United States v. Askew

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3092 September Term, 2006

04cr00010-01

Filed On: July 12, 2007

United States of America,

Appellee

v.

Paul Askew,

Appellant

BEFORE: Ginsburg, Chief Judge, and Sentelle, Henderson, Randolph,

Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh,

Circuit Judges, and Edwards, Senior Circuit Judge

ORDER

Upon consideration of the appellant's petition for rehearing en banc, the

response thereto, and the vote in favor of the petition by a majority of the judges eligible

to participate, it is

ORDERED that the petition be granted. This case will be reheard by the court

sitting en banc. It is

FURTHER ORDERED that the court's April 6, 2007 judgment be vacated in its

entirety. It is

FURTHER ORDERED that oral argument before the en banc court will be heard

at 9:30 a.m. on Thursday, October 11, 2007. It is

FURTHER ORDERED that the parties submit thirty (30) copies each of briefs

and the appendix in accordance with the following schedule:

Brief for Appellant August 17, 2007

Appendix August 17, 2007

Brief for Appellee September 10, 2007

Reply Brief for Appellant September 21, 2007

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3092 September Term, 2006

The briefs should address whether during a Terry stop police officers may unzip

a suspect's jacket solely to facilitate a show-up. In addressing this question, the parties

should consider whether the officers' action was a lawful search under Terry v. Ohio,

392 U.S. 1 (1968), and its progeny. The briefing should not extend to the subject

covered in Part IV of the panel opinion, i.e., the "second unzipping".

Because the briefing schedule is keyed to the date of argument, the court will

grant requests for extension of time limits only for extraordinarily compelling reasons.

The parties are directed to serve and file their submissions by hand. All briefs and

appendices must contain the date that the case is scheduled for oral argument at the

top of the cover. See D.C. Cir. Rule 28(a)(7).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Nancy G. Dunn

Deputy Clerk

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2006 Decided April 6, 2007

No. 04-3092

UNITED STATES OF AMERICA,

APPELLEE

v.

PAUL ASKEW,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00010-01)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender.

Florence Y. Pan, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and Roy

W. McLeese, III, Assistant U.S. Attorney.

2

Before: SENTELLE and KAVANAUGH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH,

in which Circuit Judge SENTELLE joins.

Dissenting opinion filed by Senior Circuit Judge EDWARDS.

KAVANAUGH, Circuit Judge: When the police have

reasonable suspicion that a person committed, is committing, or

is about to commit a crime, the officers may forcibly stop that

individual. See Terry v. Ohio, 392 U.S. 1, 22 (1968). During

the Terry stop, the officers may briefly take certain reasonable

investigative steps – including questioning the suspect and

conducting identification procedures such as fingerprinting and

“show-ups” (in a show-up, the police have a witness or victim

look at the suspect). See Hiibel v. Sixth Judicial Dist. Court of

Nev., Humboldt County, 542 U.S. 177, 185 (2004); Hayes v.

Florida, 470 U.S. 811, 817 (1985); Michigan v. Summers, 452

U.S. 692, 700 n.12 (1981).

In this case, the police learned that an armed robbery had

just occurred on a street in Washington, D.C. Shortly afterward,

an officer saw Paul Askew walking on a nearby street. Based on

reasonable suspicion that Askew had committed the armed

robbery, the officer stopped him. The police then brought the

robbery victim to the scene of the stop and conducted a show-

up. The officers unzipped Askew’s outer jacket during the

show-up so that the victim could see Askew’s clothing – that

step, the police believed, could assist the witness’s

identification. Unzipping the outer jacket ultimately led the

officers to discover that Askew was illegally carrying a gun.

Askew’s primary argument to this Court is that the initial

unzipping of his jacket was an unreasonable search. We

3

disagree. In a show-up during a Terry stop, the Fourth

Amendment permits police officers to reasonably maneuver a

suspect’s outer clothing – such as unzipping an outer jacket so

a witness can see the suspect’s clothing – when taking that step

could assist a witness’s identification. We affirm the District

Court’s judgment.

I

1. The District Court’s findings of fact (and, where specific

findings are lacking, the relevant testimony from the suppression

hearing) show the following. See United States v. Askew, 313 F.

Supp. 2d 1, 2-3 (D.D.C. 2004).

At about 11 p.m. on December 19, 2003, a Metropolitan

Police Department radio broadcast reported an armed robbery

near 9th and G Streets, S.E., in the District of Columbia. The

radio report in part described the robbery suspect as male,

approximately six-feet tall, and wearing a blue sweatshirt and

blue jeans. While driving in his patrol car, Officer Anthony

Bowman heard the dispatch and began canvassing the area near

the robbery scene. Within minutes, Officer Bowman saw Paul

Askew walking near 9th Street and Independence Avenue, S.E.

Noticing that Askew was a man with a mustache who “vaguely

matched” the broadcast description, Officer Bowman asked the

dispatcher whether the alleged robber had a mustache. The

dispatcher replied that the robbery suspect indeed had been

described as having a mustache. Meanwhile, when Askew saw

that Officer Bowman’s car was following him, Askew turned

and walked in a different direction. Officer Bowman continued

to follow Askew in the police car.

After calling in his location to other police, Officer

Bowman parked the patrol car, got out, and stopped Askew.

Officer Bowman requested that Askew present identification

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and instructed Askew to keep his hands on top of his head, not

in his pockets. Askew complied with those requests. Officer

Bowman then told Askew that he had been stopped because he

matched the description of an armed robbery suspect. Officer

Bowman noticed that Askew was wearing two jackets: “[H]e

had on a navy blue jacket with a darker blue fleece type jacket

underneath.”

Other police (including Officer Anthony Willis and Officer

James Koenig) arrived at the scene. For the officers’ safety,

Officer Koenig conducted a standard patdown frisk of Askew’s

outer clothing pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

Officer Koenig did not feel a weapon.

Another officer then arrived with the robbery victim to

conduct a “show-up” procedure (which allows a witness or

victim to look at a suspect for identification purposes). The

victim remained inside the police car as the officers brought

Askew toward the car. Officer Willis recalled that the suspect

described in the radio broadcast was wearing a blue hooded

sweatshirt. As Officer Willis testified, he wanted the victim to

see what Askew had on “to make sure that he wasn’t zipping

nothing up to cover up.” To that end, Officer Willis started to

pull down Askew’s outer jacket zipper. The zipper stopped

when it hit what Officer Willis described as a “hard” or “solid”

object and “didn’t go past” the object. Askew then knocked

Officer Willis’s hand away from the zipper.

At about this time, the show-up ended, and the officer

accompanying the victim in the car drove her away from the

scene of the show-up. At this point, Officer Willis and Officer

Edward Snead were not aware of the results of the show-up.

They quickly walked Askew backward and made him sit upright

on the hood of a police car. (The testimony suggests less than

a minute passed between the end of the show-up and the walk to

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the police car. See Suppression Hr’g Tr. 54-55 (Mar. 10, 2004).)

Officer Willis fully unzipped Askew’s outer jacket, revealing

that Askew wore a black pouch underneath the jacket. The

pouch was partially open, and a silver object protruded from it.

The police recognized the object as a gun. The police then

handcuffed Askew and formally arrested him. Although the

record does not specify the grounds for the arrest, District of

Columbia law prohibits carrying a pistol without a license. See

D.C. CODE § 22-4504(a).

In the meantime, the victim informed the officer in the

police car that Askew was not the man who had committed the

robbery. The record does not specify the precise moment when

this occurred, although the officers on the scene did not become

aware until some undetermined time after Askew’s arrest on the

weapons violation. See 313 F. Supp. 2d at 3 & n.4 (officer

accompanying victim “did not advise Officer Willis and his

colleagues whether the complainant had made an

identification.”); see also Suppression Hr’g Tr. 13 (Mar. 26,

2004) (Officer Willis learned results of show-up “after [officers]

had handcuffed” Askew); Suppression Hr’g Tr. 54 (Mar. 10,

2004) ([Question to Officer Snead]: “So at least you never

heard from [officer accompanying victim] at that time what the

results of the show-up were? [Answer]: Not at that time.”).

2. Based on Askew’s prior felony conviction, the

Government subsequently obtained a one-count federal grand

jury indictment charging Askew with possessing a firearm as a

felon. See 18 U.S.C. § 922(g)(1).

Askew moved to suppress the evidence of the firearm on

the ground, among others, that the unzipping of the outer jacket

violated the Fourth Amendment and that the gun was the fruit of

the constitutional violation. After an evidentiary hearing, the

District Court denied the motion. 313 F. Supp. 2d at 1. At the

6

outset, the District Court concluded that Officer Bowman had

the authority under Terry v. Ohio, 392 U.S. 1 (1968), to stop

Askew – given Askew’s proximity to the location of the

reported robbery, his physical resemblance to the armed robbery

suspect described in the police radio broadcast, and his change

of course upon seeing Officer Bowman. See 313 F. Supp. 2d at

4. The District Court also concluded that Terry authorized

Officer Koenig to frisk Askew for potential weapons (the

District Court here was referring to the initial frisk that did not

disclose Askew’s gun). Id.

The court held that the partial unzipping of the outer jacket

for the show-up procedure was also permissible. Id. at 6-7. The

court further ruled that, because Officer Willis’s partial

unzipping of Askew’s jacket for purposes of the show-up was

constitutional, the Fourth Amendment permitted the officers,

after feeling the hard object, to restrain Askew and fully unzip

his jacket to determine whether the hard object was a weapon.

