Post details: Report of gun pointed from a car justified a "protective sweep" of the car
11/13/07
Report of gun pointed from a car justified a "protective sweep" of the car
Officers received a report of a gun pointed at a citizen from an SUV, and the SUV was stopped, and a protective sweep of the SUV was appropriate under the circumstances. The fact that the defendant was out of the vehicle was no answer because he would return to the vehicle, and, if a gun were there, it could be used against the officers. State v. Bragg, 2007 Ohio 5993, 2007 Ohio App. LEXIS 5242 (6th Dist. November 9, 2007):
[*P16] The only issue, then, is whether the officers had, at the moment appellee was stopped, an articulable suspicion that appellee presented a danger and a weapon was in the vehicle, sufficient to justify a protective search. Kay and Konzen were told by an excited and agitated witness that the SUV's driver had a gun and had pointed the gun at him. U.S. v. Witherow (C.A. 6, 1996), 95 F.3d 1153. Although alternative explanations may be conjured for why one driver may accuse another of waving a handgun in traffic, these facts led the officers to rationally choose the side of caution and the resulting Long search of the vehicle was not unreasonable. State v. Williams, 5th Dist. No. 2004CA00354, 2005 Ohio 3345 (anonymous phone call that particularly described driver was waving gun out of car window justified Long search); State v. Day (1984), 19 Ohio App.3d 252, 255-256, 19 Ohio B. 405, 483 N.E.2d 1195 (officer acts reasonably by conducting Terry search of suspect's person for concealed handgun on basis of anonymous tip that suspect had handgun).
Officer had reasonable suspicion to stop the defendant based on a hand to hand buy that occurred four days earlier, when the defendant successfully fled from the officer. State v. Lane, 2007 Ohio 5948, 2007 Ohio App. LEXIS 5255 (8th Dist. November 8, 2007).*
The police did not act unreasonably in denying defendant access to his property while a search warrant arrived because they feared destruction of evidence of sexual abuse. The police even permitted a woman to enter to get a baby bottle. State v. Mooneyhan, 2007 Tenn. Crim. App. LEXIS 861 (October 30, 2007):
The police balanced privacy concerns with the needs of law enforcement. When the defendant arrived at home, the officers restricted his access until they could execute the search warrant. They also restricted the access of the defendant's family members but allowed limited access for things such as allowing the defendant's mother-in-law to obtain a bottle for a child. The restraint was imposed for a limited period of time. Although there was evidence that the process took as long as five hours, the evidence reflects that the police were corroborating information from their initial interview with the victim and obtaining the search warrant during this time. Further, the defendant was not restrained from his home for that entire period of time. The record reflects that he arrived at his residence sometime after being at his mother's house at 3:25 p.m. and that the search warrant was executed at 8:00 p.m. Nothing suggests that the brief time period was greater than that needed for diligent officers to complete these tasks. We conclude that the trial court properly denied the motion to suppress.
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