United States v. Iev, Juvenile Male

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10337
Plaintiff - Appellee,
D.C. No.
v. 4:11-cr-00929-
DCB-JJM-1
I.E.V., JUVENILE MALE,
Defendant - Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
April 18, 2012–San Francisco, California
Filed November 28, 2012
Before: Alex Kozinski, Chief Judge, N. Randy Smith,
and Morgan Christen, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Chief Judge Kozinski
2 UNITED STATES V . I.E.V.
SUMMARY*
Criminal Law
Reversing the district court’s denial of a motion to
suppress evidence obtained through a frisk after a vehicle
stop, the panel held that the Terry frisk was not justified at its
inception and exceeded the scope of an appropriate Terry
frisk.
Dissenting, Chief Judge Kozinski wrote that the majority
opinion is wrong and dangerous.
COUNSEL
John D. Kaufmann, Tucson, Arizona, for Appellant.
Craig H. Russell (argued), Office of the United States
Attorney, Tucson, Arizona; Vivian H.W. Wang, United States
Department of Justice, Washington, D.C., for Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . I.E.V. 3
OPINION
N.R. SMITH, Circuit Judge:
Where an officer reasonably believes that “the persons
with whom he is dealing may be armed and presently
dangerous,” the officer may conduct a frisk or “pat-down”
search of that person. Terry v. Ohio, 392 U.S. 1, 30 (1968).
For a frisk to be valid, under this exception to the general rule
requiring probable cause, the frisk must be both (1) “justified
at its inception,” and (2) “confined in scope” to a “carefully
limited search of the outer clothing . . . in an attempt to
discover weapons which might be used to assault” an officer.
Id. at 20, 29-30. However, a frisk is not valid if it is a general
exploratory search motivated out of a desire “to prevent the
disappearance or destruction of evidence of crime.” Id. at 29.
The Terry frisk here failed on both counts and amounted
to nothing more than a prohibited fishing expedition for
evidence. The police officers had no particularized
suspicions directed at the unthreatening Defendant to justify
the frisk at its inception. In addition, the searching officer
exceeded the lawful scope of the frisk by lifting the
Defendant’s shirt to retrieve an object, because there is no
evidence that the searching officer immediately recognized
the object as a weapon or an unlawful item; the searching
officer did not testify. Therefore, we REVERSE the district
court’s decision and REMAND with instructions to grant the
Defendant’s motion to suppress. Because we reverse on this
issue, we do not address the other issues raised by the
Defendant.
4 UNITED STATES V . I.E.V.
I. FACTS AND PROCEDURAL HISTORY
I.E.V., a juvenile male (“the Defendant”), appeals the
district court’s denial of his motion to suppress evidence
gained through a frisk after a vehicle stop. The Defendant
was a passenger in a vehicle driven by his brother, Joseph
Mendez, when they entered the United States Border Patrol
Checkpoint near Whetstone, Arizona, about 100 miles from
the Arizona/Mexico border. There is no evidence that
Mendez and the Defendant crossed the border on the day in
question. As the vehicle entered the primary inspection area
of the checkpoint, a police dog displayed alert behavior that
indicated the presence of a controlled substance or concealed
humans in the vehicle. Because of this alert, the vehicle was
sent to secondary inspection where Mendez and the
Defendant were asked to exit the vehicle by Officer Cooper.
After exiting, the canine did not alert on the Defendant or
Mendez. Upon request by Officer DeBusk, Mendez
consented to a search of the vehicle. Officer DeBusk asked
the Defendant and Mendez a few questions and then
performed a canine inspection of the vehicle, but no
marijuana or other contraband was discovered in that
inspection.
Neither Officer DeBusk nor Officer Cooper testified that
they found the Defendant or Mendez to be threatening or
likely to flee the scene. Indeed, the district court noted that
“Officer D[e]Busk did not find the passengers of the vehicle
threatening nor did he observe any weapons.” Similarly, the
district court noted that Officer Cooper “did not observe
Mendez to be threatening or to attempt to flee.”
The only specific evidence the Government offered to
justify this frisk was that, once the Defendant and Mendez
UNITED STATES V . I.E.V. 5
had complied with the officers’ requests, Officer Cooper
testified that Mendez “seemed very nervous and continually
touched his abdomen area,” and the Defendant “displayed
similar behavior.” However, the district court did not credit
Officer Cooper’s testimony that the Defendant was also
fidgeting and touching his abdomen, because the court noted
that “Officer Cooper’s arrest report made at the scene did not
include any information on Defendant . . . acting nervous or
fidgety as he had observed with Mendez.”1
Officer Cooper also testified that, from his training, he
knew that “narcotics and firearms go together.” Based on
that training and his observations of Mendez, Officer Cooper
decided to perform a pat-down search of both Mendez and the
Defendant. He and another officer performed the searches
simultaneously. Officer San Ramon, the officer who frisked
the Defendant, did not testify during the evidentiary hearing.
