United States v. James Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50250

Plaintiff-Appellee,

D.C. No.

v. 3:18-cr-00058-

JLS

JAMES ANTONIO BROWN, AKA

James Anthony Brown,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted July 10, 2020

Pasadena, California

Filed May 12, 2021

Before: Bobby R. Baldock, * Marsha S. Berzon, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins

*

The Honorable Bobby R. Baldock, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

2 UNITED STATES V. BROWN

SUMMARY **

Criminal Law

The panel reversed the district court’s denial of James

Antonio Brown’s motion to suppress the fruits of a search of

his pocket and his subsequent conviction for possession of

35.35 grams of heroin with intent to distribute, and

remanded.

Brown contended that his encounter with two police

officers in a motel parking lot did not comply with the

limitations set forth in Terry v. Ohio, 392 U.S. 1 (1968), and

that the evidence the officers found on him should have been

suppressed as fruits of a violation of his Fourth Amendment

rights.

The panel held that the officers’ encounter with Brown

was consensual until the point at which an officer ordered

Brown to stand up and turn around; at that point, the officer

had seized Brown, but the seizure was justified because the

officer had developed reasonable suspicion that Brown was

engaged in a drug transaction.

The panel concluded, however, that, under Sibron v. New

York, 392 U.S. 40 (1968), the officer’s search of Brown’s

pocket exceeded the limited scope of what Terry permits

because, in conducting the limited protective search for

weapons that Terry authorizes, the officer did not perform

any patdown or other initial limited intrusion but instead

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. BROWN 3

proceeded directly to extract and examine an item in

Brown’s pocket.

COUNSEL

Paul W. Blake (argued), Law Offices of Paul W. Blake,

Escondido, California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;

Daniel E. Zipp, Chief, Appellate Section, Criminal Division;

Robert S. Brewer, Jr., United States Attorney; United States

Attorney’s Office, San Diego, California; for Plaintiff-

Appellee.

OPINION

COLLINS, Circuit Judge:

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court

held that if an officer has reasonable articulable suspicion

that a person is engaged in a crime, the officer may briefly

detain that person to make a limited and appropriate inquiry,

id. at 21–22, and if the officer has reason to believe that the

person detained may be armed with any sort of weapon, the

officer may further conduct a limited protective frisk for

such weapons, id. at 27–29. Appellant James Antonio

Brown contends that his encounter with two police officers

in a motel parking lot did not comply with Terry’s

limitations in multiple respects, and that, as a result, the

heroin and other evidence the officers found on him should

have been suppressed as fruits of a violation of his Fourth

Amendment rights. We conclude that the officers complied

with Terry and its progeny in all respects except one: in

4 UNITED STATES V. BROWN

conducting the limited protective search for weapons that

Terry authorizes, the officer here did not perform any

patdown or other initial limited intrusion but instead

proceeded directly to extract and examine an item in

Brown’s pocket. We conclude that, under Sibron v. New

York, 392 U.S. 40 (1968)—a companion case to Terry that

was decided the same day—the officer’s search of Brown’s

pocket exceeded the limited scope of what Terry permits and

was therefore unreasonable under the Fourth Amendment.

We reverse the district court’s denial of Brown’s motion to

suppress the fruits of that search and Brown’s subsequent

conviction based on that evidence.

I

On the morning of November 15, 2017, El Cajon Police

Department Officers Robert Wining and Robert Nasland

responded to a radio call stating that motel staff at a

downtown Econo Lodge Motel had reported two

“transients” in the motel parking lot, one of whom was a

white male who had a bike and who had been seen urinating

in the bushes and the other of whom was a female. 1 The

officers, who were in uniform, drove their patrol car over to

the Econo Lodge and turned into the parking lot on the

motel’s south side. On the other side of the parking lot from

1

On appeal from a conviction after the denial of a motion to

suppress, we recount the evidence “in the light most favorable to the

government.” United States v. Henry, 615 F.2d 1223, 1230 (9th Cir.

1980). Where, as in this case, there was a trial after the suppression

hearing, we may also rely on the testimony given at trial “to sustain the

denial of a motion to suppress evidence, even if such testimony was not

given at the suppression hearing.” United States v. Sanford, 673 F.2d

1070, 1072 (9th Cir. 1982). Here, the trial testimony provides a few

clarifying details, but it does not contain any materially different facts

from the testimony presented at the suppression hearing.

