CA4: Second frisk was factually justified by first being cursory

Second frisk by another officer was still reasonable because the first was “was hardly comprehensive,” and defendant’s actions strongly indicated he was hiding something. United States v. Roach, 477 Fed. Appx. 993 (4th Cir. 2012):

Roach’s conduct during the stop only heightened the officers’ suspicion that he possessed a weapon. Roach was seen contorting his body, sitting “upright” and “half off the [front passenger’s] seat.” J.A. 74-75. While in that strange posture, he repeatedly thrust both hands behind him toward his pants and waistband area, all the while watching Officer Burnem, who was at the time preoccupied with the driver. Roach persisted in these movements, moreover, even after Officer Kruger opened the back door of the car and ordered Roach to put his hands up. Those movements, consistent with concealing or retrieving a weapon, would have led a reasonably prudent officer to fear for his or her safety. See United States v. Hamlin, 319 F.3d 666, 671-672 (4th Cir. 2003) (defendant’s “repeated attempts to reach toward his groin area gave [the officer] reason to believe that [the defendant] was armed and dangerous”). Meanwhile, the driver’s odd behavior upon being stopped — namely, exiting the vehicle rapidly while leaving the car door ajar — reinforced the officers’ apprehension.

Given these circumstances, Roach appears to concede that Officer Kruger had sufficient justification to perform an initial Terry frisk for the presence of weapons. See Brief of Appellant at 13 (“Officer Kruger may have developed a reasonable suspicion to search Roach”). Roach argues, however, that any authority to frisk him under Terry vanished as soon as Officer Kruger’s patdown uncovered no weapon. In Roach’s view, any subsequent patdown was unlawful because Officer Kruger’s failure to detect a weapon on him allayed any reasonable suspicion.

The perception of danger, however, did not dissipate with Officer Kruger’s frisk. As an initial matter, Roach impeded Officer Kruger’s patdown by defying his instructions. He repeatedly brought his hands and elbows down to his waistband area, sought to remain close to the car, and resisted spreading his feet apart. Those movements indicated that Roach was concerned about something Officer Kruger might find. Indeed, Officer Kruger testified that he was compelled to handcuff Roach during the frisk because Roach’s movements caused him to be concerned “for officer safety.” J.A. 82.