- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 11-28-2012
- Case #: 11-10337
- Judge(s)/Court Below: Circuit Judge N.R. Smith for the Court; Circuit Judge Christen; Dissent by Chief Circuit Judge Kozinski
- Full Text Opinion
I.E.V. ("Defendant"), a juvenile, and his brother were stopped at United States Border Patrol Checkpoint in Arizona, 100 miles from the Mexican border. A canine alerted the officers to the presence of contraband in the vehicle, but no contraband was discovered when the vehicle was searched. Due to the brother's nervous behavior, officers performed a frisk on the brother and found nothing. An officer performed a frisk on the Defendant, asked the Defendant about an object the officer felt under the Defendant's shirt, and without the Defendant's permission, lifted his shirt discovered a "brick" like object taped to the Defendant's abdomen. The "brick" contained marijuana. Defendant appealed the district court's denial of a Motion to Suppress. The court will answer two questions to determine whether or not a frisk is justified under Terry v. Ohio: "(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." The Ninth Circuit determined that the officer was not justified in frisking the Defendant because no narcotics had been discovered prior to the frisk and there was no evidence that the Defendant was dangerous. Additionally, the brother's nervous behavior did not justify frisking the Defendant because "[n]ervous behavior, standing alone, is not enough to justify a Terry search.” The scope of a Terry frisk is constitutional when "a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent." Due to conflicting officer testimony regarding the pat down of the Defendant and his brother, the Ninth Circuit determined that the search was unconstitutional because "the incriminating character of the object was not immediately apparent." REVERSED and REMANDED.