United States v. Canada.
No. 21-3202. 8/8/2023. D.Kan. Judge Carson. Warrantless Search—Protective Sweeps—Fourth Amendment Search and Seizure—Reasonable Suspicion.
August 8, 2023
Police officers Jensen and Sanders conducted a proactive patrol in a high-crime area on a rainy night. They engaged their emergency lights after Canada’s automobile failed to signal a turn. Canada took about 14 seconds to stop his vehicle. Officers Jensen and Sanders approached from the driver and passenger sides of the vehicle. On the passenger side, Officer Jensen saw Canada strenuously arch his hips and reach his right arm under the rear of his seat, and this furtive movement caused Officer Jensen to order him to show his hands. Officer Sanders then removed Canada from the vehicle, frisked him, and found nothing. Canada was moved to the rear of his vehicle but was not handcuffed. Officer Jensen then conducted a protective sweep under the driver’s seat, where he discovered a loaded .38 Special. The officers then ran a records check and discovered that Canada was prohibited from possessing a firearm and had a revoked license. Canada was arrested and charged with one count of possession of a firearm by a felon. He moved to suppress the firearm, and the district court denied his motion. Canada then entered a conditional guilty plea, reserving the right to appeal the district court’s denial.
On appeal, Canada argued that the district court erred in denying his motion to suppress because reasonable suspicion cannot arise from furtive movements alone, so the warrantless protective sweep that uncovered the firearm was unconstitutional. The denial of a motion to suppress is analyzed under the totality of the circumstances. A warrantless search is reasonable in certain protective sweeps of vehicles for officer safety. To lawfully conduct a protective sweep, an officer must have reasonable suspicion, which demands less than probable cause, that a suspect poses a danger and may gain immediate access to a weapon. Under existing caselaw, a trained officer’s recognition of a slow roll contributes to the totality of the circumstances. Here, when Officer Jensen exited the patrol car, he commented that the stop appeared to be “a little bit of a slow roll here.” This comment, recorded on the dashcam, was a contemporaneous observation from a trained officer indicating that the officer recognized the slow roll in this case as suspicious. Even though Canada cooperated with the officers, his furtive movement combined with the slow roll was enough for the officers to reasonably suspect that Canada was dangerous and had access to a weapon. Accordingly, the district court did not err in denying the motion to suppress.
Canada also argued that when the officers conducted the sweep, they did not know if they would arrest him; and until officers decide they will release a suspect, a protective sweep is unavailable. A protective sweep should protect officers during a stop but also should protect them once they release a defendant back to his vehicle. Here, at the time of the sweep, the officers had reason to believe they would not detain Canada after the investigation. However, Canada was not constrained and could have broken away from the officers, so the situation gave the officers reasonable suspicion. Under these conditions, the Fourth Amendment permits protective sweeps.
The judgment was affirmed.