Id. at 5.

Askew entered a conditional plea of guilty, reserving his

right to bring this appeal from the District Court’s denial of the

motion to suppress. See Fed. R. Crim. P. 11(a)(2). The District

Court sentenced Askew to 36 months of imprisonment and 36

months of supervised release.

On appeal, the parties agree that the Fourth Amendment

governs the analysis and that the evidence of the gun must be

excluded if we find the search unreasonable. Askew does not

challenge the District Court’s conclusions that Officer Bowman

had reasonable suspicion to stop Askew and that Officer

Koenig’s frisk of Askew was valid. Askew focuses instead on

the conduct of the police during the show-up – in particular, the

two unzippings of the outer jacket. We review de novo the

District Court’s legal conclusion that the search was

7

constitutional. In doing so, we accept the District Court’s

findings of fact unless clearly erroneous. See Ornelas v. United

States, 517 U.S. 690, 699 (1996).

II

1. The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” The touchstone of

the Amendment is reasonableness, which “is measured in

objective terms by examining the totality of the circumstances.”

Ohio v. Robinette, 519 U.S. 33, 39 (1996). As the Supreme

Court has said, “[t]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical

application. In each case it requires a balancing of the need for

the particular search against the invasion of personal rights that

the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979).

Under the Terry line of cases, the police may forcibly stop

a person based upon “reasonable suspicion” that the individual

committed, is committing, or is about to commit a crime, “even

though there is no probable cause to make an arrest.” Terry v.

Ohio, 392 U.S. 1, 22 (1968). During a Terry stop justified by

reasonable suspicion, the police may take two kinds of actions:

Officers may take reasonable protective measures, and they may

take reasonable investigative measures. To place the issues

raised by this appeal in context, we briefly summarize the

Supreme Court precedents governing both measures.

First, during a Terry stop, the police may take reasonable

protective steps to ensure the safety of the officers and the

public. An encounter between a police officer and a potential

criminal suspect can be a dangerous situation; thousands of

officers each year are assaulted, and in 2005 more than one

officer per week was feloniously killed in the line of duty in the

8

United States. The Fourth Amendment does not require police

officers to choose between investigating possible criminal

activity and avoiding violent attack. On the contrary, courts

appropriately give great deference to police officers’ interest in

safety as they protect the citizenry. As the Court in Terry

succinctly stated, “it would be unreasonable to require that

police officers take unnecessary risks in the performance of their

duties.” 392 U.S. at 23; see also Adams v. Williams, 407 U.S.

143, 146 (1972) (“[T]he policeman making a reasonable

investigatory stop should not be denied the opportunity to

protect himself from attack by a hostile suspect.”). Therefore,

as the Terry Court explained, when an officer stops an

individual based on reasonable suspicion and has reason to

believe the person may be “armed and dangerous,” the officer is

authorized to conduct a protective patdown frisk “limited to that

which is necessary for the discovery of weapons which might be

used to harm the officer or others nearby.” Terry, 392 U.S. at

26-27; cf. Chimel v. California, 395 U.S. 752, 763 (1969)

(similar rule for protective searches incident to arrest based on

probable cause). So too, because of the heightened danger in

Terry stops of cars, the police may conduct protective searches

for weapons in the passenger compartment of a motor vehicle.

See Michigan v. Long, 463 U.S. 1032, 1049-52 (1983); cf. New

York v. Belton, 453 U.S. 454, 457-60 (1981) (similar rule for

protective searches of cars incident to arrest based on probable

cause).

Second, in addition to reasonable protective steps, the

police may take reasonable investigative steps during a Terry

stop to determine whether the individual committed, is

committing, or is about to commit a crime (in other words, to try

to confirm or dispel the reasonable suspicion that justified the

stop in the first place). As the Supreme Court has stated, “a law

enforcement officer’s reasonable suspicion that a person may be

involved in criminal activity permits the officer to stop the

9

person for a brief time and take additional steps to investigate

further.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt

County, 542 U.S. 177, 185 (2004); see Michigan v. Summers,

452 U.S. 692, 700 n.12 (1981) (“‘several investigative

techniques . . . may be utilized effectively in the course of a

Terry-type stop.’”) (quoting 3 WAYNE R. LAFAVE, SEARCH AND

SEIZURE § 9.2 pp. 36-37 (1978)).

2. To resolve this case, we must initially review the

Supreme Court’s case law analyzing the following key question:

What investigative steps are permissible and impermissible

during a Terry stop?

We begin by describing the category of impermissible

steps. A Terry stop occurs when the police have “reasonable

suspicion” of criminal activity – but the police’s justification has

not yet risen to the level of “probable cause” needed for an

arrest. Because the police do not yet have probable cause for an

arrest, the police during a Terry stop may not engage in what the

Supreme Court has called a “full search.” Terry, 392 U.S. at 26;

see id. at 30 (“general exploratory search for whatever evidence

of criminal activity [officer] might find”); see also Minnesota v.

Dickerson, 508 U.S. 366, 378 (1993) (“evidentiary search,”

namely one raising prospect that officer will “rummage and

seize at will” beyond “specific authorization”) (internal

quotation marks omitted); Florida v. Royer, 460 U.S. 491, 499

(1983) (plurality opinion of White, J.) (“In the name of

investigating a person who is no more than suspected of criminal

activity, the police may not carry out a full search of the person

or of his automobile or other effects.”) (emphasis added). As

the Court has explained, such a “full search” – sometimes called

an exploratory or evidentiary search – occurs when the police

rummage through a person’s pockets, bags, and clothing for

contraband the person may be carrying, such as stolen goods,

drugs, or other tangible evidence of crime. See Sibron v. New

10

York, 392 U.S. 40, 64-65 (1968).

Other than the forbidden “full search,” the Supreme Court

has held that other investigative steps during a Terry stop are

permissible if “reasonably related in scope to the circumstances

which justified the interference in the first place.” Terry, 392

U.S. at 20; see also Hiibel, 542 U.S. at 185. The Terry

“reasonably related in scope” standard is far from self-defining,

but the Supreme Court’s rulings have provided guidance –

permitting “several investigative techniques which may be

utilized effectively in the course of a Terry-type stop.”

Summers, 452 U.S. at 700 n.12 (quoting 3 LAFAVE, SEARCH

AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible

investigative steps include the following:

• The police may ask questions to the individual who has

been stopped. See Terry, 392 U.S. at 6-7 (“Officer McFadden

approached the three men, identified himself as a police officer

and asked for their names.”); see also United States v. Hensley,

469 U.S. 221, 229 (1985) (recognizing police ability to “ask

questions, or check identification” during Terry stop); Berkemer

v. McCarty, 468 U.S. 420, 439 (1984) (“[T]he officer may ask

the detainee a moderate number of questions to determine his

identity and to try to obtain information confirming or dispelling

the officer’s suspicions. But the detainee is not obliged to

respond.”); Terry, 392 U.S. at 34 (White, J., concurring) (“[T]he

person may be briefly detained against his will while pertinent

questions are directed to him.”).

• When the police have a reasonable basis for believing that

a traveler is carrying luggage that contains drugs, the police may

seize the luggage “briefly to investigate the circumstances” that

give rise to their suspicion, and they may subject the luggage to

a dog sniff for narcotics. United States v. Place, 462 U.S. 696,

706-07 (1983); see also Illinois v. Caballes, 543 U.S. 405, 408-

11

09 (2005) (allowing dog sniff of motorist’s lawfully stopped

car).

• The police may obtain fingerprints; in particular, such

fingerprinting is authorized “if there is a reasonable basis for

believing that fingerprinting will establish or negate the

suspect’s connection with [a] crime, and if the procedure is

carried out with dispatch.” Hayes v. Florida, 470 U.S. 811, 817

(1985).

• A witness show-up is permissible: When it is “known that

an offense has occurred in the area, the suspect may be viewed

by witnesses to the crime.” Summers, 452 U.S. at 701 n.12

(quotation marks omitted). (Whether the resulting witness

identification may be admitted as evidence in a criminal trial is

an analytically separate question. See Manson v. Brathwaite,

432 U.S. 98, 111-14 (1977); United States v. Washington, 353

F.3d 42, 44-45 (D.C. Cir. 2004).)

III

We apply the above principles to the issues presented by

this case. To begin with, we note that there are two separate

Fourth Amendment “events” that must be analyzed. The

primary and more difficult question in this case concerns the

initial unzipping of Askew’s jacket. The secondary question is

whether, after the initial unzipping revealed a hard object and

Askew knocked away the officer’s hand, the police’s subsequent

full unzipping of the jacket was permissible. (We address that

secondary question in Part IV below.)

1. Following Officer Bowman’s stop of Askew, the police

brought the robbery victim to the scene to conduct a show-up for

identification. As part of that show-up, Officer Willis partially

unzipped Askew’s outer jacket so that the victim could see

12

Askew’s “blue fleece type jacket” underneath. 313 F. Supp. 2d

1, 2 (D.D.C. 2004).

The Supreme Court has stated that show-ups are permitted

during Terry stops. The precise question here, therefore, is

whether the added step of unzipping a jacket is permissible

when doing so could reasonably assist the witness’s

identification during the show-up – in other words, whether such

a step is “reasonably related in scope to the circumstances which

justified the interference in the first place.” Terry v. Ohio, 392

U.S. 1, 20 (1968). That reasonableness inquiry weighs the

competing interests of the individual and the Government,

balancing “the nature and quality of the intrusion on personal

security against the importance of the governmental interests

alleged to justify the intrusion.” United States v. Hensley, 469

U.S. 221, 228 (1985); see also United States v. Place, 462 U.S.

