United States v. Iev, Juvenile Male

Opinion by Judge N.R. SMITH; Dissent by Chief Judge KOZINSKI.

OPINION

Where an officer reasonably believes that “the persons with whom he is dealing may be armed and presently dangerous,” the officer may conduct a frisk or *433 “pat-down” search of that person. Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). For a frisk to be valid, under this exception to the general rule requiring probable cause, the frisk must be both (1) “justified at its inception,” and (2) “confined in scope” to a “carefully limited search of the outer clothing ... in an attempt to discover weapons which might be used to assault” an officer. Id. at 20, 29-30 , 88 S.Ct. 1868 . However, a frisk is not valid if it is a general exploratory search motivated out of a desire “to prevent the disappearance or destruction of evidence of crime.” Id. at 29 , 88 S.Ct. 1868 .

The Terry frisk here failed on both counts and amounted to nothing more than a prohibited fishing expedition for evidence. The police officers had no particularized suspicions directed at the unthreat-ening Defendant to justify the frisk at its inception. In addition, the searching officer exceeded the lawful scope of the…

dissenting:

Two words best describe the majority opinion: “wrong” and “dangerous.” The majority sifts through the facts one by one and finds that none of them justifies the search of I.E.V. But the Supreme Court has rejected this approach. United States v. Arvizu, 534 U.S. 266, 274-75 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002). The district court got it right when it found that “[t]he frisk of [I.E.V. and his brother, Mendez,] was warranted based on the totality of the circumstances: the proximity to the border, the canine alert to contraband, the nervous behavior and gestures of Mendez ... and the experience of Officer Cooper[, who directed the frisks,] that often individuals transporting contraband also carry firearms.” (Emphasis added.)

It doesn’t matter whether I.E.V. exhibited the same nervous behavior as his brother. Though “mere propinquity to others independently suspected of criminal activity” isn’t enough, Ybarra v. Illinois, 444 U.S. 85, 91 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979), two people riding in the same car in the middle of nowhere can reasonably be presumed to be in cahoots. If one of them gives signs of having a concealed weapon, it’s reasonable to suspect the…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10337 Plaintiff - Appellee, D.C. No. v. 4:11-cr-00929-

DCB-JJM-

I.E.V., JUVENILE MALE,

Defendant - Appellant.

OPINION

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted April 18, 2012–San Francisco, California

Filed November 28, 2012

Before: Alex Kozinski, Chief Judge, N. Randy Smith, and Morgan Christen, Circuit Judges.

Opinion by Judge N.R. Smith; Dissent by Chief Judge Kozinski UNITED STATES V . I.E.V.

SUMMARY*

Criminal Law

Reversing the district court’s denial of a motion to suppress evidence obtained through a frisk after a vehicle stop, the panel held that the Terry frisk was not justified at its inception and exceeded the scope of an appropriate Terry frisk.

Dissenting, Chief Judge Kozinski wrote that the majority opinion is wrong and dangerous.

COUNSEL

John D. Kaufmann, Tucson, Arizona, for Appellant.

Craig H. Russell (argued), Office of the United States Attorney, Tucson, Arizona; Vivian H.W. Wang, United States…