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Is That a C-Cell Battery in Your Pocket ...?

By Robyn Hagan Cain on October 03, 2012 | Last updated on March 21, 2019

In case you were wondering, cops can make small talk with your client during a Terry search.

The Eleventh Circuit Court of Appeals ruled on Tuesday that a constitutionally-valid stop and frisk does not become unreasonable under the Fourth Amendment when the officer asks some brief questions unrelated to the reason for the stop and the purpose of the frisk.

After all, who could object to shooting the breeze with the fuzz while getting a patdown?

Officer Jay Edwards stopped Kareen Griffin at a Jacksonville strip mall after a store security guard said that someone matching Griffin's description had attempted to steal clothing. While Edwards frisked Griffin, he felt what he "believed to be" C-cell batteries in Griffin's back left pocket.

Because he "wasn't exactly sure what [the items] were," and because "it was odd that someone was carrying around ... C-cell batteries," Edwards asked Griffin, "Hey, what's in your pocket? Why do you have batteries?" Griffin responded that the items were shotgun shells and not batteries. Officer Edwards then asked Griffin if he had ever been to prison, and Griffin answered "yes."

It's illegal, of course, for a felon to possess a weapon or ammunition, so Edwards arrested Griffin.

Griffin moved to suppress the ammunition and his statements. The district court granted the motion, finding that the initial stop was proper, but -- even assuming that the ensuing frisk was permissible -- Officer Edwards' questions to Griffin were unrelated to the attempted theft or the frisk for weapons. The district court reasoned that, because the shotgun shells were not themselves contraband or evidence of a crime, Edwards' further investigation went beyond the scope necessary to ensure safety; as a result, the court suppressed Griffin's statements and the shotgun shells as "fruits of the poisonous tree."

The Eleventh Circuit Court of Appeals completely disagreed.

Siding with its sister circuits, the appellate court noted that Supreme Court precedent in Mena and Johnson make it clear that unrelated questioning during an investigative stop does not run afoul of Terry's scope component. According to the Eleventh Circuit, the real issue was whether the time it took Edwards to ask two questions "measurably" extended or prolonged the stop so as to make it unreasonable under the Fourth Amendment.

The appellate court reasoned that 30 seconds of questioning did not constitute an unreasonable delay.

The court further concluded that the district court was mistaken in its belief that the questions constituted a Fourth Amendment search, noting that "questions posed by a police officer to a suspect about what he has in his pocket and whether he has been to prison are not, in the Fourth Amendment sense, a search."

How can a felon avoid a similar fate? First, he shouldn't carry ammo in his pocket. Second, it's best to ask, "Am I free to go," and "Do I have to answer that," before providing information to the police.

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