{"id":4562,"date":"2011-03-05T12:09:27","date_gmt":"2010-08-20T08:40:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-08-20T08:40:15","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4562","title":{"rendered":"E.D.Tenn.: Vehicle frisk was invalid under Long,<\/em> but a search incident was valid pre-Gant<\/em>"},"content":{"rendered":"

A vehicle \u201cfrisk\u201d under Long<\/a> was impermissible here because the officer\u2019s actions don\u2019t support it. A search incident of the vehicle was valid at the time it was done, but not under Gant<\/a>. Although the Sixth Circuit hasn\u2019t yet spoken on Gant good faith, this court determines that there is no deterrence by making Gant retroactive, so the search is valid as a search incident. United States v. Bawgus, 2010 U.S. Dist. LEXIS 83084 (E.D. Tenn. May 4, 2010)*:<\/p>\n

In addition, the validity of an officer’s protective conduct when evaluated under Terry is “the reasonableness in all circumstances of the particular governmental intrusion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S., at 108-109 (1977)(quoting Terry, supra, 392 U.S., at 19). As “the passengers are already stopped by virtue of the stop of the vehicle,” Wilson, supra, at 413-414, “the additional intrusion on the passenger is minimal.” Id. at 415. In this case, the officers did not act reasonably by conducting a “frisk search of the passenger compartment of the vehicle” while leaving the passenger in the vehicle. Asking the passenger to exit the vehicle would have been a minimal intrusion and would have been more likely to assure the safety of the officers if they suspected a weapon was in the vehicle or in the purse of the passenger. The fact that Officer Bowers left the passenger in the vehicle and walked back to talk to Officer Allman, after he had seen the passenger acting suspiciously in trying to retrieve her ID from her purse and after he suspected that she might have drugs or a weapon, flies in the face of assuring the safety of officers and is patently unreasonable.<\/p><\/blockquote>\n

Weighing all the factors of reasonable suspicion, which was found here, the fact defendants were coming from Phoenix was not indicative of anything, despite it being a \u201csource city.\u201d United States v. Avezov, 731 F. Supp. 2d 1194 (N.D. Ill. 2010).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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