United States v. Aquino, 2012 U.S. App. LEXIS 5970

The district court suppressed evidence found on Aquino during a bus-terminal encounter with Nebraska State Patrol CIU officers.
Officers observed Aquino observe other passenger interrogations before engaging Aquino and later asked for his itinerary and ID.
Aquino provided a California ID and a cash-paid, one-way ticket; he denied ownership of a suspicious bag found by others.
Lutter confronted Aquino, explained he was a law enforcement officer, and invited him to talk without initially stating he was free to leave.
Aquino exited the bus, he and Lutter searched Aquino’s bag, and Aquino consented to search of the bag but not to a pat-down.
Lutter then conducted a physical inspection aimed at uncovering a concealed bulge, lifted Aquino’s pant leg, and found taped bundles later identified as methamphetamine.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Aquino's search under his clothing consensual?	Aquino did not consent to being touched or searched.	The encounter remained consensual until handcuffs; consent extended to the search.	No consent; search under clothing violated the Fourth Amendment.
Did the handcuffing transform the encounter into an arrest requiring probable cause?	Handcuffing was a safety precaution within a Terry stop.	Handcuffing followed by a search may be justified as part of a detention.	The act transformed to an arrest requiring probable cause; probable cause was lacking.
Did Lutter's initial observation of a bulge establish probable cause when followed by the search?	Bulge observation plus later actions could support probable cause.	Observation alone does not establish probable cause without consent or a valid stop.	Observation of a bulge alone did not establish probable cause; required further justification.

United States v. Eustaquio, 198 F.3d 1068 (8th Cir.1999) (bulge observation does not support reasonable suspicion or probable cause)
United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir.1999) (bulges could be non-contraband; touching required for probable cause)
United States v. Jones, 254 F.3d 692 (8th Cir.2001) (bulge plus touching does not by itself create probable cause)
United States v. Favela, 247 F.3d 838 (8th Cir.2001) (consent to touching bulges supports probable cause for arrest when bulges are contraband)
Minnesota v. Dickerson, 508 U.S. 366 (1993) (immediacy of contraband discovery after a pat-down can create probable cause)
United States v. Casado, 303 F.3d 440 (2d Cir.2002) (search inside clothing is more intrusive than pat-down)