Officer Cooper frisked Mendez. Officer Cooper found
nothing on Mendez during this first search. However, during
his search of the Defendant, Officer San Ramon asked the
Defendant about an object he felt under his shirt. Then,
without permission, Officer San Ramon lifted the
Defendant’s shirt to find a brick-shaped object taped on the
Defendant’s abdomen. After this first “brick” was found on
the Defendant, Officer Cooper searched Mendez again and a
similar brick-shaped object was found taped to his abdomen
as well. The district court noted that the bundle found
beneath the clothing was identified “only after the shirt was
lifted” and the officers performed a “visual inspection of the
bundle.” Prior to that visual identification, Officer Cooper
provided conflicting testimony explaining that, when he felt
1
W hen the district court “interpret[ed] the evidence,” it found only
“nervous behavior and gestures of Mendez,” but not the Defendant.
6 UNITED STATES V . I.E.V.
the “bulky object” on Mendez during his second pat-down, he
believed it “could potentially be a weapon,” but he also
thought it was “a brick, potentially carrying marijuana.”
After the marijuana was seized, both Mendez and the
Defendant were placed under arrest. The Defendant filed a
Motion to Suppress. The district court denied the motion
after an evidentiary hearing. The district court determined
that a frisk of both occupants of the vehicle for weapons was
warranted based on the “totality of the circumstances”:
including “the proximity to the border, the canine alert to
contraband, the nervous behavior and gestures of Mendez
observed by Officer Cooper, and the experience of Officer
Cooper that often individuals transporting contraband also
carry firearms.”
The case proceeded to a bench trial, where the Defendant
was convicted. The Defendant timely appealed the district
court’s denial of the motion to suppress.
II. STANDARD OF REVIEW
We review de novo a district court’s legal conclusions
regarding the denial of a motion to suppress. United States v.
Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010). We review the
district court’s factual findings for clear error. United States
v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008).
III. DISCUSSION
In Terry v. Ohio, the Supreme Court created a limited
exception to the general requirement that officers must have
probable cause before conducting a search. 392 U.S. 1, 30
(1968). The Court held that officers may conduct an
UNITED STATES V . I.E.V. 7
investigatory stop consistent with the Fourth Amendment
“where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that
criminal activity may be afoot . . . .” Id. In addition, an
officer may conduct a brief pat-down (or frisk) of an
individual when the officer reasonably believes that “the
persons with whom he is dealing may be armed and presently
dangerous.” Id. “[T]he stop and the frisk, must be analyzed
separately; the reasonableness of each must be independently
determined.” United States v. Thomas, 863 F.2d 622, 628
(9th Cir. 1988).
In Terry, the Court also explained that the analysis
regarding whether a frisk was constitutional “is a dual one,”
that asks (1) “whether the officer’s action was justified at its
inception,” and (2) whether the officer’s action was “confined
in scope” by engaging in a “carefully limited search of the
outer clothing . . . in an attempt to discover weapons which
might be used to assault” an officer. Terry, 392 U.S. at 20,
29-30. The officer must provide “specific and articulable
facts” that indicate something more than a general
“governmental interest in investigating crime.” Id. at 21, 23.
Indeed, a pat-down “is not justified by any need to prevent
the disappearance or destruction of evidence of crime. The
sole justification of the search in the present situation is the
protection of the police officer and others nearby . . . .” Id. at
29 (emphasis added) (citation omitted). Thus, the appropriate
analysis is “whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” Id. at 27.
Here, no one disputes that the officers had reasonable
suspicion that criminal activity was afoot based on the canine
alert, which justified the investigatory stop under Terry. In
8 UNITED STATES V . I.E.V.
this appeal, we only answer the following questions:
(1) whether the decision to perform a frisk of the Defendant
was justified at its inception by a reasonable suspicion that
the Defendant was armed and dangerous, and (2) whether the
pat-down stayed within the appropriate scope of Terry.
A. The Officer Was Not Justified in Frisking the
Defendant
The officers did not set forth the requisite “specific and
articulable facts” such that a “reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” Id. at 21, 27. No narcotics
had been discovered prior to the pat-down of Defendant.
There was no evidence that the Defendant was dangerous. At
the suppression hearing, both officers testified that the
Defendant and Mendez, two teenage boys surrounded by
officers, acted in a compliant and nonthreatening manner.
The frisk of the Defendant, essentially based on nothing more
than the suspicion that drugs could be found, amounted to the
type of “general exploratory search for whatever evidence of
criminal activity [the officer] might find,” which was
specifically prohibited under Terry. Id. at 30. Accordingly,
this pat-down was unconstitutional from its inception.
The Supreme Court has not allowed a general suspicion
of drug activity to provide blanket authorization for frisking
anyone in the vicinity. See Ybarra v. Illinois, 444 U.S. 85,
90-91 (1979). For example, in Ybarra, the officers had a
warrant based on probable cause to search a tavern for drugs.
