Should the passenger's motion to suppress the seized evidence be granted?

Solution Preview

Please see response attached, which is also presented below. I hope this helps and best of luck!

1. Scenario 1: Search and Seizure
Two police officers were patrolling in a high-crime neighborhood. They noticed a parked car with two people inside (a driver and a passenger). The officers saw a young woman leaning into the passenger's window and handing the passenger an object, which they could not identify. At this point they approached the car and the woman began to walk away.

One of the officers noticed the passenger making a "shoving down" motion, leading the officer to believe that the passenger might be armed. The officer drew his gun and shouted, "let me see your hands." After making more shoving down motions, the passenger complied. The officer reached into the car and touched a bulge in the passenger's pocket. He felt large, hard objects, which he believed to be rocks of crack cocaine. He then removed a plastic bag from the pocket. It contained several rocks of crack cocaine that, together with another rock found in the passenger's clothing, totaled almost 100 grams. The passenger was arrested, but the driver and the woman standing outside it were not.

Should the passenger's motion to suppress the seized evidence be granted?

ISSUES: Did the police officer possess a reasonable belief based on "specific and articulable facts", that the suspect is dangerous and the suspect may gain immediate control of weapons? Was the officer's search of the defendant's person, unconstitutional and did he need a search warrant? Did it invade his privacy? http://www.nolo.com/article.cfm/objectID/DED24689-ADA8-4785-887A0B4A19A694DE/104/143/127/ART/

Assuming the initial routine check was valid, you might consider whether the seized evidence (e.g., drugs) was linked to the original reason for the routine check. The officer's justification of his search of his person was based on his opinion that the passenger was making a "shoving down" motion and he suspected that he was hiding a gun. State v. Pearson, 348 N.C. 272, compels the conclusion that the trooper's suspicions, even if genuine, did not reach the level of reasonable and articulable suspicion. http://www.aoc.state.nc.us/www/public/coa/opinions/1999/980393-1.htm

This might not apply here, though, if we argue that the officer observed the young woman handing the passenger an object and then walked away which could be argued that it reached the level of reasonable and articulable suspicion. However, since the officer justified his actions of pulling his gun and searching the passenger's person without a warrant because of the passenger's "shoving down" motion, not because the young women had handed him an object.
In another similar case: State v. Braxton, 90 N.C. App. 204, 207, 368 S.E.2d 56, 58 (1988), the court's held that "gestures which are not clearly furtive are insufficient to establish probable cause for a warrantless search unless the officer has other specific knowledge relating to evidence of crime." In Braxton, the defendant was speeding and initially refused to stop for the officer's blue light. When the officer sounded his siren, the officer observed the defendant put something under the seat. The defendant then stopped the car, but when the officer exited the car, the defendant ...