U.S. v. I.E.V., Juvenile Male, No. 11-10337 (11-28-12) (N. Smith with Christen; dissent by Kozinski)
One hundred miles from the border, a vehicle stopped at a Border Patrol checkpoint. A police dog alerted, and the vehicle was sent to secondary. The juvenile defendant was a passenger in the vehicle driven by his brother. Upon exiting, the dog failed to alert to the defendant or driver. A search of the vehicle came up empty. The juvenile was not threatening nor likely to flee. The officer did frisk the juvenile, and found a brick of marijuana taped to his back. At the hearing, the officer said he thought the juvenile acted nervous, but the court did not credit that observation because it was not in the report. The officer also testified that he was trained to expect find guns where there were drugs. The court permitted the search because of the proximity of the border, the canine alert, the officer training, and the nervousness of the brother -- not the juvenile. The 9th reverses the denial of suppression. Terry permits a frisk, but it has to be based on specific and articulable facts. These were not. The defendant was non-threatening. There was no fear of flight. A search had come up empty. It appeared that the frisk was to further the investigation, which is not the rationale of Terry. Moreover, the frisk exceeded the constitutional limits, as it went beyond the outer clothes. The officer felt a bundle, and asked what it was, and then immediately pulled up the juvenile's shirt. There was no testimony as to whether the officer was concerned. Dissenting, Kozinski characterizes the majority's opinion was both "wrong" and "dangerous." Kozinski would find sufficient specific facts, and the danger to officers. Kozinski, in his usual punchy style, thinks it is easy for the majority to parse the different facts, and assume what the officers were feeling, in the safety of a courthouse, while he would be apprehensive, as would be the officers, out at a checkpoint, where defendants exited from a vehicle upon which dogs alerted.