an observing officer thought consistent with preparing for a burglary or drive-by shooting;

(3) the car did not have a tag light, which in the observing officers’ experience could indicate a desire to avoid identification;

(4) the passenger in the backseat had given Weakley what he, based on his experience, believed were false names intended to conceal her true identity;

(5) the computer check Weakley ran confirmed [*14] his suspicions about the back seat passenger when his search revealed no information on the names she gave;

(6) the computer check identified Rice as “known to be armed and dangerous”;

(7) Rice had a lengthy and violent criminal record; and

(8) Rice immediately assumed the position for a weapons search upon exiting the car.

Taken together, these facts support Weakley’s belief that a pat-down search was justified for his own safety.

In reaching a contrary conclusion, the district court’s decision discounted the totality of the information known to the officers by focusing on the facts in isolation. For example, the court emphasized two aspects of the stop–Rice’s criminal history and the car’s “erratic driving in a high crime area”–in concluding that Officer Weakley acted without reasonable suspicion. The court found that suspicious movements in a high crime area by a person with a criminal history do not amount to reasonable suspicion sufficient to justify an investigative detention, relying on United States v. Davis, 94 F.3d 1465 (10th Cir. 1996).

“A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3046-47 (1976). The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).” Petitioner spent 48 pages of his habeas petition alleging the unconstitutionality of a search he did not challenge. Mancus v. Pope, 2007 U.S. Dist. LEXIS 29678 (E.D. Cal. April 20, 2007).*