{"id":10272,"date":"2014-02-13T06:15:34","date_gmt":"2014-01-23T17:59:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2014-01-23T17:59:03","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10272","title":{"rendered":"CA6: RS of burglary justifies a frisk; a \u201cstop\u201d and a \u201cfrisk\u201d are different constitutional events"},"content":{"rendered":"

Being found in the near vicinity of a breaking and entering in a high crime area at night with a somewhat strange explanation for his being there justified a frisk. Defense counsel failed to distinguish between the constitutionality of the \u201cstop\u201d and the \u201cfrisk\u201d in the appellate brief, but the court will decide it anyway. United States v. McMullin<\/a>, 739 F.3d 943 (6th Cir. 2014):<\/p>\n

<\/p>\n

While this circuit has not specifically found that reasonable suspicion of breaking-and-entering or burglary raises sufficient suspicion that the suspect may be armed and dangerous, we have found that a reasonable suspicion of other crimes can be sufficient for the officer to conduct a frisk of the suspect. See United States v. Young, 277 F. App’x 587, 589-90 (6th Cir. 2008) (finding the officer’s reasonable suspicion that the suspect was attempting to sell drugs sufficient to justify the frisk of the suspect); United States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001) (finding it reasonable for officers to draw their weapons, order the suspect out of his car, and frisk the suspect based upon the officers’ reasonable suspicion that the suspect was engaged in drug trafficking); United States v. Bradley, Nos. 89-6299, 89-6530, 1990 U.S. App. LEXIS 15178, 1990 WL 124205, at *2 (6th Cir. Aug. 27, 1990) (“It was reasonable for the officer to believe that appellant, who was suspected of having recently been involved in a car theft, might have been armed and dangerous.”).<\/p>\n

Further, a number of our sister circuits have found a reasonable suspicion of burglary sufficient to justify a frisk of the suspect. …<\/p>\n

Turning to the particular facts of this case, late in the evening, the officers responded to a reported breaking-and-entering at a residence to find McMullin standing in front of the same window that had reportedly attempted to be broken into only a few minutes prior. Based on the totality of the circumstances, the officers had a particularized and objective basis for suspecting McMullin of the reported criminal activity. See Hoover v. Walsh, 682 F.3d 481, 494 (6th Cir. 2012) (stating that a Terry stop requires “a particularized and objective basis for suspecting the particular person … of criminal activity based on specific and articulable facts” and measured by looking at the totality of the circumstances) (citation omitted).<\/p>\n

When the officers approached McMullin, he began to walk away from the window and in the direction of the officers. The officers asked McMullin to stop and almost immediately frisked him because, in their experience, burglary suspects are often armed and dangerous.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-10272","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/10272","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10272"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/10272\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10272"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10272"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10272"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}