• Terry Stops; Detentions for Investigation
• Consensual Encounters
• Patdown Searches for Weapons

A police officer who observes unusual conduct leading him reasonably to conclude in light of his training and experience that criminal activity may be afoot, may temporarily detain the suspicious person for the purpose of making reasonable inquiries aimed at confirming or dispelling his suspicions.  A person is not detained (but rather “consensually encountered”) unless and until a reasonable person under the circumstances would not have felt free to leave.  A patdown for weapons is limited to feeling a detained person’s outer clothing.  Reaching into a person’s pockets exceeds the limits of a patdown, and is illegal unless a possible weapon is felt thus causing a police officer to reasonably believe the person may be armed.

Uniformed El Cajon Police Department Officers Robert Wining and Robert Nasland responded to a radio call at around 11:00 a.m. on November 15, 2017, directing them to check two “transients” in a motel parking lot.  The dispatcher directed the officers to look for a white male who had a bike and who was urinating in the bushes.  The other person was described only as a female.  Upon arrival in their marked patrol car, they found the parking lot to be pretty much empty. But around behind a parked U-Haul van, along a cinderblock retaining wall, the officers found two men, later identified as Jon Barlett and defendant James Brown.  As the officers approached (turning on their bodycams as they did so), the subjects both had what Officer Wining later described as a surprised “deer-in-the-headlights look.”   Barlett—a white male with a bicycle—fit the description of one of the two subjects described in the radio call.  Defendant—a black male and without a bike—did not.  But being the only two people in the lot, the officers got out of their patrol car and made contact anyway.  Greeting the two subjects with “Howdy, guys,” and asking; “What are we up to today?”, defendant responded that he was getting “stuff” out of the van.  Barlett said he was merely helping.  When told that the motel had called about Bartlett urinating in the bushes, he responded: “They didn’t see me.” (Note the lack of any denial that he was the “urinator” [a word I just coined].)  Identification was requested and general questioning continued concerning what they were doing in the parking lot during which it was determined that defendant (but not Bartlett) was staying at the motel.  Officer Wining—a 22-year veteran of the police department—eventually just asked bluntly: “So, do we have a drug deal going on here, or what do we got going?” While Barlett mumbled an unintelligible response, defendant responded; “A drug deal? No, sir.”  Told that drug dealing was not uncommon in the area, and that he didn’t need to look so surprised, defendant—getting a bit nervous—responded:  “Didn't you say your call was for him urinating in the bushes; what does this got to do with me?”  Ignoring defendant’s apparent attempt to push the officers’ attention onto Bartlett, Officer Wining asked if they had any outstanding warrants.  Defendant said he did not while Bartlett admitted to having “just cleared up some.”  Pointing to the visible needle marks on Bartlett’s arms, Officer Wining asked him whether he was using heroin. Barlett responded: “Not anymore,” and acknowledging that he “ha[d] a history of it.”  About then, defendant’s cellphone rang.  Defendant answered it, engaging in a nearly minute-long casual conversation uninterrupted by the officers, laughing at one point at something the caller said. The questioning resumed after defendant ended his phone call.  Officer Wining continued the questioning, asking about an expensive gold watch Bartlett was wearing (“bought it at Walmart”) and a small Leatherman-brand multi-tool that was still in its original packaging (“found it under a bridge”). Officer Wining asked if Barlett was selling the Leatherman tool to defendant, to which Barlett claimed he was not. While this discussion was going on, and after the contact had lasted about seven minutes, Officer Wining observed defendant suddenly “put his hands down to his sides,” and “reach his index finger into his right pocket.”  As Officer Wining walked over to him, defendant raised his hands and said: “Oh, my bad, man, my bad.”  Defendant, who had been sitting on the block wall, was ordered stand up and turn around, telling him; “I saw you reaching in that pocket.” When defendant denied doing so, Officer Wining responded; “Yeah, you were.”  Defendant complied with Officer Wining’s instructions and submitted as the officer secured defendant’s arms behind his back in a finger hold. Pointing with his free hand to defendant’s pants pocket, Officer Wining asked: “What's in here?” Defendant responded that he was “not quite sure.”  Officer Wining then stated; “I’m going to check, OK?”, to which defendant grunted a monosyllabic unintelligible response.  Officer Wining then reached into defendant’s pocket and pulled out a plastic bag which defendant claimed to be coffee, but which the officer recognized as heroin.  Officer Wining conducted a more thorough search of defendant’s person, finding several thousand dollars, a number of unused syringes, and “suboxone strips” (used to treat opioid withdrawal).  Charged in federal court with one felony count of possession of 35.35 grams of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), defendant’s motion to suppress the items found on his person was denied by the district (i.e., trial) court.  Convicted by a jury, defendant was sentenced to 3 years and 5 months in prison.  Defendant appealed.

The Ninth Circuit Court of Appeal reversed.  Upon appeal, the Court discussed two issues; i.e., the lawfulness of defendant’s detention and the search of his person. 

