Revisiting the SCOPE of Terry v. Ohio frisk/search. 9th Circuit says illegal search!

The panel reversed the district court’s denial of James Antonio Brown’s motion to suppress the fruits of a search of his pocket and his subsequent conviction for possession of 35.35 grams of heroin with intent to distribute, and remanded.

Brown contended that his encounter with two police officers in a motel parking lot did not comply with the limitations set forth in Terry v. Ohio, 392 U.S. 1 (1968), and that the evidence the officers found on him should have been suppressed as fruits of a violation of his Fourth Amendment rights.

The panel held that the officers’ encounter with Brown was consensual until the point at which an officer ordered Brown to stand up and turn around; at that point, the officer had seized Brown, but the seizure was justified because the officer had developed reasonable suspicion that Brown was engaged in a drug transaction.

The panel concluded, however, that, under Sibron v. New York, 392 U.S. 40 (1968), the officer’s search of Brown’s pocket exceeded the limited scope of what Terry permits because, in conducting the limited protective search for weapons that Terry authorizes, the officer did not perform any patdown or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket.


Anton Vialtsin, Esq.
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