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Name: United States v. I.E.V.
Case #: 11-10337
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/28/2012

Police conducted an illegal Terry search because they lacked reasonable suspicion the minor was armed and dangerous and were improperly attempting to locate evidence of drug possession. The defendant was a passenger in a car driven by his brother, Mendez. They entered a border checkpoint near Whetstone, Arizona, which is approximately 100 miles from the Mexican border. A police dog alerted to the presence of either drugs or concealed humans in their car. The vehicle was sent to secondary inspection, where defendant and Mendez exited the vehicle. The dog did not alert to either brother. Mendez gave police consent to search the vehicle, but nothing was found. Officers did not find the brothers threatening, but observed that Mendez appeared nervous and was touching his abdomen area. Officers patted down each brother, and felt a hard object under defendant’s shirt. Without permission, an officer lifted defendant’s shirt, finding a brick like object (marijuana). A similar brick was found on Mendez. The District Court denied a motion to suppress. Held: Reversed. The officers did not articulate a reasonable suspicion that defendant was armed and dangerous. The frisk was based on nothing more than a suspicion that defendant possessed drugs, rather than protection of police officers and others. The defendant’s propinquity to Mendez did not provide reasonable suspicion, as that must be directed at the person to be frisked, and mere nervousness is not sufficient in any event. The officer’s stated belief the frisk was based on safety concerns is belied by the circumstances of the stop. The pat-down was therefore unconstitutional at its inception.

The frisk exceeded the scope of an appropriate Terry pat down. Even had officers been justified in their initial frisk, it was not restricted to the outer clothing or to detection of an object whose shape makes its identity apparent. The evidence reflected that the incriminating character of the object was discovered only after officers lifted defendant’s shirt and visually observed the brick. This exceeded the scope of a legitimate Terry frisk.