696, 703 (1983).

In conducting the reasonableness inquiry, we consider on

one side of the balance the extent to which the challenged

investigative step promotes law enforcement aims and protects

the public – namely, “the public interest that the crime be solved

and the suspect detained as promptly as possible.” Hensley, 469

U.S. at 229. The unzipping of Askew’s jacket clearly promoted

the same government interest that justified the show-up itself:

the interest in reliably determining whether Askew was the

armed robber. A reliable witness identification generally allows

the police to determine whether to further investigate or arrest

the person stopped, or to move on to someone else entirely.

This government interest is particularly important in cases (such

as this one) where an armed criminal is at large and may pose a

danger of causing additional harm to the public. And the

identification is generally more likely to be accurate if the

witness can see the characteristics of the person stopped that the

perpetrator displayed during commission of the crime. Steps

13

furthering that interest might include, for example, temporarily

removing a hat (so a witness can view hair color or style) or

rolling up a shirt sleeve (to reveal a watch or tattoo that had been

observed by the witness on the suspect’s arm). So too, if a

robbery victim says the actual suspect was wearing a certain

color shirt underneath a jacket, the police have an interest in

unzipping the jacket to allow the victim to see if the individual

stopped is wearing such a shirt. This case is no different.

We assess on the other side of the Fourth Amendment

balance the extent of the additional intrusion on individual

privacy – that is, the additional intrusion caused by unzipping

the outer jacket. Here, to begin with, the police did not conduct

a “full search,” which Terry ruled flatly impermissible in a stop

based solely on reasonable suspicion. 392 U.S. at 26. In

unzipping Askew’s jacket, Officer Willis was not conducting a

“general exploratory search for whatever evidence of criminal

activity he might find.” Id. at 30. Moreover, the primary

intrusions on Askew’s individual privacy resulted from the

forcible detention itself and the initial protective frisk, both of

which were plainly permissible under Terry. Our focus

therefore is on the additional step of unzipping a jacket to reveal

clothing underneath. Contrary to Askew’s contention, this is a

relatively minimal additional interference with individual

privacy. The Supreme Court in Pennsylvania v. Mimms, for

example, authorized officers conducting traffic stops to order the

driver out of the car. The Court reasoned that during a valid

stop, the “additional intrusion” that leaving the car imposed

upon the driver’s personal privacy “can only be described as de

minimis. The driver is being asked to expose to view very little

more of his person than is already exposed.” 434 U.S. 106, 111

(1977). That provides a fair description of the additional

intrusion in this case as well.

Supreme Court precedent helps confirm that the

14

Government’s strong interest in identification of an armed

robber outweighs the limited additional intrusion at issue in this

case. In particular, in balancing the competing interests of the

Government and Askew, we find the Court’s decision in Hayes

v. Florida instructive and important. In Hayes, the Court stated

that the Fourth Amendment permits the police to take

fingerprints during a Terry stop; such fingerprinting is

legitimate, the Court concluded, “if there is a reasonable basis

for believing that fingerprinting will establish or negate the

suspect’s connection with [a] crime, and if the procedure is

carried out with dispatch.” 470 U.S. 811, 817 (1985).

Here, as in Hayes, the police had an objective basis for

believing that the identification procedure could “establish or

negate the suspect’s connection with [a] crime.” Here, as in

Hayes, the police action was “carried out with dispatch.” And

here, as in Hayes, the intrusion fell short of the “full search” that

the Supreme Court has prohibited during Terry stops. The

purposes of the investigative steps at issue here and in Hayes are

precisely the same (to match the person with a crime that has

recently occurred), and the degree of intrusion is similar (indeed,

to many people, fingerprinting would seem more intrusive than

unzipping an outer jacket).

To be sure, the Supreme Court’s reasoning in Hayes

concerning the validity of brief, in-the-field fingerprinting might

be described as dicta. But the Court’s analysis obviously was

carefully considered; indeed, it was a point of strenuous

disagreement between the Hayes majority and Justice Brennan

in his separate opinion (joined by Justice Marshall). And we

have said that “carefully considered language of the Supreme

Court, even if technically dictum, generally must be treated as

authoritative.” United States v. Dorcely, 454 F.3d 366, 375

(D.C. Cir. 2006); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C.

Cir. 2003); NRDC v. NRC, 216 F.3d 1180, 1189 (D.C. Cir.

15

2000); United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir.

1997). That principle comfortably covers the Hayes discussion

of fingerprinting during Terry stops.

In short, the opinion in Hayes guides us here. If the police

during a Terry stop may take fingerprints for identification

purposes, it logically follows that the police during a Terry stop

may unzip an individual’s outer jacket for identification

purposes (that is, so a witness can see the suspect’s clothing).

2. Askew has advanced three arguments why the unzipping

of the outer jacket was nonetheless unreasonable.

First, Askew notes the possibility of pretext searches: He

suggests that some officers would maneuver outer clothing as a

pretext for a full search, even though the officers lack probable

cause to conduct a full search. The risk of pretextual police

behavior has, of course, generated a great deal of concern about

Terry stops. See, e.g., 4 WAYNE R. LAFAVE, SEARCH AND

SEIZURE § 9.1(e) p. 279 (4th ed. 2004) (“For many of those who

honestly oppose . . . the power of police to stop and frisk, the

central point is that police often have utilized street encounters

for improper purposes . . . .”); David Rudovsky, Law

Enforcement by Stereotypes and Serendipity, 3 U. PA. J. CONST.

L. 296, 336 (2001) (“[J]ust as the police use the traffic stop to

place themselves in a position to search the vehicle and

occupants, they use the stop of pedestrians to gain the

opportunity to frisk.”). The Supreme Court has repeatedly held,

however, that the risk of pretextual police behavior does not

alter the Fourth Amendment analysis. Instead, the constitutional

inquiry focuses on whether the police took protective and

investigative steps that were objectively reasonable under the

circumstances. In other words, “the Fourth Amendment’s

concern with ‘reasonableness’ allows certain actions to be taken

in certain circumstances, whatever the subjective intent.” Whren

16

v. United States, 517 U.S. 806, 814 (1996); see also Brigham

City v. Stuart, 126 S. Ct. 1943, 1948 (2006); United States v.

Arvizu, 534 U.S. 266, 273 (2002).

Second, Askew advances a slippery slope argument: He

contends that upholding the search here necessarily means that

extensive body searches or strip searches also would be

permitted. That is simply wrong. The history of Fourth

Amendment jurisprudence is a history of judicial line-drawing

as courts assess “reasonableness” by balancing the public’s

interest in preventing and detecting crime (and thereby

maintaining order and public safety) against the individual’s

interest in privacy. This case involves the police reasonably

maneuvering a suspect’s outer jacket during a show-up to assist

a witness’s identification (by allowing the witness to see the

suspect’s clothing). Of course, there are a variety of conceivable

searches – such as hypotheticals advanced by Askew – that

would be more intrusive than the search at issue here and would

more severely affect personal privacy interests. In such

hypothetical cases, the Government would face a heavier burden

in showing that the investigative step was “reasonably related in

scope to the circumstances which justified the interference in the

first place.” Terry, 392 U.S. at 20; cf. Schmerber v. California,

384 U.S. 757, 769-72 (1966); Helton v. United States, 191 F.

Supp. 2d 179, 184-85 (D.D.C. 2002).

Third, Askew makes a bright-line argument: He suggests

that Terry does not permit investigative steps that involve a

“search” of any kind, no matter how limited. The initial flaw in

this argument is that the Supreme Court has in fact authorized

certain intrusive searches during Terry stops – so long as they

are reasonable under the circumstances and are not what the

Court has called a “full search.” See Terry, 392 U.S. at 26; see

also Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality

opinion of White, J.). For example, the Terry Court itself

17

approved the protective step of frisking for potential weapons

even though the Court recognized such action was a “serious

intrusion” and plainly entailed a “search” within the meaning of

the Fourth Amendment. 392 U.S. at 16-17.*

And as explained above, the Hayes Court endorsed the

investigative step of on-the-scene fingerprinting – even though

compelled fingerprinting is intrusive and triggers independent

Fourth Amendment protection, as the Court explained when

comparing fingerprinting to “other types of searches and

detentions.” 470 U.S. at 814. Indeed, in Hayes two Justices

strongly disagreed with the majority, warning that “on-site

fingerprinting (apparently undertaken in full view of any

passerby) would involve a singular intrusion on the suspect’s

privacy, an intrusion that would not be justifiable (as was the

patdown in Terry) as necessary for the officer’s protection.” Id.

at 819 (Brennan, J., concurring in judgment, joined by Marshall,

J.). But the position of Justice Brennan and Justice Marshall did

not prevail in Hayes; had it done so, Askew’s bright-line

argument here would of course have more force.

Askew’s bright-line argument – that an investigative step

*

Given that one side of the Fourth Amendment reasonableness balance

looks at the degree of intrusion on the individual, the Supreme Court in

certain other areas has similarly distinguished (i) the intrusion caused by so-

called full searches from (ii) the lesser intrusion caused by more limited

searches. See Maryland v. Buie, 494 U.S. 325, 335 (1990) (distinguishing

protective sweep, or “cursory inspection” of premises incident to in-home

arrest, from “full search”); United States v. Jacobsen, 466 U.S. 109, 125 n.28

(1984) (“warrantless search and seizure limited to scraping suspect’s

fingernails justified even when full search may not be”) (citing Cupp v.