UNITED STATES V. BROWN 5

the motel is a residential development, and the parking lot is

separated from that development by a high concrete wall and

an even taller wooden fence. Running along the wall is a

slightly raised planter area, which in turn is supported by a

relatively low retaining wall consisting of cinder blocks.

When the officers arrived just past 11:00 AM, the parking

lot was nearly empty, but there was a white U-Haul van

parked, head-out, in one of the spaces farther down along the

wall. As the officers entered the parking lot, they could not

see anyone behind the U-Haul, but as they drove past the

van, two men—later identified as James Brown and Jon

Barlett—came into view seated on the low cinder block wall

behind the van. The officers got out of their patrol car. Their

body cameras were turned on and recorded the ensuing

events.

Barlett is a white male who had a bike with him, so he fit

the general description of one of the individuals provided in

the radio call. Brown, however, did not meet the description

of either of those individuals, because he is an African-

American male and had no bicycle with him. Officer

Wining testified that the two men look surprised to see the

police, describing their reaction as a “deer-in-the-headlights

look.” Wining initiated a conversation, stating, “Howdy,

guys,” and asking, “What are we up to today?” Brown

responded that he had come to “get some stuff out of the

van,” and Barlett stated that he was going to help Brown.

Wining responded skeptically, telling Barlett “the motel

called us because they saw you urinating back here in the

bushes.” Barlett responded, “they didn’t see me,”

emphasizing the word “me.” Wining then asked Barlett

what his name was and, after he responded, Wining inquired

if he had identification. While Barlett looked for his

identification, Wining asked what room they were staying

in, and Brown gave his room number. Wining then asked

6 UNITED STATES V. BROWN

Brown if he had identification. After Brown felt the outside

of his pants pockets, he said that his wallet was inside the

motel. Barlett mentioned that there were “some other folks

back there” and pointed to an area farther back in the parking

lot. Wining said to Barlett, “You’re not staying here, are

you, Jon?” Barlett responded that he was not.

Wining then asked the two men directly, “So, do we have

a drug deal going on here, or what do we got going?” Barlett

mumbled a response, and Brown said, “A drug deal? No,

sir.” Wining, who had 22 years of experience as a

policeman, stated that “that’s not uncommon in this area, so

don’t—you don’t need to look at me so surprised.” At

Wining’s request, Brown supplied his name, date of birth,

height, and weight. For almost the next full minute, Wining

wrote down information and communicated over his radio.

Brown then spoke up, saying, “Didn’t you say your call was

for him urinating in the bushes; what does this got to do with

me?” After Wining reiterated what the call was about,

Brown said, referring to Barlett, “he just barely rode up.”

Wining said, “OK, there was somebody on a bike mentioned.

Alright? So, we’re here just to check it out.” Wining asked

Brown if the manager could verify that he was staying at the

motel, and Brown said yes and explained that he was staying

with another person there.

The officers radioed in the identifying information about

the two men, which took over one minute. Wining then

asked if either of the men had any warrants. Brown said no,

but Barlett answered that he had “just cleared up some,”

having been released on bond from jail only two weeks ago.

Pointing to the visible needle marks on Barlett’s arms,

Wining asked him whether he was using heroin. Barlett said,

“not anymore,” but he acknowledged that he “ha[d] a history

of it.” Shortly thereafter, Brown’s cell phone went off, and

UNITED STATES V. BROWN 7

while still seated on the cinder block wall Brown engaged in

a nearly minute-long casual conversation, laughing at one

point at what the caller said. After the call ended, Wining

asked Barlett where he had gotten his gold-colored watch.

Barlett mumbled a response about Walmart, and Brown

interjected, “you heard the old saying, everything that

glitters ain’t gold.” Barlett said it was a “nice watch” and he

“almost sold it for $40 the other day.” Wining then inquired

about a small Leatherman-brand multi-tool that was still in

its bright-yellow packaging and that was sitting just next to

Barlett on the top of the cinder block wall, between Barlett

and Brown. Wining asked if Barlett was selling it to Brown,

and Barlett said no and claimed that he just found the

unopened package “under [a] bridge.”

At this point, the encounter between the four men had

lasted just over seven minutes. While asking about the

multi-tool, Wining noticed that Brown “put his hands down

to his sides” and that he then “reach[ed] his index finger into

his right pocket.” Wining walked over to Brown who raised

his hands to his sides and said: “Oh, my bad, man, my bad.”

