D.Md.: On a stop with RS of having a gun, search of a cigarette pack exceeded Terry

The officer likely didn’t have reasonable suspicion of a man with a gun when the encounter started, but defendant’s furtive movements gave reasonable suspicion. When defendant was stopped, the officer’s search of a cigarette box on the car’s floor exceeded the scope of a permissible Terry stop. United States v. Pollins, 2015 U.S. Dist. LEXIS 152536 (D.Md. Nov. 9, 2015):

Here, unlike Navarette, the caller did not provide any information about the basis of his knowledge of the alleged criminal activity. He did not claim to be a witness to a crime. In fact, the caller was unsure about the exact location of the alleged firearm, stating that it could be in the car or the passenger’s purse. Further, throughout the 911 call, the caller insisted that the police stop the Chrysler for expired tags, and that “it ha[d] to be [] like a traffic stop.” ECF No. 60-2 at 3. Thus, although the fact that the caller used 911 provides the tip some reliability, this call is much more similar to the call in J.L.–the caller provided a detailed description of a subject in a particular place and claimed that the subject had a gun, but provided no information to verify the credibility of the tip.

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In Sims, a police officer received a call that there was “a black male wearing a T-shirt and blue jeans had just fired a pistol in the area of 809 1/2 South Oakwood Avenue.” 296 F.3d at 285. When the officer looked around the reported area, he “saw a black male behind 813 ‘in a crouched position,’ ‘peeking around the corner … looking towards [him].'” Id. at 286. When the officer made eye contact, the man “‘jerk[ed] right back’ behind the house, out of [the officer’s] view.” Id. This furtive behavior, combined with the facts that the man matched the description in the anonymous tip, established reasonable suspicion for a Terry stop. Id. at 286-87 (“We conclude, however, that Sims’s furtive behavior distinguishes his case from J.L.”).

The facts here are similar to those in Sims. Officer Johnson received an anonymous tip that was largely descriptive and did not have the reliability necessary to justify a stop.18 When Officer Johnson investigated the tip, the suspects reacted to his presence and appeared to be hiding something under their seats while continually looking over their shoulders at him. Therefore, Officer Johnson had reasonable suspicion to believe that criminal activity was afoot and that there was a weapon in the Chrysler.

When Officer Johnson looked at the passenger side floorboard of the Chrysler, he “located an empty Newport brand cigarette box.” It is undisputed that a Terry stop includes the entire passenger compartment of a vehicle, including any “containers.” Holmes, 376 F.3d at 280-81. However, searching containers is limited to those that may contain weapons or whose illegality is immediately apparent. See Dickerson, 508 U.S. at 374-78. An officer’s decision to search a container is evaluated under an objective standard of reasonableness. See Swann, 149 F.3d at 275-77.

Based on these limitations, it is apparent that Officer Johnson exceeded the scope of the Terry search by opening the cigarette container. Officer Johnson opened the cigarette box not because he believed that it contained a weapon that was a danger to him, but because he believed it contained some sort of contraband.