Murphy, 412 U.S. 291, 296 (1973)). In certain other contexts, the Court has

held any degree of intrusion unreasonable, noting that “[a] search is a

search.” Arizona v. Hicks, 480 U.S. 321, 325 (1987). But cf. Buie, 494 U.S.

at 335 n.3 (characterizing Hicks as involving police “searching for evidence

plain and simple.”).

18

is impermissible if it constitutes a Fourth Amendment search –

also contravenes the persuasive views of the leading Fourth

Amendment scholar. Professor LaFave has explained that

certain “identification searches” do not “require rummaging

through a suspect’s personal effects as does an ordinary full-

blown search.” 4 LAFAVE, SEARCH AND SEIZURE § 9.8(b) p.

730 (quotation marks omitted). For that reason, Professor

LaFave explained: “Taking fingernail scrapings, for example,

is a search, but yet is a very limited intrusion, and thus should

be deemed permissible” for identification during a Terry

detention. Id. (quotation marks omitted; emphasis added).

Professor LaFave’s bottom line, therefore, is that certain

investigative steps are (and should be) permitted during Terry

stops even though they constitute “searches” under the Fourth

Amendment. Based on the Supreme Court’s precedents, we

agree.

In sum: Balancing the competing interests and taking our

cues from Supreme Court precedent, especially Hayes, we

conclude that the police during a Terry show-up may reasonably

maneuver a suspect’s outer clothing (such as unzipping an outer

jacket so a witness can see the suspect’s clothing) when taking

that step could assist a witness’s identification. In this case,

therefore, the Fourth Amendment allowed the police to initially

unzip Askew’s outer jacket so that the robbery victim could see

Askew’s clothing, thereby assisting the victim’s identification

during the show-up. That step was “reasonably related in scope

to the circumstances which justified” stopping Askew in the first

place. Terry, 392 U.S. at 20.

IV

Askew argues that, even assuming the first unzipping was

permissible, the second unzipping was impermissible. The

District Court rejected that argument, concluding: “If it was

19

constitutional for Officer Willis to unzip the jacket in the course

of the show-up, the later investigation to determine whether the

hard object was a weapon certainly was constitutional.” 313 F.

Supp. 2d 1, 5 (D.D.C. 2004). We agree with the District Court.

To review: The first unzipping of the outer jacket occurred

during the show-up itself. During that unzipping, Officer Willis

discovered that Askew had a hard object underneath the jacket

zipper, and Askew knocked Officer Willis’s hand away from the

zipper. The show-up ended, and the officer accompanying the

victim in the car drove her away from the scene. At this point,

the officers remaining with Askew were not yet aware of the

results of the show-up. Shortly thereafter, based on the hard

object underneath the jacket and Askew’s knocking away

Officer Willis’s hand, the officers walked Askew over to a

police car, made him sit up on it, engaged in a second (and this

time complete) unzipping of the jacket, and seized a gun found

on Askew’s person.

We conclude that the second unzipping was justified on any

of three alternative grounds. First, it was justified as a

protective step as part of the continuing Terry stop for suspicion

of armed robbery. Second, it was justified as a protective step

to prevent the possibility of armed violence while the police

disengaged at the conclusion of that Terry stop. Third, it was

justified because the initial unzipping gave the officers

reasonable suspicion to detain and investigate Askew for a new

crime – carrying a dangerous weapon in public in violation of

District of Columbia law.

First, the developments during the initial unzipping –

Officer Willis discovering a hard object underneath Askew’s

jacket in the initial unzipping and Askew knocking away Officer

Willis’s hand – justified the officers in believing that Askew may

have been “armed and presently dangerous.” Terry v. Ohio, 392

20

U.S. 1, 30 (1968). Under Supreme Court precedent, these facts

entitled the officers to take the protective step of unzipping

Askew’s jacket in full and seizing the weapon. See Adams v.

Williams, 407 U.S. 143, 146, 148 (1972) (officer’s “reaching to

the spot” where driver was said to have been hiding gun to

remove it was “limited intrusion designed to insure [the

officer’s] safety”; “So long as the officer is entitled to make a

forcible stop, and has reason to believe that the suspect is armed

and dangerous, he may conduct a weapons search limited in

scope to [the] protective purpose.”) (footnote omitted); see also

Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (bulge in

driver’s jacket allowed officer to conclude driver “was armed

and thus posed a serious and present danger to the safety of the

officer,” authorizing search).

That Officer Koenig had not felt a weapon in conducting the

earlier pat-down frisk did not prevent the officers from acting on

the new information at this point. The Fourth Amendment does

not impose a rigid “one-frisk” rule requiring officers to ignore

new information that might lead them to realize that an initial

frisk was an inadequate safeguard. See United States v.

Osbourne, 326 F.3d 274, 278 (1st Cir. 2003) (reasonableness of

second or subsequent protective step is “determined under a

standard that takes account of the fact that context is vital”)

(internal quotation marks omitted).

It bears mention, moreover, that the officers involved in the

second unzipping did not yet know the results of the show-up

procedure when they conducted that second unzipping. On the

contrary, as the District Court found, only after Askew’s formal

arrest on the gun charge did these officers on the scene learn

Askew had not been identified by the victim as the armed robber.

See 313 F. Supp. 2d at 3 n.4 (officer accompanying victim “did

not advise Officer Willis and his colleagues whether the

complainant had made an identification.”). In a fast-moving and

21

inherently dangerous Terry stop, we think it entirely reasonable

for officers on the scene to continue to protect their safety, and

the public’s safety, until these officers themselves know that the

initial basis for the stop has dissipated (at least so long as there

is not unreasonable delay in obtaining that information). Cf.

United States v. Brown, 334 F.3d 1161, 1166 n.2 (D.C. Cir.

2003) (in assessing reasonable suspicion and fear of danger, “this

court cannot take into account . . . facts . . . not known to the

investigating officers at the time of the search,” including facts

complainant never told officers conducting search and facts

suspect later told another officer). Here, moreover, the police

acted promptly; they did not continue to hold Askew for an

unreasonably lengthy period of time, as may have occurred, for

example, in United States v. Babwah, 972 F.2d 30, 33 (2d Cir.

1992). In short, the officers here still had justification for

holding Askew when they conducted the second unzipping, and

the second unzipping was thus a reasonable protective step under

Terry.

Second, even if the reasonable suspicion of armed robbery

had dissipated before the second unzipping, the police in any

event could take steps to protect themselves while disengaging

from the encounter with Askew. In Michigan v. Long, the

Supreme Court held that, during a Terry stop of a driver, the

Fourth Amendment allows officers to conduct a protective search

of the car’s passenger compartment based on reasonable fear that

the driver poses a danger. 463 U.S. 1032, 1045-52 (1983). One

rationale for this holding was the Supreme Court’s concern that

absent a protective search, at the end of the Terry stop, “if the

suspect is not placed under arrest, he will be permitted to reenter

his automobile, and he will then have access to any weapons

inside.” Id. at 1052. It follows that a Terry protective search of

the person or vehicle is a proper response to fear not only that a

suspect might use a weapon during the Terry stop, but also that

the suspect might use a weapon after the stop ends and before the

22

police have disengaged. So too here: Had the police not

unzipped the jacket a second time to identify and remove the

weapon and instead permitted Askew to leave, Askew would

have had access to that weapon as the officers departed. As this

Court has recognized, Long teaches that it is “appropriate to

conduct a Terry search to ensure that such access would not

endanger the lives of the departing officers.” United States v.

Christian, 187 F.3d 663, 671 (D.C. Cir. 1999); see id. at 665,

669-671 (protective search of suspect’s car reasonable when

suspect stood next to car with six-inch bladed dagger by driver’s

seat visible through partially open window). Askew’s argument,

in other words, “misunderstands the nature of the protective

search; the fear of a person’s gaining immediate control of

weapons does not limit itself to the time of the stop, but extends

through the entire interaction between him and the officer.”

United States v. Wallen, 388 F.3d 161, 166 (5th Cir. 2004). A

protective search is therefore justified in a case where “a

reasonable officer would . . . be concerned about the ever-present

possibility of violent interaction when the suspect[] [was]

released at the conclusion of the investigatory stop.” United

States v. Holmes, 376 F.3d 270, 278 (4th Cir. 2004).

Third, even assuming the officers no longer had justification

to hold Askew on suspicion of armed robbery when they

conducted the second unzipping, the second unzipping was

constitutional for yet another reason: Once the officers

discovered the hard object during the show-up and Askew

knocked Officer Willis’s hand away in response to the discovery,

the officers had reasonable suspicion that Askew was committing

a crime distinct from armed robbery – namely, carrying a

dangerous weapon in violation of District of Columbia law.

District of Columbia law provides: “No person shall carry

within the District of Columbia either openly or concealed on or

about their person, a pistol, without a license issued pursuant to

District of Columbia law, or any deadly or dangerous weapon

23

capable of being so concealed.” D.C. CODE § 22-4504(a). The

police officers reasonably believed that a hard object carried

underneath a jacket could be a dangerous weapon. From the fact

that Askew knocked away Officer Willis’s hand, the officers

could also reasonably infer that Askew was attempting to

conceal a weapon. See Terry, 392 U.S. at 21 (officers must be

“able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant” their action). Based on the reasonable suspicion that

Askew was carrying a concealed weapon, the officers acted well

within Fourth Amendment bounds in seizing the weapon: “So

long as the officer is entitled to make a forcible stop, and has

reason to believe that the suspect is armed and dangerous, he

may conduct a weapons search limited in scope to [the]

protective purpose.” Adams, 407 U.S. at 146 (footnote omitted).

