{"id":4545,"date":"2011-01-11T12:24:45","date_gmt":"2010-08-15T00:17:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-14T19:47:37","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4545","title":{"rendered":"CA6: “Frisk” of a suspected bank robber’s duffle bag for the gun they reasonably believed he had was reasonable"},"content":{"rendered":"

Frisking defendant\u2019s duffle bag that was partly unzipped for a weapon that the officers reasonably believed was in there was reasonable. He was wanted for bank robbery, and there was reason to believe he was armed. United States v. Walker<\/a>, 615 F.3d 728, 2010 FED App. 0244P (6th Cir. 2010):<\/p>\n

The directive to steer clear of \u201cunreasonable\u201d searches cannot be reduced to a \u201cfrisk first\u201d or any other one-size-fits-all command, which is presumably why courts of appeals have declined to adopt a \u201cfrisk first\u201d requirement for Terry searches. See, e.g., United States v. Shranklen<\/a>, 315 F.3d 959, 963-64 (8th Cir. 2003); United States v. Thomson<\/a>, 354 F.3d 1197, 1200-01 (10th Cir. 2003); United States v. Rhind<\/a>, 289 F.3d 690, 693-94 (11th Cir. 2002); United States v. Brown<\/a>, 133 F.3d 993, 998-99 (7th Cir. 1998). Other courts likewise have recognized that non-frisk search methods may be reasonable under the Fourth Amendment. See, e.g., United States v. Landry<\/a>, 903 F.2d 334, 337 (5th Cir. 1990) (grabbing a bag and looking inside); People v. Jackson<\/a>, 79 N.Y.2d 907, 590 N.E.2d 240, 241, 581 N.Y.S.2d 655 (N.Y. 1992) (shining a flashlight through a plastic bag). The courts\u2019 job is to ask what was reasonable under the circumstances, not to poke and prod for lesser-included options that might not occur to even the most reasonable and seasoned officer in the immediacy of a dangerous encounter.<\/p>\n

If it is a loaded gun that concerns the officer, moreover, it is by no means clear that poking and prodding the outside of a duffel bag is the most sensible way to find it. No doubt, the frisking of the outside of a bag intrudes less on the privacy of the suspect. But at what cost? Who looks for a gun by aimlessly grabbing and manipulating the outside of a large bag that may or may not contain the gun–and a loaded gun at that? That, we suspect, is not what gun-safety programs recommend. If Terry permits officers to open a closed container located in a car after a stop and after the officers have removed the passengers from the car, see Long<\/a>, 463 U.S. at 1050-51, it surely permits an officer to unzip a duffel bag, one that is already partially unzipped, to see what is lying on top of it.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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