Id. However, they violated the Fourth Amendment when the
officers also frisked a patron in the tavern who was not
recognized by the police, “made no gestures or other actions
indicative of an intent to commit an assault, and acted
UNITED STATES V . I.E.V. 9
generally in a manner that was not threatening.” Id. at 93(emphasis added). Thus, under Ybarra, something more than
a knowledge of drugs in close proximity is required to justify
frisking a suspect.
In a case where we allowed a pat-down of a suspect in a
drug deal, more factors than a mere proximity to suspicious
indicators of drugs provided evidence that the suspect might
have been armed and dangerous. See United States v.
$109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000).
In U.S. Currency, we held that it was reasonable to assume
that a suspect was armed and dangerous, because he knocked
on the door of the room known to be involved in a drug deal,
the suspect’s answers to brief initial questioning failed to
dispel the officer’s suspicion that he was armed and
dangerous, and the solitary officer was in “close proximity”
to the suspect in a “small room.” Id. at 1086-87. The officer
also conducted the frisk before conducting “further
investigation.” Id. at 1082.
Similarly, in a Sixth Circuit case cited by the
Government, United States v. Jacob, 377 F.3d 573 (6th Cir.
2004), the suspect was an individual who had previously been
arrested for transporting narcotics, a canine had alerted on his
vehicle, the suspect was engaging in counter surveillance,
bags that looked like they contained drugs were transported
to the vehicle, and when officers tried to pull the vehicle over
it lunged forward to escape. Id. at 575-76. As in U.S.
Currency, the officers immediately patted down the suspect
after he exited the vehicle, because the officers’ suspicions
caused concern for their safety and warranted a pat-down
before further inspection. Id. at 576.
10 UNITED STATES V . I.E.V.
The foregoing cases dealt with more substantiated
evidence of a drug transaction, and the drug activity appeared
to be one of many factors the courts considered, rather than
the dispositive factor. Furthermore, the officers’ suspicions
caused them to frisk the suspect before further investigation
occurred.
The present case is quite different from U.S. Currency
and Jacobs. Here, the officers had no concrete evidence that
drugs were in the area. It is true that a canine alerted on the
vehicle in which the Defendant was a passenger, but the
district court noted that this alert could be caused by either
contraband or hidden humans. The canine alert did not
signify the presence of a weapon. Further, after the initial
stop of the vehicle, Officer DeBusk brought his dog past the
Defendant and Mendez, and the district court found that
“[t]he canine did not alert when it went past [the Defendant].”
No contraband had been found or identified in the vehicle or
on Mendez before the Defendant was searched.
Moreover, in this case, both officers testified that the
Defendant acted in a non-threatening and compliant manner.
This is similar to the compliant suspect who was
unconstitutionally frisked in Ybarra, and unlike the suspect
in Jacobs who was charging police officers in his vehicle.
Moreover, the Defendant was a young teenager surrounded
by three police officers, rather than a man confronting a
solitary officer in a confined space, as in U.S. Currency.
Therefore, the officers’ general suspicion of drugs did not
justify the frisk of Defendant.2
2
W hile two people in a car may sometimes be in “cahoots,” as the
dissent points out, we note that the officers largely completed their
investigatory tasks before frisking Mendez, the fidgety one. It was only
UNITED STATES V . I.E.V. 11
The Government’s argument that the Defendant’s nervous
behavior justified his frisk is also not persuasive, because the
district court discredited this testimony after noting that
“Officer Cooper’s arrest report made at the scene did not
include any information on Defendant . . . acting nervous or
fidgety as he had observed with Mendez.” Far from being
clearly erroneous, Davis, 530 F.3d at 1077, we agree with the
district court’s dismissal of this self-serving testimony. We
are required to accept this factual finding by the trial court,
and the Government is left with no specific suspicious
behavior directly attributable to the Defendant.3
The district court determined that the frisk of the
Defendant was still justified based, in part, on the
Defendant’s proximity to Mendez, who was acting fidgety.
But the Supreme Court has made clear that “a person’s mere
after marijuana was found on the Defendant that Officer Cooper did a
second frisk of Mendez and then discovered marijuana. This is not a
situation where officers felt at risk when they stopped the vehicle and took
steps to neutralize any threats presented by first patting down a fidgety
driver and his possible partner in crime before they felt comfortable asking
questions and searching the vehicle. It would be clearly unreasonable to
prevent officers from frisking an individual during an investigatory stop
when they reasonably believe him to be armed and presently dangerous.
However, the Government did not present articulable facts that such a
belief was present in this case. Indeed, the officers’ actions demonstrate
that they did not fear for their safety. Given the totality of the
circumstances, it seems our Chief Judge would have been diving alone
into the nearest ditch.
3
Indeed, when pressed at oral argument to provide any evidence specific
to the Defendant that would give rise to a suspicion that he possessed a
weapon, the Government was unable to provide any such evidence, and
instead focused on the location of the vehicle, which was approximately
100 miles from the border, and a general suspicion of drugs based on the
canine alert.
