UNITED STATES OF AMERICA, APPELLEE v. PAUL ASKEW, APPELLANT
No. 04-3092
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2007 Decided June 20, 2008
Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs were A.J. Kramer, Federal Public Defender, and Sharon R. Rice, Assistant Federal Public Defender.
Blair G. Brown, Jonathan E. Nuechterlein, and Sambhav N. Sankar were on the brief for amicus curiae National Association of Criminal Defense Lawyers in support of appellant.
Florence Y. Pan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Assistant U.S. Attorney.
Opinion for the Court filed by Senior Circuit Judge EDWARDS, with whom Circuit Judges ROGERS, TATEL, and BROWN join, and with whom Circuit Judge GRIFFITH joins except as to Part III.D, and with whom Circuit Judges GINSBURG and GARLAND join as to Parts I, III.D, III.E, and IV.
Concurring opinion filed by Circuit Judge GRIFFITH, with whom Circuit Judges ROGERS and TATEL join, except as to footnote 2.
Dissenting opinion filed by Circuit Judge KAVANAUGH, with whom Chief Judge SENTELLE and Circuit Judges HENDERSON and RANDOLPH join.
EDWARDS, Senior Circuit Judge: On the evening of December 19, 2003, police officers received a broadcast lookout for an armed robber. Appellant Paul Askew, who wore clothing similar, but not identical to that described in the lookout, was stopped. The police then conducted a Terry frisk which produced nothing. Some time after the frisk was completed, the police moved appellant to a place where he could be seen by the complaining witness. The officers’ purpose was to determine whether the complainant could identify appellant as her assailant. The District Court‘s findings of fact indicate that appellant complied during the stop and was not handcuffed during the identification show-up. Preparatory to the show-up, but without appellant‘s consent, one of the officers attempted to unzip appellant‘s outer jacket to reveal to the complainant what appellant had on under the jacket. The officer‘s unfastening of the jacket was interrupted when the zipper hit a hard object at
In April 2004, after the District Court denied his Fourth Amendment motion to suppress the Government‘s evidence, appellant entered a conditional guilty plea to a one-count indictment charging him with possession of a firearm by a convicted felon in violation of
On April 6, 2007, a divided panel of the court affirmed the District Court‘s denial of appellant‘s motion to suppress. On July 12, 2007, the panel‘s judgment was vacated and an order was issued granting appellant‘s petition for rehearing en banc. The order granting en banc review instructed the parties to address the following issue:
[W]hether during a Terry stop police officers may unzip a suspect‘s jacket solely to facilitate a show-up. In addressing this question, the parties should consider whether the officers’ action was a lawful search under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny.
United States v. Askew, No. 04-3092, Order Granting En Banc Review (D.C. Cir. July 12, 2007). The order made clear that the only issue before the en banc court was whether the first, partial
On April 10, 2008, after oral arguments were heard by the en banc court, an order was issued instructing the parties to submit supplemental briefs addressing the following questions:
- Assuming, arguendo, that it is not dispositive that the unzipping was a search, was the gun evidence nonetheless inadmissible as the product of steps taken to facilitate a show-up witness’ identification, on a theory that there were not reasonable grounds for believing that unzipping the jacket would establish or negate the suspect‘s connection with the crime under investigation?
- Was the gun evidence admissible as the product of a valid protective search, on a theory that regardless of the officer‘s subjective intent the initial unzipping was an objectively reasonable response to the suspect‘s conduct during the pat-down?
- Was the gun evidence admissible under the doctrine of inevitable discovery, on a theory that the officers had not completed the pat-down but would have done so after the show-up?
United States v. Askew, No. 04-3092, Order (directing supplemental briefing) (D.C. Cir. Apr. 10, 2008).
As described in its opening brief, the Government submits that the principal question for this court is whether the police violate[d] appellant‘s Fourth Amendment rights by partially unzipping [his] outer jacket during a show-up identification procedure, so that a robbery victim could see whether appellant‘s sweatshirt matched that of the robbery perpetrator.
Even assuming, arguendo, that an unzipping to faсilitate a show-up is permissible under some circumstances, a majority of the court is nonetheless satisfied that the police officer‘s actions cannot be justified here since there were no reasonable grounds for believing that the unzipping would establish or negate appellant‘s identification as the robber in question.1 A majority of the court is also satisfied that the Government‘s alternative argument, that the search of appellant can be justified as an objectively reasonable continuation of the protective frisk, is both contrary to the District Court‘s factual findings and unsupportable on any plausible reading of the record.
Finally, the Government concedes that [t]he gun is not admissible under a theory of inevitable discovery. Gov‘t Supplemental Br. at 12. As the Government explains, it did not make an inevitable-discovery argument before the district court, and thus failed to elicit the testimony necessary to support such a theory under Nix v. Williams, 467 U.S. 431 (1984). Gov‘t Supplemental Br. at 14. Moreover, the Government acknowledges that [b]ecause the inevitable-discovery theory raises factual issues that could have been addressed at the
I. THE DISTRICT COURT‘S FACTUAL FINDINGS
Following completion of the hearing on appellant‘s suppression motion, the District Court set forth its factual findings in a published opinion. See United States v. Askew, 313 F. Supp. 2d 1 (D.D.C. 2004). [A]ppellate courts must constantly have in mind that their function is not to decide factual issues de novo. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quotation marks omitted). Thus, as the Government rightly points out, [t]his court must accept the district court‘s findings of fact unless clearly erroneous. Gov‘t En Banc Br. at 15. This rule is firmly entrenched in Supreme Court precedent, see Ornelas v. United States, 517 U.S. 690, 699 (1996), and in applying it we overstep[] the bounds of [our] duty... if [we] undertake[] to duplicate the role of the lower court, Bessemer City, 470 U.S. at 573. This is especially so when, as here, the trial court is required to reconcile differences in testimony in order to make factual findings. See Mar. 26 Tr. at 29-31; see generally Bessemer City, 470 U.S. at 573-76.
Notably, neither party challenged the District Court‘s findings in this case. In fact, in its brief filed with the panel, the Government characterized the District Court‘s factual findings as consistent with the government‘s evidence at the suppression hearing. Gov‘t Panel Br. at 9. Even if those findings had been challenged, we could not overturn them unless we were definitely and firmly convinced that a mistake [had] been committed. Bessemer City, 470 U.S. at 573. Because there are no grounds for such a conclusion, the District Court‘s factual findings constitute the record by which appellate review is bound. Consequently, they are, in pertinent part, reproduced below.
On the night of December 19, 2003, around 11:00 p.m., a radio run alerted Officer Anthony Bowman of the Metropolitan Police Department to a report of an armed robbery in the 700 block of 9th Street, S.E., in Washington, D.C. Officer Bowman canvassed the area in his patrol сar, looking for individuals matching the description of the perpetrator: a black male, approximately six-feet tall, wearing a blue sweatshirt and blue jeans. The radio report reflected that the perpetrator had been last seen moving on 9th Street, S.E., in an unknown direction.
Within two minutes of the radio report, and within approximately ten minutes of the robbery, Officer Bowman spotted defendant Paul Askew walking in the 200 block of 9th Street, S.E., five blocks from the scene of the robbery. Upon seeing Officer Bowman, the defendant turned and walked in a different direction, but Officer Bowman continued to follow the defendant in the patrol car. Defendant is a black male, six-feet, three-inches tall, and at the time was wearing clothing quite similar but not identical to the description broadcast over the police radio. While the description of the perpetrator mentioned a blue sweatshirt and blue jeans, Officer Bowman testified that the defendant was wearing blue sweatpants, a navy blue jacket[, and] a darker blue fleece type jacket underneath. He had on two jackets. Officer Bowman reported to the dispatcher that Askew vaguely match[ed] th[e] description. After noticing that the defendant had a moustache, Officer Bowman checked with the dispatcher to determine whether the robber also had a moustache. When the dispatcher responded affirmatively, Officer Bowman stopped the defendant.
