United States v. Askew

just proceeding criminal ruption of this This commission. military it is

because to review opportunity have will if nec- post-judgment decision procedural then determine whether essary and can its properly determined the commission conformity and acted jurisdiction order doctrine The collateral the law. make those deter- authorize us to does not minations now.

III. Conclusion above, we discussed For the reasons jurisdiction. for lack of petition dismiss the America, Appellee STATES UNITED ASKEW, Appellant. Paul

No. 04-3092. Appeals, United States Court Circuit. District of Columbia 11, 2007. Argued Oct. 20, 2008. Decided June whom Circuit join, and with

BROWN joins except as to Part Judge GRIFFITH III.D, Judges and with whom Circuit join as to and GARLAND GINSBURG E, I, III.D, III. and IV. Parts by Concurring opinion filed Circuit GRIFFITH, with whom Circuit Judge join, except and TATEL Judges ROGERS to footnote 2.

opinion by filed Circuit Dissenting KAVANAUGH, whom Chief

Judge Judges Judge and Circuit SENTELLE join. RANDOLPH HENDERSON and EDWARDS, Judge: Circuit Senior evening of December On the “look- police officers received broadcast Appellant Paul an armed robber. out” for similar, Roland, Askew, clothing Assistant Federal but not G. who wore Sandra Defender, ap- argued lookout, the cause for in the Public to that described identical were A.J. her on the briefs pellant. With police then conducted stopped. was Defender, and Kramer, Public Federal nothing. produced which Terry “frisk” Rice, Federal Public R. Assistant Sharon completed, the frisk was time after Some Defender. appellant place to a police moved by complaining seen where he could be Brown, E. Jonathan Nuechter-

Blair G. was to de- lein, purpose were on the The officers’ N. Sankar witness. and Sambhav National Associa- could complainant for amicus curiae brief termine whether sup- Lawyers in Defense tion Criminal assailant. The identify appellant as her appellant. port findings of fact indicate Court’s District stop during the complied appellant Pan, Attor- Florence Y. Assistant U.S. the identifi- during and was not handcuffed appellee. With ney, argued the cause show- Preparatory to the show-up. cation Jeffrey Taylor, A. were her on the brief consent, McLeese, III, one appellant’s without Roy up, but Attorney, and W. unzip appellant’s Attorney. attempted Assistant U.S. the officers complainant jacket reveal outer SENTELLE, Judge, Chief Before: jacket. had on under appellant what HENDERSON, GINSBURG,* unfastening of The officer’s ROGERS, TATEL, RANDOLPH, hit a hard zipper when the interrupted GRIFFITH, GARLAND, BROWN, then Appellant object appellant’s waist. KAVANAUGH, Judges, Circuit away his hand from the officer’s pushed EDWARDS, Judge. Senior Circuit aroused the These latter events jacket. did noth- but the officer suspicion, officer’s by filed Senior Opinion for the Court Although show-up continued. ing and EDWARDS, with whom Judge Circuit by the com- implicated ROGERS, TATEL, appellant was Judges Circuit * oral argument. Judge at the time of Judge Ginsburg was Chief witness, unzipping yielded officers contin- the second full

plaining him, gun. him walked backwards ued detain vehicle, placed him on the

towards a April arguments On after oral car, fully unzipped and then hood of the court, were heard the en an banc order jacket. gun officers found a instructing parties was issued to sub- pouch appellant. and arrested open waist supplemental addressing mit the fol- briefs lowing questions: 2004, after the District April Assuming, arguendo, Amendment motion to denied his Fourth is not evidence, ap- dispositive that the was a suppress the Government’s search, guilty plea gun entered a conditional to was the evidence none- pellant him charging product a one-count indictment theless inadmissible as the by a possession steps show-up of a firearm convicted taken to facilitate a identification, § 922(g)(1). theory a felon violation of 18 U.S.C. witness’ on Appellant right appeal reserved his the that there were not reasonable grounds believing unzipping District denial of his motion to for that Court’s 11(a)(2). suppress. negate See Fed.R.CrimP. On the would establish or 29, 2004, suspect’s the the June District Court sen- connection with the appellant imprison- investigation? tenced to 36 months’ crime under ment, years’ supervised followed three gun 2. Was the evidence admissible as 2; Appel- En Banc Br. at release. Gov’t product protective the of a valid lant En Banc Br. at 2. search, theory on a regardless subjective of the officer’s intent the 6, 2007, a April panel

On divided of the initial unzipping objectively was an court the District affirmed Court’s denial response suspect’s to the appellant’s suppress. July motion to On during conduct the pat-down? 12, 2007, panel’s judgment was vacated gun 3. Was the evidence admissible granting appel- and an order was issued under the doctrine of inevitable dis- rehearing for en banc. petition lant’s covery, theory on a that the officers granting order en banc review instructed completed pat-down had not but following parties to address issue: would have done so after the show- [Wjhether during Terry stop police up? may unzip suspect’s jacket officers Askew,

solely show-up. 04-3092, to facilitate a In ad- United States v. No. Or- dressing question, parties (directing this der supplemental briefing) (D.C.Cir. 2008). should consider whether the officers’ ac- Apr.

tion was a lawful search under brief, As described in its opening Ohio, 20 Government submits principal (1968), progeny. and its question for this court po- is whether the Askew, No. appellant’s United States v. Or- lice “violate[d] Fourth Amend- (D.C.Cir. der En Granting rights by Banc Review ment partially unzipping [his] 2007). July jacket during order made clear that outer a show-up identifica- The. en procedure, robbery issue before the banc court tion so that a victim first, partial unzipping was whether the appellant’s could see whether sweatshirt dispute robbery was unlawful. There is no that if that of perpetrator.” matched unlawful, partial unzipping 13; was the Gov’tEn Banc Br. at see also id. object discovery appellant’s Dickerson, of the hard Applying Minnesota v. during justify waist cannot unzipping develop- further rests, a remand request which it

(1993), precedent on and the n. 7. record.” Id. at 15 find- of the uncontested ment District Court’s fact, plurality of five-judge ings of I. District Court’s answer to this concludes

court Findings Factual offi- yes. Because question is jacket went appellant’s cer’s completion of Following necessary protect beyond what motion, suppression hearing appellant’s nearby, or others investigating officers find set forth its factual the District Court the sort of eviden- precisely amounted published opinion. in a See United ings in the impermissible that is tiary search (D.D.C. Askew, F.Supp.2d 1 States Terry stop. context of 2004). constantly must “[A]ppellate courts un- that an assuming, function is not to arguendo, Even have in mind that their show-up permissi- to facilitate zipping de novo.” Anderson decide factual issues circumstances, majority under some ble City, 470 U.S. City Bessemer satisfied court is nonetheless (1985) (quo L.Ed.2d justi- cannot be officer’s actions omitted). Thus, as the Gov marks tation no reasonable here since there were fied out, court rightly points “[t]his ernment unzipping believing that grounds for findings court’s accept must the district negate appellant’s establish or would En clearly Gov’t fact unless erroneous.” question.1 in as the robber identification firmly en Br. at 15. This rule Banc court is also satisfied majority A of the precedent, see in trenched argu- alternative the Government’s States, v. United Ornelas can be ment, appellant that the search L.Ed.2d 911 con- objectively reasonable justified as an “overstepf (1996), ] it we applying and in frisk, is both protective of the tinuation ... if under duty [we] [our] the bounds of Court’s factual contrary to the District the lower the role of duplicate taken any plausi- unsupportable findings court,” City, Bessemer the record. reading of ble when, as especially This is so S.Ct. 1504. concedes that Finally, the Government here, to recon required court is the trial theory under a gun is not admissible “[t]he in testimony order cile differences ” discovery.’ Supple- Gov’t of ‘inevitable Tr. at findings. Mar. 26 make factual the Government Br. at 12. As mental City, 470 29-31; generally Bessemer see make an inevitable- it “did not explains, 573-76, 105 the district discovery argument before challenged Notably, party neither court, and thus failed elicit” testimo- findings in this case. the District Court’s theory support such a ny necessary to fact, panel, with the in its brief filed Williams, under Nix the District Government characterized (1984). Gov’t findings as “consistent factual Court’s Moreover, the Br. at 14. Supplemental suppres at the government’s evidence “[bjecause acknowledges Government Br. at 9. Even hearing.” Gov’t Panel sion fac- inevitable-discovery theory raises challenged, we had findings if been those been addressed that could have tual issues we were unless could not overturn them not, hearing but were suppression at the that a mis- firmly “definitely and convinced in a position [it is] not believe that [it does] legal question resolved assuming, arguendo, the court has respect, 1. In activity scope permissible permissi- about the show-up to facilitate circumstances, show-ups. majority ble under some tache, been committed.” Bessemer take Officer Bowman checked with the [had] City, 470 U.S. at 105 S.Ct. 1504. Be- dispatcher to determine whether grounds no for such a cause there are robber also had a moustache. When the conclusion, District Court’s factual dispatcher responded affirmatively, Offi- the record which findings constitute cer stopped Bowman the defendant. Consequently, is bound. appellate review Officer Bowman asked the defendant are, part, reproduced pertinent car, patrol to come to the and he com- below. plied. complied The defendant also night On the December requests with Officer Bowman’s further run p.m., around 11:00 a radio alerted identification, produce he some take Anthony Bowman of Officer the Metro- pockets, place his hands out of his Department to a politan report Police top his hands on the of his head. Offi- robbery an armed in the 700 block of 9th cer Bowman then told the defendant Street, S.E., Washington, D.C. Officer that he being stopped because of patrol Bowman canvassed the area his physical similarity description car, looking matching for individuals of a robber. back-up When units ar- description perpetrator: a black rived, Officer Bowman returned to the male, tall, approximately six-feet wear- interior of his car to check whether the jeans. ing a sweatshirt and blue blue police department computer returned report The radio reflected that any information on the defendant. Offi- perpetrator moving had been last seen cer Bowman’s back was turned for the Street, S.E., on 9th in an unknown di- couple next of minutes and he did not rection. pat-down see the of the defendant that Within two minutes of the radio re- followed. port, approximately and within ten min- Koenig Officer James conducted a robbery, utes of the Officer Bowman pat-down of the defendant and found spotted walking defendant Paul Askew afterwards, nothing. Shortly another Street, S.E., in the 200 of 9th block five officer, Benton, Officer drove the rob- robbery. blocks from the scene of the bery victim to place the where the de- Bowman, Upon seeing Officer the defen- detained, fendant was being for the dant in a turned and walked different purpose conducting a show-up. The direction, but Officer Bowman continued victim remained in the car while Officer to patrol follow the defendant in the car. Koenig Anthony and Officer Willis male, six-feet, Defendant is a black brought the defendant to place where tall, three-inches and at the time was by he could be seen the victim. The wearing clothing quite similar —but not defendant was not in handcuffs at that description identical—to the broadcast Preparatory time. show-up, Offi- over the police radio. the While de- attempted unzip cer Willis to the defen- scription perpetrator mentioned a jacket dant’s outer to reveal the sweat- jeans, blue sweatshirt and blue Officer shirt underneath so the victim could Bowman testified that the defendant better determine if the defendant was wearing was blue sweatpants, navy “a the robber. Officer Willis testified that jacket[, blue a darker blue and] fleece he remembered the “blue hooded type jacket underneath. He had on two sweatshirt” described in the jackets.” radio run reported Officer Bowman and dispatcher complainant “wanted the “vaguely that Askew see description.” what had on to matchfed] th[e] [the defendant] After no- make ticing that the defendant had a mous- sure that zipping nothing he wasn’t up testimony “per- that unzip I notes Officer So went Willis’s up. to cover ” complet- could what haps pat ... see had not been down so down by Willis had difficul- he had on.” Officer “because resistance ed of some however, jacket added). ty, (emphasis defendant.” Id. hit he zipper when the what described points government then Court to “[t]he object as a or “solid” and “didn’t “hard” acknowledge[ment] that when Officer Koe- stopped go past object]. It there. [the down, he did nig patted the defendant not time, that’s when de- [the And at anything” find and reiterates its own find- down,” my away hand knocked fendant] discovery ing subsequent “[t]he zipper. from the gun pat- at issue not the result of this was show-up, Officer Willis and After (“[t]he Id.; id. at 4 initial down.” see also Edward Snead walked the defen- Officer by Koenig pat-down did reveal Officer car, placed dant toward backwards In presence any weapon”). other car, and unzipped him on the hood of the words, the does not District Court credit n jacket. once Visible suggestion pat Officer Willis’s open pouch, was an black waist unzipped incomplete down or have been Officer “fanny pack,” object or silver speculation why regarding Willis’s inspection, further sticking out. On may have been the case. object silver was identified as gun, was handcuffed ar- defendant II. Overview rested. “Time and again” (alterations Askew, at 2-3 F.Supp.2d “has observed that searches and seizures (footnotes original) cita- transcript judicial process, conducted outside the omitted). tions prior approval judge magis- without legal analysis, the course of its trate, per are unreasonable under se that the disputed District concluded subject Fourth to few Amendment — unzipping was undertaken facilitate the specifically and well delineated established Id. at 4. This conclusion is consis- show-up. Dickerson, exceptions.” findings tent factual that with its Officer omitted) marks (quotation 113 S.Ct. 2130 during Koenig “nothing” the frisk found cases). (collecting And the Court has complainant brought was right made clear that the “inestimable of “shortly where was detained af- appellant in the Fourth personal security” embodied 3; id. Id. at see also at 4. In a terwards.” much to the “belongs Amendment as citi- footnote, Amendment, lower courts are not free to ... suppressed.” armed will be Dicker a strike new and different balance. With

son, 373, (citing 508 U.S. at 113 S.Ct. 2130 respect to of searches individuals detained 1889). Sibron, 65-66, 392 U.S. at 88 S.Ct. during on-the-street encounters on less so, explained This is the Court in Minne cause, probable than the balance was Dickerson, v. sota because searches that 1, 1868, in Terry, struck 392 U.S. 88 S.Ct. necessary exceed what is to determine if 889, Sibron, 40, 20 L.Ed.2d 392 U.S. an individual is armed “amount[] 1889, 88 S.Ct. 20 L.Ed.2d 917. Employing evidentiary sort Terry of search that ex the reasonableness test to which the Gov pressly refused to authorize” and that the refers, ernment Terry the Court in Court “condemned” in v. New author Sibron York, 40, 1912, a strictly 392 ized circumscribed search for U.S. 88 S.Ct. 20 weapons L.Ed.2d Michigan Long, 463 when an officer has reasonable U.S. suspicion 77 L.Ed.2d 1201 articulable prop- to believe that a

1127 Analysis Legal is and dan- erly individual armed stopped of the Issues III. nearby. gerous to the officers others Opening Unzipping The Partial A. 30-31, 1868; see also at 392 U.S. Appellant’s a Search of Jacket Was Class, 106, 117, 106 New York (1986) (“When a turning 89 L.Ed.2d Before to the issues before has immediate or seizure as its court, banc must determine the en we object ... we have weapon, a search for the unzipping appellant’s whether weighty to struck the balance allow the was, fact, Clearly By it was. search. to safety in the officers interest jacket, unques zipping up appellant his only on searches based justify warrantless tionably keep pri evidenced an intent to of criminal activi- a reasonable lay it. The vate whatever under Court, Terry’s ty.”). applying The Sibron then, society pre is is question, whether Terry did not made clear that holding, recognize pared expectation such an as undertake permit police officers States, reasonable. See Katz v. United safety on rationale. justified searches L.Ed.2d 63-64, It at 88 S.Ct. 1889. See 392 U.S. (1967) (Harlan, J., concurring). protective also searches established question unequivocally This an- beyond strictly circum- extend Terry. by Court swered Terry impermissible are scribed bounds touching there was the At issue evidentiary searches. Id. surface of defendant’s overcoat. pur- outer important, Most for our S.Ct. 1889. opinion in As poses, Terry, the Court’s Minnesota Dickerson, explained, even that limited action that when L.Ed.2d confirms to the level of a “search” within the rose who search of an individual on-the-street of the Fourth Amendment. Id. at purview has articulable stopped been opening 88 S.Ct. 1868. Because beyond suspicion extends what is author- coat, like opening a fastened most is no to be Terry, reweighing ized in there clothing, visible whatever other renders grounds the search undertaken on the underneath, involves an such an action lies might minimally as intrusive be described precisely intrusion in greater even sought might provide or that the evidence socially recognized expectation of same probable cause believe particu- And such an intrusion is privacy. question. the crime committed when, here, larly opening great way to principled there is no Because place public on a street. describ- takes the initial in this distinguish personal intrusion occa- ing the level Dickerson, case the search in from frisk, by public sioned reweigh court not free to the interests stated: wholly unprec- to create the new and issue simply urge that such fantastic [I]t exception to edented identification performed public procedure requirements warrant and cause help- while citizen stands policeman us. urges upon the Government less, a wall with perhaps facing Rather, that the Su- applying balance raised, indignity.” It “petty hands in preme Terry struck and Sibron upon sanctity a serious intrusion factual the Dis- findings the uncontested of great inflict person, may which of Court, un- trict we are convinced that the strong and resentment. indignity arouse jacket a non- appellant’s was zipping undoing Id. at evidentiary violated protective search that is under- clothing to reveal whatever the Fourth Amendment. omitted) Id. happens (quotation to be on the hear.” neath to whomever marks necessarily (omission involves an even more street original). Consequently, in “[n]o upon sanctity serious intrusion person expectation can have a reasonable involuntary opening of some- person. The that others will not know the sound of his large to the world at clothing one’s reveals voice, any reasonably more than he can (not officer) just searching police to the expect mystery that his face will be a obviously intends what an individual to the world.” Id. keep private. piece The same cannot be of a said above,

