705 F.3d 430 (9th Cir. 2012), 11-10337, United States v. I.E.V.

Docket Nº:11-10337.
Citation:705 F.3d 430
Opinion Judge:N.R. SMITH, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. I.E.V., Juvenile Male, Defendant-Appellant.
Attorney:John D. Kaufmann, Tucson, Arizona, for Appellant. Craig H. Russell, Office of the United States Attorney, Tucson, Arizona, for Appellee.
Judge Panel:Before: ALEX KOZINSKI, Chief Judge, N. RANDY SMITH, and MORGAN CHRISTEN, Circuit Judges. Opinion by Judge N.R. SMITH; Dissent by Chief Judge KOZINSKI. Chief Judge KOZINSKI, dissenting:
Case Date:November 28, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 430

705 F.3d 430 (9th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

I.E.V., Juvenile Male, Defendant-Appellant.

No. 11-10337.

United States Court of Appeals, Ninth Circuit.

November 28, 2012

Argued and Submitted April 18, 2012.

Page 431

[Copyrighted Material Omitted]

Page 432

John D. Kaufmann, Tucson, Arizona, for Appellant.

Craig H. Russell, Office of the United States Attorney, Tucson, Arizona, for Appellee.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. 4:11-cr-00929-DCB-JJM-1.

Before: ALEX KOZINSKI, Chief Judge, N. RANDY SMITH, and MORGAN CHRISTEN, Circuit Judges.

Opinion by Judge N.R. SMITH; Dissent by Chief Judge KOZINSKI.

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

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" pat-down" search of that person. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 88 S.Ct. 1868. 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, 88 S.Ct. 1868.

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.

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 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

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... 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 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court held that officers may conduct an 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

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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, 88 S.Ct. 1868. The officer must provide " specific and articulable facts" that indicate something more than a general " governmental interest in investigating crime." Id. at 21, 23, 88 S.Ct. 1868. 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, 88 S.Ct. 1868 (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, 88 S.Ct. 1868.

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 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 "...

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