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Ninth Circuit:
Officers’ ‘Stop-and-Frisk’ Right Doesn’t Extend to Searching Detainee’s Pocket
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals ruled yesterday that the right vested in officers to frisk a suspect for weapons does not extend to reaching in the person’s pocket, holding that fruits of such a search must be suppressed.
Circuit Judge Daniel P. Collins wrote the opinion which reverses the conviction of James Antonio Brown for possession of heroin with intent to distribute based on the denial of his suppression motion by Superior Court Judge Janis L. Sammartino of the Southern District of California.
Two El Cajon police officers, Robert Wining and Robert Nasland, came to the parking lot of a downtown Econo Lodge motel after a staff member of the motel reported suspicious activity on the part of transients. The officers encountered Jon Barlett, who matched the description of a person provided by the caller, and Brown.
The officers chatted with the two men for about seven minutes when Wining saw Brown reach into his right pocket with his index finger. At that point, he required Brown to turn around, used one hand to hold Brown’s arms behind his back and fished a plastic bag out of his right pocket with the other hand.
It contained heroin.
Brown moved for suppression of the evidence based on the U.S. Supreme Court’s 1968 decision in Terry v. Ohio which authorizes officers to stop suspicious persons and conduct a brief investigation, including conducting a protective patdown search for weapons.
Proper Seizure
Collins declared that there was proper seizure, but an improper search.
“Having reviewed the record evidence, including the videotape of the incident, we conclude that Wining’s encounter with Brown and Barlett did not ripen into a seizure of Brown until the point at which Wining ordered Brown to stand up and turn around,” he wrote.
That seizure “was justified,” he said, “because, by that tune, Wining had developed reasonable suspicion that Brown was engaged in a drug transaction with Barlett.”
The search, however, was an impermissible one, Collins concluded, explaining that “in conducting the limited protective search for weapons that Terry authorizes, the officer here did not perform any patdown or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket.”
He said that under the Supreme Court’s 1968 decision in Sibron v. New York, a companion case to Terry decided the same day, “the officers search of Brown’s pocket exceeded the limited scope of what Terry permits and was therefore unreasonable under the Fourth Amendment.”
Limited Authorization
Collins noted that what Terry authorizes is a search for weapons. He quoted the opinion in Sibron as saying that the “search for weapons approved in Terry consisted solely of a limited parting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.”
The jurist went on to say:
“The Government notes that courts have not required that officers employ a patdown as the sole initial method of conducting a protective search under Terry. This observation provides no basis for evading Sibron here. The Government cites no case in which the Supreme Court or this court has ever upheld a pocket search as the initial means of conducting a protective search of a fully compliant detainee during a Terry stop. Moreover, the cases that have upheld initial methods, other than a patdown, for conducting a protective search only serve to highlight the unreasonableness of the initial pocket search here.”
The case is United States v. Brown, 19-50250.
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