Officers responding to a burglary call had reasonable suspicion to stop defendant within three blocks. Transporting him to the victim was reasonable:
Therefore, where the police have a reasonable suspicion that a person was involved in a crime, they do not violate the Fourth Amendment rights of a suspect if they stop the suspect and transport him a short distance to the scene of the crime in furtherance of a legitimate law-enforcement purpose. We also believe that the police may reasonably choose to transport the suspect in a police car where, as here, that decision would shorten the length of the Fourth Amendment intrusion.
A frisk under department policy was justified because defendant would be in the back of the car, and, if armed, the officers would be exposed to danger. United States v. McCargo, 464 F.3d 192 (2d Cir. September 13, 2006):
The transportation of the suspect in the back of a police car as part of the Terry stop is markedly different. The officers are less able to protect themselves from the possibility of violence. The officers cannot depart or remove themselves temporarily from the situation and call in additional officers as backup. The suspect and the officers are in close proximity to each other for the duration of the transportation; the suspect sits behind them, a few feet away in the rear of the car, frequently separated by only a wire grate. And the suspect is not subject to the officers’ immediate physical control or restraint: if the suspect turns out to be armed, the police are at his mercy.
In sum, we think the dangers posed to police officers in situations where a suspect, who may be armed, is placed in the rear of a police car are substantially different and greater than those posed in the typical Terry stop. The increased threat to police safety informs the balance to be struck between the safety interests of the police and the privacy interests of individuals. See Camara v. Mun. Ct., 387 U.S. 523, 534-35 (1967); see also Terry, 392 U.S. at 9 (“Of course, the specific content and incidents of [Fourth Amendment rights] must be shaped by the context in which [they are] asserted. For ‘what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.'” (quoting Elkins v. United States, 364 U.S. 206, 222 (1960))).
Permitting a limited frisk for weapons before placing a suspect in a police car, pursuant to an established policy, reflects an appropriate balancing of the interests at stake. Because the suspect is placed in the rear of the car — a location where, were he armed, he would expose the officers to peril — we think the most reasonable, and least intrusive, solution is to permit a pat-down for weapons. The possibility of danger to the officers can be eliminated simply by ensuring that the suspect does not have a weapon that can be used against them.
The justification for the pat-down is not that the suspect is reasonably suspected of being armed; it is rather a matter of sound police administration: police officers should be certain before transporting members of the public, whom they do not know, that none of them is armed. The administrative nature of the search is evidenced by the existence of the Buffalo Police’s department-wide policy that requires the pat-down whenever a person is transported in a police car. The fact that the policy is administrative and universally applied to all who are transported eliminates any selective-use concern. See Brown, 443 U.S. at 51.
Courts have long upheld suspicionless searches conducted under an official policy as not violative of the Fourth Amendment. Although the reasonableness balance differs following an arrest, permitting greater intrusion, post-arrest administrative searches are justified, not by probable cause or suspicion, but by the same safety rationale applicable in this case. See Colorado v. Bertine, 479 U.S. 367, 373-74 & n.6 (1987).
Thus, the gun found on defendant was admissible.
Defendant passenger lacked standing to contest search of the vehicle he was in, and he failed to demonstrate that there was any nexus between the “allegedly” unlawful stop of the vehicle and the search. As to the driver, however, the court held that the initial stop was valid and the officer told them that they were free to go, and then he engaged them in additional noncoercive conversation, and the subsequent consent was valid. The driver contended that he had withdrawn consent, but the officer saw evidence of a hidden compartment in the vehicle which was probable cause. United States v. Zavala, 195 Fed. Appx. 746 (10th Cir. September 12, 2006)* (unpublished) (Comment: In this case, probably written by a law clerk, the court started with the wrong defendant and inverted the questions for review as it decided them, probably intentionally, and then left a questionable outcome on the passenger. If the court approached the driver first, the passenger’s outcome would have followed. Instead, the court strained to decided against the passenger, essentially putting a burden on the passenger to show the search was invalid when it was the government’s burden to show it was valid. This was just sloppy judicial work. Again, bad law hidden in an unpublished case.)