Wining ordered Brown to stand up and turn around. Wining

explained, “I saw you reaching in that pocket,” and when

Brown denied that he had done so, Wining said, “Yeah, you

were.” Brown complied with Wining’s instructions and

allowed Wining to secure his arms behind his back in a

finger hold. Pointing with his free hand to Brown’s pants

pocket, Wining asked, “What’s in here?” Brown responded,

“I’m not quite sure.” Wining then stated “I’m going to

check, OK?” Brown grunted a monosyllabic response that

is unintelligible on the officers’ body camera video. Wining

then reached into Brown’s pocket and pulled out a plastic

bag. Brown claimed that it was coffee, but after inspecting

it, Wining said “that is not coffee, James, that’s heroin.”

Wining conducted a more thorough search of Brown, finding

8 UNITED STATES V. BROWN

several thousand dollars, a number of unused syringes, and

suboxone strips used to treat opioid withdrawal.

The police subsequently obtained the motel’s security

camera footage from the hour immediately before Brown’s

and Barlett’s encounter with the officers. It showed several

people driving up to the vicinity of the U-Haul, briefly

interacting with Brown, and then leaving.

Brown was charged with one felony count of possession

of 35.35 grams of heroin with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1). Brown moved to suppress the

items found during Wining’s search, including the heroin

and cash, on the basis that they were illegally obtained in

violation of the Fourth Amendment. See Fed. R. Crim. P.

12(b)(3)(C). Brown argued, inter alia, that Wining had

unlawfully seized Brown without adequate reasonable

suspicion and that Wining’s search of Brown’s pocket was

unreasonable because a “pat down for weapons does not

allow further intrusion into a citizen’s pockets.” After an

evidentiary hearing, the district court denied the motion,

finding that Wining was credible and that his actions were

“reasonable in light of the totality of the circumstances.”

At trial, Brown testified that he never sold heroin to

anyone and that he possessed the heroin that day only for his

personal use. He testified that, at the time of his arrest, he

was smoking at least three grams a day to alleviate the pain

from injuries sustained in a car accident. The jury returned

a guilty verdict and Brown was sentenced to 41 months in

prison and three years of supervised release. Brown timely

appealed, and we have jurisdiction under 28 U.S.C. § 1291.

UNITED STATES V. BROWN 9

II

The Fourth Amendment protects the “right of the people

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

against unreasonable searches and seizures.” U.S. Const.

amend. IV. Searches and seizures “conducted outside the

judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established

and well delineated exceptions.” Minnesota v. Dickerson,

508 U.S. 366, 372 (1993) (simplified). One such exception

is the so-called “Terry stop,” which refers to a brief

investigative detention as described in Terry v. Ohio, 392

U.S. 1 (1968). Under the authority recognized in Terry, a

police officer who “‘observes unusual conduct which leads

him reasonably to conclude in light of his experience that

criminal activity may be afoot’” may “briefly stop the

suspicious person and make ‘reasonable inquiries’ aimed at

confirming or dispelling his suspicions.” Dickerson, 508

U.S. at 373 (quoting Terry, 392 U.S. at 30). In the event that,

during the Terry stop, the officer justifiably believes 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” or frisk “‘to determine whether

the person is in fact carrying a weapon.’” Id. (quoting Terry,

392 U.S. at 24). “Each element, the stop and the frisk, must

be analyzed separately; the reasonableness of each must be

independently determined.” United States v. Thomas, 863

F.2d 622, 628 (9th Cir. 1988).

On appeal, Brown contends both that he was unlawfully

seized by Officer Wining without the requisite reasonable

suspicion and that, even if Wining had authority to detain

Brown under Terry, the search of Brown’s pocket exceeded

10 UNITED STATES V. BROWN

the scope of a permissible protective frisk during an

investigative detention. We consider these contentions in

turn, reviewing the denial of the motion to suppress de novo

and any associated factual findings for clear error. United

States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).

A

We conclude that the officers’ encounter with Brown

was consensual until the point at which Officer Wining

ordered Brown to stand up and turn around. At that point,

Wining had seized Brown, but the seizure was justified

because, by that time, Wining had developed reasonable

suspicion that Brown was engaged in a drug transaction with

Barlett.