12 UNITED STATES V . I.E.V.
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to
search that person.” Ybarra, 444 U.S. at 90-91; see also
Aguilera v. Baca, 510 F.3d 1161, 1176 (9th Cir. 2007)
(Kozinski, C.J., dissenting) (“That one member of a group
may have committed a crime doesn’t establish probable cause
to arrest everyone in that group.” (citing United States v.
Brown, 951 F.2d 999, 1003 (9th Cir.1991))). The “narrow
scope” of the Terry exception only permits a frisk for
weapons based on “a reasonable belief or suspicion directed
at the person to be frisked . . . .” Ybarra, 444 U.S. at 94
(emphasis added). Similarly, the Sixth Circuit has held that
the “undeniably suspicious” behavior of a driver of a vehicle,
while warranting a pat-down of the driver, was “not enough
. . . to justify a pat-down search of [the passenger].” United
States v. Wilson, 506 F.3d 488, 493, 495 (6th Cir. 2007).4
4
The only situation where our Circuit has allowed the search of a
suspect’s companion involved a case where the search was incident to a
lawful arrest. United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.
1971). However, the Government has not pursued a theory of search
incident to lawful arrest on appeal after recognizing that Mendez was not
arrested before the Defendant was frisked. The reasoning of Berryhill also
does not apply to a Terry frisk for at least two reasons. First, Berryhill
only allowed a pat-down of “companions of the arrestee.” Id. But the
arrest was performed after obtaining a warrant, which requires probable
cause—a much higher standard than the requisite reasonable suspicion for
a Terry frisk. See Michigan v. Long, 463 U.S. 1032, 1059 (1983)
(Brennan, J., dissenting) (noting “a vital difference between searches
incident to lawful custodial arrests and Terry protective searches”). Here,
the Defendant was not the companion of an arrestee, but was merely the
companion of another individual who was subject to a Terry search, the
constitutionality of which is also debatable. Second, the court made clear
in Berryhill that it was “not here concerned with the admissibility of the
seized evidence against” the companion who was searched; the evidence
was only being used against the arrestee, who could not “complain of a
violation of [his companion’s] personal rights under the Fourth
UNITED STATES V . I.E.V. 13
Thus, the district court’s reliance on Mendez’s fidgety
behavior to justify the Defendant’s pat-down was in error.
Furthermore, even if Officer Cooper’s testimony that the
Defendant was fidgeting could be credited, such behavior was
not sufficient to warrant a frisk of the Defendant for two
reasons. First, we join with our sister circuits that have
refused to allow police officers to justify a Terry search based
on mere nervous or fidgety conduct and touching of clothing.
See Wilson, 506 F.3d at 495 (“Nervous behavior, standing
alone, is not enough to justify a Terry search.”); United States
v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (explaining that
“[n]ervousness is a common and entirely natural reaction to
police presence” and the defendant’s gestures in this case,
while potentially to hide a weapon, were also consistent with
reaching for a driver’s license, and thus the Government’s
proposed standard “comes too close to allowing an automatic
frisk of anyone” the officer stops); United States v. Ford,
333 F.3d 839, 842, 845 (7th Cir. 2003) (Despite the fact that
the defendant “appeared nervous, looked around, stepped
backward and reached for his pocket after he activated [a]
metal detector,” the court held this “was insufficient to create
a reasonable suspicion that would justify a protective pat-
down.”).
Second, the officers’ actions demonstrate that, even if
they had a hunch that weapons could be in the area, they did
not have the required “immediate” need to protect themselves
or others from danger. Terry, 392 U.S. at 23. Officer
Amendment.” Berryhill, 445 F.2d at 1193. In contrast, in this case the
admissibility of the evidence is being used against the companion who
was searched, which is a completely different legal question from the one
at issue in Berryhill.
14 UNITED STATES V . I.E.V.
DeBusk testified that it was a minute or two before he
approached the vehicle, after it had already been stopped.
The Defendant and Mendez were asked to exit the vehicle
and step about 10 to 15 feet away. Afterward, Officer
DeBusk asked them a few questions. The canine then sniffed
the Defendant and Mendez, but did not alert on them. Officer
DeBusk then asked for and received consent to search the
vehicle. Only after Officer DeBusk performed a “walk
around” the vehicle with the canine and found no drugs, did
the other officers begin their frisk of the Defendant and
Mendez.
The fact that an officer had already completed a large
portion of his investigation of the vehicle without facing any
threatening behavior undermines the “well-settled . . .
purpose of a Terry stop . . . to allow the officer to pursue his
investigation without fear of violence.” United States v.
Miles, 247 F.3d 1009, 1012 (9th Cir. 2001) (internal
quotation marks omitted); see also Minnesota v. Dickerson,
508 U.S. 366, 373 (1993) (“The purpose of this limited search
is not to discover evidence of crime, but to allow the officer
to pursue his investigation without fear of violence . . . .”)
(internal quotation marks omitted).