Officer Bowman asked the defendant to come to the patrol car, and he complied. The defendant also complied with Officer Bowman‘s further requests that he produce
some identification, take his hands out of his pockets, and place his hands on the top of his head. Officer Bowman then told the defendant that he was being stopped because of his physical similarity to the description of a robber. When back-up units arrived, Officer Bowman returned to the interior of his car to check whether the police department computer returned any information on the defendant. Officer Bowman‘s back was turned for the next couple of minutes and he did not see the pat-down of the defendant that followed. Officer James Koenig conducted a pat-down of the defendant and found nothing. Shortly afterwards, another officer, Officer Benton, drove the robbery victim to the place where the defendant was being detained, for the purpose of conducting a show-up. The victim remained in the car while Officer Koenig and Officer Anthony Willis brought the defendant to a place where he could be seen by the victim. The defendant was not in handcuffs at that time. Preparatory to the show-up, Officer Willis attempted to unzip the defendant‘s outer jacket to reveal the sweatshirt underneath so the victim could better determine if the defendant was the robber. Officer Willis testified that he remembered the blue hоoded sweatshirt described in the radio run and wanted the complainant to see what [the defendant] had on to make sure that he wasn‘t zipping nothing up to cover up. So I went to unzip it down so that they could see what he had on. Officer Willis had difficulty, however, in unzipping the jacket when the zipper hit what he described as a hard or solid object and didn‘t go past [the object]. It stopped there. And at that time, that‘s when [the defendant] knocked my hand down, away from the zipper.
After the show-up, Officer Willis and Officer Edward Snead walked the defendant backwards toward the car,
placed him on the hood of the car, and unzipped his jacket. Visible once the jacket was unzipped was an open black waist pouch, or fanny pack, with a silver object sticking out. On further inspection, the silver object was identified as a gun, and the defendant was handcuffed and arrested.
Askew, 313 F. Supp. 2d at 2-3 (alterations in original) (footnotes and transcript citations omitted).
In the course of its legal analysis, the District Court concluded that the disputed unzipping was undertaken to facilitate the show-up. Id. at 4. This conclusion is consistent with its factual findings that Officer Koenig found nothing during the frisk and that the complainant was brought to where appellant was detained shortly afterwards. Id. at 3; see also id. at 4. In a footnote, the District Court notes that Officer Koenig did not testify at the suppression hearing. Rather, the testimony regarding the pat down was provided by Officer Willis. Id. at 3 n.2. (In fact, the motions hearing transcript reveals that the Government, as part of its trial strategy, chose not to put on Officer Koenig. See Mar. 26 Tr. at 21, 24, 38.) In this same footnote, the Court describes Officer Willis‘s suggest[ion] that Officer Koenig had not completed the pat-down... when Officer Benton arrived with the robbery victim for a show-up. Askew, 313 F. Supp. 2d at 3 n.2 (emphasis added). The Court also notes Officer Willis‘s testimony that perhaps the pat down had not been completed because of some resistance by the defendant. Id. (emphasis added). The Court then points to [t]he government acknowledge[ment] that when Officer Koenig patted the defendant down, he did not find anything and reiterates its own finding that [t]he subsequent discovery of the gun at issue was not the result of this pat-down. Id.; see also id. at 4 ([t]he initial pat-down by Officer Koenig did not reveal the presence of any weapon). In other words, the District Court does not credit Officer Willis‘s suggestion that the pat down may have been incomplete or
II. OVERVIEW
Time and again the Supreme Court has observed that searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions. Dickerson, 508 U.S. at 372 (quotation marks omitted) (collecting cases). And the Court has made it clear that the inestimable right of personal security embodied in the Fourth Amendment belongs as much to the citizen on the streets... as to the homeowner closeted in his study... . For, as [the Supreme] Court has always recognized, No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Terry v. Ohio, 392 U.S. 1, 8-9 (1968) (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)).
In Terry v. Ohio, the Supreme Court defined one of the few exceptions to the prohibition against warrantless searches of a person. The Court held that in the context of a properly justified on-the-street stop, if a police officer has a reasonable articulable suspicion that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, that officer may conduct a limited protective search to determine whether the person is in fact carrying a weapon. 392 U.S. at 24; see also id. at 30-31. In Sibron v. New York, 392 U.S. 40 (1968), an opinion issued on the same day as Terry, the Court confirmed the limited nature of the Terry search exception, explicitly stating that the only goal which might conceivably justify a search in the context of a Terry stop is a search for weapons. Id. at 65.
Appellant argues that pursuant to this well-established body of law, the unzipping of his jacket was unlawful, because it was not undertaken for protective purposes, but rather amounted to an impermissible evidentiary search unsupported by probable cause or a warrant. The Government, in contrast, asserts that this question is not controlled by Dickerson and the precedent on which Dickerson rests, but rather should be decided through application of the reasonableness balancing test. Under this test, the permissibility of a Government action is determined by balancing the [governmental] need to search [or seize] against the invasion which the search [or seizure] entails. Terry, 392 U.S. at 21 (second and third alteration in original) (quotation marks omitted). Pursuant to this test, the Government argues that because the unzipping of appellant‘s jacket was a reasonable, de minimis investigative measure that appropriately facilitated the show-up procedure, it need not have been supported by a warrant or probable cause. Gov‘t En Banc Br. at 13.
When the Supreme Court has weighed the interests relevant to determining whether a certain type of official conduct is
Because there is no principled way to distinguish the initial unzipping in this case from the search in Dickerson, this court is not free to reweigh the interests at issue to create the new and wholly unprecedented identification exception to the warrant and probable cause requirements that the Government urges upon us. Rather, applying the balance that the Supreme Court
III. ANALYSIS OF THE LEGAL ISSUES
A. The Partial Unzipping and Opening of Appellant‘s Jacket Was a Search
Before turning to the issues before the en banc court, we must determine whether the unzipping of appellant‘s jacket was, in fact, a search. Clearly it was. By zipping up his jacket, appellant unquestionably evidenced an intent to keep private whatever lay under it. The only question, then, is whether society is prepared to recognize such an expectation as reasonable. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
This question was unequivocally answered by the Supreme Court in Terry. At issue there was the touching of the outer surface of the defendant‘s overcoat. Terry, 392 U.S. at 7. As the Court explained, even that limited action rose to the level of a search within the purview of the Fourth Amendment. Id. at 16. Because the opening of a fastened coat, like the opening of most other clothing, renders visible whatever lies underneath, such an action involves an even greater intrusion in precisely the same socially recognized expectation of privacy. And such an intrusion is particularly great when, as here, the opening takes place on a public street. In describing the level of personal intrusion occasioned by a public frisk, the Terry Court stated:
[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a petty indignity. It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.
As noted above, the Government did not dispute the characterization of the unzipping as a search during arguments before the panel. Before the en banc court, however, the Government refused to concede the point. Stating that it was only assum[ing], arguendo, that the unzipping of appellant‘s jacket was a ‘search,’ Gov‘t En Banc Br. at 23 n.11, the Government maintained that the police action did not actually amount to a search because the sweatshirt that the police expected to reveal presumably was widely visible when appellant was in indoor settings. Id. This argument is flawed in both its legal and factual premises.
Relying primarily on United States v. Dionisio, 410 U.S. 1 (1973), the Government likens appellant‘s sweatshirt to a physical characteristic... constantly exposed to the public. Gov‘t En Banc Br. at 23 n.11 (omissions in original). This analogy is inapt. In Dionisio, the Supreme Court held that production of a voice exemplar pursuant to a grand jury subpoena did not constitute a search, because [t]he physical characteristics of a person‘s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man‘s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. 410 U.S. at 14. As the Court explained, while the content of a communication is entitled to Fourth Amendment protection... the underlying identifying characteristics – the constant factor throughout both public and private communications – are open for all to see or hear. Id. (quotation marks omitted) (omission in original). Consequently, [n]o
The same cannot be said of a piece of clothing when the only information that the police have about that clothing is that the wearer has chosen to shield most of it from public view. Contrary to the Government‘s assertion, there is nothing about a sweatshirt that – like the characteristics of an individual‘s voice, handwriting, or face – must necessarily be revealed to the public in the course of daily life. An individual may choose to expose all or part of an article of clothing to the public or he may choose to keep all or part of that clothing covered.
