Author: Duane Wolfe
By Scott Sandlin Albuquerque Journal
ALBUQUERQUE — "Routine" traffic stops are often anything but that, the 10th Circuit Court of Appeals observes in affirming an Albuquerque Police Department officer’s decision to reach into a suspect’s pants pockets during just such a stop.
Every year, thousands of law enforcement officers are assaulted, and many are killed, in what at first seem like routine stops for relatively minor traffic infractions, the court said in an recent opinion.
"This case asks us to address what an officer may lawfully do to guard against adding himself to those regrettable statistics," it said.
"The Fourth Amendment is not a game of blind man’s bluff," Appeals Court Judge Neil Gorsuch wrote in response to the defense argument that an officer may not take objects from a suspect’s pockets when he had no idea what they were.
"It doesn’t require an officer to risk his safety or the safety of those nearby while he fishes around in a suspect’s pockets until he can correctly guess the identity and risks association with an unknown object."
Brian Pori of the Federal Public Defender Office had urged the trial judge, James O. Browning, not to allow prosecutors to use as evidence narcotics paraphernalia and a gun found during a search of Ivan Rochin by APD Officer Joe Moreno in January 2010.
Pori contended the search was unlawful because it went too far. Rochin was charged in federal court with being an alien in possession of a firearm and ammunition. He entered a conditional plea that allowed him to appeal the district court ruling.
Browning had ruled that the officer had reasonable suspicion to believe Rochin was armed and dangerous at the beginning of the patdown, and refused to throw out the evidence.
Moreno was on patrol at 2:30 a.m. when he ran a registration check on the white Mitsubishi with California plates Rochin was driving. The officer found the plates were registered to a 1988 Ford with a suspended registration.
Moreno was presumably advised by the dispatcher to use caution approaching the vehicle because the driver – who wasn’t described – had allegedly been involved in a drive-by shooting, the opinion said. Moreno pulled Rochin over, did a pat-down and found a bulge in Rochin’s pocket he asked him to identify.
When Rochin didn’t comply, Moreno removed the object and found a glass pipe and tube with a green, leafy substance in one pocket and a bubble pipe with crystal residue in the other.
Their exchange was complicated by the fact that Rochin, an illegal immigrant, didn’t speak English and Moreno spoke limited Spanish.
Moreno arrested Rochin for drugs and, during an inventory of the car before towing, found a 10 millimeter Colt semiautomatic pistol.
Rochin didn’t contest the initial stop, only the continued exploration into his pockets after Moreno had concluded there wasn’t a weapon and the broadened search for any evidence of a crime.
Assistant U.S. Attorney Norman Cairns argued that Moreno was within bounds to conduct a brief pat-down, during which he found the marijuana pipe and tube with residue.
Copyright 2011 Albuquerque Journal
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