Might be time to use that Maryland Law License.

Arvin Phillip Johnson was convicted of possession of a controlled substance in Marion County in March of 2009.  He was found to be in possession of .7 grams of cocaine.  On its face, an unremarkable case.  I generally do not read all that closely the affirmed decisions that do not have a dissenting opinion attached, but there was a dissenting vote so I took a look.  Wow.

My former, and at time of the incident, current employer, the Mississippi Bureau of Narcotics did a routine buy/bust in Marion County in 2006.  They wired up the CI to go and purchase marijuana from “Teddy”.  The CI went to the convenience store where Teddy worked, bought the marijuana from Teddy’s supplier and left.  One team of agents followed Teddy’s supplier, who left after the deal, and the other team, three agents per team, met the CI and then went to the convenience store to arrest Teddy.  In the intervening minutes another car, driven by Johnson, pulled up to the store.  When the agents got out they placed both Teddy and Johnson on the ground and handcuffed them.  On the ground and handcuffed them.

Agents then searched the two men and found no weapons, no drugs, and no marked money on either.  The agents then searched Johnson’s car.  Johnson’s attorney, during the hearing on the motion to suppress, questioned Jon Harless of MBN and under cross-examination, Agent Harless testified that Johnson was not under arrest at the time the vehicle was searched and that he was handcuffed on the ground.  In fact, they had no information on Johnson at all.  They searched Johnson’s car and found .7 grams of cocaine in the visor of the vehicle.  The Court of Appeals found that the search was reasonable to ensure officer safety.  The Court correctly cites to Arizona v. Gant, a U.S. Supreme Court case that says:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of anarrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

The Court found that since Johnson was not handcuffed in the back of a police car, merely handcuffed on the ground, he could still have somehow gotten to a weapon.

The Court goes on to cite to the 5th Circuit in U.S. v. Sanders

The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:Handcuffs are a temporary restraining device; they limit but do not  eliminate a person’s ability to perform various acts.  They obviously do not impair aperson’s ability  to  use his legs and feet, whether to  walk, run, or kick.Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors,including the handcuffed person’s size, strength, bone and joint structure,flexibility, and tolerance of pain.  Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim,to a bystander, or even to himself. Finally, like any mechanical device,handcuffs can and do fail on occasion.

As was very astutely pointed out to me, one mechanical device, i.e handcuffs is not enough to suppress a search, but two, i.e. handcuffs and a car door, are.

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