The only evidence presented by the Government regarding appellant‘s sweatshirt was that appellant had demonstrated an intent to shield most of it from public view. When a government agent unfastens, lifts, pulls down, pats, or otherwise manipulates clothing to reveal or determine what lies underneath, that manipulation necessarily involves the sort of probing into an individual‘s private life that the Court in Davis v. Mississippi, 394 U.S. 721 (1969), characterized as the mark of a search or interrogation. Dionisio, 410 U.S. at 15 (quoting Davis v. Mississippi). Citing Terry, the Dionisio Court reiterated that even the minimal intrusion involved in a Terry frisk of outer clothing necessarily amounts to a Fourth Amendment search. Contrasting the seizure of voice exemplars to permissible Terry pat downs, the Court explained that the former does not involve the severe, though brief, intrusion upon cherished personal security, effected by the latter. Dionisio, 410 U.S. at 15 (quotation marks omitted).
The Government‘s argument that the unzipping of appellant‘s jacket was not a search is also based on fundamentally flawed factual premises. First, the Government assumes that the unzipping of appellant‘s jacket would reveal only appellant‘s already partially visible sweatshirt. One need
B. Minnesota v. Dickerson Dictates the Conclusion That the Unzipping of Appellant‘s Jacket Was an Impermissible Search for Evidence
The legal principles controlling the disposition of this case were largely established in three post-Terry Supreme Court cases, all of which were relied on by the Court in Minnesota v. Dickerson. Those cases are Sibron, 392 U.S. 40; Ybarra v. Illinois, 444 U.S. 85 (1979); and Long, 463 U.S. 1032. Discussing and applying Terry, each makes clear that in the context of an on-the-street seizure based on less than probable cause, there is no balancing of interests to be undertaken in determining whether a particular search of a stopped suspect is reasonable and therefore permissible under the Fourth Amendment. Rather, applying the balance struck in Terry, courts are constrained to suppress evidence obtained during such a stop if it is the fruit of a search that was not necessary to protect the investigating officers or others nearby. Put another way, these decisions establish that individuals stopped on no
Sibron, a companion case to Terry, clarified the limits of the search exception authorized in Terry, holding that a non-protective evidentiary search of an individual detained on less than probable cause, would not pass Fourth Amendment muster. In that case, a police officer stopped Sibron on suspicion that he was selling narcotics. See 392 U.S. at 45. When the officer said to Sibron, You know what I am after, Sibron mumbled something and reached into his pocket. Simultaneously, [the officer] thrust his hand into the same pocket discovering several envelopes of heroin. Id. (quotation marks omitted). After first concluding that the officer lacked probable cause to arrest Sibron when he stopped him, id. at 62-63, the Court held that the search of Sibron‘s pocket for evidence of narcotics was unconstitutional. Relying on its decision in Terry, the Court concluded that the officer‘s action was not predicated on any concern that Sibron was armed, but rather constituted a search for evidence of the crime that the officer suspected Sibron of committing. See id. at 63-64. As the Court described it, the officer‘s opening statement to Sibron made it abundantly clear that he sought narcotics, and his testimony at the hearing left no doubt that he thought there were narcotics in Sibron‘s pocket. Id. at 64. Moreover, as the Court explained, even if the search had been predicated on a reasonable articulable suspicion that Sibron was armed, the search would have been impermissible because it was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception – the protection of the officer by disarming a potentially dangerous man. Id. at 65 (emphasis added).
In Long, which extended Terry‘s protective search doctrine to the interior of cars, the Court confirmed and explained its unwillingness to allow non-protective evidentiary searches based on less than probable cause during run-of-the-mill investigatory stops. The Court there addressed the constitutionality of the search of the interior compartment of an
An additional interest exists in the arrest context, i.e., preservation of evidence, and this justifies an automatic search. However, that additional interest does not exist in the Terry context. A Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime... The sole justification of the search is the protection of police officers and others nearby.
Id. (quoting Terry, 392 U.S. at 21) (alterations in original).
Relying on the rationale of these cases, the Court in Minnesota v. Dickerson again confirmed that non-protective evidentiary searches are not permissible during Terry stops. There, on facts essentially indistinguishable from those presented here, the Supreme Court held that a police officer violated the Fourth Amendment proscription against unreasonable searches when, following a protective frisk that produced no evidence of a weapon, he manipulated the outside of a suspect‘s jacket pocket in an effort to identify as crack
The Supreme Court granted certiorari in Dickerson to resolve a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence. Id. at 371. In essence, the issue before the Court was whether and when the plain view doctrine of Arizona v. Hicks, 480 U.S. 321 (1987), could justify a plain feel exception for nonthreatening evidence detected during a Terry pat down.
Citing and discussing Sibron, Ybarra, and Long, the Court first reviewed the limits on searches conducted during Terry stops, Dickerson, 508 U.S. at 372-73, concluding with the long settled principle that if a protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed, id. at 373. Turning to the plain view doctrine, the Court explained that if police are lawfully in a position from which they view an object,
Applying these principles to nonthreatening contraband discovered during Terry pat downs, the Court concluded that a warrantless seizure would be permissible “so long as the officers’ search stays within the bounds marked by Terry,” id. at 373 (emphasis added), and the object‘s “contour or mass makes its identity immediately apparent,” id. at 375 (emphasis added).
In addressing the facts before it, the Dickerson Court described the “dispositive question” as “whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent‘s jacket was contraband.” Id. at 377. Answering that question in the negative, the Court concluded that the “officer‘s continued exploration of respondent‘s pocket after having concluded that it contained no weapon was unrelated to ‘[t]he sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.‘” Id. at 378 (quoting Terry, 392 U.S. at 29) (alterations in original). Thus, the Court found that the manipulation of appellant‘s pocket “amounted to the sort of evidentiary search that Terry expressly refused to authorize, see [392 U.S.] at 26, and that we have condemned in” Sibron, 392 U.S. at 65-66, and Long, 463 U.S. at 1049 n.14. Dickerson, 508 U.S. at 378.
“Once again,” the Court explained, “analogy to the plain-view doctrine is apt.” Id.
Dickerson, 508 U.S. at 378-79. Concluding that the search of Dickerson was “very similar” to the search of the stereo equipment, id. at 379, the Court held that the disputed search of Dickerson‘s pocket was unconstitutional.
Although the officer was lawfully in a position to feel the lump in respondent‘s pocket, because Terry entitled him to place his hands upon respondent‘s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent‘s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.
The disputed search of appellant in this case cannot be distinguished in any meaningful way from the impermissible
The Government‘s attempt to distinguish Dickerson is entirely unavailing. The sum and total of the Government‘s argument consists of a single sentence:
This case is critically different from Dickerson, because this case does not involve an intrusive search of the person for evidence, but rather involves the very minimal intrusion of partially unzipping a coat to reveal a sweatshirt, not as part of a general search for evidence, but rather as a reasonable incident of an entirely permissible show-up identification procedure.
The assertion that the impermissible search of Dickerson was more intrusive than the search of appellant is specious. If anything, the search of appellant was more intrusive. First, as the Supreme Court pointed out, when the officer in Dickerson undertook the impermissible search, he was at least “lawfully in a position to feel the lump in [Dickerson‘s] pocket,” having just finished a pat down. 508 U.S. at 379. Moreover, throughout the search in Dickerson, the officer never strayed from the outside surface of the suspect‘s jacket pocket. He did not open the pocket. He did not look into it. And he did not reach inside the jacket to feel the pocket‘s contents. Thus, while the officer in Dickerson felt the lump through the jacket pocket, he did not physically penetrate the outer surface of the jacket. Rather, he simply “squeez[ed], slid[], and otherwise manipulat[ed] the contents of the defendant‘s pocket.” Id. at 378 (quotation marks omitted). And, significantly, his actions did not reveal the contents of the pocket to the public at large.