Indeed, the timing of the officers’ search here is markedly
different from that in U.S. Currency (where, after the suspect
was unable to provide any identification, the officer
immediately took the suspect into a nearby room and frisked
him before conducting any further investigation), or from
Jacobs (where the officers immediately frisked the suspects
after they exited the vehicle). Rather, this case is more
analogous to United States v. Thomas, where the officer did
not immediately frisk the suspect, but instead asked some
investigatory questions first. 863 F.2d at 628. There, though
UNITED STATES V . I.E.V. 15
the suspect did not give suspicious answers and did not
behave in a threatening manner, the officer decided to frisk
him after some investigation. Id. We explained that a
“lawful frisk does not always flow from a justified stop,” and
the officer “had no reason to continue the detention after he
had asked his initial investigatory questions . . . .” Id. at 628-
29. The officer in Thomas, as well as the officers in this case,
demonstrated a “perfunctory attitude towards frisking a
suspect once a justified stop has occurred.” Id. at 629. This
attitude is prohibited under our precedent, because it is at
odds with Terry’s requirement that courts analyze a frisk
based on “whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger.” Terry, 392 U.S. at 27.
The district court’s conclusion to the contrary appears to
have been based in part on two legal errors. First, the district
court erroneously concluded that the pat-down search in this
case required “minimal suspicion,” because it was a type of
“border search.” The district court cited to United States v.
Vance, 62 F.3d 1152, 1156 (9th Cir. 1995), a case applying
the more lenient border search doctrine. However, this was
absolute error. The Government does not even argue that this
was a border search. Further, there is no dispute that this is
not a border search, because nothing in the record supports a
theory that the Defendant had crossed the border.5
5
Our Circuit “has previously recognized only two circumstances when
a car and its passengers are properly subject to ‘extended border searches’
away from the border.” United States v. Perez, 644 F.2d 1299, 1302 (9th
Cir. 1981). The first circumstance is where the “officers can determine
‘with reasonable certainty’ that any contraband which might be found in
the vehicle was aboard the vehicle when it crossed the border.” Id.(quoting Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966)).
The second circumstance where an “extended border search is valid” is
16 UNITED STATES V . I.E.V.
Second, the district court explained that “[a] frisk is
justified when law enforcement suspects weapons or drugs,
based on the totality of the circumstances, as well as to
protect themselves.” In other words, the district court
erroneously assumed that a frisk is justified either if an
officer suspects weapons or drugs. However, Terry makes
clear that the “sole justification” for a pat-down is the
protection of the police officer and others nearby. Terry,
392 U.S. at 29 (emphasis added).
In sum, the officers’ argument that their safety was in
danger is contradicted by the absence of any suspicious
behavior directly attributable to the Defendant, the scant
evidence of drug possession prior to the frisk, the lack of
immediate actions by officers to ensure safety, and the non-
threatening and compliant behavior of two teenagers, one of
them a minor, surrounded by officers in an open area. None
of the underlying facts found by the district court was clearly
erroneous. Davis, 530 F.3d at 1077. Accordingly, the frisk
of the Defendant was unconstitutional from its inception.6
when “customs agents are ‘reasonably certain’ that parcels have been
smuggled across the border and placed in a vehicle, whether or not the
vehicle itself has actually crossed the border.” Id. (quoting United States
v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970)). “[R]easonable certainty is
a stricter standard than probable cause.” Id. (internal quotation marks
omitted) (citing United States v. Kessler, 497 F.2d 277, 279 (9th Cir.
1974)). There is no dispute that neither factual situation occurred in this
case.
6
Contrary to the dissent’s assertion, we reach this conclusion after
considering the totality of the circumstances. These circumstances did not
“‘warrant[] further investigation.’” United States v. Arvizu, 534 U.S. 266,
274 (2002) (quoting Terry, 392 U.S. at 22). In considering the totality of
the circumstances, the dissent cites proximity to the border. However, the
Government did not argue that this was a border search, nor could it have.
UNITED STATES V . I.E.V. 17
Though we take no satisfaction in the consequence that a
possessor of marijuana will escape punishment in this case,
our overriding concern is that to hold otherwise would allow
police officers to frisk every individual in a vehicle stopped
based on reasonable suspicion of criminal activity. Such a
justification would turn Terry frisks into exactly the type of
exploratory searches for evidence, rather than safety searches
for weapons, that the Supreme Court has prohibited, thus
allowing “[t]he needs of law enforcement” to “decimate[] the
protections [of] the Fourth Amendment . . . .” United States
v. Pineda-Moreno, 617 F.3d 1120, 1121 (9th Cir. 2010)
(Kozinski, C.J., dissenting from denial of rehearing en banc).
B. The Officer’s Frisk Exceeded its Constitutional
Scope
Even if the officer was justified in his initial decision to
perform a pat-down search of the Defendant, we conclude
that the officer’s search exceeded the scope of an appropriate
Terry frisk.
An officer’s seizure of contraband during a Terry search
is constitutional if “a police officer lawfully pats down a
suspect’s outer clothing and feels an object whose contour or
mass makes its identity immediately apparent . . . .”
