Case o' The Week: The Cat's Meow - I.E.V. and Terry Searches
“An unknown object could be contraband and could be a weapon, just as a cat locked in a steel chamber for an hour could be alive and could be dead.”
United States v. I.E.V., a Juvenile Male, 2012 WL 5937702, *10 (9th Cir. Nov. 28, 2012) (Kozinski, Chief Judge, dissenting), decision available here.
This pointed dissent from a great Terry decision thankfully doesn’t carry the day – but the Chief merits a nod for working Schrödinger’s Cat into a Fourth Amendment analysis.
Players: Decision by Judge N.R. Smith, joined by Judge Christen. Dissent by Chief Judge Kozinski.
Facts: I.E.V., a juvenile male was a passenger in a car driven by his teenage brother. Id. at *1. Id. A drug dog alerted on the car, but not the boys. Id. No drugs were found in the car. Id. The officers didn’t find either boy threatening, or likely to flee. Id. at *2. I.E.V. was “nervous” and “fidgety,” so both boys were patted down. An officer felt an object under I.E.V.’s shirt. Id. The officer lifted I.E.V.’s shirt without permission and discovered a brick of marijuana. Id. The district court denied the motion to suppress, holding the search was warranted based on the totality of circumstances. Id.
Issue(s): “In this appeal, we only answer the following questions: (1) whether the decision to perform a frisk of the Defendant was justified at its inception by a reasonable suspicion that the Defendant was armed and dangerous, and (2) whether the pat-down stayed within the appropriate scope of Terry.” Id. at *3.
Held: “The officers did not set forth the requisite specific and articulable facts such that a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. No narcotics had been discovered prior to the pat-down of Defendant. There was no evidence that the Defendant was dangerous. At the suppression hearing, both officers testified that the Defendant and Mendez, two teenage boys surrounded by officers, acted in a compliant and nonthreatening manner. The frisk of the Defendant, essentially based on nothing more than the suspicion that drugs could be found, amounted to the type of general exploratory search for whatever evidence of criminal activity the officer might find, which was specifically prohibited under Terry. . . . Accordingly, this patdown was unconstitutional from its inception.” Id. at *4 (internal quotations and citations omitted).
“[B]ecause the officer who searched the Defendant did not testify to the specific and articulable facts giving rise to the search, and because it is not obvious from the record that the officer immediately identified the bundle on the Defendant as contraband or a weapon, the search of the Defendant exceeded the scope of a constitutional Terry search.” Id. at *9.
Of Note: We love I.E.V..
The Chief does not.
In the first sentence of his dissent, C.J. Kozinski describes the majority decision as “wrong” and “dangerous,” and maintains that tone throughout. Id. Judge N.R. Smith, however, offers a subtle rejoinder. To support his (correct) Terry holding, Judge Smith quotes heavily from great Fourth language in several previous Ninth dissents – dissents penned, naturally, by the Chief himself. Id. at *5, *7; see also id. at 5 * & n.2 (“Given the totality of the circumstances, it seems our Chief Judge would have been diving alone into the nearest ditch.”)
How to Use: In I.E.V., Judge N.R. Smith announces a good new Ninth rule: “[W]e join with our sister circuits that have refused to allow police officers to justify a Terry search based on mere nervous or fidgety conduct and touching of clothing.” Id. at *6. Actually, there’s nothing new about this rule -- as explained in the opinion, this squarely comports with the intent of Terry. Nice, however, for the Ninth to formally reject the government’s attempt to expand Terry. As the Court cautions, Terry doesn’t justify a “perfunctory attitude towards frisking a subject once a justified stop has occurred.” Id. at *6. Turn to I.E.V. for Terry litigation: Judge N.R. Smith gives us a solid history of the rationales and limits of the search exception, in a well-written and valuable opinion.
For Further Reading: Before the cops actually looked under the minor’s shirt, was the object taped to his belly drugs, or a gun? Chief Judge Kozinski uses Schrödinger’s Cat to illustrate the ambiguity. Id. at *10. If your quantum mechanics are a little rusty, there’s a short video explaining the thought experiment here.
Image of Schrodinger’s Cat from http://blog.imaginaryfoundation.com/2012/10/02/schrodingers-cat/
Steven Kalar, Federal Public Defender N.D. Cal. Federal Public Defender. Website at www.ndcalfpd.org