Here, when Officer Willis unzipped to the waist appellant‘s fastened jacket so that the complainant could see what was underneath, he not only penetrated the outer layer of appellant‘s clothing, he actually physically peeled a portion of it back. In contrast to the officer in Dickerson, Officer Willis also exposed what lay under that outer layer to the public at large. Consequently, in addition to exposing the sweatshirt to the complainant, the search of appellant‘s jacket necessarily exposed whatever else appellant had under that portion of his jacket to whomever was present on or looking at the street when his jacket was unzipped. The search here thus involved a greater invasion of the person than the manipulation of the outer surface of Dickerson‘s jacket pocket.
The Government‘s argument is unpersuasive. Certainly if the complainant had identified the appellant as her assailant on the basis of his sweatshirt, that sweatshirt would have been seized as physical evidence of appellant‘s guilt. Moreover, it is clear that the search here was intended to reveal evidence – both physical evidence (the sweatshirt) and testimonial evidence (the complaint‘s identification of it) – that would either support the probable cause necessary to arrest appellant or dispel the officer‘s reasonable suspicion that appellant was the robber. It is simply impossible for us to ascertain how that differs from the Dickerson officer‘s attempt to uncover tactile evidence regarding the lump in the suspect‘s pocket that would support the probable cause necessary to effectuate an arrest or dispel the officer‘s suspicion that Dickerson was committing a narcotics offense.
C. The Government‘s Arguments for an Investigative Identification Search Exception Are Not Supported by Precedent
There is no Supreme Court or federal appellate case law supporting the search of an individual stopped only on
Absent such precedent, the Government attempts a three-part argument in support of a wholly new investigative identification search exception to the warrant and probable cause requirements. First, it points to cases in which the Supreme Court has used the balancing test to assess the Fourth Amendment permissibility of what the Government characterizes as “a wide array” of warrantless “governmental intrusions based on something less than probable cause.” Gov‘t En Banc Br. at 19-21. Second, it seeks support in several Supreme Court cases indicating that “police officers may take reasonable steps necessary to facilitate a brief investigation during a Terry stop.” Id. at 21-22. Third, it asserts that the Supreme Court has approved investigative measures, similar to the unzipping of appellant‘s jacket, that are related to identification issues. Id. at 24-28. None of the cited cases, either singularly or in combination, support the permissibility of the non-protective evidentiary search at issue here.
1. The “Balancing-Test” Cases Do Not Support an Investigative Identification Search Exception
Unsurprisingly, given the Court‘s pronouncements in Dickerson and Sibron, none of the balancing-test cases cited by the Government involve the permissibility of a search during a run-of-the-mill Terry stop. Rather, the cited cases fall into one of three categories, each of which is irrelevant to the issue here.
In one category, the Court relies on the balancing test to extend Terry‘s safety rationale to new and limited settings. See, e.g., Maryland v. Buie, 494 U.S. 325, 327 (1990) (a “protective sweep . . . incident to an arrest” does not violate the
In the second category, the Court uses the balancing test to assess the permissibility of searches of individuals who have a lessened expectation of privacy as a result of governmental supervision to which they were legitimately subject at the time of the search. See, e.g., United States v. Knights, 534 U.S. 112, 119-22 (2001) (defendant‘s “status as a probationer subject to a search condition” results in a diminished expectation of privacy that does not outweigh governmental interest in crime prevention and rehabilitation); O‘Connor v. Ortega, 480 U.S. 709, 725-26 (1987) (“Balanced against the substantial government interests” of public employers, “the privacy interests of government employees in their place of work . . . are far less than those found at home or in some other contexts.“); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (“[T]he accommodation of the privacy interests of school children with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student [in a public school] should depend simply on the reasonableness, under all the circumstances, of the search.“).
The remainder оf the cases relied on by the Government to support its assertion that the reasonableness balancing test provides the means by which we should assess the unzipping of appellant‘s jacket are inapt in that they do not involve searches. Rather, these cases simply stand for the proposition that, in certain situations, a seizure – if limited enough in scope – may be found reasonable though based on something other than
Clearly none of these cases support the Government‘s argument that the unzipping of appellant‘s jacket was “a reasonable, de minimis investigative measure that appropriately facilitated the show-up procedure.” Gov‘t En Banc Br. at 13. The first set of cases merely allows for limited intrusions carefully tailored to reveal or eliminate an officer‘s reasonable articulable suspicion that a person or place poses a danger to himself or others nearby. The inapplicability of the second set of cases is easily demonstrated by considering how any one of the defendants in those cases would have been treated had they not legitimately been subject to increased governmental supervision. For example, had the fourteen-year-old public school student in T.L.O. left school property, it is clear that no police officer could have permissibly searched her purse merely because she had been seen smoking in the school lavatory. The third set of cases is similarly wholly irrelevant to the issue before us in that none of the cases involve a search of any kind.
None of the cases on which the Government relies to support its second premise – that police officers may take reasonable steps necessary to facilitate a brief investigation during a Terry stop – lend support to its ultimate conclusion that the unzipping here was a permissible investigative step. This is because none of the permissible investigatory measures in the cases cited by the Government involved an evidentiary search. As described in Michigan v. Summers, 452 U.S. 692 (1981), permissible investigative measures in the context of a Terry stop consist of questioning (which may include a request for identification or inquiry concerning the suspicious conduct of the person detained); communication with police or private citizens to verify explanations, confirm identification, or determine whether a person of the proffered identity is otherwise wanted; a short detention while police check premises and talk to others to determine whether, in fact, an offense has occurred; the examination of objects abandoned by the suspect; and, if it is known that an offense was committed in the area, the viewing of the suspect by witnesses to the crime. Id. at 700 n.12.
The only additional investigative steps referenced by the Government are those related to the seizure of a traveler‘s baggage permitted when an officer has reasonable articulable suspicion to believe that it contains narcotics. See Gov‘t En Banc Br. at 22 (citing Place, 462 U.S. at 703-04). In Place, though, the Court was careful to point out that if the investigative procedure for which luggage is seized is “itself a search requiring probable cause, the initial seizure of [the] luggage . . . – no matter how brief – [can]not be justified on less than probable cause.” 462 U.S. at 706. The Court went on to explain that the dog sniff test for narcotics, to which Place‘s
3. The Investigative Measures Cases Pertaining to Identification Issues Provide No Support for the Government‘s Identification Search Exception
The Government principally relies on four cases in support of its argument that searches narrowly tailored to facilitate a show-up procedure are permissible investigative measures. One of those cases, New York v. Class, 475 U.S. 106 (1986), is not only distinguishable, but actually supports the opposite of what the Government claims. Two others, United States v. Dionisio, 410 U.S. 1 (1973), and United States v. Mara, 410 U.S. 19 (1973), lend no support whatsoever to the Government‘s argument, because they involved neither a search nor an investigative step taken in the context of a Terry stop. That leaves the dicta in Hayes v. Florida, 470 U.S. 811, 816-17 (1985). And the language in Hayes to which the Government points simply cannot take the Government where it needs to go to prevail on the facts presented here.
a. Class Supports the Exclusion of the Gun Evidence
In Class, the Supreme Court determined that a police officer conducted a search when, during a traffic stop, he reached into the defendant‘s vehicle to move some papers that obscured the vehicle identification number (VIN) on the dashboard. 475 U.S. at 114-15. In so doing, the officer saw a gun under the driver‘s sеat. Id. at 108. As described by the Government in its en banc brief, “[t]he Supreme Court concluded that the officer‘s actions were reasonable, after applying a ‘balancing’ test that considered, among other things, that ‘the search was focused on
The Class opinion, in fact, rests on three factors – the impossibility of having a reasonable expectation of privacy in a VIN, officer safety, and the existence of probable cause – that not only render the balance struck there inapplicable to the case here, but actually support the conclusion that the unzipping of appellant‘s jacket was impermissible. Because there is no expectation of privacy in VINs, the intrusion at issue in Class was not the moving of the papers covering the VIN, but rather the officer‘s reach into the car to move those papers. See Class, 475 U.S. at 114-15. The inquiry was made necessary by the fact that the officer had prevented the respondent, who had alighted from his car when the police pulled him over, from getting back into the car to move the papers. See id. at 115. Noting that under Pennsylvania v. Mimms, 434 U.S. 106, safety concerns permitted the officer to detain the driver outside of the car, the Court explained that the question at issue was whether the officer additionally could “effect a search for the VIN that may have been necessary only because of that detention.” Class, 475 U.S. at 116.