During a Terry stop, when the officers feel or observe an object

that might be a weapon, or develop reasonable suspicion that the

suspect may be carrying a weapon in a specific place on his

person or in his car, the police may seize the weapon. See id. at

146, 148; United States v. Holmes, 385 F.3d 786, 790-91 (D.C.

Cir. 2004) (Roberts, J.) (officer reasonably removed from

suspect’s outer coat pocket a “hard, square object”); see also

United States v. Harris, 313 F.3d 1228, 1237 (10th Cir. 2002)

(“If the officer discovers what he believes to be a weapon, he

may reach inside the suspect’s clothing and remove it.”) (citing

Adams, 407 U.S. at 148); United States v. Swann, 149 F.3d 271,

272, 276-77 (4th Cir. 1998) (officer reasonably removed hard,

rectangular object from suspect’s sock).

On any of these three alternative grounds, we reject

Askew’s claim that the second unzipping was unreasonable.

V

Because the first and second unzippings were both

24

reasonable, the gun seized from Askew was admissible evidence.

That principle is, of course, settled: When taking permissible

protective and investigative steps during a Terry stop, the police

may come across contraband or evidence that the police could not

have searched for directly; in such cases, the evidence

nonetheless may be seized and used in a criminal prosecution of

the suspect. See Michigan v. Long, 463 U.S. 1032, 1050 (1983);

Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

For purposes of clarity, we also identify two questions that

we need not and do not reach in this case. First, because we

conclude that the initial unzipping of the jacket was a reasonable

step during the show-up, we do not decide whether the police

even without a witness present could reasonably maneuver a

suspect’s outer clothing, such as unzipping an outer jacket to see

the suspect’s clothing, when necessary for identification

purposes. Second, because the Government has not pressed the

point, we also do not consider whether the police could have

justified the initial unzipping of Askew’s jacket as a protective

step and not just as an investigative step: Several federal courts

have approved initial frisks that go beyond a patdown of outer

clothing when necessary to ensure that the person stopped is in

fact not carrying a weapon. See United States v. Reyes, 349 F.3d

219, 225 (5th Cir. 2003); United States v. Baker, 78 F.3d 135,

138 (4th Cir. 1996); United States v. Thompson, 597 F.2d 187,

191 (9th Cir. 1979).

***

We affirm the judgment of the District Court.

So ordered.

EDWARDS, Senior Circuit Judge, dissenting.

THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

FIRST PRINCIPLE

“The police officer is not entitled to seize and search

every person whom he sees on the street or of whom

he makes inquiries.” Sibron v. New York, 392 U.S. 40,

64 (1968).

A SIMPLE TRUTH

A police officer may not detain a person on the street

and, with no probable cause or warrant, insist that the

person remove his or her clothing; nor, in these

circumstances, may the officer undo the person’s

clothing without his or her consent. If this is not the

law, then the Fourth Amendment is a dead letter in our

Constitution.

_______________________________________

This appeal is about a citizen’s right to enforce Fourth

Amendment protections against unlawful searches of his person.

The case is important, because, as is clear from the argument

presented to this court, the Government seeks to wreak havoc

with the law under the Fourth Amendment. The majority holds

that, following a Terry stop and a protective pat down that

produces nothing, police officers may – without probable cause

or a warrant – search a suspect, not for self-protection, but

solely to facilitate an “investigation.” Because this holding

reflects an extraordinary departure from well-established

Supreme Court precedent, I respectfully dissent.

2

I. THE FACTS

The facts in this case, which are largely undisputed, are set

forth in the District Court’s opinion. See United States v. Askew,

313 F. Supp. 2d 1 (D.D.C. 2004). The material facts bear

repeating here, if only to show precisely how the Government

seeks to strip the Fourth Amendment of content.

On the night of December 19, 2003, around 11:00 p.m.,

a radio run alerted Officer Anthony Bowman of the

Metropolitan Police Department to a report of an armed

robbery in the 700 block of 9th Street, S.E., in Washington,

D.C. Officer Bowman canvassed the area in his patrol car,

looking for individuals matching the description of the

perpetrator: a black male, approximately six-feet tall,

wearing a blue sweatshirt and blue jeans. The radio report

reflected that the perpetrator had been last seen moving on

9th Street, S.E., in an unknown direction.

. . . [W]ithin approximately ten minutes of the robbery,

Officer Bowman spotted defendant Paul Askew walking in

the 200 block of 9th Street, S.E., five blocks from the scene

of the robbery. . . . While the description of the perpetrator

mentioned a blue sweatshirt and blue jeans, Officer

Bowman testified that the defendant was wearing blue

sweatpants, “a navy blue jacket[, and] a darker blue fleece

type jacket underneath. He had on two jackets.” Officer

Bowman reported to the dispatcher that Askew “vaguely

match[ed] th[e] description.” After noticing that the

defendant had a moustache, Officer Bowman checked with

the dispatcher to determine whether the robber also had a

moustache. When the dispatcher responded affirmatively,

Officer Bowman stopped the defendant.

Officer Bowman asked the defendant to come to the

patrol car, and he complied. The defendant also complied

with Officer Bowman’s further requests that he produce

3

some identification, take his hands out of his pockets, and

place his hands on the top of his head. Officer Bowman

then told the defendant that he was being stopped because

of his physical similarity to the description of a robber.

When back-up units arrived, Officer Bowman returned to

the interior of his car to check whether the police

department computer returned any information on the

defendant. . . .

Officer James Koenig conducted a pat-down of the

defendant and found nothing.[FN 2]

[FN 2] . . . The government acknowledges that when

Officer Koenig patted the defendant down, he did not

find anything. The subsequent discovery of the gun at

issue here was not the result of this pat-down.

Shortly afterwards, another officer, Officer Benton, drove

the robbery victim to the place where the defendant was

being detained, for the purpose of conducting a show-up.

The victim remained in the car while Officer Koenig and

Officer Anthony Willis brought the defendant to a place

where he could be seen by the victim. The defendant was

not in handcuffs at that time. Preparatory to the show-up,

Officer Willis attempted to unzip the defendant’s outer

jacket to reveal the sweatshirt underneath so the victim

could better determine if the defendant was the robber.

Officer Willis testified that he remembered the “blue

hooded sweatshirt” described in the radio run and “wanted

the complainant to see what [the defendant] had on to make

sure that he wasn’t zipping nothing up to cover up. So I

went to unzip it down so that . . . they could see what he

had on.” Officer Willis had difficulty, however, in

unzipping the jacket when the zipper hit what he described

as a “hard” or “solid” object and “didn’t go past [the

object]. It stopped there. And at that time, that’s when [the

defendant] knocked my hand down,” away from the zipper.

4

After the show-up, Officer Willis and Officer Edward

Snead walked the defendant backwards toward the car,

placed him on the hood of the car, and unzipped his jacket.

Visible once the jacket was unzipped was an open black

waist pouch, or “fanny pack,” with a silver object sticking

out. On further inspection, the silver object was identified

as a gun, and the defendant was handcuffed and arrested.

Id. at 1-3 & n.2 (internal citations and footnotes omitted).

_______________________________________

In reviewing the District Court’s findings, there are several

important points that are worth highlighting:

• The police requested Askew’s identification, which he

produced without protest. The police next conducted

a lawful Terry pat-down search, to determine whether

Askew posed a danger to the officers on the scene. See

Terry v. Ohio, 392 U.S. 1 (1968).

• The police officers’ pat down of Askew produced

nothing.

• The police then brought Askew in front of the robbery

victim and, without his consent and with no fear of

danger, an officer partially opened Askew’s jacket to

display what he was wearing underneath.

• The robbery victim who was brought to the scene for

the show-up did not identify Askew as the perpetrator

of the crime.

• Following the pat down and the show-up, the police

officers no longer had reasonable suspicion to detain

Askew pursuant to Terry, and they did not have

probable cause or a warrant to further detain, arrest, or

search him.

5

• However, after the show-up, when they had no

reasonable suspicion and no probable cause, the

officers continued to detain Askew against his will. As

the District Court found: “Officer Willis and Officer

Edward Snead walked the defendant backwards toward

the car, placed him on the hood of the car, and

unzipped his jacket.” Askew, 313 F. Supp. 2d at 3.

• The officers found a gun on Askew’s person only after

they unzipped his jacket without his consent.

_______________________________________

It is important to emphasize here that the police officers

engaged in two separate acts of unzipping Askew’s jacket. And

in each instance, the officers acted without Askew’s consent.

The first search occurred when an officer partially unzipped the

jacket to reveal Askew’s sweatshirt to the robbery victim who

was at the show-up. See id. at 4-5; Tr. of Motions Hr’g 8-10,

Mar. 26, 2004 (Officer Anthony Willis describing two distinct

unzippings of Askew’s jacket); Br. for Gov’t at 5-6 (describing

two distinct unzippings). The second search occurred after the

show-up was completed, and it was done to determine whether

Askew had contraband on his person. Askew, 313 F. Supp. 2d

at 4-5; Tr. of Motions Hr’g 18-20, Mar. 26, 2004; Br. for Gov’t

at 6. Thus, the second unzipping could not have facilitated the

show-up, because it did not occur until “after the show-up

procedure had ended.” Br. for Gov’t at 6.

