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Ninth Circuit: Directly Searching Inside Detainee’s Pocket Not a Valid Terry Frisk for Weapons

The U.S. Court of Appeals for the Ninth Circuit held that police exceeded their authority to search for weapons under Terry when they directly searched the inside pocket of an otherwise compliant detainee.

Officers Robert Wining and Robert Nasland responded to a call on Nov. 15, 2017 at an Econo Lodge Motel in El Cajon, California, regarding a white male “transient” urinating in the bushes. The officers arrived just after 11 a.m. and found James Antonio Brown and Jon Barlett seated on a short cinderblock wall behind a U-Haul van in the motel’s parking lot. Based on their prior experience and a quick visual assessment of the scene, the officers suspected Brown and Barlett of involvement in a drug transaction. The officers engaged in light banter with the two for “just over seven minutes” when “Wining noticed Brown put his hands down to his sides and that he then reached his index finger into his right pocket.”

Wining immediately moved toward Brown, who raised his hands and said, “Oh, my bad, man, my bad.” Wining ordered Brown to stand, turn around, and place his hands behind his back. Brown complied, and Wining secured Brown’s arms in a finger hold.

Wining said to Brown, “I saw you reaching in that pocket.” Wining then reached into Brown’s pocket and pulled out a plastic bag containing heroin. A subsequent, more through search of Brown, resulted in “finding several thousand dollars, a number of unused syringes, and suboxone strips.”

Brown was charged with possession of 35.35 grams of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Brown motioned to suppress the results of the search of his pocket and all subsequent searches, but this motion was denied by the U.S. District Court for the Southern District of California. He was convicted, sentenced to 41 months’ imprisonment, and promptly appealed, arguing, inter alia, that the search of his pocket exceeded the permissible scope of a Terry protective frisk.

All searches and seizures require a warrant under the U.S. Constitution’s Fourth Amendment. All warrantless searches are presumed illegal unless covered by a well-defined exception. Minnesota v. Dickerson, 508 U.S. 366 (1993). One such recognized exception was articulated in Terry v. Ohio, 392 U.S. 1 (1968), which ruled that an officer may “briefly stop [a] suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions” which “in light of his experience” lead him to believe “criminal activity is afoot.” If the officer believes a person is armed and may be “presently dangerous to the officer or others,” the officer “may conduct a patdown search” or frisk “to determine whether the person is in fact carrying a weapon.” Id. The Ninth Circuit has explained: “Each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.” United States v. Thomas, 963 F.2d 622 (9th Cir. 1988).

Giving Brown’s movements, the Court determined that Wining was justified in conducting a frisk of Brown. However, the Court agreed with Brown that Wining exceeded “what Terry and its progeny allow.”

The Court explained that a Terry frisk or pat-down must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry. “If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Minnesota v. Dickerson, 508 U.S. 366 (1993).

In Terry, the Court explained, the officer “patted down the outer clothing” of three men he suspected to be armed and dangerous, and he “did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons.” In a related case decided the same day as Terry, the Supreme Court ruled that a direct search of a suspect’s pocket was an illegal search. Sibron v. New York, 392 U.S. 40 (1968). The Sibron Court, addressing the search in light of a frisk for possible weapons, said, “[e]ven assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by [the officer] were so clearly unrelated to that justification as to render the [discovered evidence] inadmissible.” Id.

While the Government cited various other cases to justify the direct search of the interior of Brown’s pocket, the Court flatly rejected the Government’s position, stating “[t]he 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.” Thus, the Court held that Wining exceeded the bounds of a Terry frisk for weapons when he directly inspected the interior of Brown’s pocket, and the district court erred in denying Brown’s motion to suppress.

Accordingly, the Court vacated Brown’s conviction and remanded the case. See United States v. Brown, 996 F.3d 998 (9th Cir. 2021).

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