Dickerson, 508 U.S. at 375 (emphasis added). A search
exceeds the proper scope if “the incriminating character of
[an item is] not immediately apparent” but is discovered
The search took place 100 miles from the border and there is no evidence
that the Defendant and M endez crossed it. The dissent also cites the fact
that the canine alerted to contraband. However, it is undisputed that when
the canine first alerted, it could have been in response to either contraband
or concealed humans in the vehicle, but not weapons.
18 UNITED STATES V . I.E.V.
“only as a result of a further search . . . .” Id. at 379; see also
Miles, 247 F.3d at 1013-14.
In analyzing the objective reasonableness of an officer’s
search, precedent from our Circuit and the Supreme Court
prevents a court from assuming that an officer “might
legitimately have been looking for” a weapon. Miles,
247 F.3d at 1015. See also Terry, 392 U.S. at 21 (“And in
justifying the particular intrusion the police officer must be
able to point to specific and articulable facts which taken
together with rational inferences from those facts, reasonably
warrant that intrusion.”); Arvizu, 534 U.S. at 273 (we must
look at the totality of the circumstances to see whether “the
detaining officer has a particularized and objective basis for
suspecting the legal wrongdoing”) (internal quotation marks
omitted); United States v. Willis, 431 F.3d 709, 716 & n.6
(9th Cir. 2005) (we must inquire into “facts that [the officer]
knows” when conducting objectively reasonable analysis;
“articulable facts” as opposed to “subjective motivations” are
the proper focus).
Indeed, in Miles, because the officer did not testify, we
refused to speculate that the officer was legitimately looking
for a weapon. See Miles, 247 F.3d at 1015. This prevents a
pat-down from becoming a search for a “needle in a
haystack” where “there would be no limit to the bounds of a
Terry stop.” Id.; see also Dickerson, 508 U.S. at 377-78(noting that the officer who searched the defendant never
actually “claim[ed] that he suspected th[e] object to be a
weapon”); United States v. Mattarolo, 209 F.3d 1153, 1155-
56 (9th Cir. 2000) (“[T]he arresting officer . . . testified at the
suppression hearing” regarding the fact that he “immediately
recognized [the item] as drugs” based on “the distinctive feel
and his experience gained from thirty to forty patdowns”).
UNITED STATES V . I.E.V. 19
Here, the only testimony about the search of the
Defendant comes from the Defendant himself, because
Officer San Ramon never testified. When asked how the
officers searched him, the Defendant answered, “They told
me to place my hands behind my back and then they searched
me like going down, and then they asked – they felt the object
and asked me what it was and they lifted up my shirt.” This
record does not allow any reasoned conclusion about what
Officer San Ramon identified before he lifted the shirt. The
Government bears the burden of proving that the
incriminating character of an object was immediately
identifiable, rather than the burden being on the Defendant to
prove otherwise. Thus, as in Miles, we cannot assume that
the officer “might legitimately” have been searching for a
weapon when he lifted the Defendant’s shirt; the searching
officer did not testify regarding the reasons for the search.
247 F.3d at 1015.
The conflicting testimony of Officer Cooper, the other
searching officer, makes it impossible for us to discern from
the record whether Officer San Ramon was able to
immediately identify the bundle he felt on the Defendant’s
person.
Officer Cooper, who searched Mendez, testified that
based on his “training and experience,” he identified the
brick-shaped object as one potentially carrying marijuana, but
Officer Cooper did not detect the “brick” on his first search
of Mendez, and on his second pat-down, he identified it “only
after[]” he had “lifted up [Mendez’s] shirt . . . .” Before that
visual identification, Officer Cooper provided conflicting
testimony explaining that, when he felt the “bulky object,” he
believed it “could potentially be a weapon,” but he also
20 UNITED STATES V . I.E.V.
thought it was “a brick, potentially carrying marijuana.”7
This contradictory evidence belies a conclusion that Officer
San Ramon was able to immediately identify the
“incriminating character” of the object beneath the
Defendant’s shirt.8
The district court made no specific findings regarding the
specific and articulable facts behind Officer San Ramon’s
seizure of the contraband, other than to note that “the frisk of
[the Defendant] resulted in the discovery of the bundle of
contraband taped to his abdomen” which was a “sufficient
basis to conduct a second search of Mendez.” Thus, similar
to Dickerson and Miles, even if “the officer was lawfully in
a position to feel the lump” under the Defendant’s shirt,
because Officer San Ramon did not testify, we are left with
the conclusion that “further search was ‘constitutionally
invalid’ because ‘the incriminating character of the object
was not immediately apparent.’” Miles, 247 F.3d at 1014(quoting Dickerson, 508 U.S. at 378-79).
7
Moreover, Officer Cooper’s stated belief that this bulky object could
potentially be a weapon is highly suspect, because the district court
determined that Officer Cooper only found this bulky object during his
second search of Mendez, which occurred after the first bundle had
already been found on the Defendant and identified as a brick of
marijuana, not a weapon. This finding is not clearly erroneous.
