Some prosecutorial creativeness was on display in the 2nd District’s decision last week in State v. Cherry.  As some of you may know, but most of you probably don’t (I didn’t), a weapons under disability charge can arise if you’ve got a gun while you’re a “fugitive from justice.”  In Cherry, the police had been called to the scene of a burglary in process, and wound up chasing the defendant’s car.  He ran into a ditch, and he and his accomplice booked it from there, but were quickly apprehended.  The cops found a gun in the car, and charged him with weapons under disability under the fugitive from justice section.  The basis for claiming he was a fugitive?  His fleeing from the police during the burglary.  The court of appeals bought it.  Not to give anybody around here ideas…

The 2nd District made up for that with another decision last week, in State v. Boyce.  Boyce had been identified as a suspect in a string of burglaries, and when the police observed him walking on the sidewalk about four blocks away from a burglary that had just been reported, they stopped him, handcuffed him, and patted him down.  The frisk produced a wristwatch which Boyce claimed was his.  The police didn’t buy it, Mirandized him, and took him to the station.  Thirty minutes later, they identified the watch as having been stolen in the recent burglary.  Boyce was ultimately convicted of tampering with evidence, burglary, and eight counts of receiving stolen property, for which he was sentenced to seventeen years in prison.  That’s right, seventeen years; as I mentioned last week, that’s apparently the way they do things in Clark County.

And apparently, this is the way trial judges handle the 4th Amendment down there; from the lower court’s entry:

A reasonable, prudent person in Detective Jacob’s position could certainly believe that his safety, or the safety of others, was threatened when he stopped the defendant. It was reasonable for Detective Jacobs to believe that the defendant had just committed a burglary and that he was armed. Accordingly, Detective Jacobs was justified in patting the defendant to see if he had any weapons on his person. Furthermore, it is reasonable to believe that a hard object, like a watch, could be a knife or some other kind of weapon. Therefore, Detective Jacobs was justified in removing the watch from the defendant’s left front pants pocket.

Handcuffing the defendant in the course of Detective Jacobs’ ’stop and frisk’ did not convert the detention into an arrest since the handcuffing was reasonable under the circumstances. The restraint was temporary and lasted no longer than was necessary for Detective Jacobs to determine if the watch had been removed from the burglarized home. Handcuffing the defendant maintained the status quo and prevented the defendant from fleeing. Once the victim identified the watch, probable cause existed for an arrest.

Fortunately, the 2nd District decided that the appropriate test for a search was not what a reasonable Gestapo agent might believe.  Although Boyce had conceded the reasonableness of the stop (a questionable concession, in my view), the appellate court noted that the stop and the frisk were two separate procedures, and nothing warranted the police in concluding that Boyce was “armed and dangerous”; in fact, the court pointed out that the testimony indicated nothing more than that this was simply the normal procedure of the police.  It also found that the 30-minute detention to determine whether the watch was stolen was improper, too.