1

The Supreme Court has held that “a seizure does not

occur simply because a police officer approaches an

individual and asks a few questions.” Florida v. Bostick, 501

U.S. 429, 434 (1991). “So long as a reasonable person

would feel free to disregard the police and go about his

business, the encounter is consensual and no reasonable

suspicion is required.” Id. (simplified). But once the officer,

“by means of physical force or show of authority, has in

some way restrained the liberty of a citizen,” then a seizure

has occurred and the requisite level of justification for the

seizure must be shown. Id. If the consensual encounter has

ripened into an investigatory detention under Terry, then the

officer must have “‘reasonable suspicion’—that is, ‘a

particularized and objective basis for suspecting the

particular person stopped’ of breaking the law.” Heien v.

North Carolina, 574 U.S. 54, 60 (2014) (citation omitted).

But if the encounter has ripened into a full-blown arrest, then

UNITED STATES V. BROWN 11

it must be supported by probable cause. See United States v.

Guzman-Padilla, 573 F.3d 865, 876–77 (9th Cir. 2009).

A consensual encounter with a police officer ripens into

a seizure when, under “all the circumstances surrounding the

encounter,” the “police conduct would have communicated

to a reasonable person that the person was not free to decline

the officers’ requests or otherwise terminate the encounter.”

Bostick, 501 U.S. at 439. This “‘reasonable person’ test

presupposes an innocent person.” Id. at 438. Having

reviewed the record evidence, including the videotape of the

incident, we conclude that Wining’s encounter with Brown

and Barlett did not ripen into a seizure of Brown until the

point at which Wining ordered Brown to stand up and turn

around.

Several factors confirm that the officers’ approach began

as a consensual encounter. The “encounter occurred in the

middle of the day” and “in public view,” United States v.

Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007), and it took

place in an area where Brown was already seated when the

police arrived and from which he showed no inclination to

depart, see Bostick, 501 U.S. at 435–46 (in determining

whether the encounter was consensual, court should consider

that person approached by officer is in a place that he or she

“has no desire to leave”). The officers’ initial approach was

casual and nonthreatening, opening with the greeting,

“Howdy, guys,” followed by an open-ended question about

what they were doing. Wining promptly disclosed that the

officers were there to investigate the motel’s report of public

urination, and Wining accused Barlett of committing it.

Brown correctly realized—and said aloud—that that report

did not involve him. Officer Wining stated his suspicion that

the men were perhaps engaged in a drug deal, but both

denied it, and Wining’s questioning then shifted almost

12 UNITED STATES V. BROWN

entirely to Barlett—asking him about his needle marks and

heroin usage, his bond status, his gold-colored watch, and

his brand new Leatherman multi-tool. Wining’s questions

to Brown were generic, asking him about identification and

whether he was staying at the motel, and Wining never

suggested that Brown was not free to decline to answer or to

ignore the officer. INS v. Delgado, 466 U.S. 210, 216 (1984)

(routine request for identification “does not, by itself,

constitute a Fourth Amendment seizure”). Indeed, during

the encounter Brown felt free to take a personal phone call,

during which he was chatting and laughing, for nearly a full

minute. The officers also “made no effort to draw [Brown’s]

attention to their weapons,” and—at least initially—they did

not “use any form of physical force” or “affirmatively assert

authority over [his] movements.” Crapser, 472 F.3d at

1146; cf. United States v. Washington, 387 F.3d 1060, 1068–

69 (9th Cir. 2004) (finding a seizure where officers moved

the suspect “twenty to thirty feet away from his [apartment]

door,” refused to close the suspect’s door at the suspect’s

request, and repeatedly warned the suspect that he could be

arrested). Considering the totality of the circumstances, we

conclude that, up to the point at which Wining issued a

command to Brown to stand up and turn around, a

reasonable innocent person in Brown’s situation would have

felt free to terminate the encounter. See Delgado, 466 U.S.

at 216 (fact that “most citizens will respond to a police

request,” and “do so without being told they are free not to

respond, hardly eliminates the consensual nature of the

response”).

