{"id":5989,"date":"2011-09-05T15:57:17","date_gmt":"2011-09-06T00:12:47","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-09-05T15:57:17","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5989","title":{"rendered":"CA7: An unidentifiable hard object found in a pat down may be removed"},"content":{"rendered":"

A patdown finding a hard object permits removal to insure that it is not a weapon where a feel could not tell. United States v. Richardson<\/a>, 2011 U.S. App. LEXIS 18323 (7th Cir. September 2, 2011):<\/p>\n

Richardson does not dispute that Deputy Smythe lawfully initiated a stop and pat-down of Richardson\u2019s person. See Terry v. Ohio<\/a>, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Rather, he claims Deputy Smythe\u2019s pat-down became an impermissible exploratory search when Deputy Smythe removed the cocaine base from Richardson\u2019s right pants pocket and inspected it. Richardson\u2019s argument misapplies Minnesota v. Dickerson<\/a>, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Richardson focuses on Dickerson<\/a>\u2019s pronouncement that an officer cannot go beyond a protective pat-down to manipulate an object concealed in a pocket unless \u201cthe incriminating character of the object [is] immediately apparent.\u201d 508 U.S. at 379. But that restriction does not apply until the officer concludes that the object at issue is not a weapon. Dickerson<\/a>, 508 U.S. at 378; see United States v. Muhammad<\/a>, 604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because officer was uncertain whether object was a weapon). Deputy Smythe testified that, after the protective patdown, he \u201cwasn\u2019t sure what [the object] was. It was just an unfamiliar lump, [a] hard lump.\u201d Based on this testimony, the district court found Deputy Smythe was unsure whether the hard object in Richardson\u2019s pocket was a weapon. That finding was not clearly erroneous. See United States v. Swann<\/a>, 149 F.3d 271, 275 (4th Cir. 1998) (deferring to district court\u2019s finding that the officer had not determined whether the object was a weapon when testimony was \u201centirely ambiguous\u201d as to whether the officer \u201csuspected or did not suspect a weapon\u201d).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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