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Patting down a suspect before transporting him in a patrol car to the scene of a crime for possible identification by the victim does not violate the Fourth Amendment, the 2d U.S. Circuit Court of Appeals has ruled. The court reversed the suppression of a handgun that was found on defendant Dustin L. McCargo and ruled that the pat-down search was constitutional. McCargo never was identified or charged as the perpetrator of the crime for which he was stopped. The issues in U.S. v. McCargo, No. 05-4026, were deemed important enough by federal prosecutors that every U.S. attorney’s office within the 2d Circuit joined in filing an amicus brief in the case. Several federal public defenders’ offices filed a joint amicus on the other side of the question. Buffalo, N.Y., police responding to a call of an attempted burglary on July 28, 2003, stopped McCargo blocks away from the crime scene. After deciding to transport him back to the scene for possible identification, the officers followed department policy by frisking him for weapons before placing him in the patrol car. McCargo was charged with possession of a firearm by a convicted felon. U.S. District Judge John T. Elfvin found that the initial stop of McCargo was constitutional and that there was no problem with the officers’ decision to detain him briefly and take him to the crime scene for possible identification. But Elfvin suppressed the gun, saying the officers lacked reasonable suspicion to pat down McCargo. Writing for the circuit, Chief Judge John M. Walker Jr. agreed that the officers had reasonable suspicion based on the “totality of the circumstances.” Whether they acted reasonably in deciding to transport McCargo to the crime scene was a closer question. While the court “had little trouble concluding that, in some circumstances, police may transport a suspect a short distance in aid” of a stop pursuant to the seminal U.S. Supreme Court precedent in Terry v. Ohio, 392 U.S. 1 (1968), the issue was whether the decision here was reasonable. In concluding that it was, the court cited the government’s strong interest in crime prevention and said it was reasonable for the officers to believe the victim “could have immediately confirmed or dispelled whether he was a suspect.” While the officers could have walked McCargo to the scene, they might have had to leave an officer behind or the patrol car unattended. “In short, taking McCargo to the crime scene by car was reasonable under the circumstances, both by way of resolving the suspicion surrounding McCargo and impinging as little as possible on his Fourth Amendment rights,” Walker wrote. “While in Terry the suspect patted down was suspected of being armed and thus Terry does not control this case on its facts, the reasoning of Terry leads us to the conclusion that the pat-down of McCargo did not violate his Fourth Amendment rights,” he continued. “Paramount” in Terry, he said, was that the Fourth Amendment “should not require the police to investigate crime with their safety unduly at risk.” Unlike the facts in Terry, he said, officers who transport a suspect back to the scene of a crime are less able to protect themselves from violence. “The suspect and the officers are in close proximity to each other for the duration of the transportation; the suspect sits behind them, a few feet away in the rear of the car, frequently separated only by a wire grate,” Walker said. “And the suspect is not subject to the officers’ immediate physical control or restraint: if the suspect turns out to be armed, the police are at his mercy.” In all, he said, “Permitting a limited frisk for weapons before placing a suspect in a police car, pursuant to an established policy, reflects an appropriate balancing of the interests at stake.”

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