8
The dissent argues that “[u]nder the collective knowledge doctrine, San
Ramon knew everything Cooper knew” without recognizing that Cooper
himself did not have reasonable suspicion to initiate the search of
Defendant; imputing Officer Cooper’s knowledge to Officer San Ramon
does not render this a lawful search. See United States v. Ramirez,
473 F.3d 1026, 1037 (9th Cir. 2007) (at least one officer must know “facts
constituting reasonable suspicion or probable cause” to avoid violating the
Fourth Amendment).
UNITED STATES V . I.E.V. 21
Therefore, because the officer who searched the
Defendant did not testify to the specific and articulable facts
giving rise to the search, and because it is not obvious from
the record that the officer immediately identified the bundle
on the Defendant as contraband or a weapon, the search of the
Defendant exceeded the scope of a constitutional Terry
search.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s decision and REMAND with instructions to grant the
Defendant’s motion to suppress.
Chief Judge KOZINSKI, dissenting:
Two words best describe the majority opinion: “wrong”
and “dangerous.” The majority sifts through the facts one by
one and finds that none of them justifies the search of I.E.V.
But the Supreme Court has rejected this approach. United
States v. Arvizu, 534 U.S. 266, 274–75 (2002). The district
court got it right when it found that “[t]he frisk of [I.E.V. and
his brother, Mendez,] was warranted based on the totality of
the circumstances: the proximity to the border, the canine
alert to contraband, the nervous behavior and gestures of
Mendez . . . and the experience of Officer Cooper[, who
directed the frisks,] that often individuals transporting
contraband also carry firearms.” (Emphasis added.)
It doesn’t matter whether I.E.V. exhibited the same
nervous behavior as his brother. Though “mere propinquity
to others independently suspected of criminal activity” isn’t
22 UNITED STATES V . I.E.V.
enough, Ybarra v. Illinois, 444 U.S. 85, 91 (1979), two
people riding in the same car in the middle of nowhere can
reasonably be presumed to be in cahoots. If one of them
gives signs of having a concealed weapon, it’s reasonable to
suspect the other might too. See United States v. Berryhill,
445 F.2d 1189, 1193 (9th Cir. 1971) (discussing Terry v.
Ohio, 392 U.S. 1 (1968)). No officer who values his life
would assume otherwise.
Once Officer San Ramon felt a hard object under I.E.V.’s
shirt, he was eminently justified in looking to see what it was.
See Terry, 392 U.S. at 25–27; Minnesota v. Dickerson,
508 U.S. 366, 374–76 (1993); Berryhill, 445 F.2d at 1192–93.
Unlike cases where police felt a small lump, Dickerson,
508 U.S. at 369, 378–79, or a matchbox-sized container,
United States v. Miles, 247 F.3d 1009, 1011–12 (9th Cir.
2001), there was a “very large bulky object” taped to I.E.V.’s
stomach. Common sense tells us that people engaged in
legitimate business don’t tape bricks to their bodies. This
would be true even if the encounter had been on a street
corner in Pocatello, but at a checkpoint on a highway heading
from the Mexican border, after a dog had alerted to possible
drugs? Any officer who sent I.E.V. on his way without
finding out what he was hiding under his shirt should have
been fired for incompetence.
My colleagues ignore these intractable realities and focus
instead on irrelevancies. They mention twice (so they must
think it’s pretty important) that the dog didn’t alert to
weapons. Maj. Op. 10, 16 n.6. But the dog did alert to
possible illegal activities that are often accompanied by
firearms. The majority also mentions twice (ditto) that the
dog alerted to possible drugs or humans, as if this matters.
Id. at 10, 16 n.6. It doesn’t: If the dog alerts to something
UNITED STATES V . I.E.V. 23
that might be drugs or humans, that something could be
drugs.
The majority mentions three times (ditto!) that I.E.V. and
his brother were teenagers, as if that matters. Maj. Op. 8, 10,
16. Teenagers are perfectly capable of carrying drugs and
killing people with guns. Teen kills cop, then self, Chicago
Tribune (June 20, 2007), available at
http://articles.chicagotribune.com/2007-06-20/news/07062
00859_1_kills-teen-cop.
The majority mentions four times (DITTO!!!) that San
Ramon didn’t testify, Maj. Op. 3, 5, 19, 20, and argues that
we may not “assum[e] that [he] ‘might legitimately have been
looking for’ a weapon,” id. at 18 (quoting Miles, 247 F.3d at
1015). But San Ramon’s actual thought processes are
irrelevant; we look at the situation from the point of view of
a reasonable officer. See Terry, 392 U.S. at 21–22. None of
the cases the majority cites support the proposition that the
searching officer must testify, and it makes no sense. Cooper
gave the order to frisk I.E.V. and he testified why he believed
I.E.V. was armed. Under the collective knowledge doctrine,
San Ramon knew everything Cooper knew. United States v.