6

II. THE GOVERNMENT’S ARGUMENT

During oral argument, counsel was asked to explain how the

Government could justify the officers’ searches of Askew’s

person without reasonable suspicion, probable cause, or a

warrant. The Assistant United States Attorney’s exchange with

a member of the court is illuminating:

JUDGE: Is there a single case in the history of the

United States [issued by either a] Court of Appeals [or the]

Supreme Court, that says [that an officer may], post pat

down, having found nothing [during the pat down,] get into

[the defendant’s] clothing either by unzipping it, unbuttoning

it, or removing it under Terry. Is there a single case that

says that?

....

AUSA: There might not be a case directly on point as

a show-up procedure if you’ve already had a pat down.

Although the Assistant United States Attorney grudgingly

acknowledged that she could cite no case law to support the

officers’ search of Askew, she still went on to amplify an

astonishing view of the Fourth Amendment on behalf of the

Government:

JUDGE: Suppose [the officers] know from the

[dispatcher’s] report that the [robbery suspect] wasn’t

wearing a whole lot [and] a tattoo was clearly seen [on] her

or his top of the chest.

....

JUDGE: Then the officers say [to the suspect],

“Remove your clothing.”

AUSA: They might be able to do that under the totality

of the circumstances.

JUDGE: Really? Wow.

AUSA: Yes.

7

JUDGE: Under the Fourth Amendment, [an officer can

require a person to remove his or her clothing], with no

probable cause? . . . That’s the Government’s position?

No probable cause, pat down produces nothing, and under

Terry [an officer] can say to someone on the street,

“remove your clothes?”

AUSA: Under the totality of the circumstances, it’s a –

JUDGE: Wow.

AUSA: It may be . . . feasible.

This is the Government’s theory of this case. And, as

counsel initially indicated, there is no case law to support this

stunningly dangerous reading of the Fourth Amendment.

Indeed, later in her oral argument, counsel appeared to

understand the breathtaking sweep of the Government’s

position:

JUDGE: [In the hypothetical that we were discussing

earlier], we know there is a tattoo on [the] skin [of] the

person [who has been detained], so [the officers can] start

removing clothes?

AUSA: Well, maybe under the totality of the

circumstances it would not be reasonable to remove his

clothes.

The Assistant United States Attorney was surely correct in

offering this belated concession that it would not be reasonable

for an officer to remove clothes. It is quite clear under Fourth

Amendment law that it is not reasonable for an officer to detain

a person on the street and then, with no probable cause or

warrant, insist that the person remove his or her clothing or,

even worse, undo the person’s clothing without his or her

consent.

8

III. THE CONTROLLING LEGAL PRINCIPLES

Almost 60 years ago, the Supreme Court reminded us that

the Fourth Amendment’s

guarantee of protection against unreasonable searches and

seizures extends to the innocent and guilty alike. It marks

the right of privacy as one of the unique values of our

civilization and, with few exceptions, stays the hands of the

police unless they have a search warrant issued by a

magistrate on probable cause supported by oath or

affirmation. And the law provides as a sanction against the

flouting of this constitutional safeguard the suppression of

evidence secured as a result of the violation . . . .

McDonald v. United States, 335 U.S. 451, 453 (1948). These

fundamental precepts have not faded with time. Just this past

Term, the Court again made it clear that “‘[w]arrants are

generally required to search a person’s home or his person

unless “the exigencies of the situation” make the needs of law

enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.’”

Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006)

(emphasis added) (quoting Mincey v. Arizona, 437 U.S. 385,

393-94 (1978)).

“Beginning with Terry v. Ohio, 392 U.S. 1 (1968), the

Court has recognized that a law enforcement officer’s

reasonable suspicion that a person may be involved in criminal

activity permits the officer to stop the person for a brief time and

take additional steps to investigate further. To ensure that the

resulting seizure is constitutionally reasonable, a Terry stop

must be limited. The officer’s action must be justified at its

inception, and reasonably related in scope to the circumstances

which justified the interference in the first place.” Hiibel v.

Sixth Jud. Dist. Ct. of Nev., Humboldt County, 542 U.S. 177,

185 (2004) (internal alterations, citations, and quotation marks

9

omitted). Terry authorizes “protective searches.” Terry does

not, however, authorize other searches as being within a class of

“steps to investigate further.” Rather, Terry

held that when an officer is justified in believing that the

individual whose suspicious behavior he is investigating at

close range is armed and presently dangerous to the officer

or to others, the officer may conduct a patdown search to

determine whether the person is in fact carrying a weapon.

The purpose of this limited search is not to discover

evidence of crime, but to allow the officer to pursue his

investigation without fear of violence. Rather, a protective

search – permitted without a warrant and on the basis of

reasonable suspicion less than probable cause – must be

strictly limited to that which is necessary for the discovery

of weapons which might be used to harm the officer or

others nearby. If the protective search goes beyond what

is necessary to determine if the suspect is armed, it is no

longer valid under Terry and its fruits will be suppressed.

Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (internal

alterations, citations, and quotation marks omitted).

The Government argues that the disputed searches in this

case were permissible, because they were only “minimally

intrusive” and “taken for the sole and legitimate purpose of

facilitating the show-up procedure.” Br. for Gov’t at 18. The

majority agrees, holding that a show-up authorizes investigative

searches which are to be assessed according to a balancing test.

This is not the law. The Court’s rationale in support of the

decision in Terry always has been that “there must be a narrowly

drawn authority to permit a reasonable search for weapons for

the protection of the police officer, where he has reason to

believe that he is dealing with an armed and dangerous

individual, regardless of whether he has probable cause to arrest

10

the individual for a crime.” Terry, 392 U.S. at 27 (emphasis

added).

The majority cites a number of cases in an attempt to create

an exception to or gloss on Terry that gives police officers

authority to search a suspect in furtherance of a show-up during

a Terry stop. Were such an exception to be indulged, it would

inevitably swallow the Court’s holding in Terry. The meaning

of Terry and its very limited scope are clear:

The police officer is not entitled to seize and search every

person whom he sees on the street or of whom he makes

inquiries. Before he places a hand on the person of a citizen

in search of anything, he must have constitutionally

adequate, reasonable grounds for doing so. In the case of

the self-protective search for weapons, he must be able to

point to particular facts from which he reasonably inferred

that the individual was armed and dangerous.

Sibron, 392 U.S. at 64. And nothing in the cases the majority

relies upon changes the basic requirements of Terry. Terry

allows only limited “protective searches,” not “investigative

searches.”

IV. THE OFFICERS’ UNZIPPINGS OF ASKEW’S JACKET

WERE “SEARCHES”

The Government does not dispute that the officers’

unzippings of Askew’s jacket were “searches” under the Fourth

Amendment. This is unsurprising, because the Court in Terry

made it clear that even a “frisk” rises to the level of a “search”

that is within the purview of the Fourth Amendment. The Court

said:

[I]t is nothing less than sheer torture of the English

language to suggest that a careful exploration of the outer

surfaces of a person’s clothing all over his or her body in an

11

attempt to find weapons is not a “search.” Moreover, it is

simply fantastic to urge that such a procedure performed in

public by a policeman while the citizen stands helpless,

perhaps facing a wall with his hands raised, is a “petty

indignity.” It is a serious intrusion upon the sanctity of the

person, which may inflict great indignity and arouse strong

resentment, and it is not to be undertaken lightly.

Terry, 392 U.S. at 16-17 (internal footnotes omitted); see also

Sibron, 392 U.S. at 45 (officer’s “thrust[ing] his hand into [the

suspect’s] pocket, discovering several glassine envelopes,

which, it turned out, contained heroin” was an illegal search).

V. THE OFFICERS’ UNLAWFUL UNZIPPING OF

ASKEW’S JACKET DURING THE TERRY STOP

Askew first contends that his Fourth Amendment rights

were violated when the officers partially unzipped his jacket

during the show-up:

On reasonable suspicion that criminal activity may be

afoot and that the suspect may be armed and dangerous,

police officers may briefly detain the person and may

conduct a limited pat-down search of the suspect’s outer

clothing for weapons. The police officer violated the

Fourth Amendment here when, after the pat-down search

failed to reveal any weapon, he unzipped Mr. Askew’s

jacket during a show-up procedure for the purpose of

revealing to the victim what was underneath. The district

court erred when it held the search did not implicate the

Fourth Amendment at all because it occurred during a

show-up identification procedure.

Appellant’s Br. at 8. Appellant is correct in what he asserts.

The partial unzipping of Askew’s jacket constituted a

warrantless search; and the search was unlawful because it did

not adhere to the requirements of the Fourth Amendment.

12

The majority argues that the Government’s interest in

identification of an armed robber tends to outweigh the intrusion

on privacy at issue in this case. This is not the test to determine

the legality of a search during a Terry stop. Rather, the only

search authorized by Terry is a “protective search” which “must

be strictly limited to that which is necessary for the discovery of

weapons which might be used to harm the officer or others

nearby.” Dickerson, 508 U.S. at 373 (internal quotation marks

omitted). Terry does not authorize police officers to search the

person of a suspect without a warrant solely to facilitate a show-

up investigation. As Government counsel conceded, no federal

appellate court has ever held that police officers can continue to

search a suspect after a Terry pat-down search produces nothing.

“If the protective search goes beyond what is necessary to

determine if the suspect is armed, it is no longer valid under

Terry and its fruits will be suppressed.” Id.

