D.Kan.: Def’s emptying a blunt was not RS for a patdown for weapons

Defendant was allegedly illegally parked and confronted by the officer. About the only thing wrong was that he put his hands in his pockets and took them out when told. The officer saw defendant empty a cigar, which he took as removing the marijuana from it. Still, there was nothing to show that defendant was involved in drug distribution, and a patdown was unjustified. United States v. Turner, 2013 U.S. Dist. LEXIS 151380 (D. Kan. October 21, 2013):

At the time of the patdown search, Defendant was temporarily detained for an illegal parking violation. Just prior to the patdown, Defendant emptied out a cigar and put it in his pocket, which Officer Ralston recognized in his training and experience as a precursor to filling the cigar with marijuana. At this point, Officer Ralston had no information about Defendant’s criminal history. While the evidence shows that the officers may have had reasonable suspicion that Defendant possessed marijuana on his person, the Government has not met its burden of showing that they had any reason to believe that Defendant was engaged in drug distribution, sufficient to form a reasonable suspicion that Defendant was armed and dangerous.

Corporal Green and Officer Ralston both testified that Defendant was nervous and fidgety during the encounter. It is true that extreme nervousness may be a factor in showing reasonable suspicion. However, reasonable suspicion cannot be based on nervousness alone.9 And the video does not corroborate the officers’ testimony that Defendant was nervous. In contrast, it is apparent from the video that Defendant was relaxed and comfortable for the duration of the encounter. He was comfortable enough to empty out a cigar and talk openly to the officers about his marijuana use; he yelled out to a friend, and smiled and joked with the officers.