As noted the Government did not clothing only when the information that unzip- characterization of the dispute the clothing have about that is that during arguments before ping as court, Before the en banc panel. how- the wearer has chosen to most it shield ever, the refused to concede Government public Contrary from view. to the Govern- only point. Stating was “as- assertion, nothing ment’s there is about a suming], arguendo, that the that —like sweatshirt the characteristics of ” ‘search,’ appellant’s was Gov’t voice, handwriting, an individual’s or En Banc Br. at 23 n. Government necessarily face—must be revealed to the action did not maintained public daily in the course of An life. indi- actually amount to a search because the may vidual expose part choose to all or police expected sweatshirt that the to re- clothing public article of to the or he widely “presumably veal was visible when keep choose to all part or of that Id. This appellant settings.” indoor clothing covered. argument legal is flawed both its premises. factual presented by evidence the Gov- regarding appellant’s ernment sweatshirt United States Relying primarily on Dionisio, appellant 35 was that had demonstrated an (1973), the Government likens intent to shield most of it public from view. appellant’s “physical sweatshirt to a char- government unfastens, lifts, When a agent constantly exposed acteristic ... pulls down, pats, manipulates or otherwise Banc public.” Gov’t En Br. at 23 n. 11 clothing to reveal or determine what lies (omissions original). analogy This is underneath, that manipulation necessarily Dionisio, “ inapt. Supreme Court ‘probing involves the sort of into an indi- production exemplar held that of a voice vidual’s private life’” that jury pursuant grand subpoena to a did not Mississippi, Davis v. search, physical constitute a because “[t]he (1969), charac- voice, person’s of a characteristics its tone terized as the mark of a search or interro- manner, opposed to the content of a Dionisio, gation. conversation, specific constantly are ex- Mississippi). Davis v. (quoting Cit- posed to public. Like man’s facial ing Terry, the Dionisio Court reiterated characteristics, handwriting, his voice is that even the minimal intrusion involved in repeatedly produced for others to hear.” Terry clothing frisk of outer necessarily 410 U.S. at 93 S.Ct. 764. As the Court amounts to a Fourth Amendment search. explained, “while content of commu- Contrasting the seizure of exemplars voice nication to Fourth is entitled Amendment permissible downs, pat the Court ... protection underlying identifying explained that the former in- “does not constant characteristics —the factor severe, brief, volve though throughout public private both com- intrusion open munications —are all upon personal security, to see or cherished effected Dionisio, 15, Terry, makes clear that in latter. 410 U.S. at each the context by” the omitted). (quotation marks an 93 S.Ct. of on-the-street seizure based on less cause, probable balancing than there no argument The Government’s of be undertaken in determin- interests to jacket was not a unzipping appellant’s of ing particular a a whether search of fundamentally is also based on stopped suspect is reasonable and there- First, premises. factual the Gov- flawed permissible fore under the Amend- Fourth of assumes that ernment Rather, applying ment. the balance only jacket appel- would reveal appellant’s in Terry, struck courts are constrained to already partially visible sweatshirt. lant’s suppress obtained a during evidence such special need medical One consider individuals, stop if it including of certain is the fruit of search that was needs colostomy are to use necessary protect investigating those who forced not to (to few) and heart name to bags monitors nearby. officers Put another or others fallacy assumption. recognize of way, these decisions establish that individ- are to an frequently Such devices attached uals on no more than reasonable stopped abdominal area and re- individual’s often not, suspicion articulable consonant to hike quire wearing up those them protections with Fourth Amend- to clothing around their midsection accom- ment, purpose for the of re- searched Second, many modate the device. individ- vealing gathering pertaining and evidence to clothing uals wear that is comfortable illegal behavior which are unseemly appear them but would to oth- suspected. circumstances, In ers. such individual Sibron, Terry, case clari- companion unseemly portions not who does want the au- exception fied limits of the search clothing will publicly exposed of his cover Terry, holding non-pro- thorized in that a cover partially clothing anoth- evidentiary tective search of an individual garment. fastening his Appellant’s er cause, probable than detained on less effectively expressed recognized would Fourth mus- pass Amendment expectation privacy. and reasonable case, stopped ter. officer unfastening And its cannot be character- selling Sibron on that he was inability given ized as non-search narcotics. 392 U.S. at 88 S.Ct. other know what information Sibron, 1889. When the officer said to private life that pertaining appellant’s after,” “You I am know what Sibron unfastening would reveal. into his something reached “mumbled Simultaneously, pocket. officer] B. Minnesota v. Dickerson Dictates the [the Unzipping Conclusion That pocket” thrust hand into the same dis- Appellant’s Imper- Jacket Was covering envelopes of heroin. Id. several omitted). missible Search for Evidence (quotation marks After first the officer concluding that lacked legal principles controlling stopped cause to arrest Sibron when he largely disposition this case were estab him, id. the Court in three post-Terry lished pocket held the search of Sibron’s cases, on by all of which were relied evidence of narcotics unconstitutional. Dickerson. Those Minnesota v. Relying Terry, on decision the Court its Sibron, cases are was not concluded that the officer’s action Illinois, 1889; Ybarra v. predicated any concern that Sibron was (1979); armed, constituted a search for but rather Long, 463 U.S. the crime the officer sus- Discussing applying L.Ed.2d 1201. evidence of at committing. Terry exception See id. case created an to the pected Sibron 63-64, cause, de- 1889. As the Court requirement excep- an it, “opening officer’s statement scribed tion scope whose narrow this Court has abundantly ... made it clear to Sibron been careful to maintain. Under that doc- narcotics, testimony sought and his that he officer, trine a law enforcement for hearing left no doubt that he protection safety, may own conduct a in thought there were narcotics Sibron’s patdown weapons find he reason- 64, More- pocket.” Id. at 88 S.Ct. 1889. ably suspects or believes are then over, explained, even if the as the Court possession person he has accosted.” predicated been on a reason- search had added) Id. at (emphasis S.Ct. 338 able articulable that Sibron was omitted). However, (quotation marks armed, imper- the search would have been point Court was careful to out that “[n]oth- reasonably missible it “was not because ing Terry can be understood to allow scope accomplishment limited in generalized ‘cursory weapons’ search for might conceivably only goal which or, indeed, any any- search whatever for justified inception protection have its —the 93-94, thing weapons.” but Id. at by disarming potentially of the officer added). (emphasis S.Ct. 338 dangerous man.” Id. at 88 S.Ct. 1889 Long, In which Terry’s protec- extended added). (emphasis cars, tive search doctrine to the interior of Ybarra, the lim- Court reiterated explained confirmed and its un- its of rationale. The its willingness non-protective to allow eviden- place search at issue there took tiary searches based on less than probable Tap Aurora Tavern. 444 U.S. during run-of-the-mill investigatory cause S.Ct. 338. The had obtained a war- stops. The Court there addressed the authorizing rant the search of the tavern constitutionality of the search of the interi- Greg. Upon and an individual Id. named compartment or of an during automobile tavern, entering the the officers frisked investigatory lawful stop occupant. its each of patrons weapons. its Id. Dur- Quoting 103 S.Ct. 3469. Ybarra, ing the frisk of an “officer felt Terry, the Court concluded “that what cigarette pack he described as a passenger search of the compartment of objects in it.” Id. at 100 S.Ct. 338 automobile, limited to those areas in omitted). (quotation complet- marks After weapon may placed hidden, which a ing pat down of a number of other permissible if the possess- officer Ybarra, patrons, the officer returned to es a reasonable belief ‘specific based on again, frisked him and removed from his which, together articulable facts taken pocket cigarette shirt pack containing with the rational inferences from those packets what turned out to be of heroin. facts, reasonably warrant’ the officer in Id. at argued, 100 S.Ct. 338. The State believing dangerous alia, pat inter that the first down of Ybar- suspect may gain immediate control of permissible ra was a frisk for weapons weapons.” Id. at Terry. under Id. at 88 S.Ct. 1868. The “stress[ed],” however, The Court that its rejected argument, the State’s con- decision did police may “not mean that the cluding that because initial frisk of “[t]he conduct automobile searches whenever simply supported by Ybarra was an investigative stop.” conduct Id. at reasonable belief that he was armed and (emphasis original). n. 103 S.Ct. 3469 presently dangerous,” id. at explained, As the Court sup- the evidence must be is because the pressed. As explained, justification the Court for allowing “[t]he automatic war- weapons. Id. Al- him down for patted for evidence incident searches rantless weapons, an automatic no support pat not down revealed though arrest does an during a evidentiary search conducting warrantless the search did take “the officer Terry stop. See id. lump respondent’s in a small an interest ar- exists officer, additional interest

An who did not nylon jacket.” Id. The context, ie., evi- preservation of rest lump as crack immediately recognize dence, justifies an “automatic” and this cocaine, it after determined what was However, interest that additional search. manipu- “squeezing, sliding and otherwise A Terry in the context. not exist does pock- lating the contents of the defendant’s search, “unlike a search without Terry (quotation at 113 S.Ct. 2130 et.” Id. arrest, is to a lawful warrant incident omitted). marks any prevent justified by need granted Court certiorari of evidence or destruction disappearance among a conflict in Dickerson “to resolve justification of the crime.... The sole and federal courts over whether state police protection ... is the search through contraband detected the sense nearby.” others officers and during patdown search touch at 88 S.Ct. Terry, 392 U.S. (quoting Id. Id. at admitted into evidence.” (alterations 1868) in original). essence, the issue before 2130. S.Ct. cases, Relying on the rationale these plain the Court was whether and when again in Minnesota v. Dickerson the Court Hicks, doctrine of Arizona v. view evidentiary non-protective confirmed S.Ct. during permissible searches are not (1987), justify plain exception feel could There, essentially facts indistin- stops. detected dur- nonthreatening evidence here, presented guishable from those ing Terry pat down. police held that a officer Supreme Court proscrip- Amendment violated the Fourth Sibron, Ybarra, discussing and Citing when, unreasonable searches against tion first reviewed the Long, Court produced frisk that following protective during Terry conducted hmits on searches manipulated he weapon, no evidence of a Dickerson, 372-73, at stops, jacket pocket in suspect’s of a the outside long “set- concluding with identify crack cocaine an effort to “protective that if a principle tled” during the frisk. 508 lump small detected necessary what is to deter- goes beyond 378-79, at 113 S.Ct. 2130. Dickerson armed, longer no if mine searching came to the attention of the first fruits will be Terry and its valid under he left what partner and his when officer 2130. id. at suppressed,” a well-known crack house. Id. doctrine, the plain view Turning to the testimony “According 2130. lawfully police that “if are explained court, by the trial [Dickerson] credited an from which view position in a but, upon walking police toward the began im- incriminating character is object, if its making eye squad car spotting and if the officers mediately apparent, officers, abruptly with one of the contact object, access to the right have a lawful opposite in the began walking halted a warrant.” Id. they may seize it without 2130. Id. at direction.” However, “evasive actions and Based on these continued, proba- lack if “the just building left a known fact that he had object plain to believe that ble cause traffic, the officers decided for cocaine conducting without is contraband view investigate further.” Id. ... object ie., if further search Dickerson and some They stopped — equipment by police character imme- stereo found while incriminating [is not] ‘its diately plain-view executing doctrine other apparent,’ a valid search for evi- (alteration Id. justify cannot its seizure.” Although dence. were lawful- omitted). (citations in original) ly premises, proba- on the obtained ble cause to believe that the stereo principles these nonthreat- Applying equipment only contraband after was during Terry discovered ening contraband moving equipment permit the officers downs, that a the Court concluded pat to read its serial numbers. The subse- permissible seizure would be warrantless quent equipment seizure of the could not stays long as the officers’ search with- “so doctrine, justified by plain-view be the by Terry,” marked id. at in the bounds added), the in- (emphasis explained, this Court because 113 S.Ct. or mass makes its object’s the “contour criminating character of the stereo immediately apparent,” id. at identity equipment immediately appar- was not added). (emphasis S.Ct. ent; rather, probable to believe cause equipment stolen was arose it, addressing In the facts before only as a result of a further search —the the “dispositive Dickerson Court described equipment moving was not “whether the officer who con question” as —that by authorized a search warrant or acting search was within the ducted the by Terry any marked exception require- lawful bounds the time to the warrant cause to believe that gained probable he ment. respondent’s in was con lump Dickerson, 378-79, 508 U.S. at 113 S.Ct. 2130. An traband.” Id. Concluding that the search of Dick- in swering question negative, “very similar” erson was to the search of that the “officer’s contin Court concluded equipment, the stereo id. at exploration respondent’s pocket ued af 2130, the held that disputed that it having ter concluded contained no pocket search of Dickerson’s was unconsti- justifi unrelated to weapon ‘[t]he was sole tutional. Terry: cation search ... [under ] of the Although lawfully the officer in was protection officer and in position lump respondent’s to feel ” Id. at nearby.’ others 113 S.Ct. 2130 pocket, him because entitled (quoting Terry, 392 U.S. at place upon respondent’s jack- his hands 1868) (alterations Thus, original). in et, the court below determined that the manipulation ap found that the incriminating object character of the pellant’s pocket “amounted to the sort of immediately apparent was not to him. evidentiary Terry expressly search that Rather, the officer determined that the authorize, refused to see at 26 [392 U.S.] item was contraband after conduct- 1868], and that we have con [88 S.Ct. search, ing further one not authorized Sibron, demned in” 392 U.S. at by Terry by any exception other Long, 463 U.S. at 1049 n. requirement. the warrant Because this Dickerson, 508 U.S. at respondent’s pocket further search of 378, 113 S.Ct. 2130. invalid, constitutionally was the seizure again,” explained, “Once the Court of the cocaine that followed is likewise “analogy plain-view apt.” doctrine is unconstitutional.

Id. Id. Hicks, In Arizona (1987), disputed appellant search of 94 L.Ed.2d this distinguished any Court held invalid the seizure of stolen cannot case meaningful way impermissible from the Gov’t En Br. at 38-39. This Banc bald Here, search Dickerson. Dicker- by any assertion is unsupported further son, constitutionality neither explanation wrong in quite and is what it stop frisk protective initial nor the was suggests. addition, issue. neither frisk of impermissible assertion appellant pro- Dickerson nor the frisk more search Dickerson was intrusive any weapon. duced evidence of Never- specious. than the appellant search of

