United States v. Askew and the Scope of Investigative Stops:
The D.C. Circuit handed down an interesting stop-and-frisk case involving an officer's unzipping a suspect's jacket during an investigative stop, revealing a gun. Judge Kavanaugh (joined by Judge Sentelle) ruled that the unzipping of the jacket was a permissible part of the investigative stop; Judge Edwards dissented on the ground that the unzipping of the jacket exceeded the scope of Terry v. Ohio. The case is United States v. Askew, found via How Appealing.

  A quick summary of the facts: The defendant was identified in the street as a possible suspect in an armed robbery nearby, and was brought before an eyewitness of the robbery to see if the eyewitness recognized him. Before the ID procedure, the officer had conducted a "pat down" that hadn't revealed any weapons. Next, the officer partially unzipped the suspect's jacket to help an eyewitness identify whether the suspect was in fact the robber. When unzipping the jacket, the officer felt a hard object that blocked him from being able to unzip the jacket all the way. However, he did not stop to investigate further at that time. Finally, after the identification procedure was over, the officer unzipped the jacket the rest of the way, revealing a black pouch with part of a gun sticking out. It later turned out that the suspect was not the armed robber; he just happened to have been walking near the scene of the robbery with a gun in a black pouch on his person. The suspect was charged with gun offenses, and argued that the unzipping of his jacket violated his Fourth Amendment rights.

  I think this is a very close case, and after thinking about it for a while I'm not sure where I come out. My initial instincts were that Edwards was right, because Terry allows an investigative stop and a protective search for weapons but not an investigative search. Judge Kavanaugh makes two arguments in support of the view that Terry does allow investigative searches, but neither seem terribly strong. First, he argues that fingerprinting can be allowed during Terry stops, and that these are intrusions much like unzipping a jacket. However, unzipping a person's jacket is plainly a search of his person; fingerprinting generally is thought not to be a search (although some lower courts disagree). Second, he notes that Fourth Amendment scholar Wayne LaFave has suggested that he thinks some limited investigative searches during Terry stops should be okay. But with all due respect to my co-author Wayne LaFave, his personal opinion about what the law should be is not the same as what the law is.

  On the other hand, this case does seem different from the usual case, in that the first partial unzipping was not really investigatory. Its purpose was to expose what the suspect was wearing underneath his jacket so the eyewitness could help identify whether the suspect was the robber, not to find something underneath the jacket. Given that, it seems plausible that you should subject the initial unzipping to a general Terry reasonableness analysis, as Judge Kavanaugh does. As for the reasonableness analysis, it seems plausible too, although it's hard to know without knowing more details. Was removing the jacket really helpful to the ID process, given that the jacket underneath was apparently already visible (as suggested by the fact the officer ended up not bothering to remove the jacket after the zipper became stuck when it hit the hard object)? On the other side, is unzipping a person's jacket really just a de minimis intrusion on his privacy, as Kavanaugh suggests? (slip op at 13). Perhaps, but I'm not entirely sure.

  I also have some doubts about the second unzipping. Was the second unzipping really about officer safety? If the officers were really concerned about their safety, why wait until the show-up was over to continue to unzip the jacket? Anyway, very interesting case.
It's hard to accept that the unzipping of the jacket is a de minimis intrusion into privacy. That's an awfully short and slippery slope to strip searches without probable cause.
4.6.2007 2:25pm
I think that the intrusion in this case, is similar to Minnesota v. Dickerson. After all, it seem like the police already determined that the suspect had no weapons, and the subsequent unzipping etc. is more like the prohibited pinching in Dickerson, than "gotta help the guy ID him" stuff.
4.6.2007 2:36pm
Jason Fliegel (mail):
What does this fact pattern say about the effectiveness of the pat down? I mean, here we have a case where an officer did a pat down, found no weapons, and a few minutes later learned that the suspect had a gun. Did this officer just do a bad job patting down the suspect, or are pat downs not an effective way of searching a suspect for weapons? And if the latter, how much more intrusive of a search are we willing to let the police make on a simple stop?
4.6.2007 4:04pm
Just Dropping By (mail):
"That's an awfully short and slippery slope to strip searches without probable cause."

If you read the dissent in the case, you'll find an excerpt from the trial transcript that reveals the prosecutor agrees with you -- and she's all for it. (At least until the trial judge grilled her enough times at which point she backed off her enthusiasm for no-cause strip searches somewhat.)
4.6.2007 4:08pm
ScottB (mail):
Jason- I'm a police officer, and I've been involved in two incidents in which we have missed a gun on a pat search. In one incident, the guy had a small .22 revolver in his shoe. Police are generally not allowed to search a shoe during a pat search. We found the gun during a strip search at the station after arresting the guy on unrelated charges.

