Contact Us

Buster and Warantless Search

In Buster, the court determined that the motion to suppress was improperly denied as the gun was no longer near the defendant.

FACTS:  Warrantless search of bag possessed by person who was handcuffed and face-down on the ground

Buster was believed to be a suspect in a domestic assault.  After refusing a consensual encounter with the officers Buster “took off running,” tripped and fell.  He was wearing a “single strap bag that goes across your body” and the pouch ended up in front of Buster when he fell.  

Buster said that the bag’s strap was choking him so the officers cut the strap, grabbed the bag and removed it from Buster’s person.  The bag felt “hard to the touch” and the officers opened the bag and found a gun and a box of ammunition.  More bullets were found in his pants. 

The officers asked Buster questions before reading him his Miranda warnings.  Then they gave him his Miranda warnings and then asked the same questions that they discussed in the pre-Miranda interview.   

Buster was charged with felon in possession of a firearm in federal court.  He filed a motion to suppress the firearm, the ammunition and several statements.  The court granted the motion to suppress the post-Miranda statements but denied the rest of the motion.  The court stated that the initial stop was valid because “the officers had reasonable suspicion that Buster was the suspect in a reported domestic assault incident potentially involving a gun.” Further, “the pat-down of Buster’s person and the search of his bag were reasonable” because “the officers had reason to believe they were dealing with an armed and dangerous person.”  

Buster engaged in a conditional plea where he kept the ability to appeal the denial of the motion to suppress.  Buster was found guilty and sentenced to 51 months imprisonment.

HOLDING:  The District Court's denial of the Motion to Suppress was Incorrect

REASONING:  The District Court gave one reason for denying the motion to Suppress:  

Specifically, the district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine associated with Terry v. Ohio, 392 U.S. 1 (1968).

Terry allows for warrantless searches only under certain circumstances:

Indeed, Terry itself states that such searches may lawfully be conducted as part of an investigatory stop only when an officer “reasonably . . . conclude[s] in light of his experience” that “the persons with whom he is dealing may be armed and presently dangerous.”... For that reason, “a protective search—permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.”

However by the time that the officer was going through Buster’s bag, Buster was already handcuffed and away from the bag.  

“When the officer opened Buster’s bag (thus beginning a “search” of the bag), Buster was handcuffed on the ground and had no access to it. Indeed, the record is clear that the officers opened the bag and examined its contents after they had tackled Buster, handcuffed him, cut the bag off his body, and “move[d] it away from his person…Having already used significant force to secure the scene for safety purposes, the officers cannot leverage the safety rationale into a justification for a full-scale search.”

The court indicated that because the only justification in why the the bag was away from Buster was because of the need to do so for officer’s safety and because at the time of the search there was no danger to the officer’s safety, the denial of the motion to suppress was inappropriate: 

“We hold only—but importantly—that a doctrine authorizing a limited warrantless search to protect officer safety cannot be stretched to cover situations where there is no realistic danger to officer safety. Accordingly, we reverse the district court’s denial of Buster’s motion to suppress the firearm.”

The court held that the firearm should have been suppressed and that Buster must have a chance to withdraw his guilty plea.  No. 21-4101

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
Contact Us