U.S. Vs. McMullen: Is a Man Splayed in the Front Seat, with his Legs Outside the Open Car Door, Reaching on the Floorboard at Night in a High Crime Neighborhood … Suspicious?
Given the factors described, they reasonably suspected that Mr. McMullen had access to a concealed firearm that posed a risk to their safety.
Jul 29
A Gut Feeling there was Criminal Activity Afoot in a High Crime NeighborhoodIt was shortly after midnight on Thursday September 16, 2021. Anthony Lampkin and Kevin Warnock, detectives in Cleveland Police’s gang-impact unit, were surveilling a neighborhood known for gang activity and violent crime.
They wore tactical police vests and rode in an unmarked Dodge pickup truck. During their shift, the detectives recognized a parked vehicle that belonged to a local gang member. They drove toward the vehicle as it idled on the side of the street.
Splayed in the Front Seat Reaching on the Floorboard. As the detectives drew closer, a second car caught their attention. It was parked a few meters behind the target vehicle, and its driver-side door was open. Mr. Dorian McMullen sat in the driver’s seat with his legs sticking out the open door. Det. Lampkin found the sight “very odd for that time of night.”
The detectives saw Mr. McMullen look up at their truck and then reach down for something around his car’s floorboard. Det. Lampkin suspected that Mr. McMullen was reaching for a gun.“I carry a gun for my protection, it’s in the vehicle.” The police truck stopped next to Mr. McMullen’s car. Det. Lampkin, sitting in the truck’s passenger seat, rolled down his window. Given the truck’s height, Det. Lampkin didn’t think that Mr. McMullen could see his police vest.
He hopped out of the truck so that his vest and attached badge were clearly visible. Without being asked, Mr. McMullen exited his own car and closed the door behind him. He and Det. Lampkin stood face to face.
A brief conversation took place. “[Y]ou were reaching pretty hard,” Det. Lampkin said. Mr. McMullen, who claims he didn’t feel free to leave, informed the detectives that he had suffered gunshot wounds a few weeks earlier. Det. Lampkin frisked Mr. McMullen for weapons and asked him if he carried a firearm for protection. “[Y]eah, I do,” Mr. McMullen allegedly replied. “I carry a gun for my protection, it’s in the vehicle.” According to the detectives, Mr. McMullen also volunteered that he had crack cocaine in the car.
Footnote 1 The record isn’t clear about precisely when the pat-down occurred. Det. Warnock’s police report recounts that it happened before Det. Lampkin asked Mr. McMullen if he carried a firearm. But Det. Lampkin testified that he didn’t frisk Mr. McMullen for weapons until later in the encounter. That discrepancy does not affect the outcome of this case.
Mr. McMullen is Charged in State Court
During that exchange, Det. Warnock walked around Mr. McMullen’s car and shined a flashlight into the interior. He announced that he could see a gun. The detectives recovered a loaded pistol and some narcotics from the vehicle’s passenger compartment; they arrested Mr. McMullen on state drug and firearms charges.
Firearm Charge is Filed in Federal Court,
Federal authorities charged Mr. McMullen with being a felon in possession of a firearm. Mr. McMullen moved to suppress the gun that police had recovered from his vehicle, arguing that it was seized in violation of his Fourth Amendment rights.
Motion to Suppress is Denied
The district court [federal entry-level court] denied the motion after holding an evidentiary hearing. It found that the detectives had reasonable suspicion to temporarily stop and question Mr. McMullen. The court listed several factors to support that finding: the high-crime neighborhood, the close proximity to a gang member’s car, and Mr. McMullen’s reaching motion toward the car’s floorboard when he saw the unmarked police truck. The district court also found—despite Mr. McMullen’s testimony to the contrary—that Mr. McMullen had told the detectives that he had a gun in his car. The court further decided that, given officer-safety concerns, the detectives lawfully frisked Mr. McMullen and searched the passenger compartment of his car for accessible weapons. Having reached that decision, the court declined to address the government’s alternative argument that the detectives spotted the gun in plain view.
Mr. McMullen pleaded guilty and then promptly appealed. Next, he argues that the detectives had no constitutional basis for searching his vehicle. Thus, Mr. McMullen concludes, the detectives violated his Fourth Amendment rights. We disagree.
Established Case Law
The Fourth Amendment protects the public from “unreasonable searches and seizures.” U.S. Const. amend. IV. Generally speaking, government officers must secure a warrant through the judicial process before conducting a search or seizure. See Katz v. United States, 389 U.S. 347, 357 (1967). That general rule, however, is subject to several well-established exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372–73 (1993). One such exception appears in Terry v. Ohio, 392 U.S. 1 (1968). Terry authorizes police officers to conduct temporary investigative stops without a warrant or probable cause.
To justify a Terry stop, police must have “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417–18 (1981); see Terry, 392 U.S. at 20–21. That “reasonable suspicion” standard demands less than probable cause. Alabama v. White, 496 U.S. 325, 330 (1990). But it isn’t satisfied by a mere hunch. Terry, 392 U.S. at 22.During Terry stops, police officers may take reasonable steps to protect themselves and others from physical harm. For example, officers can perform protective searches for weapons if they reasonably suspect that the stopped individual is “armed and dangerous.” Sometimes, the protective search is limited to a pat-down of the suspect’s outer clothing. But in Michigan v. Long, 463 U.S. 1032, 1049 (1983) the Supreme Court recognized that more expansive protective searches can be appropriate in the “especially hazardous” context of Terry stops involving automobiles.
Officers with the requisite reasonable suspicion may search the passenger compartment of a suspect’s vehicle—including closed compartments—for accessible weapons. That’s true even if the suspect isn’t inside the vehicle at the time. In short, our touchstone for reviewing a Terry stop—both the stop’s inception and any protective searches—boils down to “reasonableness.” Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977). Terry and its progeny seek a sensible balance between legitimate government interests and individuals’ rights to personal security. In striking that balance, courts consider the totality of circumstances in each case. We also afford due weight to reasonable inferences that officers may draw from a given situation in light of their training and experience. See Terry, 392 U.S. 1, 20–21, 27.
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