In the other incident, I was interrupted during a pat search when the suspect's family attacked us. We later found a gun in the guy's jacket after calming down the family.

Obviously, these incidents were frightening, but they illustrate that the point of a pat search is not to be positive about the absence of a weapon. It is to strike a balance between 4th amendment protections and the safety of the police. This is why a person who gets arrested generally gets searched four or five times- pat search at the scene before the arrest, arrest search at the scene, transport search at the scene, booking search at the police station, and another transport search on the way to the county jail. Despite that, our county jail recently had the toilets clogged by discarded gun parts. Part of that is careless searches, and part is people concealing their guns in, er, difficult to search locations
4.6.2007 4:55pm
Hattio (mail):
Unfortunately, I agree with you that this is a close case. And that shows how far our law has come. Is it really reasonable to search someone for safety after you've had them in your presence for what has to be at least 5 minutes or more? I can't see it. That means it was an investigative search. Maybe Terry needs a reasonableness prong, and a subjective intent of the police officer prong.
4.6.2007 5:07pm
Colin (mail):
ScottB, how easy is it to miss a weapon during a completed search? If you pat a pocket with a gun or knife in it, would you be reasonably certain of finding it, or is it hit-and-miss?
4.6.2007 6:06pm
as a police officer also, i must admit that i have missed a weapon(s) on a pat frisk before, but it's PRETTY effective not entirely so.

another point. it is NOT as the OP (and several people in this thread say) a "protective search" etc.

whenever you are doing a terry FRISK for safety, it's a FRISK not a search.

i hate to quibble (and sound like a lawyer) :) but that is pretty much drilled into police (or should be) from the get go

you SEARCH for evidence

you FRISK for weapons (if it's merely a Terry scope thang)
4.6.2007 11:40pm
Tom Gunn:
Interestingly I had a discussion with two retired cops about providing ID when requested.

A "Terry Stop" requires probable cause to detain and question and the party must provide a name - but since there is no national ID yet that needn't be provided.

There is a lesser stop which requires "reasonable suspicion". May the police stop anyone on the street and use trumped up reasonable suspicion to frisk and demand ID and a good explaination for being where you are?

In this case since the suspect was no longer the subject of the terry stop it seems he should have been released without further search.

When I carry a wallet which includes my checkbook, I tuck it inside my belt. A cop may see the buldge under my shirt and may reasonably suspect that I am carrying a gun and search me - yes or no?
4.6.2007 11:48pm
you got it wrong

a terry stop requires REASONABLE SUSPICION (not probable cause as you claim)

see Terry v. Ohio

probable cause (of a crime) means you can arrest and thus conduct a full custodial SEARCH

terry is a reasonable suspicion thang, NOT a probable cause thang

as to your last question, no cop can search you cause he thinks you are carrying a gun. carrying a gun is not illegal.

if he is otherwise lawfully contacting you (terry etc.) AND he has articulable reasons to believe you are carrying a weapon, generally speaking, he may frisk you for the same.

merely carrying a gun is not illegal (at least in my jurisdiction), assuming one has a permit, or one carries it in the open. it is of course illegal if you are a convicted felon, but a cop would have to know that before he stopped you, if he wwas using the weapon justification
4.7.2007 12:02am
Tom Gunn:
This is one of the things that I read which encouraged me to confuse probable cause with reasonable suspicion.

I am unable to post the link to "HIIBEL" Maybe below???

There were some other links that used words like de minimus which I can't find now.

In any event the above terry stop should have ended once the detainee ceased to be a suspect via the street side lineup. yes no?
4.7.2007 2:19am
ScottB (mail):
Colin- by "completed search," do you mean a pat search (Terry frisk) or a full arrest search? In a pat search, you may only pat the outside of the clothing, in areas which may be immediately accessable, which prohibits searching shoes, for example. If done reasonably diligently, it should discover the vast majority of concealed guns, and most knives.

An arrest search is different- you can search anywhere, remove shoes, remove outer clothing, and that sort of thing. You should find everything not concealed in the suspect's body.

Police academies take the teaching of searches very seriously- one of the most common reasons to fail out is to miss a weapon on a practice search.

Something that a lot of people seem to forget is that the body of case law surrounding pat searches is based solely on the specific facts of the case. When I find a gun from a pat search, I spend a lot of time on the report, maybe up to a page, single spaced, justifying the pat search. I can't tell you how many times that cops I work with find a gun from a pat search, write a quick report, and have the gun supressed. Then when they tell me the story later, the circumstances are far more detailed than the police report indicates. This gives everyone a view that Terry is basically subjective, when it's not supposed to be.
4.7.2007 4:46pm
Alan H. Martin:


... Is it really reasonable to search someone for safety after you've had them in your presence for what has to be at least 5 minutes or more? I can't see it. ...

