First Circuit Overrules Actual-Fear Test for Warrantless Protective Searches
In United States v. Guerrero, No. 21-1244 (1st Cir. Dec. 6, 2021), the First Circuit held that the actual-fear test described in United States v. Lott, 870 F.2d 778, 783-84 (1st Cir. 1989) is no longer controlling given subsequent Supreme Court decisions. That is to say, a warrantless protective weapons search of suspects in vehicles and the area within their grab space is permissible under the Fourth Amendment if it is objectively reasonable, even where the police officers conducting the search do not actually fear for their safety.
A bit of background is in order. Police officers may stop a person where the officers have reasonable suspicion of imminent criminal conduct and also may frisk him based on reasonable suspicion that he is armed and dangerous. See Terry v. Ohio, 392 U.S. 1 (1968). Courts judge Terry stops based on an objective standard; a stop and frisk is permitted where a reasonably prudent person in the circumstances would fear danger to herself or others. The Supreme Court later extended Terry stops to also allow police officers to conduct a protective car frisk where they reasonably fear that a suspect could immediately access weapon. See Michigan v. Long, 463 U.S. 1032 (1983). In 1989, the First Circuit found that a police officer cannot have a reasonable suspicion that a person is armed and dangerous if she does not actually fear that a weapon is present. See United States v. Lott, 870 F.2d 778 (1st Cir. 1989). The First Circuit therefore required that protective car searches pass both an objective test and a subjective actual-fear test.
Police in Providence, Rhode Island responded to a shots fired call from a laundromat in October 2019. Officers began following a vehicle seen racing from the scene and signaled for the driver to pull over. The driver did not initially comply, instead making several quick turns. The vehicle eventually stopped and officers approached with guns drawn and ordered the driver and passenger to get out. The passenger did so but the driver – Mr. Guerrero – did not comply until he was told several times to get on the ground. A search of the vehicle turned up a magazine loaded with bullets.
Mr. Guerrero was charged with unlawful possession of ammunition under 18 U.S.C. § 922(g)(1). He moved to suppress the bullets seized in the search of the vehicle. The trial judge granted the motion, finding that the government had met Lott’s objective prong but had failed to show that officers actually feared Mr. Guerrero posed a danger.
On reconsideration and on appeal, the government argued that Lott’s actual-fear test was no longer good law considering two subsequent Supreme Court cases. First, in Maryland v. Buie the Supreme Court held that officers conducting an in-home arrest with a warrant could conduct a warrantless protective sweep when a reasonably prudent officer would be justified in believing that the dangerous third party lurked in the area to be swept. See 494 U.S. 325 (1990). Later, the Supreme Court noted in Whren v. United States that – with few exceptions – a police officer’s motive does not invalidate an objectively valid stop or search. See 517 U.S. 806 (1996).
Reviewing de novo, the First Circuit agreed with the government and abrogated the Lott actual-fear test. In doing so, the Court emphasized that reasonableness under the Fourth Amendment is nearly always measured by an objective test. An objective inquiry recognizes that the Fourth Amendment regulates conduct rather than thoughts and promotes uniform enforcement of the law.
Guerrero is a rare example in which a First Circuit panel overturned a previous panel decision. It did so under the second exception to the “law of the circuit” rule, which ordinarily requires panels to follow the holdings of previous panel decisions. That doctrine does not apply when either (1) a directly on point Supreme Court decision, en banc First Circuit decision, or a statutory enactment overrule the previous panel decision or (2) subsequent Supreme Court cases, although not directly controlling, provide a clear and convincing basis to believe the earlier panel would have made a different decision. After Buie and Whren, the Guerrero panel concluded that Lott would have come out a different way.
Lott allows police to conduct a protective car frisk even where officers do not actually fear that a suspect will access a weapon.This is the latest in a line of decisions allowing police to conduct pretextual searches and seizures and thereby narrowing Fourth Amendment protections.