Do traffic stops automatically justify pat-downs?

When police conduct an investigative stop (a.k.a., Terry stop) of a suspect, the officer is constitutionally permitted to conduct a pat-down of the suspect, as well, but only if the officer has reasonable suspicion that the suspect is armed and dangerous.  See Terry v. Ohio.  This reasonable suspicion is separate and distinct from the reasonable suspicion needed for the original investigative stop.  Do the police have the requisite reasonable suspicion to conduct a pat-down during a traffic stop when the suspect is voluntarily allowed to wait in a patrol car and where the suspect has done nothing to make the officer fearful?

Yes, said the United States Court of Appeals for the Tenth Circuit in United States v. Fager.  A Topeka, Kansas deputy (Justin Dobler) stopped Brian Fager’s car for a turn-signal violation.  Fager’s passenger was Gregory Walls, who, it was discovered, had multiple outstanding warrants.  A backup officer arrived and Fager was ordered out of the vehicle.  Deputy Dobler determined that Fager was not impaired and had done nothing to make him afraid for his safety.  Fager was not under arrest.  Fager then consented to a search of his car, and because of the cold temperatures, Fager was told that he was allowed to wait in Deputy Dobler’s patrol car.  At that point, after Deputy Dobler explained that he needed to “pat [Fager] down real quick to make sure you don’t got any weapons or anything on you at all,” Deputy Dobler conducted the frisk and discovered a gun in Fager’s waistband.

Fager was indicted in federal court pursuant to the felon-in-possession statute, 18 U.S.C. 922(g)(1).  Fager entered a conditional plea and challenged the lawfulness of the pat-down, claiming that Deputy Dobler lacked reasonable suspicion that he was armed and dangerous.

In upholding the search, the Tenth Circuit emphasized that officer safety justified the frisk.  Whereas Fager argued that existing circuit cases wrongly allowed an automatic frisk where there was consent to search a vehicle, the Tenth Circuit said that Fager misread those cases.  Rather, those cases simply determined what constitutes reasonable suspicion that a suspect is armed and dangerous; they did not do away with that standard.  The court then explained that on these facts, reasonable suspicion existed, even though Deputy Dobler testified that Fager had done nothing to make him feel afraid.  Although a backup officer had arrived and could have kept an eye on Fager, the suspect could have used his weapon even with the backup officer present.  Moreover, Walls had outstanding warrants, and he and Fager could have been involved in a joint attack on the officers.  And Walls had been acting suspiciously during the initial traffic stop by blocking the deputy’s view of Fager inside the car.  Finally, the stop occurred at nighttime in a high crime area.

My sense is that this is probably right, on these facts.  But there is language in the opinion that might make it an interesting case to take to the Supreme Court.  Yes, it is true that Fager had a gun and could have used it to attack the officers, but the officers did not know that at the time.  The question is whether they had reasonable suspicion that Fager was armed, not whether they would have been justified in avoiding an attack if they had known he was armed.  We do not judge the reasonableness of the police suspicion based on what we learn after-the-fact.  Also, it is true that Walls had outstanding warrants, but Deputy Dobler did not know the basis of those warrants, and the search at issue here is of Fager, not Walls.  And while it is also true that Walls and Fager could have jointly attacked the officers, the question is whether there were any articulable facts that would lead them to reasonably suspect that such an attack was likely to occur.

Finally, and perhaps most interestingly from the perspective of crafting a cert petition, the court also at one point uses language suggesting that Terry frisks are permissible as incident to any traffic stop, which is difficult to reconcile with the Supreme Court’s Terry cases (“‘[a]n officer in today’s reality has an objective, reasonable basis to fear for his or her life’ during traffic stops because ‘[r]esort to a loaded weapon is an increasingly plausible option for many such motorists to escape,'” the court said (citations omitted)).  But cf. Note 4 (stating that authority to search a car does not automatically justify a search of the driver).

Still, on these facts, this decision will likely stand.  I think the high-crime area combined with other facts, notably the outstanding warrants – which the officers could reasonably suspect would create an incentive on the part of both Walls and Fager to attack the officers in order to escape – probably tip the scales in favor of the frisk.




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