You tell me.
4.7.2007 5:13pm
Alan H. Martin's post/link says it all for me.

But, being a chick, naturally I must add something else:
While that guy DID save the taxpayer some dough, it could have been far worse, obviously. He could have shot the arresting officer...who for some reason didn't find this concealed weapon.

I've seen your replies now and then, Alan, and lament the fact that you don't host a blog of your own.
4.7.2007 5:23pm
i say again - it is NOT a "pat search". it is a pat FRISK

also, terry is subjective in this respect. what will be reasonable suspicion for one officer will not be reasonable suspicion for another. not merely cause one recognizes (or doesn't) it as RS, but because RS is based upon the officer's training and experience. i happen to have a LOT of experience in undercover drug operations. i bought drugs from dealers and made cases about 150 times. so, my perception of what is reasonable suspicion for drug activity will be given more credibility by most judges, than some ding dong straight out of the academy who has never even seen illegal drugs.

so, it is subjective in that it is filtered through one's training and experience.
4.7.2007 5:35pm
ScottB (mail):
Whit- perhaps we're simply using different terminology for the same thing, but a pat search is most certainly a search. The scope is a weapon which could harm the officer, which limits the search. It is absolutely a search.

I do agree, however, on your point about an officer's training and experience. I rarely pat search people who I don't already know in some way. I spend most of my time either watching particular bad guys or talking to informants, so when I get to the point of doing a pat search, I can justify it by telling the judge that the suspect had a silver hand gun in his waistband last night, and while I watched him for 15 minutes, he repeatedly moved what appeared to be a heavy object one the right side of his waistband area. This is very different from a rookie cop driving by, seeing a guy he doesn't know, and pat searching him because he sees the same bulge.

Tom Gunn- just seeing a bulge would not be enough to conduct a pat search. If I happen to know that you are a documented gang member, and your fellow gang member told me last night that you regularly carry a handgun when at a certain intersection, and I saw you there with a bulge in your waistband area, that would be enough.

And as far a Hiibel goes, the police can require you to identify yourself only if the identification is directly related to the reason for the stop. In the Hiibel case, the police stopped a person walking away from the scene of a domestic violence incident. The victim named the suspect, but detained subject refused to identify himself when they stopped him. The case is a bit narrower than most people think, and doesn't apply to every circumstance.
4.7.2007 6:04pm
scott, i say this as a training officer, and as one who has testified numerous times in this sort of matter.

the "preferred" terminology is pat FRISK.

when you look for evidence, you SEARCH

but when you check for weapons (based on reasonable suspicion) you FRISK.

i think part of the distinction is not just the scope of the act, but the reason FOR same, and how you do it.
4.7.2007 6:35pm
Moneyrunner43 (www):
As a civilian, do you people know how insane you sound?
4.7.2007 9:51pm
Mike Zara:
I've not read the case and won't get to it anytime soon, so I'm relying on Mr. Kerr's summary. On that basis, I'll take issue with his musing that:
On the other hand, this case does seem different from the usual case, in that the first partial unzipping was "not really investigatory." Its purpose was to expose what the suspect was wearing underneath his jacket so the eyewitness could help identify whether the suspect was the robber, not to find something underneath the jacket.
I cannot quite understand how a maneuver to "expose what the suspect was wearing" in furtherance of determining via eyewitness "whether the suspect was the robber" is not investigatory. Nor do I understand how exposing clothing is other than a maneuver "to find something underneath the jacket," i.e., clothing that may have matched the witness' memory.

I don't practice criminal law and I'll be the first to admit my recollection of Terry and its progeny is hazy, but doesn't the case law pretty much set up a dichotomy between protective searches and investigative searches? Enabling an eyewitness ID is certainly not on the protective pole, so it must be on the investigative pole.

Interesting case. Thanks for the write-up! :-)
4.7.2007 11:15pm
mrsizer (www):
Moneyrunner: As a civilian, I'd use the word "arcane" rather than "insane". That's one reason that I visit this site: It's great way to get the little details of law that most of us civilians have no idea exist, let alone their import.
4.8.2007 1:26pm
Under Atwater v. Lago Vista, couldn't the police have simply executed a warrantless arrest for any misdemeanor (jaywalking, expired license, failure to obey the order of a police officer . . . whatever), and then conducted a search incident to arrest?
4.9.2007 5:28pm