To Frisk or Dive for Cover

Chief Judge Alex Kozinski

Chief Judge Alex Kozinski doesn’t usually mince words in his appellate opinions.  He really doesn’t mince them in his dissent today from a decision suppressing marijuana found taped under a defendant’s clothes.

“Two words best describe the majority opinion: ‘wrong’ and ‘dangerous,’” he wrote.

But the majority was having none of that.  Judge N. Randy Smith said the Arizona officer’s pat-down search of two teenage boys “amounted to nothing more than a prohibited fishing expedition for evidence.”

Judge Morgan Christen agreed so the 9th U.S. Circuit Court of Appeals has outlined the limits on an officers’ right to stop and frisk drivers who may be carrying weapons or contraband.

Officers stopped a car driven by Joseph Mendez at a border checkpoint in Whetstone, Arizona, about 100 miles from the Mexican border.

A police dog alerted to the potential of drugs in the car or on the humans inside.

Riding with Mendez was his young brother, identified only as I.E.V., because he was a juvenile.

Officers checked the car but found nothing and initially nothing on Mendez.

But officers said his younger brother was fidgeting and touching his abdomen.  Officers did a pat-down search and felt a brick-shaped object taped to his abdomen.  Another search of Mendez uncovered a similar brick of marijuana taped under his shirt.

The marijuana was seized and both men arrested.

Officers are allowed to conduct an investigative stop of a car if they see unusual conduct and suspect a crime.  In addition, they may do a brief pat-down search if an officer suspects the person might be armed and potentially dangerous.

This is allowed to control someone who might have a weapon that could be used against the officer.

There’s no dispute the officers had the right to stop the car because of the dog’s alert, but the question is whether they could go beyond that, according to Smith.  But he says they didn’t have the right to pat-down the young men.

“The officers’ argument that their safety was in danger is contradicted by the absence of any suspicious behavior directly attributable to the defendant, the scant evidence of drug possession prior to the frisk, the lack of immediate actions by officers to ensure safety, and the non-threatening and compliant behavior of two teenagers, one of them a minor, surrounded by officers in an open area,” Smith wrote.

Kozinski countered; “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 he added, if he had been there when the police dog alerted and one suspect fidgeted like 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.”

Case:  U.S. v. I.E.V., No. 11-10337




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