The Court concluded that the search was permissible. It said: “In light of the danger to the officers’ safety that would have been presented by returning respondent immediately to his car, we think the search to obtain the VIN was not prohibited by the
When a search or seizure has as its immediate object a search for a weapon, we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasonable suspicion of criminal activity. See Terry v. Ohio, [392 U.S. at 21]; Adams v. Williams, 407 U.S. 143 (1972). Such searches are permissible despite their substantial intrusiveness. See Terry v. Ohio, [392 U.S. at] 24-25 (search was “a severe, though brief, intrusion upon cherished personal security, and . . . must surely [have] b[een] an annoying, frightening, and perhaps humiliating experience“).
When the officer‘s safety is less directly served by the detention, something more than objectively justifiable suspicion is necessary to justify the intrusion if the balance is to tip in favor of the legality of the governmental intrusion. In Pennsylvania v. Mimms, [434 U.S.] at 107, the officers had personally observed the seized individual in the commission of a traffic offense before requesting that he exit his vehicle. In Michigan v. Summers, 452 U.S. 692, 693 (1981), the officers had obtained a warrant to search the house that the person seized was leaving when they came upon him.
Id. at 117 (parenthetical alterations in original).
Although the Class Court acknowledged the difference between the facts before it and the facts in Mimms and Summers,
The Class Court thus held that the officer‘s search for the VIN number “was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations. Any other conclusion,” the Court found, “would expose police officers to potentially grave risks without significantly reducing the intrusiveness of the ultimate conduct – viewing the VIN – which the officers were entitled to do as part of an undoubtedly justified traffic stop.” Id. at 119 (emphasis added).
Here, in contrast, there was no officer safety interest served by the unzipping. The officers did not have probable cause focusing suspicion on appellant, but rather only a reasonable suspicion of criminal activity, which the Class opinion makes clear cannot justify a search that does not have a weapon as its “immediate object.” See id. at 117. And, perhaps most important, appellant clearly had a reasonable expectation of privacy in what lay underneath his jacket. The objective of the search was not, in other words, to reveal an object in which no one can have a reasonable expectation of privacy.
Dionisio and Mara also lend no support to the Government‘s claim, because neither case involved a search or a police action during an оn-the-street Terry stop. Rather, both decisions addressed the permissibility of grand jury subpoenas seeking evidence in which there can be no expectation of privacy. In Dionisio, 410 U.S. 1, the Court considered the permissibility of a subpoena requiring an individual to produce a voice exemplar for comparison to certain incriminating tapes. In Mara, 410 U.S. 19, it examined the permissibility of a subpoena to compel production of a potentially incriminating handwriting exemplar. In Dionisio, the Court first concluded that a grand jury subpoena, unlike a Terry detention, is not a
c. The Hayes v. Florida Dicta Does Not Extend to Investigative Measures Involving Searches
The dicta in Hayes v. Florida provides no support for the unzipping of appellant‘s jacket. In Hayes, the Court held that the police may not transport a suspect to the police station for fingerprinting without probable cause. The dicta to which the Government points merely suggests that “a brief detention in the field for the purpose of fingerprinting” may be permissible “where there is only reasonable suspicion not amounting to probable cause.” 470 U.S. at 816. The Court made it clear, however, that such an investigative action might be permissible only so long as (1) “there is reasonable suspicion that the [stopped] suspect has committed a criminal act” (in other words, so long as there is reasonable articulable suspicion justifying the stop of the suspect), (2) “there is a reasonable basis for believing that fingerprinting will establish or negate the suspect‘s connection with that crime,” and (3) “the procedure is carried out with dispatch.” Id. at 817. In support of these criteria, the Court cited to United States v. Place, 462 U.S. 696 (1983).
In Place, the Court determined that the seizure of a traveler‘s luggage on less than probable cause may be reasonable so long as the “observations [of the seizing officer] lead him reasonably to believe that . . . [the] luggage . . . contains narcotics,” 462 U.S. at 706, and the detention is brief, id. at 707-10. Most important, for purposes of the issue before this court, the Place opinion made it clear that when a seizure is based on less than probable cause, the accompanying
Obviously, if [the] investigative procedure [at issue here – a dog sniff –] is itself a search requiring probable cause, the initial seizure [of the luggage] for the purpose of subjecting it to the sniff test – no matter how brief – could not be justified on less than probable cause.
Id. at 706. The Court went on to find that dog sniff tests are not searches because they (1) do not require the opening of luggage and thus do not expose to public view non-contraband items that would otherwise remain hidden and (2) do not reveal to authorities any information about the contents of a piece of luggage beyond the presence or absence of illegal narcotics. Id. at 707. “In these respects,” the Court concluded, “the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id.
In Cupp v. Murphy, 412 U.S. 291 (1973), the Supreme Court had earlier indicated that fingerprinting is another investigative measure that, like a dog sniff, is not a search requiring probable cause. The Court there distinguished fingerprinting from the taking of fingernail scrapings:
Unlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio, [410 U.S. 1], or the handwriting exemplar obtained in United States v. Mara, 410 U.S. 19, 93, the search of the respondent‘s fingernails went beyond mere “physical characteristics . . . constantly exposed to the public.”
Id. at 295 (quoting United States v. Dionisio, 410 U.S. at 14) (alterations in original). Cupp thus relied on the Court‘s suggestion in Davis v. Mississippi that fingerprinting is not a search, because it “involves none of the probing into an
Clearly, because the investigative method employed in this case – the unzipping of appellant‘s jacket – did constitute a search, it cannot be permissible under the criteria set forth in Hayes, Place, and Cupp.
D. Even if the Hayes Dicta Could Be Read to Allow Certain Searches, It Cannot Support the Unzipping of Appellant‘s Jacket Because There Was No Reasonable Basis for Believing That the Unzipping Would Establish Or Negate Appellant‘s Connection to the Robbery Under Investigation
Even assuming, arguendo, that the Hayes dicta might permit the police to unzip a suspect‘s jacket to facilitate a show-up if, inter alia, “there is a reasonable basis for believing” that doing so “will establish or negate the suspect‘s cоnnection with th[e] crime” under investigation, Hayes, 470 U.S. at 817, the unzipping in this case would not qualify. There is nothing in the record to suggest that the police had a reasonable basis for believing the complainant‘s viewing of the generic blue sweatshirt worn by appellant would establish or negate his connection with the robbery.2 Indeed, there is no finding – and
there was no suggestion – that the complainant said the “blue sweatshirt” worn by the robber was distinctive in any way that might have distinguished it from others, let alone in a way that would have established or negated a wearer‘s connection to the crime. Cf. Hayes, 470 U.S. at 812 (police sought suspect‘s fingerprints to compare with latent prints found at rape scene); Class, 475 U.S. at 111 (police sought to view vehicle identification number). Nor did the witness even suggest that seeing whether appellant was wearing such a sweatshirt would enable her to make an identification when seeing appellant‘s face had not, although we need not decide here whether that would have made a difference. Hence, even if the Government is correct that Hayes can be read to permit a search to facilitate a show-up under certain circumstances, the factual predicate for application of the Hayes dicta is absent here.3
The Government‘s alternative argument, that the unzipping can be justified as an objectively reasonable response to appellant‘s alleged resistance during the pat down, is without support in the District Court‘s factual findings. The Government never challenged the District Court‘s findings as clearly erroneous. Quite the contrary, it described those findings as “consistent with the government‘s evidence at the suppression hearing.” Gov‘t Panel Br. at 9. And pursuant to those findings, we can ascertain no basis for concluding, as the Government urges, that “it was objectively reasonable for Officer Willis to complete the protective frisk of appellant . . . by unzipping appellant‘s jacket.” Gov‘t Supplemental Br. at 9.