Ramirez, 473 F.3d 1026, 1033 (9th Cir. 2007). From I.E.V.’s
testimony, we also know that San Ramon felt a large, bulky
object concealed on him that almost certainly was contraband
or weapons. The majority doesn’t explain what possible
difference San Ramon’s personal narrative would have made.
The majority claims four times (id.) that Cooper’s
testimony is “conflicting” or “contradictory,” Maj. Op. 5-6,
19-20, but Cooper’s testimony was perfectly consistent.
Cooper testified on direct that the large concealed object he
felt could have been contraband and also, on cross, that it
24 UNITED STATES V . I.E.V.
could have been a weapon. An unknown object could be
contraband and could also be a weapon, just as a cat locked
in a steel chamber for an hour could be alive and could also
be dead.
Because none of this gets the majority where they want to
go, they indulge in some appellate fact-finding. According to
the majority, the officers didn’t frisk the subjects until the
search of the car was pretty much completed, which
“demonstrate[s] that, even if [the officers] had a hunch that
weapons could be in the area, they did not have the requisite
‘immediate’ need to protect themselves or others from
danger.” Maj. Op. 13. But my colleagues overlook I.E.V.’s
own testimony:
Q. How long after the dog moved away [from
sniffing you] did they—did they start to
search you?
A. Probably right after.
This is entirely consistent with Officer DeBusk’s testimony:
Q. While you were conducting the canine
inspection of the vehicle in secondary, was
there at the same time a search being done of
the persons of [I.E.V.] and the driver Mr.
Mendez?
A. They were interviewing them. And while
I was directing my dog in a sniff of the
vehicle, they performed a search on the
subjects.
UNITED STATES V . I.E.V. 25
Deciding when to frisk suspects is a difficult and sensitive
question. We want officers to be safe, but we also don’t want
to subject individuals to the indignity and intrusion of a frisk
without sufficient cause. Here, the initial dog alert provided
some indication of drugs, and hence gave rise to some
suspicion that firearms might be involved, but perhaps not
enough. So the officers acted cautiously and didn’t conduct
a frisk immediately after the brothers were sent to secondary.
But once I.E.V. and Mendez were out of the vehicle, Cooper
found an additional reason to worry: “[Mendez] seemed very
nervous and continually touched his abdomen area.” That
additional observation gave Cooper sufficient cause to
conduct a frisk, and he did so right after DeBusk and the dog
went to search the car; the frisk was completed, and the
marijuana was discovered, while DeBusk’s walk-around of
the vehicle was in progress.
The district court never found that the officers
unnecessarily delayed in frisking I.E.V. and Mendez; nor did
I.E.V. raise the argument below or on appeal. The
lackadaisical-search rationale is the majority’s own invention.
My colleagues embark on a fact-finding expedition based on
a cold record, without any input from the parties, and draw
conclusions about the state of mind of the officers conducting
the search. Who needs district judges when we can do all that
on our own?
But my colleagues create a much bigger problem than
merely usurping the district court’s role. The majority’s
attempt to wring out of the record some sort of proof that
these officers were not really worried about weapons, Maj.
Op. 13-15, flies in the face of a solid wall of authority that we
must view the situation through the eyes of an objective
officer, see, e.g., Terry, 392 U.S. at 21 (“And in making [the
26 UNITED STATES V . I.E.V.
reasonable suspicion] assessment it is imperative that the
facts be judged against an objective standard . . . .” (emphasis
added)); Arvizu, 534 U.S. at 273 (similar); Whren v. United
States, 517 U.S. 806, 812–14 (1996) (“[T]he Fourth
Amendment’s concern with ‘reasonableness’ allows certain
actions to be taken in certain circumstances, whatever the
subjective intent.”).
The Seventh Circuit has expressly rejected the majority’s
lackadaisical-search rationale for precisely this reason:
The elapsed time [from the stop to the frisk] is
the only evidence Adamson cites in support of
his position that the officers were not
concerned with their safety at the time of the
search. This argument addresses whether the
officers, having not immediately patted him
down, subjectively believed that he was
armed. But reasonable suspicion is measured
against the totality of the circumstances, and
the test is objective.
United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006);
accord United States v. Barnett, 505 F.3d 637, 639–40 (7th
Cir. 2007); see also United States v. Menard, 95 F.3d 9, 11
(8th Cir. 1996) (recognizing that an officer may have
legitimate reasons for delaying a pat-down of a suspect). The
majority’s foray into appellate fact-finding puts us on the
wrong side of a circuit conflict.
It’s easy enough, sitting safely in our chambers, protected
by U.S. Marshals with guns and dogs, surrounded by concrete
barriers and security cameras, to say that officers in the field
had no cause to fear for their safety. But if we’d been there
UNITED STATES V . I.E.V. 27
when I.E.V. and his brother pulled up in their car, heard the
police dog alert and seen one of the suspects fidget like he
was reaching for a weapon, I’d have dived for cover into the
nearest ditch, and my guess is I wouldn’t have been the first
one there.