A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click to download OpinionUSA v. Powell
UNITED STATES of America v. Obie Lee POWELL, Appellant, No. 08–4696, 2011 WL 5517347 (November 14, 2011)
During a routine traffic stop in Seat Pleasant, Maryland, police removed Obie Lee Powell, who was a passenger, from the vehicle and performed an officer-safety patdown on him. Based on evidence obtained by police after the patdown, a federal grand jury indicted Powell for possession with intent to distribute crack cocaine. Before trial, Powell moved to suppress this evidence, arguing that the officers obtained it in violation of the Fourth Amendment.

Following an evidentiary hearing, the district court denied the motion, holding that the officers had reasonable suspicion that Powell was armed and dangerous and were thus entitled to frisk him. Thereafter, a jury convicted Powell of possession of crack cocaine and the court sentenced him to a 63–month term of imprisonment. On appeal, Powell contended that the court erred by denying his suppression motion.

Where law enforcement officers briefly patdown a person for safety reasons, reasonable suspicion that the person is armed and dangerous is necessary in order for the patdown to be lawful under the Fourth Amendment. The Court stated that it was presented with a case in which the Government attempted to meet its burden by “cobbling together a set of facts that falls far short of establishing reasonable suspicion”.

On the night of November 21, 2006, while on routine patrol, Officer Davis observed a 1997 Buick occupied by three individuals pull out from a parking lot. Powell was a passenger in the backseat of the Buick. Because the Buick had a burned-out headlight, Officer Davis stopped it. The stop occurred without incident.

Officer Davis made contact with the driver, Jermaine Mitchell, and obtained his driver’s license and vehicle registration. At the same time, Corporal Patterson, who was on patrol with Officer Davis, approached the passenger side. As Officer Davis returned to her patrol car to process Mitchell’s traffic citation, Corporal Patterson engaged in an amicable conversation with Powell. During this conversation, Officer Shelby arrived to provide back-up assistance and joined Corporal Patterson at the passenger side of the Buick. At some point, Powell indicated that he needed to pick up a child, and he asked how long the traffic stop would last. Corporal Patterson responded that he could not be certain about the expected duration of the traffic stop, and he told Powell that he was free to leave if he so desired. Powell declined the offer and remained in the Buick.

Eventually, an incoming radio communication advised Officer Davis, who was in her patrol car, that Mitchell’s license was suspended. Officer Shelby, who was still standing by the Buick passenger side, heard this communication on his personal radio, and he asked Powell and the other passenger (identified as “Tawanda”) if either one of them had a valid driver’s license. Powell gave his license to Officer Shelby who, in turn, checked its status via radio. A responsive radio communication indicated that the license was suspended and that Powell had “priors” for armed robbery. At the time this data was broadcast, neither Powell nor the other occupants of the Buick had appeared suspicious or presented any threat or problem to the officers. Nonetheless, based solely on this data, Officer Shelby ordered Powell from the Buick and began to perform a patdown on him. During the patdown, Powell became nervous and twice dropped to one knee. Thereafter, Powell unsuccessfully attempted to run from the officers, but he only got a few steps before they regained control over him and placed him in handcuffs. At this time, Powell was not under arrest.

Once the officers secured Powell, Corporal Patterson removed a backpack from the Buick near where Powell had been sitting. After finding a handgun in the backpack, the officers arrested Powell. During a search incident to the arrest, the officers found the crack cocaine that formed the basis for this conviction. At the conclusion of the traffic stop, Mitchell was cited for the traffic violation, and he and Tawanda were permitted to leave.

On appeal, Powell conceded the lawfulness of both the traffic stop and his subsequent removal from the Buick. However, he contended that Officer Shelby unlawfully patted him down after he exited the Buick because the officers did not have a reasonable basis to suspect that he was armed and dangerous. More specifically, Powell’s argument was based on the holding in Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784 (2009), in which the Court extended the stop and frisk rule to passengers in a routine traffic stop. To justify a patdown of the driver or a passenger during a traffic stop, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. At the time Officer Shelby began the patdown, his interaction with the officers had been entirely amicable and he, like the driver and other passenger, had been cooperative. Thus, in Powell’s view, the officers lacked reasonable suspicion that he was armed and dangerous.

In the context of this case, reasonable suspicion is a particularized and objective basis for suspecting that the person to be frisked is armed and dangerous. Ornelas v. United States, 517 U.S. 690, 696 (1996). The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior, Illinois v. Wardlow, 528 U.S. 119, 125 (2000), and it is measured by the totality of the circumstances, United States v. Arvizu, 534 U.S. 266, 273 (2002). The reasonable suspicion standard is an objective one, so the courts examine the facts within the knowledge of the officers to determine the presence or nonexistence of reasonable suspicion. The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. Florida v. J.L., 529 U.S. 266, 271 (2000). The Government bears the burden of articulating facts sufficient to establish reasonable suspicion, and although the standard of proof is obviously less demanding than that for probable cause, the government must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. United States v. Sokolow, 490 U.S. 1, 7 (1989).

The Court, by a 2-1 vote, concluded that the Government had failed to meet its burden of establishing that the officers had reasonable suspicion that Powell was armed and dangerous when the patdown began.

The officers’ interaction with Powell began as part of a routine traffic stop on a public road, and there was no evidence that it occurred in either a high-crime area or at a similarly unsafe location. For much of the traffic stop, the four officers on the scene outnumbered the three occupants of the Buick. Before Officer Shelby began the patdown, Powell and the other occupants of the vehicle were entirely amicable and cooperative with the officers, they did not engage in any threatening or evasive conduct, and they did not display any of the tell-tale signs typically associated with illegal or dangerous activity (e.g., evidence of drug-dealing, gang affiliation, or a possible concealed weapon). It was particularly telling to the Court that Corporal Patterson told Powell during the traffic stop that he was free to leave if he wanted, which was an implicit acknowledgement that he did not consider Powell to be armed and dangerous. Until Powell was removed from the Buick, the traffic stop was amicable, cooperative, and relatively safe. However, a suspect’s cooperation with police officers during a Terry stop does not, by itself, extinguish concerns that police may harbor about that suspect’s dangerousness.

The Court acknowledged that a person’s possible involvement in prior criminal activity can be relevant in establishing reasonable suspicion, which can be based on the suspect’s commission of violent crimes in the past—especially when those crimes indicate a high likelihood that the suspect will be ‘armed and dangerous’ when encountered in the future. However, in most instances, a prior criminal record is not, standing alone, sufficient to create reasonable suspicion. If the law were otherwise, any person with any sort of criminal record—or even worse, a person with arrests but no convictions—could be subjected to an investigative stop by a law enforcement officer at any time without the need for any other justification at all. To find reasonable suspicion in this case would violate a basic precept that law enforcement officers not disturb a free person’s liberty solely because of a criminal record. Under the Fourth Amendment our society does not allow police officers to “round up the usual suspects.”

The “caution data”—indicating that Powell had “priors” for armed robbery—did not provide any detail concerning when the priors occurred or whether they even involved convictions. The striking lack of specificity of the information in this case draws no distinction between, for example, a recent armed robbery conviction and a decades-old wrongful armed robbery charge. Without more, the caution data certainly did not justify a reasonable suspicion that Powell was armed and dangerous on the night of the traffic stop.
Viewing these factors objectively in light of all of the circumstances of this case, the Court was convinced that a reasonably prudent officer in these circumstances would not have been warranted in the suspicion that Powell was armed and dangerous on the night of the traffic stop. Accordingly, the patdown was not permissible under the Fourth Amendment, and the district court should have suppressed the evidence that was seized during the traffic stop.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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