The essence of the Government‘s argument is that when the complaining witness was brought to the scene, Officer Koenig broke off the pat down of appellant so that appellant could be presented to the complaining witness for identification. Id. at 7. According to the Government, prior to the show-up, appellant had resisted Officer Koenig‘s attempt to pat him down. Id. at 7-8, 11. The Government thus contends that because appellant “thwarted” Officer Koenig‘s pat down of his outer clothing, “it was objectively reasonable for [Officer Willis] to unzip appellant‘s jacket to determine whether he had a weapon in his waist area.” Id. at 11. In other words, the Government argues that while Officer Willis‘s subjective intent in unzipping appellant‘s jacket during the show-up was to reveal to the complaining witness what appellant worе underneath the jacket, that unzipping was an objectively reasonable continuation of Officer Koenig‘s allegedly thwarted pat down for weapons.
Tellingly, the Government does not cite to the District Court‘s factual findings in support of this argument. Rather, it
sort of de novo factfinding, however, would be wholly inconsistent with the function of an appellate court.“).
IV. CONCLUSION
On the record of this case, the police officers violated appellant‘s
So ordered.
* * *
When police officers unzipped Askew‘s jacket, they conducted a search of his person. Where zipping up creates a “reasonable expectation of privacy,” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), as it does in this case, to unzip is to search. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 347 (1985) (unzipping purse compartment); New York v. Belton, 453 U.S. 454, 456, 462-63 (1981) (unzipping jacket pocket); United States v. Brown, 671 F.2d 585, 586 (D.C. Cir. 1982) (per curiam) (unzipping pouch); United States v. Waller, 426 F.3d 838, 844 (6th Cir. 2005) (unzipping luggage). That the unzipping may have been minimally intrusive is immaterial. See Hicks, 480 U.S. at 328-29. The
The unzipping of Askew‘s jacket does not fit within any of the exceptions to the probable cause requirement that have been created by the Supreme Court. As I read the cases, these exceptions can be divided into two general categories. The officer safety cases allow a minimally intrusive search that protects officers from harm. See, e.g., Terry v. Ohio, 392 U.S. 1, 30 (1968) (protective frisk of outer clothing for weapons); Maryland v. Buie, 494 U.S. 325, 334 (1990) (protective sweep during home raid to prevent ambush); New York v. Class, 475 U.S. 106, 115-18 (1986) (officer not required to permit suspect‘s re-entry into car where weapon may be hidden); Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977) (per curiam) (compelling suspect to alight from car during traffic stop); United States v. Robinson, 414 U.S. 218, 234-35 (1973) (search incident to arrest to disarm suspect before taking into custody). The special needs cases allow a search that advances a governmental end deemed by the Supreme Court to be weightier than the typical law enforcement interest. See, e.g., United States v. Knights, 534 U.S. 112, 120-22 (2001) (monitoring probationers); Skinner v. Ry. Labor Executives’ Ass‘n, 489 U.S. 602, 619-20 (1989) (preventing intoxicated employees from operating railroads); T.L.O., 469 U.S. at 340-41 (protecting schoolchildren); Camara v. Municipal Court, 387 U.S. 523, 534-39 (1967) (inspecting buildings for compliance with municipal code). These two types of exceptions do not apply to garden-variety searches for evidence, which are governed by the probable cause requirement. See United States v. Colyer, 878 F.2d 469, 478 (D.C. Cir. 1989).
The government, forced to look beyond Terry for its new exception, claims to have found it in the following language from Hayes, 470 U.S. at 816-17 (citations omitted):
None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is necessarily impermissible under the
Fourth Amendment . In addressing the reach of a Terry stop in Adams v. Williams, we observed that “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Also, just this Term, we concluded that if there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information. There is thus support in our cases for the view that theFourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that
fingerprinting will establish or negate the suspect‘s connection with that crime, and if the procedure is carried out with dispatch. Of course, neither reasonable suspicion nor probable cause would suffice to permit the officers to make a warrantless entry into a person‘s house for the purpose of obtaining fingerprint identification.
The government contends that this passage, which nowhere mentions “searches,” creates a new exception to the probable cause requirement for searches that facilitate identification of a suspect. See Government‘s En Banc Br. at 26. I reject that view.2
At issue in Hayes was the permissibility of seizing a person and transporting him to the stationhouse to obtain his fingerprints. The Supreme Court found the practice unconstitutional in light of another case about seizures, Davis v. Mississippi, 394 U.S. 721 (1969), which condemned a similar instance of stationhouse fingerprinting. Subsequent citations to Hayes confirm that the Court has only regarded it as a case about seizures. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 187-89 (2004); Kaupp v. Texas, 538 U.S. 626, 630 n.2 (2003); Tennessee v. Garner, 471 U.S. 1, 8 (1985).
Hayes‘s suggestion that fingerprinting might be permissible during a Terry stop does not reach searches, because the Supreme Court has never held that fingerprinting is a search. See 1 LAFAVE § 2.2(d) (noting that “it is to be doubted that the
Hayes is about a seizure, not a search, so it cannot have created a new exception that would permit the search of Askew‘s person in the absence of probable cause. The same is true of other cases the government cites in support of its purported identification-search exception. See Hiibel, 542 U.S. at 187-89 (upholding state stop-and-identify law as authorizing reasonable seizures); Illinois v. Lidster, 540 U.S. 419, 426-28 (2004) (allowing brief seizure at highway checkpoint to identify witnesses to hit-and-run accident); United States v. Place, 462 U.S. 696, 703-04 (1983) (allowing brief seizure of luggage to conduct dog sniff); Michigan v. Summers, 452 U.S. 692, 705 (1981) (allowing seizure of home occupants during execution of search warrant).
My adherence to the textual distinction between “searches” and “seizures” is consistent with the Supreme Court‘s
Although there may be no compelling reason to differentiate between seizures on the basis of their intrusiveness and failing to likewise differentiate between types of searches, the fact remains that we are unable to point to a single Supreme Court case that has upheld a search on reasonable suspicion merely because it was minimally intrusive.
This differing treatment is sensible, as the separate protections against unreasonable searches and unreasonable seizures safeguard different interests. See Horton v. California, 496 U.S. 128, 133 (1990) (“The right to security in person and property protected by the
* * *
The government now claims that dicta have overtaken holdings. I reject this argument because it reverses the accepted hierarchy of legal authority.3 If there is to be an identification-
Judicial creation of a constitutional code of criminal procedure has given the Supreme Court primary responsibility for regulating police behavior. See generally Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 CAL. L. REV. 929 (1965); William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780 (2006).
On a December night in 2003, a D.C. police officer stopped Paul Askew on a Washington street based on reasonable suspicion that Askew had just committed an armed robbery. Consistent with Terry v. Ohio, 392 U.S. 1 (1968), the police attempted to frisk Askew to ensure he was not carrying a weapon. After Askew resisted the frisk and the robbery victim arrived for a show-up procedure, the police partially unzipped Askew‘s outer jacket and discovered he was carrying a loaded .38 caliber gun. Because Askew was already a convicted felon, he was prosecuted in U.S. District Court for being a felon in possession of a firearm. After the District Court denied Askew‘s motion to suppress and ruled the gun evidence admissible, Askew pled guilty, reserving his right to appeal the
In this Court, Askew accepts that the initial stop was lawful under the
We would uphold the search and affirm Askew‘s conviction for either of two alternative reasons. First, after Askew actively resisted and impeded the police‘s initial frisk attempt, unzipping Askew‘s outer jacket to search for a weapon around his waist area was an objectively reasonable protective step to ensure officer safety. Second, the police may reasonably maneuver a suspect‘s outer clothing – such as unzipping a suspect‘s outer jacket – when, as here, doing so could help facilitate a witness‘s identification at a show-up during a Terry stop.
On the protectivе search question, all 11 members of the en banc Court agree on the settled legal principle that “a protective search may be lawful when a suspect prevents the police from performing a Terry frisk.” Maj. Op. at 43. But Part III(E) of Judge Edwards‘s opinion, which on this point is for a majority, concludes as a factual matter that the police here did not have an objective basis to unzip Askew‘s jacket as a protective step. Our difference with Part III(E) of the majority opinion is entirely fact-bound and depends solely on our different reading of the suppression hearing testimony and the District Court‘s opinion.
