Do Orders to Empty Pockets Exceed the Limits of Terry v. Ohio?

The New York Times has a story on the police “stop and frisk” policies in New York City that states:

Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

Over at Prawfs, Dan Markel notes the serious problems this practices raises from a standpoint of criminal law. I wanted to flag another question: Does ordering a suspect to empty his pockets during a stop-and-frisk violate the Fourth Amendment? That turns out to be a pretty interesting question, on which there is a split in the lower courts.

First, some background. Under Terry v. Ohio and its progeny, the police can “pat down” a suspect for weapons if they have specific and articulable facts that the suspects are armed and dangerous. The cases say that this has to be a search for weapons, not drugs. If an officer feels something through clothing and he suspects that the “something” is drugs, not a gun, he can’t pull out the something and open it to look for drugs. See Minnesota v. Dickerson. In reality, officers routinely flout this limitation. They just say that they are looking for guns, and that the drugs they pulled out from the suspect’s pocket really felt like a gun, not drugs. But there is at least some scrutiny of the searches, with at least a theoretical limit on an officer’s ability to find drugs when he is supposed to be searching for weapons.

Police orders to empty pockets potentially go far beyond that power. A police order to a suspect to empty his pockets can allow an officer to do indirectly what he can’t do directly. Terry doesn’t allow the police to just reach in and empty a suspect’s pockets, exposing all of its contents to plain view. See Sibron v. New York. Rather, Terry requires officers to pat down the suspect from the outside and then only retrieve what may be a weapon. The question is, does the Fourth Amendment allow police officers to order suspects to empty their pockets in lieu of conducting the frisks directly? That is, can the officer order the suspect to do what the officer cannot himself do?

It is clear from the cases that the officer’s order still makes the emptying of the pockets a search. As Judge Sutton recently stated, “an officer may not sidestep the requirements of the Fourth Amendment by directing a suspect to ‘empty your pockets,’ then disclaim any constitutional violation on the ground that he verbally directed the suspect to act without touching or in any way searching him.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010). But the trickier question is whether that search is a “reasonable” search under Terry. My quick research suggests that the lower courts are divided on the question.

On one hand, the Fifth Circuit has taken the view that orders to empty pockets are permitted by Terry because they don’t seem more intrusive than a Terry frisk:

Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and therefore prohibited by the Fourth Amendment. “Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible.” United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976). Thus, the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. Id. Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” Baker, 78 F.3d at 138. At no time during the inspection for weapons did Agent Morales touch the defendant. Non-consensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry.

United States v. Reyes, 349 F.3d 219 (5th Cir. 2003). Other courts have disagreed, arguing that officers lack the power to search pockets themselves and can’t circumvent that limitation by having suspects empty their pockets instead. See, e.g., State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Bastian, 37 Kan.App.2d 156 (2007); Matter of Bernard G., 247 A.D.2d 91 (N.Y.A.D. 1 Dept. 1998). See also R.B. v. State, 975 So.2d 546 (Fla.App. 3 Dist. 2008) (“For Fourth Amendment purposes there is no constitutional difference between an order that the student empty his pockets, and the security officer’s conducting a search by reaching inside the student’s pockets.”)

Professor LaFave has argued that the 5th Circuit’s opinion in Reyes is unpersuasive:

[W]hile the nontouching alternative may be in one sense less intrusive, it is more intrusive than the pat-down alternative because all contents of the pockets are exposed to police view without regard to whether any of the objects feel sufficiently like a weapon to be examined after a pat-down.

LaFave, 4 Search & Seizure § 9.6 n. 184 (4th ed.)

Off the top of my head, I tend to agree with LaFave on this one. In my view, an officer can’t do indirectly what the law prohibits him from doing directly. If the law prohibits a police officer from putting his own hands in a suspect’s pocket and emptying out the contents, it should also prohibit him from ordering the suspect to empty out the contents of his pockets. Indeed, it seems to me that the order to empty pockets may be more constitutionally suspect than an officer searching the pockets directly, rather than less. The entire point of the Terry frisk power is to look for weapons. The idea is that an officer may reasonably fear that the suspect has a knife or gun, and the officer therefore must have a limited but essential power to defend himself by disabling the threat against him. I’m no expert in such things, but I would guess that an officer with a genuine fear that a suspect is armed would want to disarm the suspect himself rather than order the suspect to reach into his pockets and retrieve the arms. If that’s right, I would think that an order to empty pockets is much more likely to be about a search for something other than the guns and knives that are supposed to be the targets of a Terry frisk.