Stop and Frisk in the Ninth Circuit: Some Thoughts on United States v. I.E.V.

Yesterday, the Ninth Circuit decided an interesting new Fourth Amendment case in a sharply divided opinion with Judge Kozinski in dissent. The case is United States v. I.E.V., and I thought I would blog my thoughts on it.

First, some background. Fourth Amendment caselaw permits police officers to “frisk” a suspect in close proximity to them — that is, pat the the suspect down for weapons — when they reasonably believe that “the persons with whom [they are] dealing may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 24 (1968). Importantly, the frisk has to be in response to a threat to officer safety like a gun or a knife, not for evidence of crime. Once the officer conducts the frisk, if he feels what he thinks is a weapon, he can take “strictly circumscribed” steps to disable the weapon and therefore protect himself. Minnesota v. Dickerson, 508 U.S. 366 (1993). At the same time, if he merely thinks that he has come across evidence such as drugs, he can’t frisk to find the drugs. See id. If he has probable cause to believe that he has discovered drugs on a person, he can take the drugs based on the plain view exception. Or he can make an arrest and take the drugs as a search incident to arrest. But he can’t rely on the “frisk” authority to search for and take the drugs.

That brings us to United States v. I.E.V., the new decision. Two teenage brothers drove their car up to the United States Border Patrol Checkpoint near Whetstone, Arizona, about 100 miles from the Arizona/Mexico border. A drug dog alerted to the presence of narcotics in the car. The car was directed to a second check point, and the two were asked to exit the car. They did so, and they consented to a search of the car. The drug dogs were then unable to find any drugs in the car and did not alert to any drugs on their persons. However, an officer observed that one of the brothers was acting nervous and repeatedly “touched his abdomen area.” Officers decided to frisk the two brothers for weapons.

During the frisk, the officers felt an object through one suspect’s shirt. They lifted off the suspect’s shirt and found a “brick-shaped object taped on the Defendant’s abdomen.” The then found a similar brick-shaped object taped to the other suspect’s abdomen. The opinion isn’t very clear as to exactly what happened next, but it seems that they ripped off the tape and took the brick-shaped objects, which contained marijuana. (The opinion just says that at that point the officers “seized the marijuana.”) The brothers were then charged with possessing marijuana, and they challenged the frisks as violating the Fourth Amendment.

The Ninth Circuit divided on whether the officers acted properly. The majority, Judge N.R. Smith joined by Judge Christen, concludes that the officers acted improperly and violated the Fourth Amendment because they lacked reason to think that there was a gun present as opposed to drugs. Judge Kozinski dissents, reasoning that where there may be drugs, there may be guns, justifying a frisk of the suspects for guns.

So who is right? I’d want to read the district judge’s opinion to make sure I have the facts down cold before speaking confidently on this. For that matter, I’d be interested to read the suppression hearing transcript. But based on the two opinions, at least, I find the majority’s result somewhat more persuasive. The test is whether there was evidence supporting a reasonable belief that the suspect was armed and dangerous — that is, that he had a knife or gun on his person that posed a threat to the officer’s safety. I think the initial frisk might satisfy that test, although I’d be interested to know more details about where the suspect was touching, whether he had pockets that could hold a gun there, etc. Depending on the details, which aren’t presented in the opinions, I think you could reach either result.

But even if the officer was justified in feeling through the shirt that *something* was taped to the suspect’s abdomen, the harder step to justify was subsequently removing the shirt. Under Dickerson, the shirt could be removed only based on suspicion that the item was a gun or knife, not drugs. This is the key, I think. My sense from the opinions is that the item here was pretty clearly drugs, not a gun. Drug couriers often tape their drugs to their bodies to hide the drugs and keep them safe crossing the border, but I’ve never heard of a courier taping a gun or knife to his abdomen in such circumstances. Or so it would seem to me. If others have different experiences here, I’d be interested to hear about it.

To be clear, I agree with Kozinski’s common-sense point that the scene here was pretty suspicious:

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.

Perhaps, but it’s not clear how that is relevant under the Supreme Court’s Fourth Amendment caselaw. The Supreme Court has emphasized that the Terry frisk authority is only authority to frisk for weapons, not drugs. The officer who felt the brick through the shirt had several options. If he had probable cause that the item contained drugs, he could arrest the suspect and search him under the search incident to arrest exception — or just seize the drugs as being effectively in plain view by that point, if he had probable cause based just on feeling the item through the suspect’s shirt. If he was just suspicious, he could have asked the suspect to remove his shirt. But based on the facts as I understand them, I don’t think he could use the Terry frisk authority to remove the shirt to reveal the drugs.

Judge Kozinski’s dissent faults the majority for hinting at the subjective motivations of the officers. I’m not so sure the criticism is fair, though. Although Kozinski is right that Fourth Amendment law generally avoids relying on subjective motivations, it’s worth noting that the most directly relevant Supreme Court case, Dickerson, appeared to rely on subjective motivations in pretty similar circumstances. Here’s the key conclusion of Justice White’s opinion in Dickerson:

Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement.

Although hardly a model of clarity, that passage appears to rely on the officer’s subjective motivations. It emphasizes what the officer “determined” — that is, concluded, or subjectively thought — rather than what he did. Given that, I’m not sure it was wrong for the majority to rely on subjective intent here.

One last thought. In his 2010 dissent from denial of rehearing en banc in United States v. Pineda Moreno, a Fourth Amendment case on privacy in driveways, Judge Kozinski memorably slammed the majority for being out of touch in favoring a rule that protected privacy in gated communities where rich people like judges live but in the open driveways of everyone else:

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Kozinski also suggests that the majority judges are out of touch in I.E.V.:

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 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.

Anyway, it’s an interesting case. For a similar kind of dispute that I blogged about five years ago, see the D.C. Circuit’s panel and en banc opinion in United States v. Askew, aka, The Zipper Case: My posts on that are here and here.

Thanks to How Appealing for the link.