On the show-up issue, there is no majority decision either way on the legal question that we granted en banc review to decide: whether the police may reasonably unzip a suspect‘s outer jacket to help facilitate a witness‘s identification at a show-up during a Terry stop. Unlike the other nine judges on the en banc panel, Judges Ginsburg and Garland have not reached that legal question: In their view, the facts of this case do not present it. They thus do not join Part III(A)-(C) of Judge Edwards‘s opinion on the show-up issue; but they also do not join Part II(B) of our opinion. On the show-up issue, they join only the single, fact-bound paragraph in Part III(D) of Judge Edwards‘s opinion, thereby making Part III(D) the entirety of the majority‘s opinion on that issue. That paragraph assumes arguendo that the police may “unzip a suspect‘s jacket to facilitate a show-up if, inter alia, ‘there is a reasonable basis for believing’ that doing so ‘will establish or negate the suspect‘s connection with the crime’ under investigation.” Maj. Op. at 37 (quoting Hayes v. Florida, 470 U.S. 811, 817 (1985) (alteration omitted)). But Part III(D) finds on the facts of this case that the police did not have a sufficient factual predicate to unzip Askew‘s jacket.
The fact-based approach of Judges Ginsburg and Garland, as reflected in their joining only Part III(D) of Judge Edwards‘s opinion on the show-up issue, is the narrowest ground necessary for reversing the conviction and thus constitutes the binding expression of the en banc Court on that issue. Cf. Marks v. United States, 430 U.S. 188, 193 (1977). As a result, there is no decision of the Court with respect to the legal question that was decided by the divided three-judge panel and listed without dissent as the only issue in the order granting en banc review. That question will remain unanswered in this Circuit and will have to be decided anew in future cases by other district court judges and three-judge panels of this Court, and perhaps ultimately by another en banc panel. For purposes of future decisions on the show-up issue, in other words, Part III(A)-(C) of Judge Edwards‘s opinion and Part II(B) of our opinion carry equal precedential weight, which is to say they carry no precedential weight at all.
I
At about 11:00 p.m. on December 19, 2003, minutes after an armed robbery in Washington, D.C., a police dispatcher broadcast the location of the crime and the victim‘s description of the armed robber, saying among other things that the perpetrator was wearing a blue sweatshirt. Metropolitan Police Department Officer Bowman then stopped Paul Askew on a street near the robbery because Askew appeared similar to the radio description. After Officer Bowman stopped Askew, Officers Willis and Koenig arrived at the scene and decided to frisk Askew “for officers
According to Officer Willis, while Officer Koenig was attempting to conduct the frisk and Askew was resisting, the robbery victim arrived in another police car for a show-up. Mar. 26 Tr. at 8. Officer Willis turned Askew around so that the robbery victim could see him. Id. Officer Willis remembered that the police dispatcher had said the robber was wearing a blue sweatshirt. Id. Officer Willis stated that he “wanted to expose the blue hooded sweatshirt to the victim to make sure that that‘s what she saw.” Id. at 9. He therefore partially unzipped Askew‘s outer jacket so that the victim could get a better view of Askew‘s clothing, specifically the blue sweatshirt underneath Askew‘s outer jacket. Id. at 8-9. At that point, Officer Willis did not know whether the show-up witness had identified Askew as the robber. Id. at 18-19. The unzipping of Askew‘s jacket revealed his loaded .38 caliber gun. Id. at 9-11.
Askew was prosecuted for being a felon in possession of a firearm. Askew moved to suppress the gun evidence, arguing that the police violated the
II
The
The Supreme Court has conducted the
We would hold that the gun evidence in this case is admissible because unzipping Askew‘s jacket to search for a weapon in his waist area was an objectively reasonable protective step to ensure officer safety after Askew‘s resistance to the initial Terry frisk attempt.
In Terry v. Ohio, the Supreme Court held that the police – without a warrant and based on reasonable suspicion that an individual committed, was committing, or was about to commit a crime – may stop the suspect for further investigation and conduct a protective frisk for weapons or other instruments of assault. 392 U.S. at 19-27. The Supreme
8Court has allowed protective frisks during Terry stops because police officers are at great risk during those encounters. See, e.g., Michigan v. Long, 463 U.S. 1032, 1052 (1983). The Court has explained that the
Those cases and principles have led courts to establish what by now is a well-settled corollary to the Terry frisk doctrine: When a suspect hinders the police from adequately performing the initial Terry frisk, officers may protect themselves by following up with reasonable steps to determine whether the suspect is concealing a weapon. See Maj. Op. at 43 (“[W]e do not dispute that a protective search may be lawful when a suspect prevents the police from performing a Terry frisk . . . .“).3
Applying those settled principles to this case is straightforward. Askew concedes that, based on the victim‘s description, the police had reasonable suspicion to believe he just committed an armed robbery. The police officers also knew at the moment of unzipping that Askew had resisted the initial frisk attempt and tried to prevent them from feeling his waist area. Because of Askew‘s resistance and evasive movements, the officers had an objectively reasonable basis to protect themselves by unzipping Askew‘s jacket to determine whether Askew was concealing a weapon at his waist area - which, in fact, he was.
It bears emphasis that the officers did not skip the Terry frisk and immediately unzip Askew‘s jacket. Cf. Adams, 407 U.S. at 147-48; United States v. Casado, 303 F.3d 440, 447-48 (2d Cir. 2002); United States v. Vaughn, 1994 WL 119002, at *1-2 (D.C. Cir. 1994). On the contrary, the officers started with the Terry frisk. After a suspect actively attempts to impede a frisk, as Askew did here, it is entirely reasonable and proportional for officers to conduct a targeted and limited
Part III(E) of Judge Edwards‘s opinion, which on this point is for a majority, reads the record of this case differently. According to the majority, the District Court found that the officers completed the frisk after Askew‘s interference, and that Askew‘s interference therefore could not justify any follow-up protective search. But the problem for the majority opinion is that the District Court made no such finding. On the contrary, the District Court expressly recounted Officer Willis‘s testimony that, at the time of the unzipping, “Officer Koenig had not completed the pat-down, perhaps because of some resistance by the defendant.” United States v. Askew, 313 F. Supp. 2d 1, 3 n.2 (D.D.C. 2004). The District Court gave no indication that it did not credit Officer Willis‘s testimony. And we see no reason why the District Court would have explicitly recited this testimony while somehow intending to implicitly discredit it; that interpretation of the District Court‘s opinion frankly does not make sense. The fact that Askew impeded Officer Koenig‘s attempts to pat him down is otherwise uncontroverted in the record. Officer Willis‘s testimony thus establishes that, at the time of the unzipping, the officers’ initial frisk was not complete, and the officers’ concern about Askew‘s interference with the initial frisk attempt had not dissipated.
The majority nonetheless refers to what it calls the “total implausibility” of a scenario whereby the police would have walked “toward the complainant with an unhandcuffed robbery suspect who has successfully prevented them from
In an effort to bolster their strained reading of the factual record, the majority tries to suggest that the Government has not pressed the protective search argument, as if the Government somehow conceded the point. That is inaccurate. The Government argued before the District Court that the unzipping was a reasonable protective step to ensure officer safety; indeed, that was the Government‘s primary contention. See Additional Case Law in Support of Government‘s Opposition to Defendant‘s Motion to Suppress Tangible Evidence at 2-5, United States v. Askew, 313 F. Supp. 2d 1 (D.D.C. 2004) (No. 1:04-cr-10). After the District Court expressed its preliminary belief that the unzipping of Askew‘s jacket was better justified on a show-up rationale, the Government instead focused on that alternative argument, which ultimately was the sole basis for the District Court‘s ruling. The Government never conceded the search was not justified as a protective search. On the contrary, the
All of that said, our fact-based disagreement with the majority on the protective search issue simply underscores that, at least as to that question, this is a routine, fact-bound
B
As an alternative basis for upholding the search and affirming the conviction, we would conclude that unzipping Askew‘s jacket was a reasonable investigative step to facilitate the show-up procedure. In our judgment, the police may reasonably maneuver a suspect‘s outer clothing, such as removing a suspect‘s hat or sunglasses or unzipping a suspect‘s outer jacket, when doing so could help facilitate a witness‘s identification at a show-up during a Terry stop.