But the nature of the encounter changed once Wining

ordered Brown to stand up and turn around. By giving this

order, Wining “affirmatively assert[ed] authority over

[Brown’s] movements,” Crapser, 472 F.3d at 1146, and at

that point Brown was seized for Fourth Amendment

UNITED STATES V. BROWN 13

purposes. In distinguishing between a Terry stop and a full-

blown arrest, we consider whether “a reasonable person

would believe that he [or she] is being subjected to more than

a temporary detention,” Guzman-Padilla, 573 F.3d at 884

(simplified), as well as “the justification for the use of such

tactics, i.e., whether the officer had sufficient basis to fear

for his safety to warrant the intrusiveness of the action

taken,” United States v. Edwards, 761 F.3d 977, 981 (9th

Cir. 2014) (simplified). Given that it was apparent, even to

Brown, that the order was occasioned by the officers’

perceived safety concerns arising from Brown’s movement

of his hand near his pocket, a reasonable person would have

understood that the ensuing seizure was a temporary one that

was justified by safety considerations. Accordingly, this was

a Terry seizure. See id. at 981–82.

2

The only remaining question concerning the legality of

this temporary seizure of Brown is whether Wining had the

requisite reasonable suspicion to justify it. In “discussing

how reviewing courts should make reasonable-suspicion

determinations,” the Supreme Court has said “repeatedly

that they must look at the ‘totality of the circumstances’ of

each case to see whether the detaining officer has a

‘particularized and objective basis’ for suspecting legal

wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (citation omitted). “This process allows officers to

draw on their own experience and specialized training to

make inferences from and deductions about the cumulative

information available to them that ‘might well elude an

untrained person.’” Id. (citation omitted).

As an initial matter, we reject the Government’s

suggestion that, as soon as the officers arrived at the motel,

they already had reasonable suspicion that Brown was

14 UNITED STATES V. BROWN

engaged in a crime. Upon arrival, the officers had

reasonable suspicion, based on the motel staff’s report, that

Barlett may have committed public urination in violation of

California Penal Code § 370. See People v. McDonald, 40

Cal. Rptr. 3d 422, 435 (Cal. Ct. App. 2006) (“public

urination falls within the type of conduct prohibited by

section 370”). But they did not have reason to believe that

Brown had done so, because, unlike Barlett, he did not fit the

description supplied by the motel. And for similar reasons,

we reject the Government’s suggestion that, upon arrival, the

officers already had reasonable suspicion that Brown was

loitering in violation of California Penal Code § 647(h).

That section defines loitering as “to delay or linger without

a lawful purpose for being on the property [of another] and

for the purpose of committing a crime as opportunity may be

discovered.” Id. Upon arrival, the officers had no

articulable basis for concluding that Brown lacked a lawful

purpose to be on the property, much less that he was there

“for the purpose of committing a crime as opportunity may

be discovered.” Merely sitting next to a vehicle in a motel

parking lot does not, without more, give rise to reasonable

suspicion of loitering or any other crime.

But by the time that Brown was asked to stand up and

turn around—which is when the seizure commenced—the

officers had acquired additional information that gave rise to

reasonable suspicion that Barlett was there to purchase drugs

from Brown. Barlett had visible needle marks on his arms

and admitted to having used heroin in the past. His

explanation for why he had the unopened multi-tool—he had

found it “under [a] bridge”—strained credulity, and Wining

knew from his prior experience that heroin addicts may try

to barter items for drugs. Wining also knew that drug deals

were not uncommon at motels in the area, and it was also

notable that Brown and Barlett were seated behind the van,

UNITED STATES V. BROWN 15

far into the parking lot, where they would be out of view of

passing pedestrians and street traffic. Wining had also noted

their “deer-in-the-headlights” surprise when the patrol car

unexpectedly pulled into the parking lot. Giving appropriate

regard for the “specific reasonable inferences which [an

officer] is entitled to draw from the facts in light of his [or

her] experience,” Terry, 392 U.S. at 27; see also Arvizu, 534

U.S. at 273–74, we conclude that, at the point Wining

ordered Brown to stand up, he had reasonable, articulable

suspicion that Brown might be engaged in drug trafficking.

The seizure of Brown was thus lawful.

B

We turn, therefore, to whether Wining’s search of

Brown’s pocket was consistent with the Fourth Amendment.

We conclude that Wining had ample justification to conduct

a protective frisk, but that the search of Brown’s pocket

exceeded the permissible scope of such a frisk.

1

In connection with an otherwise lawful investigative

detention under Terry, “an officer may conduct a brief pat-

down (or frisk) of an individual when the officer reasonably

believes that ‘the persons with whom he [or she] is dealing

may be armed and presently dangerous.’” United States v.

