United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR., JUDGE.
the Court is the Magistrate Judge's Report and
Recommendation (Doc. 33), to which objections have been filed
(Doc. 36). After careful de novo review of the record in this
case, the report and recommendation is
ADOPTED as the Court's opinion.
Accordingly, Defendant's Amended Motion to Suppress (Doc.
25) is DENIED.
Jimmie Alexander was indicted for possession of a firearm as
a convicted felon on April 6, 2017. (Doc. 1.) He was arrested
after two police officers noticed a vehicle stopped at a stop
sign for an unusual amount of time and decided to conduct a
wellness check on the vehicle's occupants. As one of the
officers approached the passenger side of the vehicle, he
noticed that Defendant appeared to have a firearm in his
waistband. From this point, the parties dispute the exact
sequence of events. One of the officers testified that he
immediately asked Defendant if he was armed and asked him to
place his hands on the dash of the vehicle after Defendant
denied possessing a firearm. Defendant, however, contends
that the officer did not ask him about the firearm, but,
instead, immediately ordered Defendant to place his hands on
the dash of the vehicle. Defendant contends that this order
constituted an improper seizure by the officer. Defendant
argues that possession of a firearm alone was insufficient to
justify the officer's order for Defendant to place his
hands on the dash of the car. As a result, Defendant contends
that the gun was seized during an unlawful search and should,
therefore, be suppressed.
report and recommendation, Magistrate Judge Smith recommends
that Defendant Jimmie Alexander's motion should be
denied. (Doc. 33.) Magistrate Judge Smith concluded that the
officers acted reasonably both when they asked Defendant to
place his hands on the dash of his vehicle and when they
later seized the firearm. In his objections, Defendant
challenges only Magistrate Judge Smith's conclusion that
the officers acted reasonably by asking Defendant to place
his hands on the dash of his vehicle after seeing the gun in
his waistband. In his objections, Defendant contends that the
officers had no reasonable suspicion justifying their
request. Defendant argues that because Georgia law permits
individuals to carry guns, his open possession of a firearm
would not give the officers any legitimate basis from which
to order him to place his hands on the dash of a vehicle.
Accordingly, he contends that the officers' actions
violated his Fourth Amendment rights.
officer can only conduct an investigatory stop of an
individual when that officer has reasonable suspicion that
the individual has engaged in criminal activity. Terry v.
Ohio, 392 U.S. 1, 30 (1968). A protective frisk,
however, is fundamentally different from an investigatory
stop and does not require reasonable suspicion of
criminality. United States v. Bonds, 829 F.2d 1072,
1074 (11th Cir. 1987). A protective frisk "does not
always result from, nor is it necessarily a part of, any
focused investigation of the individual." Id.
Rather, a protective frisk can occur "when an officer
legitimately encounters an individual, whether he is
investigating that individual or not, the officer may
reasonably believe himself to be in danger and may wish to
determine quickly whether that person is armed."
case, the officers were well within their authority to
conduct a wellness check to determine whether the
vehicle's occupants were safe. The facts show that the
wellness check occurred late at night in a high crime area.
The Court finds that it was reasonable for the officers to
conduct a protective frisk after noticing a firearm in
Defendant's waistband. The officers acted out of concern
for their safety by asking Defendant to place his hands on
the dash of the vehicle.
the Court must consider that this encounter occurred while
Defendant was inside a stopped vehicle. Courts routinely
emphasize the increased danger to officer safety during
traffic stops. See Michigan v. Long, 463 U.S. 1032,
1047 (1983) . While there was no traffic stop in this case,
officers were approaching a vehicle where the same unknowns
to their safety existed. In this case, the officers reacted
only when noticing that the passenger of the vehicle was
armed. They reasonably requested that Defendant place his
hands on the vehicle's dash to minimize any potential
foregoing reasons, the Court finds that the officers did not
violate Defendant's Fourth Amendment rights when they
asked him to place his hands on the dash of the
vehicle. Accordingly, the Magistrate Judge's
Report and Recommendation is ADOPTED as the
Court's opinion. Defendant's Amended Motion to
Suppress (Doc. 25) is DENIED.
 Defendant fails to provide a clearly
stated objection to the Magistrate Judge's finding that
the firearm was properly seized after the Defendant denied
having possession of the clearly visible firearm. Regardless,
the Court agrees with the finding in the report and
recommendation that the officers acted lawfully at this
point. Because Defendant denied possession of a firearm that
the officers could clearly see, the officers had reasonable