The majority then suggests that the officers’ partial

unzipping of Askew’s coat was permissible because it was not

a “full search.” There is no less-than-a-full-search exception to

Terry. Indeed, the Terry decision categorically rejects

talismanic distinctions between a so-called “full-blown search”

and conduct short of it. 392 U.S. at 19. The Court was even

clearer in Arizona v. Hicks, 480 U.S. 321 (1987), rejecting the

suggestion that only victims of “full-blown” warrantless

searches deserve protection under the Fourth Amendment:

[The] dissent suggests that we uphold the action here on the

ground that it was a “cursory inspection” rather than a “full-

blown search,” and could therefore be justified by

reasonable suspicion instead of probable cause. As already

noted, a truly cursory inspection – one that involves merely

looking at what is already exposed to view, without

disturbing it – is not a “search” for Fourth Amendment

purposes, and therefore does not even require reasonable

suspicion. We are unwilling to send police and judges into

13

a new thicket of Fourth Amendment law, to seek a creature

of uncertain description that is neither a “plain view”

inspection nor yet a “full-blown search.”

Id. at 328-29. Under the Fourth Amendment, “[a] search is a

search, even if it happens to disclose nothing [of any great

personal value to the suspect].” Id. at 325. And if a search

done pursuant to a Terry stop does not satisfy the strictures of

Terry, then it is illegal. The Court has noted time and again that

“[t]he sole justification of the search in [a Terry stop and frisk]

situation is the protection of the police officer and others nearby,

and it must therefore be confined in scope to an intrusion

reasonably designed to discover guns, knives, clubs, or other

hidden instruments for the assault of the police officer.” Terry,

392 U.S. at 29.

In an effort to employ a balancing test with a de minimis

exception for less than full-blown investigative searches, the

majority is faced with the task of trying to find support for its

claim that Terry allows more than just “protective searches.”

This is an impossible task, because the law is not what the

majority claims.

The majority first suggests that the strictures of Terry can

be modified if necessary to facilitate a show-up procedure. But

this supposition finds no support in the case law, and neither the

majority nor the Government cites a single Supreme Court or

Court of Appeals decision endorsing this view. The majority

cites Michigan v. Summers, 452 U.S. 692, 701 n.12 (1981), in

support of the proposition that a witness show-up may be

permissible in some circumstances. But Summers does not say

that police officers may search a suspect solely to facilitate a

show-up. The requirements of Terry remain inviolate even

during a show-up, and there is no case that says otherwise. This

explains why Government counsel backpedaled during oral

argument from first asserting that a police officer can insist that

a suspect take off her clothing during a Terry stop to facilitate a

14

show-up, to a concession that, “[w]ell, maybe under the totality

of the circumstances it would not be reasonable to remove . . .

clothes.”

The majority also contends that, because police officers

may take reasonable investigative steps during a lawful Terry

stop, it necessarily follows that they may search a suspect solely

to facilitate a show-up. The majority cites Hiibel, apparently to

suggest that the decision somehow carves out an exception to

the rules governing Terry stops. There is nothing in Hiibel to

support this reading of the decision. Hiibel’s reference to

“investigate further” certainly was not meant to loosen Terry

from its moorings. Hiibel says that “questions concerning a

suspect’s identity are a routine and accepted part of many Terry

stops.” 542 U.S. at 186. But it does not say that a police officer

may search a suspect’s person solely to facilitate a show-up. As

the Court made clear in Dickerson, police officers may not use

a Terry stop to conduct an “evidentiary search that Terry

expressly refused to authorize.” 508 U.S. at 378. Officers may

not “rummage and seize at will” during a Terry stop. Id. It is

noteworthy that the Government does not cite Hiibel at all,

much less for the proposition that it creates an investigative-

search gloss on Terry.

In amplifying on investigative techniques that may be

utilized during Terry stops, the majority additionally cites

United States v. Hensley, 469 U.S. 221, 228 (1985). But this

case does not hold that police officers may search a suspect

solely to facilitate a show-up. In Hensley, the Court merely

holds that, “if police have a reasonable suspicion, grounded in

specific and articulable facts, that a person they encounter was

involved in or is wanted in connection with a completed felony,

then a Terry stop may be made to investigate that suspicion.”

Id. at 229. Nothing in Hensley even hints that police officers

may conduct an investigative search of a suspect’s person

during a Terry stop. The Hensley Court simply confirms that

15

police officers are “authorized to take such steps as . . .

reasonably necessary to protect their personal safety and to

maintain the status quo during the course of the stop,” id. at 235,

which of course is the rationale underlying Terry. The Hensley

decision also notes that the “police [are] entitled to seize

evidence revealed in plain view in the course of [a] lawful

[Terry] stop,” id., but this is a far cry from saying that a

warrantless search is permissible under Terry after a lawful pat

down has given the officers no cause for concern over their

safety.

For want of any authority endorsing the legality of the

officers’ search of Askew during the show-up, the majority

looks to the Supreme Court’s decision in Hayes v. Florida, 470

U.S. 811 (1985), for support. Indeed, the portion of the majority

opinion upholding the officers’ first unzipping of Askew’s

jacket appears to rest almost entirely on Hayes. This is

unfathomable.

Hayes involved a situation in which the petitioner was the

principal suspect in a burglary-rape. The police went to

petitioner’s home to obtain fingerprints. When petitioner

expressed reluctance to accompany officers to the station house,

one officer said that they would arrest him. Petitioner replied

that he would rather go to the station than be arrested. He was

then taken to the station and fingerprinted. When it was

determined that his prints matched those taken at the scene of

the crime, he was arrested. The Supreme Court found that,

because there was no probable cause to arrest petitioner, no

consent to the journey to the police station, and no prior judicial

authorization for detaining him, the investigative detention at the

station for fingerprinting purposes violated petitioner’s rights

under the Fourth Amendment. The majority gives Hayes new

meaning, however, claiming that the case stands for the

proposition that the Fourth Amendment permits the police to

16

take fingerprints during a Terry stop. This is not what Hayes

says. Rather, the Court in Hayes held that

the line is crossed when the police, without probable cause

or a warrant, forcibly remove a person from his home or

other place in which he is entitled to be and transport him

to the police station, where he is detained, although briefly,

for investigative purposes. We adhere to the view that such

seizures, at least where not under judicial supervision, are

sufficiently like arrests to invoke the traditional rule that

arrests may constitutionally be made only on probable

cause.

Id. at 816. Following this holding, the opinion goes on to say,

in passing, that “[n]one of the foregoing implies that a brief

detention in the field for the purpose of fingerprinting, where

there is only reasonable suspicion not amounting to probable

cause, is necessarily impermissible under the Fourth

Amendment.” Id. (emphasis added).

The Supreme Court has never held that fingerprinting

during a Terry stop is lawful, neither in Hayes nor in any other

decision. And, in the 22 years since Hayes was decided, the

fingerprints comment upon which the majority relies so heavily

in this case has never been invoked by the Court. One need only

look at the Court’s decision in a case like Minnesota v.

Dickerson – decided eight years after Hayes – to understand that

the comment in Hayes has been of no moment to the Court, and

that it certainly has not altered the analytical framework

governing cases involving Terry stops. It is also noteworthy that

the Government’s brief relegates Hayes to a “cf.” citation, with

the following cryptic parenthetical: “(suggesting that ‘brief

detention in the field for the purpose of fingerprinting’ may be

permissible ‘where there is only reasonable suspicion not

amounting to probable cause’).” Br. for Gov’t at 20 (emphasis

added). This is unsurprising, because no good authority has ever

attributed so much to Hayes as does the majority here. To say

17

that reliance on Hayes is a reach is an understatement, which

may be why the majority appears to go out of its way in

attempting to explain how Hayes governs the judgment in this

case.

The simple, uncontested point here is that there is no worthy

precedent supporting the Government’s claim that a police

officer may search a suspect’s person solely to facilitate a show-

up during a Terry stop. And, neither Hayes, Hiibel, Hensley,

Summers, nor any other decision issued by the Court offers any

support for the majority’s investigative-search gloss on Terry.

As Government counsel conceded during oral argument, there

is no case under the Fourth Amendment that allows an officer to

detain a person on the street and then, with no reasonable

suspicion, probable cause, or warrant, to undo the person’s

clothing, searching the person without his or her consent.

Warrantless searches during Terry stops are appropriate in only

one circumstance – where officers, though lacking reasonable

cause for arrest, must search for weapons to ensure their own

safety. Michigan v. Long, 463 U.S. 1032, 1049-50 n.14 (1983).

Terry does not otherwise condone the physical search of a

person. In other words, the only search allowed during a Terry

stop is a “protective search” that is demonstrably necessary for

the discovery of weapons. There is no such thing as an

investigative search under Terry. See Dickerson, 508 U.S. at

373 (“If the protective search goes beyond what is necessary to

determine if the suspect is armed, it is no longer valid under

Terry and its fruits will be suppressed.”).

In the instant case, the officers had no basis to conduct a

search of Askew’s person by partially unzipping his jacket. The

pat down did not reveal a gun, so the officers had no grounds to

fear for their safety. The sole justification for a search following

a Terry stop and frisk is the protection of police officers and

others who are nearby. If the frisk or pat down produces

nothing, then the officers have no reason to be concerned about

18

their safety or the safety of others nearby. When Askew pushed

the officer’s hand away from the zipper on his jacket, he was

merely giving vent to his Fourth Amendment right to avoid an

unwarranted search of his person. He had already been frisked,

so the officers were not entitled to pursue a further search of his

person. Terry and its progeny make it clear that the officers

were forbidden from attempting to partially unzip Askew’s coat

without his permission, which they neither sought nor received.