theless, case, in each undertook anything, If appellant the search of further at determining aimed First, more as the intrusive. physical whether certain evidence would out, pointed when the in officer identify stopped the individual as the impermissible Dickerson the undertook in perpetrator question. of the crime search, “lawfully he in was at least a posi- Dickerson, officer manipulated the lump tion to feel pock- [Dickerson’s] the suspect’s jacket the pocket outside of the et,” just having pat down. finished the lump to determine whether small Moreover, at Here, pocket crack felt like cocaine. Dickerson, throughout the search appellant’s manipulated jacket, never strayed officer from the outside sur- it, partially unzipping opening so that the suspect’s jacket pocket. face of complainant He did could see sweatshirt jacket. open the appellant’s pocket. underneath In each not He did not look into case, the was goal of the officer to obtain jacket it. And he not reach inside the did object physical information about a in the Thus, pocket’s to feel the contents. while suspect’s possession officer be- the officer in Dickerson felt the lump might identify having lieved as through jacket pocket, he did not phys- in question. committed the crime In other ically penetrate the outer surface of the words, goal in each the officer’s case was Rather, jacket. simply “squeezed], he object determine whether of the slid[], manipulated] and otherwise search, in Dickerson lump and the pocket.” contents of the defendant’s Id. at here, particular sweatshirt had incrimina- (quotation marks S.Ct. 2130 omit- ting that would characteristics contribute ted). And, his actions significantly, did not to a cause determination. And in pocket reveal the of the to the contents case, sought to accomplish each the officer large. at public goal pursuant this to a search that exceed- Here, unzipped when Officer Willis ed the Terry. bounds of jacket appellant’s the waist fastened so attempt to distin- Government’s that the complainant could see what was guish entirely unavailing. Dickerson is underneath, only penetrated he not The sum and total of the Government’s layer clothing, he appellant’s outer actu- argument single of a consists sentence: ally of it physically peeled portion back. This critically case is different from Dickerson, In contrast to the officer Dickerson, this case because does not lay exposed Officer also what under Willis involve search of person an intrusive at layer public large. that outer to the evidence, for but rather involves the Consequently, in addition to exposing very intrusion of un- partially minimal complainant, the sweatshirt search sweatshirt, zipping a coat to reveal a appellant’s necessarily jacket exposed evidence, part for general of a whatever had under that appellant else but rather as a reasonable incident of an portion jacket of his to whomever was entirely show-up permissible identifica- procedure. looking tion at the street present when Arguments for an here C. The Government’s unzipped. The search jacket was Investigative Search greater invasion Identiñcation thus involved of the outer manipulation Exception Supported person than Are Not jacket pocket. Dickerson’s surface of Precedent distinction, second The Government’s federal There is no Court or “gener- of Dickerson was that the search supporting ease law the search of appellate evidence,” unzip- while the for al search stopped only individual on reasonable an “a reason- ping appellant’s down of pat articulable after a entirely permissible able incident produced has no evidence of that individual procedure,” Gov’t show-up identification weapon. argument, At oral Government best, 39, is, puzzling. En Banc Br. no counsel conceded that there is such argument regarding at oral pressed When Argument Tr. of En Banc precedent. distinction between what alleged 51-52. in Dickerson and searching for police were precedent, the Government Absent such here, Gov- searching were what argument in attempts three-part support a that asserted the search ernment counsel wholly investigative a new identification from the search appellant was different proba- the warrant and exception search to Dickerson, the search of Dick- because First, it requirements. points ble cause to evidentiary “full-blown erson Supreme the has cases which (Oct. search,” Argument En Banc Tr. of balancing the test to assess the used 2007) evidentiary pure “a search permissibility Fourth Amendment of what contrast, contraband,” id. at 43. In for “a the Government characterizes as wide counsel, here according to the officers array” “governmental intru- of warrantless trying physical to recover evi- “weren’t something proba- than sions based less 43; Id. at see also id. at 45. dence.” En ble cause.” Gov’t Banc Br. 19-21. argument unper- Government’s Second, support it seeks in several Su- Certainly complainant if the had suasive. preme indicating “police Court cases that appellant as her assailant on identified the steps officers take reasonable neces- sweatshirt, that the basis of his sweatshirt sary investigation to facilitate a brief dur- physical would have been seized as evi- Third, Terry stop.” Id. at 21-22. ing Moreover, appellant’s guilt. it is dence of ap- asserts that Court has clear that the search here was intended to measures, proved investigative similar to physical reveal evidence—both evidence jacket, unzipping appellant’s (the sweatshirt) and testimonial evidence are related identification issues. Id. (the it) complaint’s identification of —that cases, None of the cited 24-28. either support probable would either cause combination, singularly support or in necessary appellant dispel to arrest permissibility non-protective of the eviden- suspicion appel- officer’s reasonable tiary search at issue here. simply impossi- lant was the robber. It is ble for us to ascertain how differs “Balancing-Test” Cases Do Not attempt from the Dickerson officer’s Support Investigative Identifica- regarding uncover tactile evidence Exception tion Search lump suspect’s pocket would Unsurprisingly, given pro- the Court’s necessary support probable cause Sibron, nouncements in Dickerson and dispel effectuate an arrest or the officer’s balancing-test by none of the cases cited committing that Dickerson was permissibility narcotics offense. the Government involve the during require a run-of-the-mill the schools does not strict adher- a search Rather, requirement cited cases fall into one ence to the that searches be stop. categories, probable each of which is irrele- based on cause to believe of three subject of the the issue here. search has violated or is vant to Rather, the law. violating legality of a relies on the category, In one the Court of a a public student [in school] Terry’s safety ra- balancing test to extend simply depend should on the reasonable- See, settings. and limited tionale to new ness, circumstances, all the under Buie, e.g., Maryland search.”). (1990) (a 108 L.Ed.2d by ... incident to an ar- The remainder of the cases relied on “protective sweep support not violate the Fourth Amend- the Government to its assertion rest” does searching possessed] balancing pro- “if the officer that the reasonableness test ment swept reasonable belief ... that the area vides means which we should assess in- posing danger appellant’s an individual are harbor[s] others”); in that do Pennsylvania apt the officer or not involve searches. Mimms, 106, 110-11, Rather, simply these cases stand (1977) (“inordinate that, situations, proposition in certain confronting justifies enough scope may an officer” re- seizure—if limited risk — quiring stopped though a driver who is for traffic be found reasonable based on car). other than step something violation to out of the cause to See, activity that criminal afoot. believe category, uses the second Lidster, e.g., Illinois 540 U.S. balancing permissi- test to assess the (2004) (highway L.Ed.2d bility of searches of individuals who have a checkpoint to locate a hit and run driver expectation privacy lessened of as a result po- found reasonable because contact with governmental supervision to which request of a for in- lice—which consisted legitimately subject at the time of the were flyer— formation and the distribution of a See, e.g., search. United States v. no more than a few seconds and did lasted 112, 119-22, 122 S.Ct. Knights, 534 U.S. evidence); not involve a search for United (2001) (defendant’s 587, 151 L.Ed.2d 497 Place, 103 S.Ct. States subject probationer “status as a to a (1983) (seizure L.Ed.2d 110 in a diminished search condition” results articulable luggage based on reasonable privacy that does not out- expectation that it contains narcotics be suspicion governmental pre- interest in crime weigh permissible if detention is limited in dura- rehabilitation); vention and O’Connor v. investigative tion and measures used to 725-26, Ortega, 480 U.S. dispel suspicion confirm or do not include (1987) (“Balanced 1492, 94 L.Ed.2d 714 contents); States v. Mar- search United government the substantial inter- against tinez-Fuerte, employers, privacy “the in- public ests” of (1976) (highway check- in their government employees terests of requiring occu- points at border vehicle ... than place of work are far less those questions and pants respond to brief in found at home or some other con- evidencing a possibly produce documents T.L.O., texts.”); Jersey New in found right to be the United States neither the vehicle nor reasonable where (1985) (“[T]he priva- accommodation of the searched). occupants its were cy interests of school children with the Clearly support none of need of teachers and adminis- these cases substantial argument maintain order in Government’s trators for freedom to detained); reasonable, communication person de of the jacket was “a appellant’s verify private citizens to police or that appro- measure investigative minimis identification, confirm or de explanations, proce- show-up facilitated priately proffered person whether a termine Banc Br. at 13. The Gov’t En dure.” wanted; a short de identity is otherwise merely allows for limited first set of cases premises check tention while or carefully tailored to reveal intrusions whether, to others to determine talk articula- an officer’s eliminate fact, occurred; exami an has offense person place poses suspicion that ble objects by nation of abandoned the sus nearby. others danger to himself or and, if it is known that offense pect; of cases is of the second set inapplicability area, viewing was committed by considering how easily demonstrated to the crime. Id. witnesses in those cases any one of the defendants 12, 101 at 700 n. S.Ct. 2587. they not le- treated had would have been investigative steps additional subject gov- to increased gitimately been by the Government are those referenced example, For had supervision. ernmental bag- related to the seizure of a traveler’s fourteen-year-old public school student gage permitted when an officer has rea- it is clear property, left school T.L.O. articulable to believe sonable permissi- have that no officer could it contains narcotics. See Gov’t En purse merely because she bly searched her Place, (citing Br. at 22 462 U.S. at Banc lava- smoking the school had been seen 2637). Place, though, similarly of cases is tory. The third set that if point the Court was careful to out us in wholly irrelevant to the issue before lug- which investigative procedure cases involve a search of that none of the requiring gage is seized is “itself any kind. cause, probable the initial seizure of [the] ...— no matter how luggage [can- brief — Indicating that Police Officers Cases justified on less than ]not Steps to Facili- May Take Certain cause.” 462 During a Investigation tate a Brief explain dog The Court went on to Terry Stop Support Do Not Iden- narcotics, sniff test for to which Place’s Exception tification Search search, subject, a luggage was was not which the None of the cases on required lug- it that the because neither support its second Government relies gage opened, exposed nor non-contra- may take rea premise police officers —that band items that otherwise would have re- a steps necessary to facilitate brief sonable public mained shielded from view. Id. at Terry stop a investigation during —lend 707, unzip- 2637. Because the 103 S.Ct. support to ultimate conclusion that the its search, supports ping here was Place unzipping permissible investi here was unzipping appellant’s conclusion none of the gative step. This is because jacket investigative a permissible was not in investigatory measures permissible measure. involved an by

cases cited the Government Investigative 3. The Measures Cases in evidentiary As described Mich search. Pertaining to Identification Issues Summers, 692, 101 igan v. 452 U.S. S.Ct. Support Provide No Govern- 2587, (1981), permissible 69 L.Ed.2d 340 Excep- ment’s Identification Search investigative measures in the context of a tion (which questioning Terry stop consist may request for identification or principally include The Government relies on support argument conduct four cases in of its inquiry concerning suspicious narrowly requiring tailored to facilitate “without cause.” Gov’t searches permissible investi show-up procedure are En Br. at Banc 28. The Government’s cases, New One of those gative measures. badly characterization distorts the Court’s Class, 475 York v. U.S. in reasoning simply wrong and is its con- (1986), only is not distin clusion. actually supports oppo but guishable, fact, in opinion, The Class rests on three Two of what the Government claims. site impossibility having factors —the a rea Dionisio, others, v. 410 U.S. United States VIN, expectation privacy sonable in a (1973), 35 L.Ed.2d S.Ct. safety, proba officer and the existence of Mara, United States bal ble cause—that render the (1973), lend no S.Ct. inapplicable ance struck there to the case whatsoever to the Government’s support here, actually support but the conclusion they involved neither a argument, because appellant’s in investigative step nor an taken impermissible. Because there is no stop. That leaves the context of VINs, expectation privacy in the intru Florida, Hayes the dicta moving was not the sion issue Class 811, 816-17, 105 1643, 84 L.Ed.2d 705 VIN, covering the papers but rather (1985). language Hayes And the the officer’s reach into the car to move points simply can which the Government Class, papers. those 475 U.S. at 114- not take the Government where needs inquiry 106 S.Ct. 960. The was made presented on the facts here. go prevail

necessary by the fact that the officer had a. the Exclusion of the Supports Class prevented respondent, alight who had

Gun Evidence him police pulled ed from his car when the Class, over, getting from back into the car to In determined Supreme Court papers. that a officer conducted search move the See id. at when, during stop, a traffic he reached into Noting Pennsylvania 960. that under move pa the defendant’s vehicle to some Mimms, 330, 54 that obscured the vehicle identifica pers 331, safety permitted L.Ed.2d concerns (VIN) tion number on the dashboard. 475 outside of the officer to detain the driver 114-15, 106 doing, so car, ques explained the Court gun the officer saw a under the driver’s tion at issue was whether the officer addi Id. at 106 S.Ct. 960. As de seat. tionally could “effect a search for the VIN banc scribed the Government its en necessary only have been be brief, Supreme Court concluded that “[t]he Class, cause of detention.” reasonable, after the officer’s actions were 116, 106 at S.Ct. considered, applying ‘balancing’ test the search The Court concluded among things, other ‘the search was “In the permissible. light was It said: of objective revealing the [of focused on its safety that danger to the officers’ would than and no more intrusive neces VIN] by returning respon- presented have been sary objective;’ to fulfill that and that the car, immediately to we think the dent his ‘far intrusive than a formal search was less ” prohibit- search to obtain the VIN was Br. at arrest.’ Gov’t En Banc 27-28 Id. How- by ed the Fourth Amendment.” Class, (quoting 475 U.S. at 106 S.Ct. ever, describing balancing by in the which 960) (alterations “Thus,” original). in ac conclusion, the made it reached this Government, ap cording to the Class safety the concern at clear that because proved investigative a limited search “simi jacket, particularized not from a belief appellant’s lar” issue arose acknowledged Although the weapon, but Class Court had respondent facts before it between the concern the difference generalized more from the rather Summers, and the facts in Mimms the Court safety that motivated officer in those 115-16, that the balance struck Mimms, concluded in id. of the supported permissibility to demonstrate cases required Government car in the case officer’s intrusion into the focusing suspicion on cause probable some 117-18, 960. As it. Id. at by the search. Id. before individual affected “All three of the explained: the Court The Court ex- in and Summers factors involved Mimms plained: Adams v. When picion of searches substantial intrusiveness. immediate searches S.Ct. Ohio, ... we have struck the balance weighty 1921, L.Ed.2d 612 [392 a search or officers to based criminal are a search for object Williams, U.S. at interest permissible despite activity. justify seizure has as its in the a reasonable sus- (1972). See warrantless safety weapon, Terry v. to allow 1868]; Such their the Court mal; the individual tal the officers stemmed are deed, some added). dent commit a violation of the arrest. intrusion; present probable here Id. from noted, ^[3] was served the officers’ cause ^[2] the search this case: affected directly observing respon- would the intrusion focusing suspicion by by have ^[1] the search. probable stemmed justified law,” which, governmen- was mini- (emphasis safety cause from In- on Ohio, 24-25 at] [88 1868] [392 thus held that the offi- The Class Court (search brief, severe, in- though “awas for the number “was cer’s search VIN upon personal cherished securi- trusion sufficiently unintrusive to be constitution- surely an ty, [have] b[een] and ... must light the lack of a ally permissible in hu- annoying, frightening, perhaps expectation privacy miliating experience”). and the fact that the officers ob- VIN two traffic vio- respondent served commit safety is di- the officer’s less

When conclusion,” Any other the Court detention, lations. by some- rectly served found, po- expose police “would officers objectively justifiable thing more than significantly tentially grave risks without justify the in- necessary reducing the intrusiveness of ultimate tip if balance is to favor of trusion ... viewing the VIN—which intru- legality governmental conduct— part officers were entitled to do as Mimms, Pennsylvania In [434 sion. undoubtedly justified stop.” traffic Id. at 330], at 107 the officers [98 S.Ct. U.S.] added). 119,106 (emphasis S.Ct. 960 personally observed the seized indi- had a traffic vidual in the commission of Here, contrast, there was no officer that he exit requesting before offense safety unzipping. interest served Summers, Michigan his vehicle. The officers did not have cause 2587, 692, 693, 101 69 452 U.S. S.Ct. but rather focusing suspicion appellant, (1981), the officers had ob- only suspicion of criminal ac- a reasonable the house tained a warrant to search makes tivity, opinion which the Class clear leaving seized was when person justify a not have cannot does upon came him. object.” its “immediate weapon a as 117, And, perhaps 117, al- id. at (parenthetical Id. at 98 S.Ct. 330 important, appellant clearly had a in most original). terations