I.E.V., 705 F.3d 430, 434 (9th Cir. 2012) (quoting Terry, 392

U.S. at 30). The test, again, is an objective one: “‘whether a

reasonably prudent [officer] in the circumstances would be

warranted in the belief that his [or her] safety or that of others

was in danger.’” Id. at 435 (quoting Terry, 392 U.S. at 27).

Wining testified that he saw Brown “reach his index

finger into his right pocket,” and the district court did not

16 UNITED STATES V. BROWN

clearly err in crediting that testimony. 2 We have recognized

that “abrupt movements or . . . suspicious, furtive behavior”

may “justifiably prompt[]” an officer “to fear for his [or her]

safety,” Thomas, 863 F.2d at 629, and even Brown, by

immediately raising his hands and saying “Oh, my bad, man,

my bad,” recognized that the movement of his hands had

reasonably given the officer some concern. Moreover, we

have already explained that Wining had reasonable

suspicion that Brown was engaged in narcotics trafficking,

see supra at 14–15, and we have recognized that where

“officers reasonably suspected that [a person] was involved

in narcotics activity, it was also reasonable for them to

suspect that he [or she] might be armed.” United States v.

Davis, 530 F.3d 1069, 1082–83 (9th Cir. 2008); see also

United States v. Flatter, 456 F.3d 1154, 1158 (9th Cir. 2006).

Wining therefore had adequate justification to conduct a

frisk of Brown.

2

Brown nonetheless contends that, even if Wining was

authorized to conduct a protective frisk, his search of

Brown’s right pocket exceeded what Terry and its progeny

allow. We agree.

In describing the scope of the permissible protective frisk

that is authorized during a brief investigative detention,

Terry emphasized that the “sole justification” for such a

search “is the protection of the police officer and others

nearby,” and any such search “must therefore be confined in

scope to an intrusion reasonably designed to discover guns,

2

The officers’ body camera videos confirm that Brown’s right hand

was near his pocket, but given their angles of sight, neither video

discloses what he was doing with his hand.

UNITED STATES V. BROWN 17

knives, clubs, or other hidden instruments for the assault of

the police officer.” 392 U.S. at 29. Thus, “unlike a search

without a warrant incident to a lawful arrest,” the limited

protective intrusion permitted by Terry “is not justified by

any need to prevent the disappearance or destruction of

evidence of crime.” Id. “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.” Dickerson, 508 U.S. at 373. In Terry itself, the

Court held that the officer there, after stopping three men

based on reasonable suspicion that they were planning to

commit a robbery, properly limited his protective search to

“what was minimally necessary to learn whether the men

were armed and to disarm them once he discovered the

weapons.” 392 U.S. at 30. Specifically, the officer “patted

down the outer clothing” of the three men, and he “did not

place his hands in their pockets or under the outer surface of

their garments until he had felt weapons” in the clothing of

two of the men, and “then he merely reached for and

removed the guns” that he felt. Id. at 29–30 (emphasis

added); see also id. at 7. As to the third man, the officer

“never did invade [his] person beyond the outer surfaces of

his clothes, since [the officer] discovered nothing in his pat-

down which might have been a weapon.” Id. at 30.

In a companion case to Terry, the Supreme Court

addressed how these limits apply in the context of an officer

who, as in this case, performed a protective pocket search

rather than a patdown. See Sibron, 392 U.S. 40. In Sibron,

the officer observed “Sibron talking to a number of known

narcotics addicts over a period of eight hours,” id. at 62, and

the officer ultimately approached Sibron at a restaurant and

“told him to come outside,” id. at 45. Once outside, the

officer said to Sibron, “You know what I am after.” Id.

Sibron reached into his pocket, and the officer then “thrust

18 UNITED STATES V. BROWN

his hand into the same pocket, discovering several glassine

envelopes, which, it turned out, contained heroin.” Id. The

Court concluded that, with the meager information the

officer had about Sibron, there were no reasonable grounds

to suspect him of a crime. Id. at 62–63. And given that the

officer had not claimed that he thought Sibron was reaching

for a weapon, the Court also concluded that there was no

justification for a protective search of Sibron for weapons.

Id. at 64 & n.21.

