Stop and Frisk Ok'd for Man at Scene of Burglary With Beer, Gun

The police get a call. Someone is banging on the windows and trying to break into a house.

They respond. A guy is outside, holding a beer, and knocking on the door. He says that he is "here for [his] people." The police ask him to stop, frisk him, and find a .38 caliber revolver. Except he was there for his people, as in to help his people.

And he was a felon in possession of a firearm.

One S&F is Not Like the Other

Stop and frisk has gotten a bad rap lately, in large part due to the New York Police Department's controversial use and abuse of the procedure to investigate minorities who engage in "furtive movements" in troubled neighborhoods.

That scenario isn't present here. The cops were called because someone was huffing, puffing, and threatening to blow the house down. When they arrived, someone was banging on the door. This is exactly the scenario where a Terry stop and frisk is called for.

The Terry Two-Step

In Terry, the Supreme Court upheld 'stop and frisk' as constitutionally permissible if two prerequisites are met:

First, the investigatory stop must be lawful. In a street encounter, the police officer must reasonably suspect that the person to be stopped is committing or has committed a criminal offense. It's reasonable to assume that a person, holding a beer, and beating on a door, is the same person who was beating on the windows and trying to break in that necessitated the police officers' trip to the house.

Second, to get frisk-y, the officer must reasonably suspect that the person is armed and dangerous. Is it reasonable to suspect that a person who appears to be breaking in to a house is armed and dangerous? We'd think so. So have the Seventh, Fifth, D.C., First, and Fourth Circuits.

The occupants of the house, who knew the defendant, claimed that they shouted out to the officers that he was not the big bad wolf that tried to break in earlier, but the officers testified to the contrary. In suppression hearings, disputed facts are taken in a light most favorable to the government.

It was a case of mistaken identity. Unfortunately for the defendant, it was a reasonable mistake.

Related Resources:

• United States v. McMullin (Sixth Circuit Court of Appeals)
• The Curious Marijuana Case of USA v. Gerald and Jeremy Duval (FindLaw's Sixth Circuit Blog)
• Judge Benchslapped: Failed to Recuse Juror in Child Porn Case (FindLaw's Sixth Circuit Blog)