NINTH CIRCUIT UPHOLDS SEARCH FOR WEAPONS

The Ninth Circuit upheld the conviction of Robert Burkett for possession of a gun by a convicted felon. Burkett was a passenger in a speeding vehicle. An officer turned on his overhead light to stop the vehicle but it took an unusually long time to stop. (eight tenths of a mile.) While the officer was stopping the vehicle he saw Burkett in the right front passenger seat making furtive movements.

After Burkett was charge he moved to suppress the gun on Fourth Amendment grounds. The Fourth Amendment protects us against unreasonable searches and seizures.

In the landmark 1968 case of Terry v. Ohio the Supreme Court ruled that an officer can stop and frisk a person if the officer has a reasonable suspicion that the person is involved in a crime and is armed and dangerous. While there was no belief that Burkett was involved in a crime, the Supreme Court ruled last year in Arizona v. Johnson that if an officer has a reasonable suspicion to stop a vehicle for a traffic violation the seizure of all of the passengers in the vehicle is legitimate and that if the officer had a reasonable suspicion to believe that a passenger was armed and dangerous the officer could frisk the passenger.

The Ninth Circuit found that the officer had a reasonable suspicion that Burkett was armed and dangerous and therefore the frisk of Burkett was legitimate. Therefore, the gun found during the frisk could be used at trial. Not only did the driver of the car take an unusually long period to pull over but Burkett made furtive motions while the driver was pulling over. The furtive motions led the officer to believe that Burkett was attempting to hide a gun. Furthermore when the officer asked Burkett what he was doing prior to the car stopping Burkett said “nothing” while the officer knew that the “furtive” conduct meant he was doing something. The officer was also concerned that after he told Burket to exit the car, Burkett used his left arem to open the right side door, hiding his hands and part of his jacket. Thus despite Burkett’s innocent explanations for his behavior the officer had a reasonable belief that he might have a weapon.