But the Court also went on to hold that, “[e]ven assuming

arguendo that there were adequate grounds to search Sibron

for weapons, the nature and scope of the search conducted

by [the officer] were so clearly unrelated to that justification

as to render the heroin inadmissible.” Id. at 65. As the Court

explained, the “search for weapons approved in Terry

consisted solely of a limited patting of the outer clothing of

the suspect for concealed objects which might be used as

instruments of assault,” and it was only after feeling such

weapons that the officer in Terry had “place[d] his hands in

the pockets of the men he searched.” Id. By contrast, the

officer in Sibron made “no attempt at an initial limited

exploration for arms,” but simply “thrust his hand into

Sibron’s pocket and took from him envelopes of heroin.” Id.

As a result, the Court concluded, “[t]he search was not

reasonably limited in scope to the accomplishment of the

only goal which might conceivably have justified its

inception—the protection of the officer by disarming a

potentially dangerous man.” Id. The search of Sibron’s

pocket therefore “violate[d] the guarantee of the Fourth

Amendment, which protects the sanctity of the person

against unreasonable intrusions on the part of all government

agents.” Id. at 65–66.

UNITED STATES V. BROWN 19

In Dickerson, the Supreme Court reaffirmed these

limitations on the scope of a protective search during a Terry

stop, stating that “[t]hese principles were settled 25 years ago

when, on the same day, the Court announced its decisions in

Terry and Sibron.” 508 U.S. at 373. The officer in

Dickerson conducted a Terry stop and a patdown for

weapons, and in doing so, he felt inside Dickerson’s pocket

a “small, hard object” that the officer recognized was not a

weapon. Id. at 377–78. The Court acknowledged that, if it

had been “immediately apparent” to the officer, from the

patdown, that the object was narcotics, then probable cause

would exist for a warrantless seizure of those narcotics. Id.

at 375–77. But the Court noted that, on the facts of the case

before it, the officer made that discovery “only after

squeezing, sliding and otherwise manipulating the contents

of [Dickerson’s] pocket—a pocket which the officer already

knew contained no weapon.” Id. at 378 (citation and internal

quotation marks omitted). The Court held that, by

continuing to probe the feel of the item in Dickerson’s

pocket after having already determined that it was not a

weapon, “the police officer in this case overstepped the

bounds of the ‘strictly circumscribed’ search for weapons

allowed under Terry.” Id. (quoting Terry, 392 U.S. at 26).

The Court reiterated that the “sole justification” for such

protective searches during Terry stops is to determine

whether weapons are present, and by employing methods

that went beyond that objective, the officer in Dickerson

conducted “the sort of evidentiary search that Terry

expressly refused to authorize.” Id.

Here, as in Sibron and Dickerson, the officer exceeded

the bounds of the weapons search permitted by Terry. That

conclusion is compelled by Sibron, which in the relevant

respects is on all fours with this case. Here, as in Sibron, the

police officer did not bother to conduct “an initial limited

20 UNITED STATES V. BROWN

exploration for arms,” or any other less intrusive

examination, but instead proceeded immediately to search

the detainee’s pocket. 3 Sibron, 392 U.S. at 65. And here, as

in Sibron, there were no special factors that might have

suggested the need for such immediate and more intrusive

measures. In both cases, for example, the detainee was

compliant, the officers were not outnumbered, and the

encounter occurred in a public place. In such circumstances,

Sibron expressly distinguished this sort of failure to

undertake any less intrusive measure to accomplish the

protective search from the “search for weapons approved in

Terry,” in which the officer first conducted a patdown and

only reached into the pocket when the patdown revealed that

weapons might be inside. 392 U.S. at 65. Sibron held that,

by immediately proceeding to extract and examine contents

from the detainee’s pocket, the officer conducted a search

that “was not reasonably limited in scope to the

accomplishment of the only goal which might conceivably

have justified its inception—the protection of the officer by

disarming a potentially dangerous man.” Id. The same is

true here.

Although Brown relied on Sibron for this point in his

opening brief, the Government failed even to mention the

case in its answering brief. At argument, the Government

suggested that Sibron is distinguishable because the Court

noted that the officer in Sibron had not testified that he acted

out of safety concerns. But this goes more to the Court’s

3

In this case, unlike in Sibron, the officer announced, “I’m going to

check, OK?” before putting his fingers in Brown’s pocket. The

Government has not contended, either in the district court or in this court,

that Wining’s comment somehow means that Brown provided voluntary

consent to the search. Any such contention has therefore been forfeited.

United States v. Johnson, 812 F.3d 757, 762 n.1 (9th Cir. 2016).

