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Cop Stop: 6th Circuit Amends Opinion to Address Open Container

By Tanya Roth, Esq. | Last updated on

When can a cop do a stop?

According to the Sixth Circuit Court of Appeals last week, there are three types of permissible encounters with an officer. Last week, the Sixth Circuit issued an amendment to an October 2010 decision involving a motion to suppress evidence obtained from an illegal stop. The amendment includes some additional discussion by dissenters on the open container law in a case that involved an illegal stop.

But let's backtrack a bit and start at the beginning.

In Gross v. U.S., a man was found in a legally parked car by a police officer. Prior to approaching the man, the officer ran a warrant check on the owner of the car and the check came out clean. The officer then came up close to the vehicle and talked to the man inside, noticing a bottle of cognac on the passenger seat. When he ran a warrant check on the man in the parked car, he found an outstanding felony warrant for carrying a concealed weapon and he arrested the man.

Moving on to the police station, the man snuck a weapon into the station and the weapon was discovered. Eventually, he admitted to bringing the firearm into the station but on trial, moved to suppress "all evidence obtained after the initial stop of the Defendant."

The motion was denied by the district court so he plead guilty and in his plea agreement, reserved the right to appeal the district court's denial of his motion to suppress.

Now, going back to the three way to meet a cop, as outlined in the decision and stemming from United States v. Avery:

  1. The consensual encounter, which may be initiated without any objective level of suspicion;
  2. The investigative detention, which, if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity;
  3. The arrest, valid only if supported by probable cause.

So which one of these did the Sixth Circuit Court of Appeals say that the Gross case events fell into?

If, given the circumstances, the individual didn't feel free to leave, then the court said that the encounter would amount to an investigative stop. Given the circumstances here (the blocking of the man's car by the officer), the stop was deemed an investigative stop and reasonable suspicion needed to exist for the stop.

The Sixth Circuit held that the stop was not a legal stop, despite the fact that the officer subsequently discovered an outstanding arrest warrant.

What did the Sixth Circuit say about the open container of cognac on the front seat? While the dissenters said that the observation of the open container sufficiently attenuated the evidence from the illegal stop, the majority opinion held that the open container was a fruit of the illegal stop, as opposed to a new, distinct crime.

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