1139 reasonably expect in what that his face will be a expectation privacy of reasonable objective jacket. Id.; his lay underneath mystery to the world.” see also words, not, in other to (“Hand the search was of Mara, 21, S.Ct. a object in which no one can have reveal writing, speech, repeatedly like is shown expectation privacy. reasonable of public, expecta and there is no more in privacy physical tion of characteris Mara, Involved Dionisio and Which b. person’s script tics of a than there is in the Jury Subpoenas for Evidence Grand voice.”). tone of his Reasonable in Which There Was No piece The same cannot be said of a Privacy, Inappo- Are Expectation of clothing only when the information that site clothing have about that is that support and Mara also lend no Dionisio wearer has chosen to shield most of claim, neither to the Government’s because sweatshirt, A public from view. unlike an a search or a action case involved voice, handwriting, individual’s tone of or Terry stop. Rath- during an on-the-street characteristics, invariably facial is not re- er, permissi- addressed the both decisions public vealed to in the course of bility grand jury subpoenas seeking evi- daily person’s life. expectation there can no dence which be Dionisio, privacy. In Hayes c. The v. Florida Dicta Does L.Ed.2d consid- S.Ct. Court Investigative Not Extend to Meas- subpoena of a re- permissibility ered the Involving ures Searches quiring produce an individual to voice to certain incrim- exemplar comparison for Hayes provides dicta Florida Mara, inating tapes. In appellant’s support no 35 L.Ed.2d it examined the S.Ct. jacket. Hayes, In held that the permissibility subpoena compel pro- of a police may transport not potentially incriminating duction of a hand- police fingerprinting station for without Dionisio, writing exemplar. the Court probable The dicta to which the cause. grand jury subpoena, that a first concluded points merely suggests that Government detention, unlike a is not a Fourth pur- field for the “a brief detention Amendment seizure. 410 U.S. pose fingerprinting” may permissible be so, 764. The held that this was only there is reasonable “where jury in part, grand at least because sub- amounting not cause.” 470 subject judicial supervision poenas are 1643. The Court type of often and do not involve same clear, however, made it that such an inves- in- demeaning compulsion forceful and as tigative might permissible action vestigative stops and arrests. Id. at (1) suspi- “there is reasonable long so explained 93 S.Ct. 764. The Court then [stopped] suspect cion that the has com- production exemplar of voice (in words, mitted a criminal act” other so search, since no individual can have sus- long as there is reasonable articulable expectation privacy justifying stop suspect), picion physical characteristics of his tone of voice. (2) “there is a reasonable basis for believ- Id. at 93 S.Ct. 764. “Like a man’s establish or ing fingerprinting will characteristics, handwriting, facial suspect’s connection with that negate the repeatedly produced for others to voice (3) crime,” procedure “the is carried can have a reasonable person hear. No Id. at dispatch.” out with expectation that others will not know the criteria, voice, the any support than he can 1643. In of these sound of his more Place, distinguished fingerprinting there v. to United States Court cited scrapings: 2637, taking fingernail from the of 696, 77 L.Ed.2d 110 103 S.Ct. U.S. (1983). Davis, fingerprinting in the Unlike the in exemplar voice obtained United Place, the Court determined In Dionisio, v. U.S. 93 S.Ct. [410 States than luggage on less of a traveler’s seizure 764], handwriting exemplar or the ob- may long reasonable so cause probable Mara, in tained United States seizing officer] the [of the “observations 774], of the the search [93 U.S. that ... reasonably him to believe lead beyond respondent’s fingernails went narcotics,” 462 ... contains luggage [the] ... “physical mere characteristics con- and the deten- at 103 S.Ct. U.S. stantly exposed public.” brief, 2637. id. at 103 S.Ct. tion is (quoting at United of the issue Id. 93 S.Ct. purposes for important, Most Dionisio, at court, opinion Place made it States before 764) (alterations original). Cupp in thus is based on less that when a seizure clear suggestion in Davis cause, accompanying in- relied the Court’s probable than fingerprinting is not a Mississippi not include a v. vestigative methods search, it “involves none of the explained: because As the Court search. private into an individual’s life and probing investigative proce- Obviously, if [the] interrogation thoughts that marks dog (cid:127)] here —a dure issue [at sniff— Davis, search.” cause, probable requiring itself search Davis, Describing holding 1394. luggage] initial seizure [of virtually lan- Hayes Court used the same subjecting it to the sniff of purpose guage. 470 U.S. at 105 S.Ct. 1643 not be test —no matter how brief —could (“fingerprinting, because involves nei- cause. justified on less than any repeated ther harassment nor 706, 103 went S.Ct. 2637. The Court Id. private thoughts into life and probing tests are not dog on to find sniff search, interrogation rep- often marks (1) require do not searches because upon a much less serious intrusion resents and thus opening luggage do personal security types than other public view non-contraband expose to detentions”). searches and otherwise remain hidden items that would (2) any Clearly, investigative because the meth- do not reveal authorities piece employed the contents of a od this case—the information about search, luggage beyond presence appellant’s or absence constitute a —did illegal permissible narcotics. Id. it cannot be under the criteria Place, “In the Court con respects,” Hayes, these and Cupp. set forth cluded, generis. canine sniff is sui “the Hayes D. Even if the Dicta Could Be investigative are of no other We aware Searches, Read to Allow It Certain in the procedure that is so limited both Support Unzipping Cannot information is manner in which the ob Appellant’s There Jacket Because of the informa tained and the content for Be- Was No Reasonable Basis Id. procedure.” tion revealed lieving Unzipping That Would Cupp Murphy, Negate Appellant’s Establish Or (1973), the Su- Robbery Connection to Under preme had earlier indicated Investigation fingerprinting investigative is another that, sniff, assuming, arguendo, Even dog like a is not a measure Hayes might permit dicta probable cause. The requiring Hayes predicate application for of the dic- jacket to facilitate unzip suspect’s alia, if, a reason- “there is ta is absent here.3 show-up inter doing that so “will believing” for able basis Argu- Alternative E. The Government’s connec- negate suspect’s or establish ment, Unzipping That Can Be investigation, tion with crime” under th[e] Objectively Justified as an Reason- at Hayes, 470 U.S. able of the Protective Continuation qualify. case would not unzipping Frisk, by Unsupported Is Dis- nothing suggest in the record to There is Findings police had a reasonable basis for trict Court’s Factual that believing complainant’s viewing of the argument, The Government’s alternative by appellant sweatshirt worn generic blue unzipping justified can be as an negate or his connection would establish objectively response appel- Indeed, robbery.2 there is no with the alleged during pat lant’s resistance suggestion— there was no finding'—and down, support is without in the District complainant said the “blue sweat- that findings. factual The Government Court’s worn the robber was distinctive shirt” challenged never the District find- Court’s any way might distinguished that have clearly Quite ings as erroneous. the con- others, way in a that it from let alone trary, findings it described those as “con- negated a wear- would have established or government’s sistent with the evidence Hayes, er’s connection to the crime. Cf. hearing.” Br. suppression Gov’t Panel (police 105 S.Ct. 1643 pursuant findings, at 9. And to those we fingerprints compare sought suspect’s concluding, can ascertain no basis for scene); rape prints with latent found objec- “it urges, the Government that was Class, (police 475 U.S. at 106 S.Ct. 960 tively reasonable for Officer Willis to com- num- sought to view vehicle identification ... plete protective appellant frisk of ber). suggest Nor did the witness even jacket.” by unzipping appellant’s Gov’t seeing appellant wearing that whether was Supplemental Br. at 9. a sweatshirt would enable her to such argu- of the Government’s The essence seeing appel- make an identification when complaining ment is that when the witness not, although need not lant’s face had we scene, Koenig brought to the Officer here whether that would have made decide that pat appellant off the down of so broke Hence, a difference. even if the Govern- presented could be to the com- appellant Hayes that can read to ment is correct be Id. at plaining witness for identification. show-up to facilitate a permit Government, circumstances, prior According under certain the factual believing notwithstanding, point able for As- 2. The dissent this is basis merely help appellant expressly panel on kew’s could facilitate the made to the identification, appeal. Appellant Reply Hayes dicta would Panel Br. at 5 & witness' creating holding (arguing "justification for not the n. 1 be satisfied. That is Rather, that, exception prohibi- to the Constitution’s what we have said is new court. "partic- against Hayes assuming applies, tion warrantless searches” dicta ularly lacking in this case in which the cloth- not have a reasonable basis in this case did ing sought was a blue unzipping appellant’s jacket that the officer to reveal believing that for jacket, under a dark not distinctive negate appellant's sweatshirt would connec- establish distinguished clothing might appel- have robbery which he was tion with the others”). lant from major- stopped. the court—a Six members of III.D, ity -join equally convinced that in Part — argument resting suggest on the read to the Government's 3. Part III.D should Hayes dicta holds no water in this case. if the officers in this case had reason- down, the defendant Koenig patted ficer had resisted Officer show-up, appellant anything,” Id. at the court reit pat him down. he did not find attempt to Koenig’s contends finding thus that subse “[t]he The Government erates its own 11. Officer “thwarted” appellant gun at issue was not discovery that because quent “it clothing, outer of his Koenig’s pat Id.-, down see also pat-down.” result of this for Wil- [Officer objectively (“The pat-down initial of Officer at 4 id. jacket to determine unzip appellant’s lis] any presence of Koenig did not reveal in his waist weapon a he had whether ”). Thus, agree we weapon.... while words, In other Id. at area.” reasonable determining for the standard Wil- that while Officer argues Government Amendment context is ness in the Fourth appel- subjective unzipping intent lis’s one, objective see v. United Whren show-up was to during the lant’s States, witness what complaining to the reveal (1996); States v. United jacket, wore underneath appellant Lee) Brown, 1166— (Rocky 334 F.3d objectively reasonable was an unzipping (D.C.Cir.2004), the District we find that allegedly Koenig’s of Officer continuation findings pro unchallenged factual Court’s weapons. for pat thwarted down ar support no for the Government’s vide objec unzipping here was gument does that the Tellingly, the Government factual find tively Court’s reasonable.4 not cite to the District Rather, argument. ings support had chal Even if the Government testimony that the District Court it cites findings factual lenged the District Court’s id. at 7. noted, not credit. See but did erroneous, it could not succeed clearly as Thus, contrary to what Government was an argument unzipping on its not find Court did suggests, the District continuation of the objectively reasonable or thwarted Officer appellant resisted down, argument since that is based on pat Rather, referring in a pat down. Koenig’s wholly implausible reading record. testimony on which the footnote Government’s illogic Consider the argument, the Dis rests its Government characterization of Officer Wil proposed merely noted that Officer Willis trict Court testimony: Koenig and lis’s Willis Officers Koenig had not “suggested had that Officer frisk, hands appellant places initiate a perhaps because completed pat-down, cruiser, Koenig Officer by the defendant.” As of some resistance appellant’s garments. down outer pats kew, 2 (emphasis at 3 n. F.Supp.2d Koenig appel reaches But when added). Officer words, the District other waist, repeatedly appellant lant’s leans pat find either that the declined to against Appellant the cruiser. thus appellant or that had incomplete down was Koenig’s “thwarts” Indeed, pat down. any way resisted the Officer efforts frisk appellant’s consequently waist area and characterizes Officer explicitly the court describes provides what Government testimony points on these two Willis’s un objectively as an reasonable basis Then, pointing gov suggestion. “[t]he for dertaking protective weap- that when Of- acknowledgement] ernment ("The (D.C.Cir.1989) sug- disagree United States dissenting colleagues with our 4. Our reading opinion. But gests might of the District Court’s that we infer from the record did, certainly whatever the District gun aware of the found in his tote Burke was support safety- findings to did not make bag. engage de novo fact- To in this sort of events, and we have no version of however, finding, wholly would be inconsis- authority findings fact. to make our own court.”). appellate of an tent with function Burke, F.2d 868- See United States v. But, point, pat suppression at this because the case at close hear- on. “interrupted” by the arrival ing, suggested down is the Government never wit- complaining with the another anything pat there was about the down officer ness, pro- the do not undertake a provided objectively officers area, appellant’s tective search waist continuing grounds the frisk or under- of frisk, act to en- complete the or otherwise Rather, taking protective search. dis- safety safety and the the sure their missing possibility treating the the ini- Rather, they walk toward complainant. unzipping anything tial than an other with an complainant the unhandcuffed act to show-up, facilitate the the Govern- robbery suspect successfully pre- who has ment confirmed for the District Court that completing vented them his from frisk of Koenig anything during Officer “didn’t feel weapons. Supple- See Gov’t person for pat-down the traditional that would have mental Br. at 7-8. This scenario makes no permitted go jack- into [the officers] the if Consequently, sense. even the Govern- point, they et at that but rather then had the pursuant ment had framed issue show-up.” the 26 Tr. at Mar. 38. The review, it could not correct standard of impossibility reading the record as the “definitely firmly” convinced us have suggests may Government now also ex- a mistake the District Court made why plain panel, before the as well as in its when it chose not to credit Officer Willis’s court, principal brief before the en banc “suggestion] Koenig that Officer had not argued the Government the “sole” pat-down, completed perhaps because justification unzipping for the facili- was to defendant, by of some resistance when show-up. tate the Br. at See Gov’t Panel robbery Officer Benton arrived with the 18; En Banc Br. at 22.5 Gov’t Askew, show-up.” victim for a added). F.Supp.2d (emphasis at 3. n. Although do not that a dispute we protective search be lawful when a implausibility The total of the Govern- prevents perform from reading may explain ment’s of the record frisk, ing Terry why any safety rationale be- we conclude neither abandoned arguing findings fore the District In its the District Court’s factual nor Court. brief, asserting "pressed” en relied 5. that the Government and its banc Government Court, safety solely argument partial in the our on the that the initial rationale District ignore appellant's jacket dissenting colleagues unzipping the fact that the was reason- safety rationale able under the Fourth Amendment because it Government abandoned a "minimal intrusion” that "facilitated a before the District Court. The Government's by exposing safety proffered show-up procedure identification rationale was before the com- hearing description pletion two-day suppression clothing matched lookout when, admission, v; robbery suspect,” Gov’t Br. at a time its own the Gov- of a Panel 12, 18; Br. at ernment was unsure of what its officers see also id. at Gov't En Banc vii, 22-28; (sum- say regarding would the circumstances sur- Gov't Panel Br. at 8 See, marizing argument rounding pat e.g., the Government’s before down. Additional Court); Support Oppo- Law in Gov't En Banc Br. at 7 Case of Government's the District (same); l(Mar. 2004). Filing at 2 & Once Second of Additional Case Law sition n. explain Support Opposition Willis testified to what tran- of Government’s Officer 24, 26-27, ("I (Mar. 2004); spired, unzip 26 Tr. at see Mar. 26 at 8 went to Mar. Tr. argument, jacket] show-up, Not until after the en banc when [the down so on.”), supplemental briefing could see what he had this court issued a or- Government consistently safety argu- asking parties possibili- eschewed a rationale der to address the Thus, closing arguments ty justifying initial on a safe- ment. in its rationale, Court, ty again supplemental filing did the Government make before District three-judge appellate panel, argument. its brief to the conclu- support the evidentiary record here. situation that such was the sion unzipped Askew’s police officers When per- a search of his

jacket, they conducted IV. Conclusion up creates a “reason- zipping Where son. Katz v. expectation privacy,” Unit- able case, of this record On the States, 347, 361, 88 S.Ct. ed Fourth appellant’s violated officers (1967) (Harlan, J., concur- his by unzipping rights Amendment case, is to unzip ring), as it does proba- and without permission without T.L.O., See, Jersey v. e.g., New search. judgment The of cause or warrant. ble 733, 325, 347, 105 S.Ct. 83 469 U.S. be re- must therefore the District (1985) com- (unzipping purse L.Ed.2d 720 remanded. and the case versed Belton, York v. 453 U.S. partment); New So ordered. 2860, 462-63, 454, 456, 101 69 S.Ct. (1981) jacket pock- (unzipping L.Ed.2d 768 GRIFFITH, Judge, with whom Circuit 585, Brown, et); 671 F.2d States v. United join TATEL Judges Circuit ROGERS curiam) (D.C.Cir.1982) (per (unzipping 586 2, concurring: except as to footnote Waller, 426 v. F.3d pouch); United States Cir.2005) (6th 838, lug- (unzipping 844 violated Paul officers agree I may have unzipping That the been gage). rights so Fourth Askew’s Amendment immaterial. minimally intrusive every majority opinion in almost join the 328-29, Hicks, 480 U.S. ap of this importance respect. Given such prohibits The Fourth Amendment clarify my ratio separately I to peal, write probable cause. the absence government’s princi rejecting the nale for Dickerson, 366, v. 508 U.S. See Minnesota the en court. argument before banc pal 2130, 373, 124 L.Ed.2d 334 113 S.Ct. noted in dicta Hayes v. Florida Hicks, 325-29, (1993); 107 480 U.S. at purpose finger detention for brief 1149; v. United S.Ct. Almeida-Sanchez necessarily is not an printing States, 266, 269-70, 2535, 413 93 S.Ct. U.S. 811, 470 U.S. unconstitutional seizure. (1973); v. Maro L.Ed.2d 596 Chambers 37 816-17, 1643, 84 L.Ed.2d 705 105 S.Ct. 42, 51, 1975, 26 ney, 399 U.S. 90 S.Ct. (1985). argues The this government York, (1970); v. New L.Ed.2d 419 Sibron proba to the exception created a new dicta 40, 62-66, 1889, 20 U.S. 88 S.Ct. 392 evidentiary for requirement cause ble (1968); Henry v. United L.Ed.2d 917 Supreme Nothing searches. States, 104, 100-02, 98, 80 S.Ct. 361 U.S. progeny supports Hayes said its (1959); 168, Carroll Unit prerogative not our argument, and States, 156, 132, 149, 267 45 S.Ct. ed U.S. exception probable to the create a new (1925). 280, L.Ed. 69 543 of the Fourth Amend requirement cause jacket unzipping Askew’s does by Supreme Court We are bound ment. any exceptions fit within of As not subject precedent that have requirement cause probable textual and traditional kew’s to “the Court. As I Arizona v. been created cause.” standard of cases, can be Hicks, 321, 329, 107 exceptions read the 94 these 480 U.S. (1987). categories. The unzip general divided into two Because the L.Ed.2d 347 standard, minimally allow a in- agree safety I officer cases satisfy that ping cannot protects officers from judgment trusive search that we should reverse Ohio, See, Terry v. e.g., harm. district court.

