Furtive Gesture & Nervousness Not Enough For A Frisk – State v. Potter (UNP)

Earlier today, the Appellate Division released an UNPUBLISHED opinion in State v. Potter, a search and seizure case. In Potter, the police executed a search warrant to look for counterfeit checks, a non-violent offense. The defendant was present in the residence when the police began their search. He was wearing a long, bulky winter coat and had a cell phone in his hand. When the defendant saw the police enter the kitchen area where he was seated, he rapidly stood up and appeared to be extremely nervous. This set of facts prompted the police to conduct a frisk of the defendant for weapons. As a result of the frisk, the police recovered CDS.

The Court ruled that mere nervousness and a furtive gesture, especially in the context of an investigation for a non-violent offense, does not provide the police with a reasonable suspicion that the subject of the frisk may be armed.

Download a copy of the UNPUBLISHED decision in State v. Potter

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