Applying the bedrock Terry principle that the police, with reasonable suspicion, may “stop the person for a brief time and take additiоnal steps to investigate further,” the Supreme
Askew argues, however, that only those identification procedures that do not constitute
1
In Hayes v. Florida, the Supreme Court authorized fingerprinting during Terry stops “if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect‘s connection with that crime, and if the procedure is carried out with dispatch.” 470 U.S. at 817. In reaching that conclusion, the Court recognized that fingerprinting is a
Askew dismisses the import of Hayes by suggesting that fingerprinting is not a search. Askew‘s position ignores the Hayes language comparing fingerprinting to “other types of searches and detentions.” Hayes, 470 U.S. at 814 (emphasis added). Moreover, if Askew were correct, the Supreme Court could not have limited fingerprinting during Terry stops to cases where the police have a “reasonable basis for believing that fingerprinting will establish or negate the suspect‘s connection with that crime.” Id. at 817. In other words, if fingerprinting were not a search, the police would not have to make any showing to take fingerprints during any - or indeed every - Terry stop. That is obviously not what Hayes held; in fact, Hayes said just the opposite.6
Askew also tries to discount the Supreme Court‘s reasoning in Hayes as dicta. But the Supreme Court has treated this language from Hayes as authoritative. See Hiibel, 542 U.S. at 188-89. Moreover, the Court‘s analysis in Hayes was carefully considered; indeed, it was the point of strenuous disagreement between the Hayes majority and Justices Brennan and Marshall in their separate opinion. We have said that “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006) (internal quotation marks omitted); see also Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); Natural Res. Def. Council, Inc. v. NRC, 216 F.3d 1180, 1189 (D.C. Cir. 2000); United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997).
Hayes establishes that the identification procedure used in Askew‘s case was reasonable under the
In this case, we must decide whether, in order to observe a Vehicle Identification Number (VIN) generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to move papers obscuring the VIN after its driver has been stopped for a traffic violation and has exited the car. We hold that, in these circumstances, the police officer‘s action does not violate the
Fourth Amendment .
Class, 475 U.S. at 107; see also id. at 132 (White, J., dissenting) (majority opinion “in effect holds that a search of a car for the VIN is permissible whenever there is a legal stop“).
The reasoning of Class is murky in some places. But the bottom line of Class is crystal clear: During a Terry car stop, the police may conduct a limited search of the vehicle so as to see the VIN, even though they are not searching for a weapon. The decision in Class, like the opinion in Hayes, refutes Askew‘s position that the police may not conduct a reasonable search for identification purposes during a Terry stop.
Also instructive is the Supreme Court‘s decision in Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004). Unlike Hayes and Class, Hiibel did not directly involve a search, but
Consistent with the Supreme Court‘s precedents, a number of state legislatures and courts have long allowed law enforcement officers - with less than probable cause - to conduct identification procedures that constitute
2
Askew argues that post-Terry decisions such as Hayes, Class, and Hiibel, as well as the various state statutes, rules, and opinions, do not resolve this case. For the reasons stated above, Askew‘s argument is wrong. But even absеnt all of those precedents and laws - in other words, based solely on Terry and general
On the government interest side of the
On the other side of the
When balancing the competing interests, the consequences of accepting Askew‘s argument are important to consider. Prohibiting the police during Terry stops from conducting identification procedures that constitute searches would lead to absurd and dangerous results. It would mean that the police could not remove а suspect‘s gloves to perform the fingerprinting that Hayes expressly allows. It would mean that the police could not remove a robbery suspect‘s hat during a show-up after an armed robbery. It would mean that the police could not take off a suspected bank robber‘s ski mask. It would mean that the police could not remove a murder suspect‘s shoe to take a shoe imprint during a Terry stop, even though a shoeprint was the key evidence at a murder scene. Cf. State v. Moffatt, 450 N.W.2d 116, 120 (Minn. 1990). It would mean that the police could not lift a
For those reasons, even if the Hayes-Class-Hiibel line of cases did not exist, the government need for identification
We would hold that the police may conduct reasonable identification procedures at Terry stops; in particular, the police may reasonably maneuver a suspect‘s outer clothing - such as removing a suspect‘s hat or sunglasses or unzipping a suspect‘s outer jacket - when, as here, doing so could help facilitate a witness‘s identification at a show-up during a Terry stop. But we recognize, of course, that there is not a majority of the Court on the show-up issue for either our position or Judge Edwards‘s position as reflected in Part III(A)-(C) of his opinion. As a result, the legal question about the permissible scope of police activity at show-ups that we granted en banc review to decide remains undecided for now in this Circuit.
C
We close with a few observations about Part III(D) of Judge Edwards‘s opinion, which consists of just a single, fact-bound paragraph that constitutes the entirety of the binding opinion of the Court on the show-up issue.10
Because the robbery victim here specified a blue sweatshirt when she first reported the crime, the officers reasonably believed that the sweatshirt was a significant identifying factor for the victim. Officer Willis testified: “I remember they said the defendant had on a blue hooded sweatshirt, but [Askew] had his jacket zipped up. I wanted the complainant to see what he had on to make sure that he wasn‘t zipping nothing up to cover up. [I] wanted to expose the blue hooded sweatshirt to the victim to make sure that that‘s what she saw.” Mar. 26 Tr. at 8-9.
The police‘s belief was reasonable, moreover, even though the victim, when she first reported the crime, apparently did not indicate whether the perpetrator‘s sweatshirt had distinctive markings. The majority suggests
The irony here, moreover, is that seeing the sweatshirt may actually have helped the victim rule Askew out as the
The larger point is that Hayes requires only a “reasonable basis for believing” that the identification procedure will establish or negate the suspect‘s connection with the crime. Hayes, 470 U.S. at 817. Given that the robbery victim initially told the police about the blue sweatshirt, how can we say that there is not even a reasonable basis for believing that the victim‘s seeing the blue sweatshirt would have assisted her identification? The majority offers no good answer to that commonsense question.11
In our judgment, requiring this kind of pinpoint accuracy and detail in a victim‘s initial description of a criminal is inconsistent with the Hayes “reasonable basis” standard and could place a dangerous burden on law enforcement officials. After all, victims often do not provide such richly detailed descriptions when first reporting violent crimes to the police.
A good indication that Part III(D) rests on quicksand is the fact that Askew himself did not raise this argument either in his submission to the District Court or on appeal, where he was represented by skilled and experienced counsel from the
In any event, our disagreement with Part III(D) of Judge Edwards‘s opinion (which on this point is for a majority) is a narrow fact-bound dispute with respect to the record in Askew‘s specific case. In many future show-up cases, the record indisputably will satisfy the Hayes reasonable-basis requirement as described by Part III(D) of that opinion. In such a case, of course, the Court would need to decide the legal issue regarding show-ups that the Court today leaves open.
One final point: The majority‘s ruling in Part III(D), as we read it, is limited to a witness‘s viewing clothing at a show-up during a Terry stop. The majority does not purport to address or alter long-standing law about what is sufficient to constitute “reasonable suspicion” to stop someone in the first place. If the majority‘s analysis were to migrate to that context, then it would of course wreak havoc with Terry stops more generally. We do not read the majority opinion to open that can of worms. Indeed, various judges in the majority have joined recent opinions suggesting there will be no such
* * *
We would hold that unzipping Askew‘s jacket to search for a weapon in his waist area was an objectively reasonable protective step to ensure officer safety after Askew‘s resistance to the initial frisk attempt. In the alternative, we would hold that the police may reasonably maneuver a suspect‘s outer clothing - such as unzipping a suspect‘s outer jacket - when, as here, doing so could help facilitate a witness‘s identification at a show-up during a Terry stop. We would uphold the search and affirm the judgment of conviction on either of those two alternative grounds. We respectfully dissent.