1145 (1968) category L.Ed.2d Askew within either 20 889 estab clothing weap Instead, (protective frisk of outer exceptions. govern lished Buie, ons); Maryland v. U.S. argues ment that the search fits within (1990) L.Ed.2d 276 exception by Hayes new created for iden during pre home raid to (protective sweep I tification searches.1 find no basis in Class, ambush); New York v. vent Hayes for that conclusion. The hunt for 89 L.Ed.2d exception begins, identification-search (officer (1986) required permit many like proba so efforts to weaken the re-entry weapon car suspect’s into where requirement, ble cause v. Ohio. Mimms, hidden); Pennsylvania government asserts that the search of 106, 109-11, person by probable Askew’s is not limited (1977) curiam) (per (compel purpose unzip cause because the alight during from car traf ling suspect to ping, suspect, identification of a was “rea Robinson, stop); fic United States sonably purpose related to the of the Ter 234-35, 94 S.Ct. 38 L.Ed.2d ry stop.” En Banc Br. Government’s (1973) (search incident to arrest Terry lacking proba allows officer custody). suspect taking disarm before into n (i.e., ble to a stop cause make “brief [ The allow a search that special needs cases seizure) individual, of a suspicious in or ] end governmental advances deemed identity,” der to determine his Adams v. weightier Court to be than Williams, 143, 145-46, 407 U.S. 92 S.Ct. See, typical law enforcement interest. 1921, (1972), gov 32 L.Ed.2d 612 so the Knights, e.g., United States v. 534 U.S. argues ernment that a search calculated to 587, 151 112, 120-22, 122 S.Ct. L.Ed.2d 497 identify suspect permissi- should also be (2001) (monitoring probationers); Skinner probable ble on less than cause. The un- Ass’n, Ry. v. Labor Executives’ 489 U.S. spoken premise power is that to 602, 619-20, 1402, 109 S.Ct. 103 L.Ed.2d suspect search a as power is broad as the (1989) (preventing employ 639 intoxicated to seize him. But this asks us to assume T.L.O., railroads); operating from 469 ees Terry that whatever about said “seizures” 340-41, (protecting U.S. at 105 S.Ct. 733 fact, applies equally to “searches.” schoolchildren); Municipal Camara Terry’s regime stops and frisks distin- Court, 534-39, 1727, 523, 387 U.S. 87 S.Ct. (1967) guishes between the two. An officer lack- (inspecting buildings 18 L.Ed.2d 930 code). ing probable suspect cause seize a compliance municipal for with types exceptions apply identity, These two do not his limit determine but must evidence, garden-variety searches for protective for weapons. search to frisk governed by probable which are cause Dickerson, 366, See Minnesota v. requirement. Colyer, States v. United 373, 2130, 124 113 S.Ct. (D.C.Cir.1989). 469, 878 F.2d 478 (1993); Michigan Long, 1052 n. 77 L.Ed.2d 1201 government probable

The concedes (1983); Illinois, 444 Ybarra U.S. 93- justify absent cause (1979); but makes no effort to fit the search of 62 L.Ed.2d 238 (D.C.Cir.2007), government only recently reh’g 1. The has come to vacated and en banc (D.C.Cir. 12, 2007), July regard Hayes significant, having relegated granted, No. as 04-3092 single government placed greater emphasis the case to a citation in its brief to has “cf." three-judge panel. Government's Br. at on the case. See Government’s En Banc Br. 25-26, 12, 24, (citing Hayes); have 34 id. at ii 20. Now two members of this court matter, Hayes chiefly opined Hayes governs (identifying relied "[c]ase[] this United Askew, upon”). States v. 482 F.3d 540-45 1146 York, support our cases for the view that

Dunaway v. New U.S. (1979); Si 60 L.Ed.2d 824 S.Ct. the Fourth Amendment would permit York, 40, 65-66, New bron v. for purpose fingerprint- seizures (1968); Terry, suspicion if there is ing, reasonable 1868; see also committed a criminal has Wayne LaFave, A Search and Seizure: R. act, if there a reasonable is basis Amendment Fourth Treatise on believing that will fingerprinting estab- (“[T]here (4th 2004) no § 9.6(g) ed. negate suspect’s lish or connection counterpart search-for-evidence crime, procedure with that and if the search, weapons permissible Terry course, out dispatch. carried Of suspicion that such evidence a reasonable neither nor proba- found.”) (quotation marks omit would be permit ble cause would suffice to ted). allows an identification sei entry officers to a warrantless into make permit an identification zure. It does person’s purpose for the house of ob- search. taining fingerprint identification. beyond forced to look government, government contends that pas- exception, claims to have Terry for its new “searches,” sage, which nowhere mentions from following language it in the found exception creates new Hayes, 470 U.S. omitted):

(citations requirement cause for searches that facili- suspect. tate identification of a See Govern- that a foregoing implies None reject in En Banc I pur- the field for the ment’s Br. 26. that brief detention pose fingerprinting, there is where view.2 suspicion amounting only reasonable not in Hayes permissibility At issue was the cause, is necessarily imper- to probable seizing person a transporting him Amendment. missible under Fourth finger to the stationhouse to obtain his addressing Terry stop reach of a prints. The Court Supreme found the Williams, in v. we observed that Adams practice light unconstitutional another individual, a stop suspicious brief “[a] seizures, case about Davis v. Mississippi, identity or to order to determine his 721, 1394, 89 22 394 U.S. S.Ct. L.Ed.2d 676 momentarily status quo maintain the (1969),which condemned a similar instance information, obtaining may while more stationhouse fingerprinting. Subse light most reasonable in of the facts be quent citations Hayes confirm that the Also, known to the officer at the time.” has regarded it as a case about Term,

just we that if this concluded seizures. See Hiibel v. Sixth Judicial Dist. supporting there are articulable facts Court, 177, 187-89, 542 U.S. 124 S.Ct. suspicion has person reasonable that 2451, (2004); 159 L.Ed.2d 292 Kaupp v. offense, per- a criminal committed Texas, 2, 538 U.S. n. 123 630 S.Ct. stopped identify may son be order to 1843, 155 (2003); him, him Tennessee question briefly, or to detain Garner, 1, 8, 471 U.S. 105 S.Ct. briefly attempting him while to obtain (1985). is thus additional information. There L.Ed.2d majority A of the that even beneath court concludes shirt Askew’s would establish Hayes if ex- created negate identification-search connection with Askew’s the rob- ception, government prevail cannot be- bery. supra Majority Opinion, See Part III.D. police did cause the not have a reasonable join portion opinion. I decline to of the believing the sweat- basis a view of Hayes’s suggestion fingerprinting jurisprudence. Amendment example, For might permissible during Terry stop justified has judgment about searches, by does not reach because the Su noting seizures that it not dealing held that preme finger Court has never with a search. United States v. Martinez- Fuerte, printing 543, 561, search. LaFave 2.2(d) (noting (1976). § that “it is to be doubted L.Ed.2d 1116 The Court has also question fingerprinting of whether held that a search and a require seizure settled”). is a search can be taken as types different of proof before are conflicting Court offered views of permissible. Consider it Ohio Hayes the issue within Compare itself. seizure) (i.e., A Terry stop self: requires Hayes, 470 U.S. 105 S.Ct. 1643 suspicion reasonable that criminal activity (noting fingerprinting does not involve afoot, Cortez, United States v. 449 U.S. “any probing into private life and 411, 417-18, 66 L.Ed.2d 621 thoughts that often marks interrogation search) (1981), (i.e., a Terry while frisk search”), (implying with id. that fin requires gerprinting by is a search contrasting stopped individual weapon, have a searches”); practice types to “other see Terry, 392 U.S. at If Cupp also Murphy, 93 there were no meaningful distinction be (1973) (con 36 L.Ed.2d 900 seizures, tween searches and then search, trasting fingernail scraping, a justified in frisking every person would be search). fingerprinting, Hayes’s fin they stopped, yet this is not what the law then, gerprinting dicta dealt with what was Illinois, allows. See Ybarra v. still, and is a non-search investigative step. 85, 92-93, (1979) (rejecting seizure, search, unsupport routine frisks Hayes is about a not a ed “a reasonable belief that person [the exception so cannot have created a new presently was armed and dan searched] that would permit the search of Askew’s Adams, gerous”) (citing person the absence of cause. Terry, 392 U.S. at gov same is true of other cases the 1868). Finally, 88 S.Ct. as we noted in in support purported

ernment cites of its 469, Colyer, United States v. 878 F.2d 479 exception. identification-search Hii See (D.C.Cir.1989), bel, 187-89, Supreme Court has 542 124 U.S. 2451 S.Ct. analytical created frameworks for seizures (upholding stop-and-identify state law as that it applied has never to authorizing seizures); searches: reasonable Illinois Lidster, 419, 426-28, v. 540 U.S. 124 S.Ct. Although there compelling be no (2004) 885, (allowing 157 L.Ed.2d 843 brief reason to differentiate between seizures highway checkpoint identify seizure at to on the basis of their intrusiveness and accident); witnesses to hit-and-run United failing to likewise differentiate between Place, 696, 703-04, States v. 462 searches, U.S. 103 types of the fact remains that (1983) 2637, (allowing S.Ct. 77 L.Ed.2d 110 point we are unable to to a single Su- brief seizure of luggage dog to conduct preme upheld Court case that has sniff); Summers, Michigan v. 452 U.S. search on suspicion merely 692, 705, 2587, 101 S.Ct. 69 L.Ed.2d 340 minimally because it was intrusive. (1981) (allowing seizure of occupants home sensible, differing This treatment as the warrant). during execution of search separate protections against unreasonable

My adherence to the textual distinction searches unreasonable seizures safe- guard between “searches” and “seizures” is con- different interests. See Horton v. 128, 133, sistent with the Supreme California, Court’s Fourth 1148 (“The (1990) dicta, Supreme Supreme it is Court

2301, 110 right to L.Ed.2d 112 in By Hayes issued protected holdings. time person property in security 1985, already Court had es- may be invaded Amendment by the Fourth requirement cause probable tablished the by ways different searches quite categories for searches and its two ex- the indi compromises A search seizures. carefully ceptions through a series of artic- seizure de privacy; interest vidual holdings. ulated the individual of dominion over prives property.”); see also person her or or government The now claims dicta Jacobsen, 109, v. United States reject I this holdings. have overtaken ar- (1984). 1652, 80 accepted gument because reverses If there is hierarchy legal authority.3 * * * exception identification-search transport cannot Hayes held that requirement probable cause Fourth finger- stationhouse Amendment, we must leave it for Su- cause, consent, probable without printing Rodriguez preme Court to create. de Cf. judicial authorization. 470 U.S. prior Inc., Quijas Express, 490 Shearson/Am. Its observation 104 L.Ed.2d in the that “a brief detention field for (“If (1989) precedent of [the Su- ... nec- purpose fingerprinting [not] preme application has direct in a Court] essarily impermissible under Fourth case, reject- yet appears to on reasons rest Amendment,” id. at decisions, ed some other line of unnecessary decision of the case Appeals Court of should follow case Group dicta. Gersman v. and so was controls, directly leaving to [the which Su- Ass’n, Inc., F.2d Health 897 preme prerogative overruling Court] Harris, (D.C.Cir.1992); F.2d Cross decisions.”). government its own (D.C.Cir.1969); 1095, 1105 n. 64 Noel v. Hayes pierced believe would have us (D.C.Cir.1943). Olds, F.2d require- a new hole in the cause point, this government concedes Gov- by way fingerprint- ment of an aside about urges En but ernment’s Banc Br. us ing. Congress just But does not “hide significance to controlling to accord elephants mouseholes,” Whitman Am. “ all the same. It is true Ass’ns, ‘[care- dicta Trucking fully language of the Supreme considered (2001), Su- dictum, Court, technically if generally even preme important “does not decide ” must be treated as authoritative.’ United questions cursory of law dicta inserted Oakar, 146, F.3d cases,” States 111 153 in unrelated In re Permian Basin (D.C.Cir.1997) Doughty Cases, 747, 775, (quoting Under- Area Rate 390 U.S. 88 London, 856, (1968). Lloyd’s, 6 F.3d 1344, writers at 861 S.Ct. 20 L.Ed.2d 312 The (1st Cir.1993)) (alteration original). safety special exceptions n. 3 officer needs anything firmly But if to probable requirement more commands cause were appeals attention of courts of than announced in cases that made clear the Co., See, issue, e.g., Kokkonen v. Guardian not at to dissect the of Ins. sentences Life 375, 379, 511 U.S. 114 S.Ct. 128 Reports though they United States were ("It (1994) holdings L.Ed.2d 391 is to Hamill, Code.”); the United States Hawks v. dicta, cases, our than their that we rather 288 77 L.Ed. attend...."); Mary’s must St. Honor Ctr. v. (1933) authority (noting 610 that "an be [can] Hicks, 502, 515, S.Ct. 125 113 holding merely ranked as a definitive or (“[W]e (1993) generally L.Ed.2d 407 think dictum”). considered undesirable, holdings where of the Court are magnitude jacket. none, of the Fourth Amendment mo Askew’s Because there was ment and that altered the course of the agree I that we should judg- reverse the through progeny. sup law abundant The ment of the district court denying Askew’s posed Hayes excep identification-search suppress motion to evidence of the fire- tion, contrast, came into this world arm. lay judges idle until

unannounced and two KAVANAUGH, Judge, Circuit with three-judge panel this court em Judge whom Chief SENTELLE and twenty years it over I think ployed later. Judges Circuit HENDERSON and Supreme surprised Court would be to join, dissenting: RANDOLPH Hayes exception learn created an probable requirement, cause for it night On December a D.C. overturn, normally “does not dramat so police officer stopped Paul on a Askew limit, ically authority earlier sub silentio.” Washington street based on reasonable v. Ill. on Long Shalala Council Term just Askew had committed Care, Inc., 1, 18, 529 U.S. robbery. an armed Consistent Terry (2000). 146 L.Ed.2d 1 Ohio, 392 U.S. Judicial creation of a constitutional code (1968), police L.Ed.2d 889 attempted to procedure given of criminal has the Su- frisk Askew to ensure he was not carrying preme primary responsibility for a weapon. After Askew resisted the frisk regulating police behavior. generally robbery and the victim arrived for a show- Henry Friendly, J. Bill Rights as a up procedure, police partially unzipped Procedure, Criminal Code 53 Cal. Askew’s outer and discovered he (1965); Stuntz, L.Rev. William J. carrying was a loaded gun. .38 caliber Be- Justice, Political Constitution Criminal felon, already cause Askew was a convicted (2006). regard 119 Harv. L.Rev. With prosecuted he was in U.S. District Court searches, evidentiary Supreme being possession for a felon of a firearm. Court has drawn the line of constitutional After the District Court denied Askew’s “unreasonab[ility]” at probable cause. See motion to suppress gun and ruled the evi- Hicks, 321, 329, Arizona v. admissible, pled guilty, dence Askew re- (1987); cf. serving right appeal his the Fourth York, Dunaway v. New Amendment issue. (1979) (not- Court, In this accepts Askew seizures, in a ing, concerning case stop initial under the Fourth lawful requisite “the ‘balancing’ per- has been acknowledges Amendment. Askew also precedent formed centuries of and is could frisk him for purposes principle embodied in the that seizures are safety. of officer But Askew contends that supported by probable ‘reasonable’ if scope exceeded a permis- cause”). Hayes exception created no by partially unzipping sible frisk Court’s cause re- jacket, outer which in turn revealed his searches, quirement for identi- gun. argues gun He evidence any investigatory pur- fication or other therefore must be excluded. poses. appeals, As a court of in no we are uphold We would the search and affirm position to a that exception create new Askew’s conviction for either of two alter- far-reaching would have effects on how the First, native reasons. after Askew active- police may properly investigate crime. Rather, ly by impeded police’s resisted and the initial we are bound precedent, requires attempt, unzipping which in this case frisk Askew’s outer jacket to support unzipping weapon cause the of to search for a around his majority’s on issue. That objectively opinion reasonable the area was an

waist arguendo po- that the safety. assumes paragraph to ensure officer step protective may suspect’s jacket a to facili- “unzip lice Second, may reasonably maneu- police if, alia, is show-up tate a inter ‘there a clothing as suspect’s a outer ver —such believing’ doing basis jacket when, outer suspect’s — negate suspect’s so ‘will establish or here, facilitate a doing help so could as investiga- the crime’ under connection with during a show-up identification witness’s Maj. Hayes Op. (quoting tion.” at 37 stop. Terry Florida, 811, 817, why affirm explaining we would Before (1985) (alteration omitted)). conviction, point we out that the Askew’s III(D) Part finds on facts of But this today’s long-pending and legal import of police did not have a suffi- case en banc decision turns out badly splintered predicate unzip cient factual Askew’s to be zero. jacket. all 11 protective question, On approach Judges of fact-based Gins- agree of en banc on members Garland, burg and as reflected their principle protec- that “a legal the settled III(D) joining only Judge Part Ed- lawful when a tive search issue, opinion show-up on the wards’s is performing from a Ter- prevents police ground necessary for the narrowest re- But Maj. Op. frisk.” Part ry versing conviction and thus constitutes III(E) which Judge opinion, Edwards’s binding expression of the en banc point majority, for a concludes as on Court on that issue. Marks v. United Cf. here did a factual matter States, As- objective unzip have an basis to not (1977). result, As a there is jacket protective step. Our kew’s respect no decision of the Court with III(E) majority Part of the difference with legal question by was decided depends opinion entirely fact-bound and three-judge panel divided and listed with- sup- our solely reading on different in the out dissent as the issue order testimony the Dis- pression hearing and granting question en banc review. That trict opinion. Court’s will remain unanswered in this Circuit and issue, major- show-up there is no On will have be decided anew future ques- on ity way legal decision either by judges cases other district court and granted tion that we en banc review to Court, three-judge per- of this panels may reasonably decide: whether the haps ultimately panel. another en banc unzip suspect’s help facili- outer purposes For of future decisions on the show-up tate a identification at a witness’s 111(A)- issue, words, show-up in other Part during stop. Unlike the other (C) Judge Edwards’s opinion Part judges panel, Judges nine the en banc 11(B) of our opinion carry equal prece- Ginsburg not and Garland have reached they weight, say carry dential which is to view, legal question: In their facts precedential weight no at all. present They of this case it. do thus I III(A)-(C) join Judge Ed-

do not Part issue; opinion show-up on the but wards’s p.m. At about 11:00 on December 11(B) join also do not Part of our 2003, robbery after an minutes armed issue, they join opinion. show-up D.C., On the Washington, police dispatcher only the single, paragraph fact-bound location of broadcast the the crime III(D) Judge opinion, robber, Part Edwards’s description victim’s the armed III(D) thereby entirety things making saying among perpe- Part other wearing trator a blue sweatshirt. jack- was sweatshirt underneath Askew’s outer Metropolitan Department Police Officer et. Id. at 8-9. At that point, Officer Paul Willis did not stopped Bowman then Askew on a know whether the show-up robbery witness had identified street near the because Askew Askew as the rob- ber. similar Id. 18-19. The appeared description. radio of As- jacket Askew, kew’s After revealed his loaded .38 stopped Officer Bowman Of- caliber gun. Id. at 9-11. ficers and Koenig Willis arrived at the scene and frisk decided to Askew “for prosecuted Askew was being a felon safety” officers and “to make sure he possession of a firearm. Askew moved to armed anything.” wasn’t or Mar. 26 Tr. at suppress gun evidence, arguing that Ohio, 6. Consistent with 392 U.S. police violated the Fourth Amendment (1968), 88 S.Ct. 20 L.Ed.2d 889 they unzipped jacket when during his Koenig Officer put directed Askew to show-up. rejected The District Court As- hands on the car and then tried to argument, kew’s explaining partially frisk him. Mar. 26 Tr. at 6-7. But ac- unzipping jacket Askew’s reasonably facili- Willis, cording to Officer Koenig Officer tated the show-up by allowing the witness attempted to frisk Askew “towards his obtain better view of clothing. Askew’s waist” and try pat then “continued to Askew, United States 313 F.Supp.2d 1 down,” him “kept leaning up Askew (D.D.C.2004) J.). (Friedman, against the cruiser that his hands was on.” (The II

