Tuesday, December 4, 2012

Ninth Circuit Opinion on Terry Frisk

In United States v. I.E.V., a Juvenile Male, the Ninth Circuit reiterated the parameters of a frisk pursuant to a Terry stop.  The facts of the case involved a male (juvenile) passenger of a car which was detained due to an alert by a drug-sniffing dog.  The officers didn't find that the boys in the car were either threatening or likely to flee.  Nonetheless, an officer testified that he found the juvenile to be "nervous" and "fidgety" and so both boys were patted down.  An officer felt an object under the juvenile's shirt, lifted his shirt without permission, and discovered a brick of marijuana. The juvenile defendant appealed the district court's denial of his motion to suppress the marijuana found under his shirt. 

The Ninth Circuit concluded that the police officers had no particularized suspicions directed at the unthreatening defendant to justify the Terry frisk at its inception; the searching officer exceeded the lawful scope of the frisk by lifting defendant's shirt to retrieve an object; and therefore, the court reversed and remanded with instructions to grant defendant's motion to suppress.

The patdown was unconsitutional because the officer frisked the defendant based on nothing more than the suspicion of drugs being found, rather than a particularized suspicion of the boy possessing a weapon or the officers being in danger.  Being nervous and fidgety was not enough to justy the pat-down.  The Ninth Circuit noted that Terry doesn't justify "a perfunctory attitude towards frisking a subject once a justified stop has occurred."

The Case is United States v. I.E.V., a Juvenile Male, 2012 WL 5937702.

Read more about weapons violations at: http://www.bayarea-criminaldefense.com/Criminal-Defense-Overview/Weapons-Violations.shtml