At bottom, the majority’s decision rests almost entirely on

its interpretation of Hayes. As the majority sees it, Hayes allows

the police during a Terry stop to take fingerprints for

identification purposes, so it follows that the police during a

Terry stop may unzip an individual’s jacket for identification

purposes. This is very much akin to the argument advanced by

Government counsel that, if police officers are told that a

suspect has a tattoo on her chest, the officers during a Terry stop

may order the suspect to remove her clothing for identification

purposes. Neither Hayes nor any other Supreme Court decision

supports this extraordinary view of the Fourth Amendment.

“Before [a police officer] places a hand on the person of a

citizen in search of anything, he must have constitutionally

adequate, reasonable grounds for doing so.” Sibron, 392 U.S. at

64. The officers discovered nothing during their pat down of

Askew and thus had no “reasonable grounds to believe that [he]

was armed and dangerous.” Id. at 63. Therefore, when they

acted to partially unzip his coat without a warrant, without

probable cause, and without consent, their initial search of

Askew violated the Fourth Amendment.

19

VI. THE OFFICERS’ UNLAWFUL SEARCH OF ASKEW AFTER

THE SHOW-UP HAD ENDED

Because it is clear that the police officers violated Askew’s

Fourth Amendment rights when they partially unzipped his

jacket during the show-up, there is nothing more that need be

decided. There is no dispute over the fact that the police officers

never would have uncovered the gun but for their initial search

of Askew. Therefore, the District Court should have granted

Askew’s motion to suppress on this ground alone. Nonetheless,

Askew presses the claim that his Fourth Amendment rights were

additionally violated when the officers unzipped his jacket after

the show-up was completed:

Although the seizure and the pat-down were justified

by a reasonable suspicion that Mr. Askew resembled the

robber, the reasonable suspicion, tenuous to begin with, was

dissipated by the additional information: the pat down did

not reveal a gun, and the show-up procedure did not result

in a positive identification of Mr. Askew as the robber.

Taking all the circumstances together, the officers’

particularized and objective basis for suspecting the

particular person stopped of criminal activity had vanished.

At that point, there was no basis for further detention. The

officers knew that their original suspicion that Mr. Askew

had committed an armed robbery – the very basis for the

stop – was wrong, and they knew that a pat-down search for

weapons produced nothing. Mr. Askew was entitled to be

released after the robbery victim did not identify him as the

person who had robbed her.

Appellant’s Br. at 13-14 (internal citations and quotation marks

omitted). Askew is right in what he asserts. See, e.g., United

States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992) (holding that

“instead of terminating the seizure when their suspicions

concerning contraband proved unfounded, the Agents continued

to detain the defendants while they embarked upon [an]

20

expedition for evidence in the hope that something might turn

up. . . . This continued detention was nothing more than an

unlawful fishing expedition. The fact that it happened to be

successful does not, of course, make it lawful.” (internal

citations and quotation marks omitted)).

The majority argues that the officers who conducted the

second search of Askew may not have known of the results of

the show-up when they unzipped Askew’s jacket in search of

contraband. This supposed ignorance on the part of the officers

surely did not justify their second unlawful search of Askew.

Were the courts to endorse such a rule, police officers would be

free to extend Terry stops into indefinite detentions. It goes

without saying that the Constitution does not condone this.

Apparently recognizing the fragility of this line of analysis,

the Government wisely does not pursue it. In dodging the issue,

the Government first acknowledges that “it is undisputed that

appellant was not identified as the robber,” and then “assume[s]

for purposes of this appeal” that the facts support appellant’s

contention that “the officers’ reasonable suspicion justifying the

Terry stop . . . ‘dissipated’ when ‘the pat down [of appellant] did

not reveal a gun, and the show-up procedure did not result in a

positive identification of Mr. Askew as the robber.’” Br. for

Gov’t at 24-25 & n.12 (quoting Appellant’s Br. at 13). It is easy

to understand why the Government chose to present its

argument on these terms. It is clear from the record here that,

after the show-up concluded, the robbery victim and the officer

with her simply drove away without implicating Askew. In

these circumstances, it would have been obvious to any

reasonable officer on the scene that Askew had not been

identified by the victim as the armed robber. Why? Because if

the robbery victim had identified Askew as the armed robber, it

is inconceivable to think that the officer in the car with her

would have left the show-up without first alerting the remaining

officers on the scene that Askew had been identified as the

21

armed robber. Therefore, when the officer in the car left without

indicating a positive identification, the officers on the scene had

no further grounds to hold Askew.

Under established Fourth Amendment law, it is not

reasonable for an officer to detain a person on the street and

then, with no reasonable suspicion, probable cause, or warrant,

insist that the person remove his or her clothing or, even worse,

undo the person’s clothing without his or her consent. Neither

the majority opinion nor the Government’s brief to this court

offers any authority to suggest otherwise. Askew should have

been released after the show-up was completed. He certainly

would have posed no threat to the officers at that point. Askew

undoubtedly would have continued on his way, just as he had

been doing before he was stopped by the police.

The Government argues that, because an officer felt a hard

object near Askew’s waist when the officer partially unzipped

his jacket during the show-up procedure, “the police developed

reasonable articulable suspicion during the show-up that

appellant had a weapon near his waistband, which was

independent of their suspicion that he had committed the

robbery.” Br. for Gov’t at 25. Thus, according to the

Government, the officers could search Askew after the show-up.

And the majority, in turn, advances a claim (not raised by the

Government) that the officers could search Askew after the

show-up to protect themselves while disengaging from their

encounter with him. These claims are fatally flawed. It is quite

disingenuous for the Government to claim that any alleged risk

faced by the officers during the show-up allowed the officers to

search Askew after the show-up had ended. If there was any

risk, it arose during the show-up – when a witness and several

officers were nearby – not afterwards. And if the police officers

had an “objectively reasonable” basis to believe that a protective

search was necessary, they would have acted immediately,

during the show-up, to diffuse any potential for danger. They

22

did not do this. Therefore, once the officers patted down Askew

and found nothing and then completed the show-up without

Askew being implicated in the robbery, Askew should have

been free to leave.

The crucial point that the Government simply ignores is that

an

officer’s continued exploration of [a suspect’s clothing]

after having concluded that it contained no weapon [is]

unrelated to “the sole justification of the search [under

Terry, namely,] the protection of the police officer and

others nearby.”

Dickerson, 508 U.S. at 378 (quoting Terry, 392 U.S. at 29). A

continued search by the officers in these circumstances is “the

sort of evidentiary search” that has been “condemned” by the

Supreme Court. Id.

The majority concedes that the officers’ second search of

Askew was conducted only because of the officers’ initial

unzipping of Askew’s jacket. In other words, the officers had

no new information justifying the second search. The second

search would not have occurred if the officers had not partially

unzipped Askew’s jacket during the show-up. As the Court

made clear in Dickerson, police officers may not use the fruits

of one unlawful search to justify a further search:

Although the officer was lawfully in a position to feel the

lump in respondent’s pocket, because Terry entitled him to

place his hands upon respondent’s jacket, the court below

determined that the incriminating character of the object

was not immediately apparent to him. Rather, the officer

determined that the item was contraband only after

conducting a further search, one not authorized by Terry or

by any other exception to the warrant requirement. Because

this further search of [the suspect’s] pocket was

23

constitutionally invalid, the seizure of the cocaine that

followed is likewise unconstitutional.

Id. at 379. “In order to make effective the fundamental

constitutional guarantee[] . . . of the . . . inviolability of the

person,” the Supreme Court has made it clear “that evidence

seized during an unlawful search [cannot] constitute proof

against the victim of the search. The exclusionary prohibition

extends as well to the indirect as the direct products of such

invasions.” Wong Sun v. United States, 371 U.S. 471, 484

(1963) (internal citation omitted); see also United States v.

Scios, 590 F.2d 956, 959 (D.C. Cir. 1978) (en banc). Because

the initial unzipping of Askew’s jacket constituted an

unconstitutional search of his person, it could not provide a

lawful ground for the second search.

CONCLUSION

During oral argument, the Government conceded that the

District Court erred in holding that “the Fourth Amendment

presents no impediment to show-ups involving suspects who are

constitutionally detained.” Askew, 313 F. Supp. 2d at 5. And

the majority acknowledges that the Fourth Amendment should

control the disposition of this case. The concession and

acknowledgment are of little solace, however, because the

majority’s decision effectively holds that procedures relating to

show-ups are not subject to the strictures of Terry. The Supreme

Court has never held that police officers may search a suspect

during a Terry stop merely to facilitate a show-up. And no

federal appellate court has held that the Court’s decision in

Hayes allows police officers to continue searching a suspect

after a Terry pat-down search produces nothing. The majority

ignores this legal landscape and reaches a result never before

condoned by a federal appellate court.

24

We are bound to follow the precedent of the Supreme

Court. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

460 U.S. 533, 535 (1983) (per curiam) (holding that “only [the

Supreme] Court may overrule one of its precedents”). The

Court has not overruled Terry and its progeny, nor has it ever

endorsed an investigative-search gloss on Terry. This court has

no authority to rewrite Fourth Amendment law.

I fear that, if this judgment survives as precedent, the Fourth

Amendment soon will be a dead letter in our Constitution, at

least with respect to cases brought before this court.