Id. at two other officers who suppression testified provides: The Fourth Amendment “The hearing also stated that Askew un- was right of people to be secure their cooperative at various times during the houses, persons, effects, papers, 47.) 17, 40-42, encounter. Mar. 10 Tr. at against unreasonable searches and sei- zures, violated, shall not be and no War- Willis,

According to Officer while Officer issue, cause, rants shall upon probable but Koenig attempting was to conduct supported by affirmation, Oath or par- resisting, frisk and robbery Askew ticularly describing place to be arrived in victim another car for a searched, persons things and the to be show-up. Mar. 26 Tr. at 8. Officer Willis Const, seized.” U.S. amend. IV. As the turned Askew around robbery so explained, Court has the text of victim could see him. Id. Officer Willis Fourth prohibit Amendment does not remembered that the police dispatcher had all searches and seizures without wearing said the robber was a blue sweat- Rather, cause and warrant. the “touch- shirt. Id. Officer Willis stated that he stone of the Fourth Amendment is reason- expose “wanted to the blue hooded sweat- Knights, ableness.” United States v. shirt to the victim to make sure that that’s 112, 118, 151 L.Ed.2d what she saw.” Id. at 9. He therefore (2001).1 partially unzipped Askew’s outer so that the victim get could a better view of Reasonableness in objec- “is measured clothing, specifically Askew’s by examining totality blue tive terms McArthur, (“We 1. See also long Illinois v. 531 U.S. have held that the touchstone of (2001) reasonableness.”) 148 L.Ed.2d 838 the Fourth Amendment (Fourth (internal omitted); requirement quotation Amendment's “central marks Florida v. reasonableness.”) (internal Jimeno, 248, 250, quotation one of omitted); Robinette, (1991) (“The marks Ohio v. 114 L.Ed.2d 297 Fourth Amend- (1996) proscribe ment does not all state-initiated 1152 Robinette, and for cat- oped rules standards different Ohio v. 519

circumstances.” egories of search-and-seizure situations— 33, 417, 39, 136 L.Ed.2d 347 117 S.Ct. U.S. quantum “the of needed including evidence (1996). and test “balances nature for certain distinct kinds of official action.” personal intrusion on securi- quality of the Wayne Lafave, 4 R. and Search Seizure importance of the ty against govern- (4th ed.2004). 9.1(e), § at 279 In some justify in- alleged to mental interests required has individ- categories, Court Hensley, States v. 469 trusion.” United cause, usually supported probable ualized 221, 675, 228, 105 83 L.Ed.2d U.S. S.Ct. by judicial warrant. In situations where Wolfish, (1985); also Bell v. 441 see 604 govern- has determined that the 1861, 520, 559, 99 S.Ct. 60 L.Ed.2d U.S. the individual inter- outweighs ment need Ohio, 1, (1979); Terry v. 392 U.S. 20- 447 est, has allowed warrantless (1968). 1868, 22, 20 L.Ed.2d 889 88 S.Ct. probable and seizures without searches Court has conducted the The Supreme example, reasonable cause —for inqui- no Amendment reasonableness or some cases even with suspicion Fourth suspicion.2 common-law and has ry in fashion devel- individualized seizures; merely proscribes suspicion pro- that search would searches unreasonable.”); misconduct); Pennsylva- evidence work-related those which are duce 108-09, 106, T.L.O., 325, Mimms, Jersey & nia v. 434 U.S. 98 S.Ct. New v. 469 U.S. 340-42 330, (1977) ("The 8, 733, (1985) 331 54 L.Ed.2d touchstone 105 S.Ct. 83 L.Ed.2d 720 n. analysis (permitting our under the Fourth Amendment authorities stu- school to search always in all cir- grounds suspecting the reasonableness upon reasonable dent for Belton, particular governmental rule); in- cumstances of of school New v. violation York (in- personal 459-62, 2860, security.”) 454, vasion of a citizen's U.S. 101 69 453 S.Ct. omitted); quotation (1981) ternal Amar, marks Akhil Reed (allowing 768 inci- L.Ed.2d searches Principles, Amendment First 107 Fourth justifi- lawful without dent to arrest additional 757, (1994) ("We Court, 759 need to cation); v. Mun. U.S. Camara 387 Harv. L.Rev. cf. 534-40, 1727, 523, read the Amendment's words take them 87 S.Ct. 18 L.Ed.2d 930 seriously: they require (1967) [or] do not warrants (allowing warrantless administrative cause, they require probable ... but do safety municipal health in- searches reasonable.”). all searches and seizures spectors). involving For cases warrantless cause, see, probable e.g., without Illi- seizures Lidster, 427-28, 419, involving For warrantless v. 540 U.S. 124 cases searches nois see, 885, cause, (2004) (allowing e.g., without United States S.Ct. 157 L.Ed.2d 843 119-22, 112, Knights, suspicionless stops of infor- v. 534 U.S. motorists to seek 587, (2001) regarding (allowing 497 mation recent hit-and-run acci- 151 L.Ed.2d Sitz, 444, 451-55, dent); Michigan probationer's suspicion); home on reasonable v. 496 U.S. 2481, Acton, (1990) (up- Sch. 47J v. 515 S.Ct. 110 L.Ed.2d nonia Dist. 110 412 Ver 646, 653-65, 2386, holding highway sobriety checkpoint U.S. S.Ct. 132 without 115 (1995) (upholding policy any suspicion); v. L.Ed.2d school's individualized Delaware 564 1391, Prouse, suspicionless drug testing of ath 99 59 student S.Ct. letes); (1979) Treasury (allowing Employees stop 660 vehicle Nat’l Union v. Von L.Ed.2d Raab, 667-77, registration 109 check license and on reason- S.Ct. (1989) (allowing suspicion- 103 L.Ed.2d 685 able that motorist unlicensed Mimms, urinalysis unregistered); less of United States Customs em automobile is 434 108-11, ployees applied promotions); (allowing who Skinner U.S. at officers Ass’n, Ry. conducting stop out Labor Executives’ U.S. traffic order driver particularized car even if lack reason for L.Ed.2d blood, (1989) urine, believing possesses weapon); (upholding suspicionless driver United Martinez-Fuerte, testing employees); and breath of railroad Stales 557- 709, 722-26, (1976) Ortega, 49 L.Ed.2d 1116 O’Connor (1987) (allowing (allowing suspicionless stops at border-con- government employee’s checkpoints). search of office on trol

1153 A Amendment does not require officers to choose between investigating criminal ac- gun would hold that the in We evidence tivity avoiding and violent attack. On the this case is admissible because contrary, “it would be to unreasonable re- quire that jacket police Askew’s to search for a in officers weapon unnecessary take in performance risks of their duties.” area objectively his waist was an reason- Terry, 392 23, S.Ct, 88 1868. A protective step able to ensure officer safe- “policeman making a investiga- reasonable ty after Askew’s resistance to the initial tory stop should not oppor- be denied the Terry attempt. frisk tunity protect by himself from attack Williams, Adams v. suspect.” hostile 407 Ohio, In Terry v. Supreme 1921, 32 L.Ed.2d held that the police a warrant —without (1972). 612 and based on that an principles Those cases and have led committed, individual committing, or courts to establish what by now is a well- was about to commit may stop a crime — Terry corollary settled frisk doc- suspect investigation for further and trine; suspect When a police hinders the protective conduct a weapons frisk for or adequately from performing the initial other instruments of assault. 392 U.S. at Terry frisk, may officers protect them- by selves following up with reasonable during Terry protective has allowed frisks steps to determine whether the suspect is stops police because officers at great are concealing weapon. Maj. Op. at 1144 See, e.g., during risk those encounters. (“[W]e dispute do not protective Michigan Long, v. 1032, 1052, 103 may search suspect be lawful when a pre- (1983). 77 Terry performing vents the from ,”).3 explained Court has the Fourth frisk... Kemna, Inouye

3. See Fed.Appx. 247 pockets suspect from his abrupt after made (9th Cir.2007) (officer justified 917 in reach point protective movement: "The whole aof ing suspect's pockets suspect into after evad aegis Terry search conducted under the Heitzmann, frisk); ed (N.D.2001) ("Courts State v. 632 N.W.2d stop safety is to secure officer’s while recognized have that a investigating suspected activity. criminal more intrusive be constitu target Terry stop abrupt Where a of a makes tionally permissible when the detainee at body movement towards areas of his tempts prevent performing an officer from might weapon, good harbor a officers have pat-down.”); an effective R. Wayne Lafave, wary adequate pre- reason to be and to take 9.6(b) § & nn. Search Seizure measures.”); cautionary United States Cher- (4th ed.2004) (collecting holding cases ry (D.D.C.1991) ("Gen- F.Supp. suspect further search is warranted when re erally, Terry patdowns; searches consist of sists frisk or makes sudden move toward the however, approved numerous cases have hidden); place weapon may where cf. preceding patdown searches without a where Williams, 143, 147-48, Adams v. exigent stop justify circumstances of the (1972) (officer by police. immediate action Such cases justified directly retrieving gun from sus invariably threatening gestures involve pect's suspect comply waist when did not sudden person being movements car); request with officer's to exit United searched or other conditions which courts (9th Thompson, States 597 F.2d sufficiently exigent have found to be to war- Cir.1979) (officer justified reaching into upon rant an increased intrusion the defen- suspect’s pocket suspect repeatedly after tried Roach, person.”); dant’s State v. 172 N.J. pocket despite to reach warnings into his (2002) (officers 796 A.2d justified 219-20 bulky prevented coat officer from de removing suspect’s pants item from when termining pat-down pocket from whether obey weapon); refused the officers' orders Vaughn, contained United States v. (D.C.Cir. 1994) (officer 1994 WL at *2 "continued to move his hands toward the justified forcibly removing suspect’s bulge”). hands unidentified feeling here them from his waist area. Because whether analyzing unzip protective could Askew’s Askew’s resistance and evasive move- are not safety, we to ensure officer step ments, objectively the had an rea- officers subjec- the examining officer’s limited to by un- protect sonable basis to themselves (which, testi- according to the intent tive jacket zipping Askew’s to determine show-up). facilitate the mony, was to weapon concealing whether Askew was officer Rather, we whether the consider which, fact, he at his waist was. area — un- grounds to objectively reasonable had that emphasis It bears the officers did jacket purposes for of officer Askew’s zip skip Terry immediately frisk not the and 21-22, at 88 Terry, 392 U.S. safety. See Adams, unzip jacket. 407 Askew’s Cf. States, 1868; v. Whren United S.Ct. cf. 1921; 147-48, United 806, 812-13, 116 135 (2d Casado, v. 303 F.3d 447-48 States States, (1996); v. Scott United Cir.2002); Vaughn, States v. 1994 United 136-38, 98 56 (D.C.Cir.1994). 119002, at *1-2 On WL (1978). Rob- then-Judge 168 As L.Ed.2d officers with contrary, started “propriety of a search explained, erts actively frisk. After at- Amendment depends under the Fourth frisk, tempts to Askew did impede as officer’s objective an assessment of the here, entirely propor- circum- it is and light actions in of the facts and him at time and confronting targeted stances for to tional officers conduct subjective intent in on the officer’s own not weapons. and for limited search Cf. v. executing the search.” United States Adams, 407 (D.C.Cir.2004) Holmes, 786, 790 385 F.3d a two-step approach represents Such text- (internal marks citation quotation compliance the requirements book omitted); see also States Jack- United case, Terry. See On the facts of this id. (D.C.Cir.2005) (“[Offi- son, 415 F.3d therefore, unzipping Askew’s conducting the cers’ actual motives for for area weapon search his waist as their long are relevant as search not objectively reasonable protective step reasonable.”) (in- objectively were actions safety during ensure the Terry officer quotation ternal marks and alterations stop. McKie, omitted); United States III(E) Judge opinion, Part Edwards’s (“[W]e (D.C.Cir.1991) are not F.2d point majority, which on is for this reads says or stopping limited to what the officer differently. the record of this case Ac- ratio- subjective to evidence of his cording majority, the District Court ...”). majority agrees nale. The that that completed found the officers frisk subjective officers’ intent not relevant. interference, that after Askew’s As- (“[W]e Maj. Op. at agree jus- kew’s interference therefore not could determining for standard reasonableness tify any follow-up protective search. But in the Fourth is an Amendment context one.”). problem majority opinion objective District Court made no such find- Applying settled to this principles those contrary, ing. On the the District Court straightforward. case is Askew concedes expressly recounted Officer testi- Willis’s that, description, based on the victim’s that, mony at the time of the unzipping, police had reasonable to believe Koenig pat- had not completed “Officer just robbery. he an armed committed down, perhaps because some resistance police officers also knew the moment of by the defendant.” had the ini- United States As- unzipping that Askew resisted (D.D.C.2004). kew, prevent tial frisk attempt F.Supp.2d tried to n. gave dangerously District Court no indication that incompetent. We see no ba- testimony. sis, not credit however, it did Officer Willis’s an assumption. for such why we see no reason the District And In an effort to its bolster strained read- would recited explicitly have record, ing of the factual majority tries testimony intending while somehow to im- suggest the Government has not it; plicitly interpretation discredit pressed protective argument, opinion frankly the District Court’s does if the Government somehow conceded the make fact sense. The Askew point. That is inaccurate. The Govern- attempts Officer impeded Koenig’s pat argued ment before the District Court that him down is otherwise uncontroverted in the unzipping protective was a reasonable testimony record. the Officer thus Willis’s step indeed, to safety; ensure officer that that, at of the unzip- establishes the time the primary was Government’s contention. the officers’ initial ping, frisk was not com- Additional Law in Support Case plete, and the about officers’ concern As- to Opposition Government’s kew’s interference with the initial Defendant’s frisk attempt Tangible to dissipated. Suppress had not Motion Evidence at 2-5, Askew, United States majority The refers to nonetheless what (D.D.C.2004). F.Supp.2d After the Dis- it calls the “total of a implausibility” sce- expressed trict Court its preliminary belief whereby police nario would have jacket that the unzipping of Askew’s was complainant walked “toward the with an justified show-up rationale, better on a suspect robbery unhandcuffed who has focused Government instead on that alter- successfully prevented complet- them from argument, native ultimately which was the ing person weapons.” a frisk of his for basis for Op. ruling. at sole the District Court’s Maj. majority’s 1142. But the replay-booth-like not The Government never conceded review does acknowl- edge quickly how transpired; justified protective events search was not as a jacket occurred within contrary, search. On the the Government seconds Askew’s resistance and simulta- support safety continues to this officer ra- neously show-up with the while the tionale: “Given appellant that had success- —all remained in police victim cruiser. The fully resisted an officer’s ‘continued’ at- majority unpack has had to months and tempts to conduct a more traditional pat- second-guess split-second police those de- down, it objectively reasonable for the cisions. officers did not have that police unzip appellant’s to to deter- luxury. Events do unfold in super weapon mine whether he had a in his waist motion in slow the real world in which Supp. area.” Gov’t En Banc Br. at 11. Moreover, police operate. officers with re- said, All of that disagree- our fact-based majority’s it’s the spect, version of events majority ment with on the protective implausible: majority claims that, simply search issue underscores at police a full completed frisk of routine, question, least as to that this is a resisted, initially yet after Askew Askew fact-bound Fourth Amendment case where still failed to somehow discover loaded Judges to happen interpret different gun majori- .38 caliber waist. The ty’s necessarily opinion conclusion thus rests on an evidence the District Court’s assumption words, differently.4 majori- the officers here were other It bears had the mention that this fact-based dis- officer who conducted the initial frisk (Officer agreement majority opinion Koenig) testify between the called been at the opinion likely suppression hearing. would been our have avoided stop during the no that the officer’s actions analysis works search