(1)  A “Terry Stop” Detention:  Searches and seizures, including the seizure of one’s person, are “per se” unreasonable absent prior approval by a judge.  One exception to this rule as it relates to the seizure of a suspect’s person is what is sometimes referred to as a “Terry stop;” i.e., a “temporary detention for investigation.”  (Terry v. Ohio (1968) 392 U.S. 1.)  “Under the authority recognized in Terry, a police officer who ‘observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot’ may ‘briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.’”  (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)  However, not every contact between a law enforcement officer and a person on the street qualifies as a detention.  “A seizure does not occur simply because a police officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991) 501 U.S. 429, 434.)  With defendant arguing that Officers Wining and Nasland illegally detained him, the Court here found that defendant was not detained at all until that point in time when he was ordered by Officer Wining to stand up and turn around.  Until then, defendant was merely the subject of what is commonly known as a “consensual encounter.”  Under the circumstances of a consensual encounter, there is no constitutional prohibition preventing a police officer from walking up to an individual on the street and talking with him, asking for identification, and/or discussing with him his reasons for being at that location.  It is not until the contact “ripens into a seizure” that it becomes a detention.  This does not occur until—in considering “all the circumstances surrounding the encounter”—the “police conduct would have communicated (by his words or actions) to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” (Florida v. Bostick (1991) 501 U.S. 429, 439.)  In this particular case, the Court held that defendant was not detained until Officer Wining ordered him to stand away from the retaining wall and turn around.  By giving this order, Officer Wining “affirmatively assert[ed] authority over [defendant’s] movements.”  Until then, nothing had occurred between the officers and defendant (it being in the middle of the day, in full “public view,” where defendant was already seated, during which he was allowed to answer his cellphone, and where he showed no inclination to depart) that would have caused a reasonable person in defendant’s position to feel like he had to remain at that location and submit to the officers’ questioning.  But by that time, Officer Wining had developed enough information, based upon his training and his 22 years as a law enforcement officer—capped by defendant’s sudden movement towards his pocket which, as noted by the Court, triggered some safety concerns—that reasonably caused the officer to believe that defendant might be trafficking in drugs.  The Court therefore held that defendant’s detention at that point was lawful. 

(2) The Search of Defendant’s Person:  Analyzed separately—although recognized as an element of a lawful “Terry stop”—is the right of a police officer to patdown (i.e., “frisk”) a lawfully detained suspect (who is “at close range”) for possible weapons whenever the officer reasonably believes that the person may be carrying a weapon.  (Minnesota v. Dickerson, supra.)  In determining the lawfulness of a patdown for weapons, just as when determining at what point in time an officer has enough information to lawfully detain a suspect, that same officer is allowed to draw on his “own experience and specialized training to make inferences from and deductions about the cumulative information available to (him) that ‘might well elude an untrained person.’”  (United States v. Arvizu (2002) 534 U.S. 266, 273.)  In this case, both the fact of defendant’s abrupt movement towards his pocket and that there was a reasonable suspicion that he was engaging in drug trafficking provided Officer Wining with sufficient reasonable suspicion to believe he might be armed.  Officer Wining, therefore, would have been justified in patting defendant down for weapons.  However, the officer didn’t stop there.  Rather than limiting his search to patting down defendant’s outer clothing for the feel of what might be a weapon, Officer Wining simply reached into defendant’s pockets, recovering drugs, money, and paraphernalia.  Such a full search of defendant’s person exceeded what the Fourth Amendment allowed Officer Wining to do under the circumstances; i.e., where he only had a reasonable suspicion to believe defendant might be armed.  “(T)he ‘sole justification’ for such a search ‘is the protection of the police officer and others nearby,’ and any such search ‘must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’” (Terry v. Ohio, supra, at p. 29.)  In other words, such a search is limited to patting down the suspect’s outer clothing.  Reaching into the suspect’s pockets constitutes a full search requiring full “probable cause” to believe something sizeable (whether it be contraband or other evidence of a crime) is contained therein.  Without a showing of the necessary probable cause, reaching into the clothing of a detained suspect exceeds the bounds of what otherwise would have been a lawful patdown for weapons.  (Sibron v. New York (1968) 392 U.S. 40; see also Minnesota v. Dickerson, supra, at pp. 375-377.) The Court therefore found that defendant was unlawfully searched (and not just patted down) in violation of the Fourth Amendment, requiring the resulting evidence to be suppressed.   On this basis, the district court’s denial of defendant’s motion to suppress was error.

There is a gaping hole in this case; the Court failing to discuss whether Officer Wining had sufficient “probable cause” to justify a full body search for evidence of a crime, either as incident to arrest or immediately preceding defendant’s arrest, either alternative being lawful.  The record, as reported in this case, fails to tell us what Officer Wining’s thinking was when he reached into defendant’s pockets.  One can only assume that Officer Wining—not a rookie and presumably aware that checking for weapons is limited to a patdown of the suspect’s outer clothing—believed that he had probable cause to believe defendant had contraband in his pockets and/or sufficieint probable cause to arrest him for drug trafficking.  We can also assume—given the Court’s failure to discuss the issue—that the Government decided not to argue the existence of probable cause at the district (trial) court level, thus forfeiting this issue on appeal.  The same goes for whether Officer Wining perhaps believed he had defendant’s consent to search his pockets, after having said to defendant; “I’m going to check, OK?”, getting in response what the Court described as mumbled and “unintelligible,” but what Officer Wining may have understood as consent.  (See fn. #3 in the written decision, noting the Government’s failure to argue the issue of consent.)  With these assumptions, we can make one more assumption; and that is that Officer Wining did not have either consent or sufficient probable cause to either do a full body search or arrest defendant under these circumstances.  As the facts were reported, that’s an assumption with which I find hard to argue, even though some discussion of these issues by the Court would have been appreciated.