Facts
In 2012, MBN Agent Clint Walker received information from a known confidential informant who had provided reliable information in the past that two African American males would be traveling from Winston County in a green SUV with a Holmes County license plate and were transporting approximately two ounces of crack cocaine. Two hours later, Walker spotted them in Ackerman, Mississippi.
After observing the vehicle cross the center line of the road a couple of times, he set up a fake checkpoint and they were stopped by Walker and four sheriff’s deputies. Antonio Parks was the driver of the vehicle and he was taken out in handcuffs as was the passenger, Curtis Blackmon.
Parks says he got a Terry pat down frisk at that time from someone. Walker executed a quick search of the car to check for any weapons in plain sight. After obtaining Parks’s verbal consent, Walker then searched the vehicle a second time, but found no contraband.
Then, Walker went to the rear of the vehicle where Parks was being held. He performed a Terry frisk and upon the lifting of Parks’ t-shirt, the contraband, 40 grams of crack cocaine, was sticking out approximately three to four inches above Parks’s pants in a plastic bag and was clearly visible to the officers.
He was convicted of possession of a controlled substance and sentenced to 25 years. On appeal, he argued 1) the second Terry frisk was unreasonable and 2) lifting his shirt exceeded the scope of a Terry frisk. MCOA affirmed.
Analysis
A. Second pat down
Walker testified as to why he conducted a Terry frisk after the subject was handcuffed. He stated that being handcuffed in the rear of the vehicle would still give Parks access to any weapon in the waistband.
Absolute certainty that a suspect is armed is not required; 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. Walker also stated that in his experience and training, suspects who possess that amount of dope generally are carrying a weapon, which is why both suspects were handcuffed.
The trial judge concluded that 1) because Agent Walker had not been present when Parks was originally handcuffed, it was reasonable for him to conduct a Terry frisk to determine if the defendant had a weapon and 2) Walker was not able to secure a definitive answer from Sheriff Tim Nail concerning the security and thoroughness of a search of Parks.
MCOA then pointed to a federal 1st circuit case which allowed a second pat down when the officer had concerns about his safety after losing sight of the subject and noting that the situation was escalating. Under totality of circumstances, MCOA agreed second pat down was reasonable here.
B. Lifting shirt for Terry frisk
In Reyes, the Federal 5th Circuit Court of Appeals stated that the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. MCOA then pointed to some other state cases and a federal 9th circuit case that said lifting a shirt is permissible when conducting a Terry frisk. The raising of the shirt in the instant case is well within the boundaries established by Terry.
Walker stated that Parks was wearing a large shirt that was definitely not tight on his skin and that, in his experience, a weapon is often concealed in the waistband of a suspect’s pants. Parks confirmed during his testimony, on the motion to suppress, that his t-shirt covered his pants. Walker’s slight lifting of the shirt to view Parks’s waistband was a limited intrusion in this instance, and we find that his actions did not violate Parks’s Fourth Amendment rights.
Thoughts
In this case, the record indicated that upon lifting the shirt, the contraband, 40 grams of crack, was sticking out approximately three to four inches above Parks’s pants in a plastic bag and was clearly visible to the officers. What if the officers had only seen the top part of a plastic bag and could not see any drugs without removing the bag? For that type of scenario, read here.