ty’s protective “reasonably scope no harm Circuit related in in and does must be change protec- permissibility on the the inter- precedent justified circumstances which following suspect’s a interfer- tive searches place.” Terry, the first ference Maj. atOp. Terry frisk. See ence with that stan- Applying protec- (“[W]e dispute that a do not dard, the then considered whether lawful when tive search police may suspect during performing from a Ter- prevents (i) by conducting frisk stop protective ”). ry frisk.... or instruments of assault weapons (ii) to harm officers or could be used B contraband or evi- “exploratory search” for upholding the alternative basis for As an suspect. possessed of crime dence conviction, we affirming the search and 1868. The Court See id. unzipping Askew’s would conclude permitted perform protective investigative step jacket was instruments of weapons frisks for other In show-up procedure. facilitate assault, government inter- finding may reasonably judgment, our safety individ- outweighed in officer est clothing, a outer such suspect’s maneuver id.; also privacy ual interest. See see removing sunglasses a hat or suspect’s as Adams, 146, 1921; 407 at S.Ct. U.S. 92 cf. jacket, a when suspect’s outer unzipping Sibron, 65, But at 392 U.S. 88 S.Ct. 1889. help could facilitate witness’s doing so in the prohibited, the Court absence during Terry at a show-up identification cause, what the Court has vari- stop. “evidentiary,” ously “exploratory,” called Terry In v. and Sibron v. New Ohio or “full” for contraband or evi- searches York, Supreme held that suspect might dence of crime forcibly stop suspect police may without carrying.5 if have probable cause A search that consists Terry, 392 suspicion of See U.S. crime. help suspect’s outer facilitate a 1868; Sibron, 21-23, 392 88 U.S. S.Ct. show-up pigeonholed cannot be into either 1889, 40, 63-64, 88 20 L.Ed.2d 917 S.Ct. categories police procedures of the two (1968). explaining the con- permissible In Rather, such a search Terry stop, the Court stated addressed tours of Tern/. Buie, 30, Terry, 88 1868 land v. 494 U.S. 110 S.Ct. See 392 U.S. S.Ct. 1093, (1990) (distinguishing (prohibiting "general exploratory 108 L.Ed.2d 276 search” search”); "cursory recovering inspection” "whatever evidence of from "full aimed Skinner, 638, find”); activity might U.S. at 109 S.Ct. 1402 criminal Si 489 [officer] J., 64-66, bron, (distin (Marshall, dissenting) (describing past 392 U.S. at 88 S.Ct. 1889 government guishing protective weapons "Only where the action in from cases: search narcotics); substantially question had a less intrusive im search for see also Minnesota 2130, Dickerson, clearly pact privacy, 508 113 and thus fell short of U.S. search, (1993) (prohibiting probable- did we relax the "eviden- a full-scale search," standard.”) (internal quotation namely raising prospect tiary cause marks one omitted); Class, "rummage Yorkv. and seize at will” and citation New 475 officer will 106, 118-19, beyond stop) "specific 89 L.Ed.2d authorization” (internal omitted); (1986) (distinguishing permissible quotation marks 81 focused Florida Royer, 75 of car's dashboard from full search of 103 (1983) (plurality opinion passenger compartment); v. Ja United States L.Ed.2d cobsen, White, J.) (“police may carry n. a full out (1984) (distinguishing person search of the or of his automobile or L.Ed.2d search”). stop); Mary- fingernail scrapings during Terry from “full other effects” cf. category: falls into a third “identification (fingerprinting); Davis v. Mississippi, cf. procedures.” Identification procedures 721, 727-28, seek to match a to a (1969) crime or L.Ed.2d 676 (fingerprinting). The include, crime scene and for example, fin Supreme Court has authorized those vari gerprints, palm prints, footprints, body ous procedures identification during Terry measurements, samples, saliva hair sam is, stops without a proba warrant or —that ples, fingernail samples, fingernail scrap ble long cause—so procedures were ings, lineups show-ups, photographs, reasonable under the circumstances. In samples, voice and handwriting samples. no case has the prohibited Pre-Arraignment Model Code of Pro procedure identification during a Terry (1975). § Many 170.1 such “identi cedure stop. procedures” fication constitute “searches” argues, however, Askew those for purposes of the Fourth Amendment. procedures identification that do not con- Because identification procedures do not stitute Fourth Amendment “searches” are seek to uncover weapons, they are not the permissible during Terry stops. We dis- protective frisks that Terry permits. Cf. agree. Terry, 392 U.S. at But because procedures identification do not seek to uncover contraband or evi Florida, Hayes the Supreme Court dence possessed by of crime suspect, authorized fingerprinting during Terry they also are not the exploratory searches stops “if there is Terry prohibits. Minnesota v. Cf. act, has committed a criminal Dickerson, 366, 378, 508 U.S. 113 S.Ct. if there is a reasonable basis for believing 2130, (1993); Sibron, 124 L.Ed.2d 334 392 that fingerprinting will establish or negate 64-66, U.S. at 88 S.Ct. 1889. the suspect’s crime, connection with that Applying the Terry bedrock principle if procedure is carried out with police, with reasonable suspicion, dispatch.” 817, 470 U.S. at may “stop person for a brief time and In reaching conclusion, the Court rec- take additional steps to investigate fur- ognized that fingerprinting is a Fourth ther,” the Supreme permitted Court has a search, Amendment albeit a “much less variety of procedures identification during upon serious intrusion personal security Terry stops. Hiibel v. Sixth Judicial than types other of searches and deten- Court, 177, 185,

Dist. 542 U.S. 124 S.Ct. 814, tions.” at Id. 105 (empha- S.Ct. 1643 2451, (2004). 159 L.Ed.2d 292 The Court added); sis generally see Katz v. United police may has held that conduct show-ups, States, 347, 507, 88 S.Ct. 19 compel suspects to provide their identifica- (1967). L.Ed.2d 576 Hayes thus stands tion, search a suspect’s car to see the proposition for the that an identification number, vehicle identification and take fin- procedure constituting a search is permis- gerprints. Summers, Michigan See 452 sible during Terry a if stop procedure 692, 12, U.S. 701 n. 101 S.Ct. 69 is reasonable under the circumstances. (1981) Hiibel, L.Ed.2d 340 (show-ups); 542 Askew (identifica- import dismisses the 185-89, Hayes by at U.S. 124 S.Ct. 2451 tion); suggesting that Hensley, 229, 234, fingerprinting is not a 469 U.S. at 105 search. (identification); position ignores S.Ct. 675 Askew’s New York v. Class, 106, 119, Hayes language 475 comparing U.S. fingerprinting 106 S.Ct. 89 (1986) (vehicle to “other types identification searches and deten- number); Florida, Hayes Hayes, tions.” 470 U.S. U.S. at 105 S.Ct. (1985) added). 84 L.Ed.2d (emphasis Moreover, if As- They that on-site correct, complained Supreme weapons.

kew were “a intru- singular involves fingerprinting dur- fingerprinting limited could not have privacy” that is not suspect’s sion on the Terry stops to cases where ing (as Terry) in “justifiable patdown was the believing that a basis for have “reasonable negate necessary protection.” as for the officer’s will establish fingerprinting (Brennan, J., Id. that crime.” Id. 105 S.Ct. 1643 suspect’s connection Indeed, words, in la- concurring judgment). if 1643. In other search, majority’s “regret- conclusion a not beled the a fingerprinting were any showing to on the Fourth Amendment.” table assault not have to make would course, Id. Justices Brennan and Mar- any indeed Of during fingerprints take —or Hayes majority opinion obviously shall could call the every Terry — stop. That is Hayes held; fact, just assault on the Fourth Hayes “regrettable said what only because the decision Amendment” opposite.6 permitted (fingerprinting) a search on less Hayes, opinion Jus- separate In their probable cause. than similarly in- Brennan and Marshall tices opinion to also tries discount Su- majority Askew terpreted the Court’s reasoning Hayes as dicta. preme without Court’s (fingerprinting) allow a search during Terry stop. They treated Supreme But the Court has cause result, Hayes language from authoritative. strenuously objected to this howev- Hiibel, See er, they argued Askew does because —as Moreover, analysis permitted dur- 2451. Court’s here —that considered; indeed, Hayes carefully ing stop protective frisk case, they are Court hinted in and then to determine whether rea- In 1973 States, Kyllo v. United fingerprinting not be search. sonable. dicta that Dionisio, 27, 34, (2001) 150 L.Ed.2d 94 See United States ("We (1973). obtaining by sense-enhancing think technology any leading explains regarding the Amendment scholar information in- Fourth might be the that could not in Dionisio consid- terior of home otherwise "dictum suspect.” physical without 1 have been obtained intrusion ered LaFave, and Search Seizure 2.6(a), constitutionally protected area § The later decision in into a consti- at 668. Court's here) (as fingerprinting Hayes plainly a tutes a search —at least where the considered search; question public Hayes requirement technology general in not language and in the use.”) (internal evidentiary showing by police quotation the marks citation for some States, 334, omitted); stop during Terry fingerprints obtain a cannot Bond v. United 529 Therefore, 1462, (2000) explained although 146 365 otherwise. L.Ed.2d feeling Supreme pre-Hayes (merely squeezing passenger's a some of lan- the Court's inspec- guage bag "Physically a person does have is a search: invasive "indicates not simply purely expectation privacy intrusive than a in his or tion is more visu- reasonable Skinner, say fingerprints, po- inspection.”); which al 489 U.S. at her is to the blood, (breath, taking fingerprint lice a not 109 S.Ct. 1402 and urine col- actions would searches). meaning testing procedures be a are search within the Fourth lection Amendment, signaled longer Hayes, Supreme ordinarily no in the Court The en- interest, argu- protected gages person a a in the kinds of contortions it once has albeit one, employed proce- taking ably police find diminished in the his or her certain fingerprints.” Clancy, Akhil Thomas What Is a dures not to be searches. See Reed K. Amar, Pñnciples, Meaning Fourth Amendment “Search” Within the Fourth First ("To Amendment?, (2006). (1994) 70 Alb. 8 n. 39 783-85 Harv. L.Rev. L.Rev. Hayes some of created and is consistent the mod- avoid the absurdities reflects cases, require- Supreme which warrant and cause ern trend in so-called ments, recognize have down increasingly has been intrusive the Justices watered ”). plain meaning police practices as of 'search' and 'seizure.' and invasive searches— disagreement point gan Long, of strenuous 463 U.S. at was the opinion Court, Hayes majority and Justices her for the between Justice separate succinctly and Marshall in Brennan their O’Connor described the issue “carefully holding: We have said that con opinion. Court, language

sidered case, whether, In this we must decide technically dictum, generally even if must in order to observe Vehicle Identifica- be treated as authoritative.” United (VIN) tion generally Number visible v. Dorcely, States 454 F.3d automobile, from police outside offi- (D.C.Cir.2006) (internal quotation marks cer into reach com- passenger omitted); EPA, see also Sierra Club v. partment aof vehicle to papers move (D.C.Cir.2003); F.3d Natural Res. VIN obscuring the after its driver has Council, NRC, Inc. 216 F.3d been for a stopped traffic violation and Def. (D.C.Cir.2000); United States Oa that, has the car. in exited We hold (D.C.Cir.1997). kar, 146, 153 111 F.3d circumstances, these officer’s action not does violate the Fourth Hayes establishes that the identification Amendment. used in procedure Askew’s case was rea- Class, under 960; sonable the Fourth Amendment. see in Hayes, proce- (White, J., Here as the identification also id. at 106 S.Ct. 960 constituted a in dissenting) (majority dure search. Here as opinion “in effect Hayes, purpose of the identification holds that a of a car for the isVIN procedure permissible was to match a with a suspect legal whenever there is a just serious crime that had and stop”). occurred protect

thereby public a violent from reasoning of Class is murky some (a at large rapist Hayes; criminal an places. But the bottom line of Class here). Hayes, armed robber Here as crystal During Terry clear: stop, car had an objectively police may conduct a limited search of believing basis for that the identification VIN, though vehicle so to see the even procedure help negate could establish or searching are weapon. not suspect’s connection with a crime. Class, decision in like the opinion in Hayes, Here as on the intrusion Hayes, position refutes Askew’s minimal; indeed, relatively police may conduct a reasonable search many people would think their fin- having purposes during Terry for identification gerprints taken on the street in view plain stop. public of the is far more intrusive than Supreme Also is the instructive Court’s their having partially outer un- v. decision Hiibel Sixth Judicial Dis- Here zipped. Hayes, police as ac- the Court, 177, 2451, trict 124 542 U.S. S.Ct. dispatch.

tion was carried out with (2004). Hayes 159 292 L.Ed.2d Unlike Contrary to Askew’s more- suggestion, Class, and did not a directly Hiibel involve over, Hayes is no York outlier. In New v. search, but it nevertheless underscored the Class, 106, 118-19, 960, importance procedures of identification (1986), Supreme stops. during Terry The Court held that police Terry during stop allowed a to police Terry stops may during compel sus- and, a limited conduct search of a car so that their pects provide pursuant to names law, may see the suspects could car’s vehicle identifica- to state arrest re- who (VIN) so, though tion number police fuse to do which case the —even protective necessarily may search not a for conduct a full search inci- permitted that weapons Terry or Michi- dent to arrest would uncover the sus- 1160 -274; §§ P. form of identifica- 15A-271 license or other

pect’s Ann. Vt. R.Crim. 41.1; 240, 2451; Rodriguez, Ariz. 921 State v. 186 124 at tion. Id. cf. (1996) (en 643, banc); People P.2d 650-51 427, 92 285 N.W.2d Flynn, State v. Wis.2d (Colo.1981) Madson, 18, P.2d 31-33 638 (1979) 710, wallet (allowing search for 719 (en banc); Murphy, 275 A.2d Wise during Terry stop). with identification (D.C.1971); Dist. 213-16 Bousman Iowa explained obtaining that The Hiibel Court (Iowa Court, 630 N.W.2d 796-99 during a person’s identification Hall, 2001); A.2d State v. 93 N.J. 461 inquiry” that a “commonsense stop is (1983); Fingerprint In re 1159-61 interests”: government important “serves M.B., A.2d ing N.J.Super. suspect an officer that a of may It “inform Requir 6-7 In re Order (App.Div.1973); may “help suspect clear a and or wanted” Juvenile, 42 Ohio ing Fingerprinting aof their to concentrate efforts police allow the (1989); 1286, 1288-89 St.3d 537 N.E.2d elsewhere.” re In Nontestimonial Order Identification emphasized The Court S.Ct. 2451. R.H., A.2d Directed to 171 Vt. not for “does al- request identification (2000). state 1243-47 Most those stop ter nature itself: does broadly rules and decisions authorize location.” change its duration its to obtain a court order —based police (citations 188, 124 omit- Id. at suspicion seize a sus- on reasonable —to ted). response to concerns about appearance at pect, compel suspect’s harassment, po- noted location, station or other and stop- for lice must have reasonable basis forcibly require suspect submit indeed, and, Hayes suspect cited ping the procedure. an intrusive identification “Terry permit for proposition Pre-Arraignment Model Proce- Code suspect’s identity to determine officer only on similarly permits police dure based by compelling to submit to reasonable to obtain a court or- if there is ‘a fingerprinting only der, suspect, compel seize a and the sus- will believing fingerprinting basis for pect proce- to an submit identification negate suspect’s establish or connec- Pre-Arraignment dure. Model Code ” (quoting Hayes, Id. tion that crime.’ gen- § 170.2. Professor LaFave Procedure 1643). Hiibel erally rules deci- approves these Hayes pre- thus reinforces what and Class sions because certain “identification viously stated: Identification is critical “require rummaging do not searches” Terry stops. legitimate component through suspect’s personal effects as Consistent with the Court’s ordinary does an full-blown search.” legislatures precedents, number state 9.8(b), § LaFave, and Seizure Search have allowed law long courts enforce- (internal omitted). quotation marks ment less officers—with than reason, says: For that Professor LaFave proce- identification cause—to conduct “Taking fingernail scrapings, example, Fourth Amendment dures constitute search, yet very is a but is a limited § 13- intrusion, searches. See Ariz.Rev.Stat. per- and thus be deemed should Ann. ” 3905; 41.1; P. missible even cause. without Colo. R.Crim. Idaho Code 19-625; (internal §§ quotation § 810.1 and Id. omitted marks Ann. Iowa Code Ann. added).7 .8; 3:5A; emphasis N.J. Ct. R. N.C. Gen.Stat. practices Supreme Court has looked to lice under the Fourth Amendment. often laws, Pre-Arraign- See, the Code e.g., California, - U.S. -, state Model Brendlin v. Procedure, 2400, 2407-08, ment and Professor LaFave's trea- L.Ed.2d considering po- tise reasonableness sum, (internal In prece- quotation Court’s marks and alterations dents, omitted). decisions, the various state laws and police action during Terry Pre-Arraignment stop the Model Code of Pro- must “reasonably related in scope cedure, and the views of leading justified circumstances which Fourth Amendment scholar all interference in the place.” demon- first Terry, 392 1868; strate that U.S. at interpretation Askew’s extreme Hensley, see also (reasonable- of the Fourth seriously- Amendment is S.Ct. 675 ness test flawed. “balances the procedures quality Identification consti- nature and personal intrusion on tuting permitted searches are during security Ter- against importance ry stops long procedures governmen- so as the are tal alleged interests to justify under the intru- circumstances. Po- sion”); Bell, 441 U.S. at lice reasonably therefore maneuver a standard, Applying that Terry says suspect’s it is clothing outer removing —such reasonable to frisk the suspect for suspect’s weap- sunglasses hat or or ons and unreasonable to search the sus- suspect’s jacket outer doing so —when pect for contraband or evidence. The pre- help could facilitate a witness’s identifica- question cise again, assuming tion at a show-up during a Terry stop. case— Class, cases like Hayes, and Hiibel do not reason, For that it was reasonable for the already resolve it—is whether it is reason- police unzip Askew’s outer so able for the police to conduct identification robbery victim could see his cloth- procedures. ing get and a better view of his blue

sweatshirt. On the government interest side of the balance, Fourth Amendment po- when the lice seek to conduct an proce- identification

Askew argues post -Terry decisions Terry dure at a stop, they know that a Hiibel, Hayes, Class, such as and as well recently serious crime has been commit- statutes, rules, as the various state usually a violent crime such as mur- ted— opinions, do not resolve this case. For der, rape, robbery, or assault —and that above, reasons stated argument Askew’s perpetrator is on the loose. In such wrong. But even absent all of prec- cases, those speed essence, is often of the words, edents and laws—in other based quickly tools to negate establish or a sus- solely on Terry general Fourth pect’s connection with the crime are essen- Amendment principles errs ar- tial so that can determine —Askew guing prohibited are during whether to arrest the suspect or move on Terry stops from conducting identification to someone else. Identification procedures procedures constituting searches. stops help therefore to protect public from violent at large— criminals “evaluating validity of an officer’s Judge interest opinion Edwards’s never investigative protective conduct under mentions. Teiry, analysis touchstone of our always the reasonableness in all the cir- On the other side of the Fourth Amend- particular cumstances of the governmental balance, primary ment intrusion on a invasion of a personal citizen’s security.” suspect’s individual privacy during Terry Long, 463 U.S. at stop 103 S.Ct. 3469 results from the stop forcible itself (2007) (state LaFave); Vista, 318, 344-45, 355-60, Lago court decisions and Il- Lidster, (2001) (state

linois v. 885, (2004) (Model laws, 157 L.Ed.2d 843 Pre-Arraignment Code of Model Code of Proce- Procedure); dure, Pre-Arraignment LaFave). City Atwater v. and

1162 It Hayes expressly that allows. would frisk. The addi protective the initial and police a mean that the could not remove identi conducting targeted a step tional of a robbery suspect’s during show-up hat as fication procedure —such It robbery. after an armed would mean show-up certain a jacket during outer —is suspect take off a police that the could not privacy. individual an interference ly ski mask. It would mean ed bank robber’s interference, minimal relatively a But a police that could not remove murder compared to numerous other especially suspect’s imprint to take a shoe dur shoe Supreme Court has au that searches stop, though shoeprint a a ing Terry even cause. thorized without Cf. key was evidence at a murder scene. 119-22, 122 587 U.S. at S.Ct. Knights, 534 116, Moffatt, State v. 450 N.W.2d 120 home); Cf. (search Sch. Dist. Vernonia of 17J (Minn.1990). po It would mean that 646, 653-65, Acton, U.S. v. 515 lift rape suspect’s lice not a sleeve to could (1995) (urinalysis); 2386, L.Ed.2d 564 132 forearm, suspect’s a on the view tattoo Union v. Von Treasury Employees Nat'l victim said the though rape even Raab, 667-77, 109 1384, 656, U.S. 489 had a tattoo on perpetrator distinctive (1989) (urinalysis); Skin 103 L.Ed.2d 685 police It that forearm. would mean Ass’n, Labor 489 Ry. ner Executives’ sample take a from a rape could not hair 602, 620-34, 103 109 U.S. a suspect during Terry stop, though even (1989) (blood, breath, and key rape of piece evidence scene Ortega, testing); urine 480 O’Connor perpetrator. was hair from the Unit- Cf. 709, 722-26, 107 S.Ct. Ingram, F.Supp. ed States v. 716- (search (1987) employee’s L.Ed.2d (E.D.Ark.1992). It mean that would office); Class, police during Terry stop could not (search part of interior S.Ct. 960 fingernail scrapings take a saliva swab T.L.O., car); Jersey New defendant’s in a from murder case where the n. 340-42 & struggle. victim killed in a violent Cf. (1985) (search student); 83 L.Ed.2d Shabazz, F.Supp.2d In re 584-85 Mimms, Pennsylvania v. (D.S.C.2002). It mean would show- (1977) cases, up is in certain all but useless not- (driver get during to out of car asked withstanding Court has Terry expose stop being “is asked to during long show-ups Terry stops. blessed very person view little of his than is more It large would mean that a number state already exposed”). rules, statutes, permitting and decisions interests, balancing competing When procedures identification on less than accepting ar- consequences Askew’s probable cause—which have been on the gument important are consider. Pro- all books for decades—are unconstitutional police during Terry stops from hibiting the short, wrongly decided. Askew’s conducting procedures identification position hamstring would constitute searches would lead absurd prevent performing them from It dangerous results. would mean procedures identification that could solve could not remove sus- protect community serious crimes and large.8 pect’s gloves perform fingerprinting from violent criminals at argument argues position namely, proved 8. Askew that his claim hollow oral — procedures counsel not those identification when Askew's skilled could an- swer, understandably constituting perhaps given the searches under the Fourth state law, during questions permitted are of the case numerous about Amendment clear, bright-line procedures stop provides a But certain identification rule. whether — Hayes- reasons, if investiga- the connection with the crime’ those even under For (quoting Hayes, exist, Maj. Op. tion.” at Class-Hiibel line of cases did the (alteration at 105 S.Ct. 1643 government proce- need for identification omitted)). But during Terry stops outweighs the paragraph then decides dures police in this case a did not have on individual privacy.9 intrusion predicate sufficient factual to meet police may hold that con- We would disagree. It generally standard. We procedures identification duct reasonable police unzip- reasonable for believe that Terry stops; police particular, jacket a ping suspect’s help outer could reasonably suspect’s a may maneuver out- robbery facilitate a witness’s identification clothing removing a suspect’s er as —such a show-up. if a Even witness can readi- a sunglasses suspect’s or or hat face, ly see a suspect’s allowing the witness here, jacket when, doing outer as so — to view the suspect’s clothing would en- help could facilitate a witness’s identifica- hance of accuracy the identification. Terry stop. show-up during tion at where, here, particularly That is true course, recognize, But that there is we the witness had identified a specific item majority show-up not a of the on the perpetrator’s clothing when re- first either our position Judge issue for Ed- crime, porting ap- and the suspect position wards’s as reflected Part wearing to be peared clothing under III(A)-(C) result, of his As a opinion. jacket. his outer legal question permissible scope about the robbery speci- Because the victim here activity show-ups that we fied blue sweatshirt when she re- en banc first granted review to decide remains crime, reasonably ported the officers for undecided now this Circuit. signifi- believed the sweatshirt was a C for identifying cant factor the victim. Offi- close with a We few observations about Willis “I they cer testified: remember said III(D) Part of Judge opinion, Edwards’s the defendant a blue had on hooded sweat- shirt, just single, which consists of fact-bound but had his zipped [Askew] entirety up. I paragraph complainant constitutes wanted the to see what binding opinion on the he had on sure that to make he wasn’t show-up issue.10 zipping nothing up up.... to cover [I] to expose wanted the blue hooded sweat- paragraph arguendo That assumes shirt to the victim to make sure that that’s may suspect’s jacket “unzip what she saw.” Mar. 26 Tr. at 8-9. alia, inter if, a show-up facilitate ‘there is believing’ reasonable, doing police’s reasonable basis belief was more- over, victim, negate suspect’s though so ‘will establish or even when she 9.8(b), (“there § searches under the Fourth Amend- at 730 constitute Search Seizure Arg. See Tr. ment. of En Banc Oral at 3-12. question be a as to serious whether sample taking of a blood should be allowed” variety 9. A of conceivable would be searches cause). on less than more intrusive than the at issue here. cases, hypothetical the Government In such reiterate; issue, Judges show-up 10. To On the face a heavier to show that the would burden Ginsburg join only para- and Garland investigative step was reasonable. III(D) graph Judge opin- Part Edwards’s California, 769- Schmerber ion; legal question do not reach the (1966); III(A)-(C) States, Judge addressed in Part Ed- F.Supp.2d Helton United (D.D.C.2002); opinion. 184-85 see also wards’s LaFave, crime, had been “North apparently did neric blue” sweatshirt reported the first perpetrator’s whether Blue” was “True indicate Carolina but Askew’s markings. The distinctive had sweatshirt the end Navy,” that have been would there was insuffi- majority suggests have walked. the matter and Askew would allowing the victim justification cient might alternatively Or the victim have because would Askew’s sweatshirt see said, that’s “that’s the sweatshirt and to distinguish for her impossible have been robber.” from sweatshirt” others. “generic blue moreover, irony here, that seeing The just But Op. 1140-41. because Maj. may actually helped have the sweatshirt distinctive charac- did mention a victim not rule Askew out as the robber. the victim in her initial de- of the sweatshirt teristic Keep in mind that end result allowing her mean to see scription doesn’t robbery was that the victim said show-up have been futile would Askew’s sweatshirt majority right The The purposes. guy. Askew was not for identification point that there are ignores the outer obvious reason see sweatshirts,” and styles numerous of “blue problematic for As- proved the sweatshirt material, shade, pattern, or fea- any logo, he is the fact that kew inconvenient or helped could have the victim match ture illegally carrying gun a loaded .38 caliber distinguish from Askew’s sweatshirt jacket. his under being by the worn robber. one she recalled larger point Hayes requires is that notes, correctly As Government believing” only a “reasonable basis for “cotton or “blue sweatshirt” could be procedure identification will establish fleece, buttoned; or and it could zippered negate suspect’s or connection with the En pockets Supp. have hood.” Gov’t Hayes, crime. 470 U.S. at Banc Br. at 4 n. 1. A “blue sweatshirt” robbery that the victim ini- feature, 1643. Given countless other among could logo, college tially told the about the blue things, company athletic sweat- mascot, name, team sports shirt, a professional say how can there is not we sure, corporate slogan. To be a “blue or a believing even a basis for also have none sweatshirt” could of those seeing victim’s sweatshirt blue it the things, presumably rendering kind of have her identification? would assisted old blue plain “generic sweatshirt” majority good offers no answer majority “generic describes. But what is commonsense question.11 major manufacturer of sweat- blue”? One judgment, In our this requiring kind of wildly variant shirts lists 14 shades of pinpoint accuracy and detail in victim’s Blue, Blue, Aqua, Baltic “generic” color: description initial of a criminal is inconsis- Blue, Blue, Cadet Cornflower California Hayes tent with the “reasonable basis” Blue, Blue, Blue, Light Granite Medium place dangerous standard and could bur- Blue, Periblue, Stonewash, Carolina North den on law enforcement officials. After Navy, Royal, Vintage True True all, provide richly victims often do not such Translation, Navy. See Jerzees Color descriptions reporting detailed when first http://www.jerzees.com/jerzeesactivewear/ ColorTranslation.aspx. “ge- police. If the crimes to the robber’s violent good Judge opinion; agrees No 11. doubt because there is no answer Edwards’s he Griffith, question, Judge that, to that notwithstand- Hayes applies, us if the standard ing opinion’s separate narrower view of Hayes Concurring here meet the facts test. permitted what are to do under Judge Op. of at 1146 Griffith n. Amendment, III(D) join Fourth does not Part III(D) JJ.); Goddard, indication that Part rests United States v. 491 F.3d good A (D.C.Cir.2007) curiam) (Gins- him- 457, is the fact that Askew quicksand (per on either in argument not raise this Tatel, JJ.); self did burg and see also H. Douglas or on to the District his submission Hunches Ginsburg, and Mere Hunches: Of represented by where he was appeal, Terry, 4 Two Cheers J.L. Geo. Mason for from the experienced skilled and counsel Pol’y (2007) (“Under Terry, Econ. & De- Federal Public Defender’s Office. determining test for whether a counsel presumably fense considered the officer had reasonable takes argument untenable.12 ‘totality account of the circum- event, any disagreement stances,’ In our with po- which leads courts to review III(D) opinion of Judge Part Edwards’s result, practices deferentially. lice As a (which point on this is a majority) is for a (footnote close to the go police.”) calls respect dispute narrow fact-bound to omitted). case. specific

the record Askew’s cases, future many show-up the record satisfy will indisputably Hayes reason- requirement able-basis as described hold that unzipping We would Askew’s III(D) Part of that In such a opinion. for a weapon to search his waist case, course, need the Court would to objectively area protec- was an legal regarding show-ups decide issue tive step safety to ensure officer after As- today open. that the Court leaves to kew’s resistance the initial at- frisk point: final majority’s ruling alternative, One The tempt. In the we hold would III(D), it, Part as we read is limited to a reasonably maneuver viewing clothing show-up witness’s suspect’s clothing unzip- outer as —such Terry stop. during majority does ping jacket when, outer suspect’s — long-stand- purport not address or alter here, doing help could wit- so facilitate a about ing law what is sufficient consti- show-up during ness’s identification at a suspicion” stop tute “reasonable some- Terry stop. uphold We would the search majority’s place. one in first If the judgment affirm the of conviction context, analysis migrate were to to that grounds. either of those two alternative then it would of course havoc with wreak dissent. respectfully We stops Terry generally. more do not We majority opinion open read the that can Indeed, various in the judges worms. joined have

majority opinions sug- recent spillover there will be gesting no such Abdus-Price, effect. See United States v. (Grif- (D.C.Cir.2008) 929-31 518 F.3d J., fith, joined by Rogers, Ginsburg and reversal, majority opinion argument Askew 12. notes that al- alternative for but rather point to the luded blue-sweatshirt in a why the Court to illustrate should foot- reply three-judge panel. note in to the any during allow brief identification searches Op. Maj. point at 1146 n. 2. The fact that the stops. And even if Askew had offered this as appeared oblique reply- in one in a sentence reversal, argument for this alternative speaks footnote brief for itself in terms of does not Court of course consider alternative point. defense counsel's confidence in arguments reversal first raised for the Moreover, contrary majority's sugges- reply in a time in a footnote brief. tion, point Askew did not make as an notes the District Court that Offi- the on the ... as to home- zen streets at the Koenig testify suppres- cer not did For, study.... in his as owner closeted Rather, hearing. testimony sion the re- Supreme] always recog- has Court [the provided by was garding pat down sacred, nized, right ‘No is held more or is (In fact, at 3 n. 2. Officer Id. Willis. by carefully guarded, more the common hearing transcript reveals that the motions law, every individual right than the of Government, trial part strategy, as of its per- of his own possession and control Koenig. chose on put not to Officer son, free from all restraint interference 38.) 21, 24, In Mar. 26 Tr. at this same others, by unquestiona- clear and of unless footnote, describes Officer the Court Wil- ” Ohio, authority Terry ble law.’ 392 had “suggestion] Koenig lis’s that Officer 8-9, 1868, 20 L.Ed.2d 889 U.S. ... pat-down when Offi- completed (1968) Ry. Pac. Co. (quoting Union robbery cer arrived with the victim Benton 250, 251, 141 11 Askew, Botsford, U.S. show-up.” F.Supp.2d for a 313 at added). (1891)). 734 n. 2 also 35 L.Ed. (emphasis Court (1983). Ohio, Dickerson, Supreme In 508 U.S. at Terry exceptions of the few defined one S.Ct. 2130. against warrantless searches prohibition Appellant argues pursuant to this The Court held that in the person. of a law, body well-established the unzipping justified properly on-the- context of unlawful, of his because it was officer stop, street if a has rea- protective not undertaken for purposes, in- articulable “that the sonable rather impermissible but amounted to an behavior, suspicious dividual whose he is evidentiary unsupported by proba- search range at close is armed and investigating Government, ble cause or a warrant. The presently dangerous to the officer or to contrast, question asserts that this others,” officer conduct a limited prece- not controlled Dickerson and the protective search “to determine whether rests, dent which Dickerson but rather person carrying weapon.” is in fact should be decided through application of 1868; at id. see also balancing reasonableness test. Under In at 88 S.Ct. 1868. Sibron v. New test, permissibility of Govern- York, ment action by “balancing is determined (1968), opinion issued on [governmental] need to search [or day Terry, con- the same against the invasion which seize] Terry firmed the limited nature Terry, [or search entails.” seizure] exception, explicitly stating search (second 88 S.Ct. 1868 and third “only conceivably” goal might which original) alteration in (quotation marks justify a search the context of omitted). test, Pursuant to this the Gov- weapons. stop is a search for Id. argues ernment the unzip- because ping appellant’s jacket “was a reason- cases, subsequent the Court has able, de minimis investigative measure unequivocal explaining that “[t]he been that appropriately facilitated the show-up purpose of this limited search is not to procedure,” it need not have been sup- crime, evidence but to allow discover ported by a warrant or cause. pursue investigation officer to without Gov’tEn Banc Br. Williams, Adams v. fear of violence.” When the Court has 32 L.Ed.2d weighed the interests relevant to deter (1972) added). Thus, (emphasis mining whether a certain type official “goes beyond fruit of a what is conduct is reasonable under the Fourth necessary to determine if [a]

Case Details

Case Name: United States v. Askew

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 12, 2007

Citation: 529 F.3d 1119

Docket Number: 04-3092

Court Abbreviation: D.C. Cir.