UNITED STATES V. BROWN 21

alternative conclusion that the officer in Sibron lacked

adequate cause to conduct a protective search in the first

place, id. at 63–64, and it ignores the fact that the Court also

proceeded to hold that, “[e]ven assuming arguendo that

there were adequate grounds to search Sibron for weapons,

the nature and scope of the search conducted by [the officer]

were so clearly unrelated to that justification as to render the

heroin inadmissible,” id. at 65 (emphasis added). This

alternative holding is not dicta, see Woods v. Interstate

Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a decision

rests on two or more grounds, none can be relegated to the

category of obiter dictum.”); accord United States v.

Bagdasarian, 652 F.3d 1113, 1118 & n.16 (9th Cir. 2011),

and that is especially true given Dickerson’s express

reaffirmation that the relevant principles governing the

scope of a protective search “were settled 25 years ago when,

on the same day, the Court announced its decisions in Terry

and Sibron.” 508 U.S. at 373 (specifically citing this portion

of Sibron, 392 U.S. at 65–66). Sibron’s holding that the

“nature and scope” of the immediate pocket search were

unreasonable confirms that the relevant inquiry is an

objective one that focuses on whether the intrusion was

“reasonably limited in scope to the accomplishment” of its

protective purpose. 392 U.S. at 65. Here, the officer’s

immediate action in proceeding to remove and examine an

item from Brown’s pocket objectively exceeded what was

necessary to verify that Brown did not have a weapon.

The Government notes that courts have not required that

officers employ a patdown as the sole initial method of

conducting a protective search under Terry. This

observation provides no basis for evading Sibron here. The

Government cites no case in which the Supreme Court or this

court has ever upheld a pocket search as the initial means of

conducting a protective search of a fully compliant detainee

22 UNITED STATES V. BROWN

during a Terry stop. Moreover, the cases that have upheld

initial methods, other than a patdown, for conducting a

protective search only serve to highlight the

unreasonableness of the initial pocket search here.

For example, in Adams v. Williams, 407 U.S. 143 (1972),

an officer conducted a Terry stop based on an informant’s

tip that a man sitting in a particular nearby vehicle at 2:15

AM in a high-crime area “had a gun at his waist” and was

carrying drugs. Id. at 144–45. After the officer approached

the car and asked the occupant to open the car door and to

step outside, the occupant ignored that request and instead

stayed in the car and rolled down the window. Id. at 145,

148. The officer immediately reached through the window

and grabbed a loaded gun, which had not been visible from

outside of the car, from the occupant’s waistband, “precisely

the place indicated by the informant.” Id. at 145. The Court

held that, “[u]nder these circumstances the policeman’s

action in reaching to the spot where the gun was thought to

be hidden constituted a limited intrusion designed to insure

his safety,” “was reasonable,” and was consistent with Terry.

Id. at 148. Adams bears no resemblance to this case. It did

not involve a pocket search as the initial means of intrusion;

rather, it involved the immediate grabbing of a gun from the

waistband of an uncooperative suspect in precisely the place

where an informant had said it would be. Indeed, the Court

in Adams specifically highlighted the fact that the suspect’s

refusal “to step out of the car so that his movements could

more easily be seen” presented an “even greater threat” to

the officer’s safety that justified a more direct and focused

protective intrusion. Id. Moreover, the encounter in Adams

took place in middle-of-the-night circumstances that would

reasonably be thought to present additional risks. Id. at 147.

Nothing in Adams justifies the officer’s decision in this case

UNITED STATES V. BROWN 23

to conduct an immediate pocket search of a fully compliant

detainee in broad daylight in a public place.

The Government relies on our decision in United States

v. Hill, 545 F.2d 1191 (9th Cir. 1976), but it too is inapposite.

In Hill, police officers were investigating an armed robbery

of a local bank. Id. at 1192. The report of the robbery

indicated that the perpetrator, “lifting his shirt,” had

“displayed to the teller what appeared to be a gun.” Id.

Thus, as in Adams, the officers had specific information

indicating that a gun would be in a particular place on a

particular individual. An officer encountered Hill in the

immediate vicinity of the robbery and intended to ask him

whether he had seen the suspect “running through the area,”

but the officer “noticed a large bulge at [Hill’s] waistband

which he suspected of being caused by a weapon.” Id.

Without patting Hill down, the officer lifted Hill’s untucked

shirt and found not a gun, but the money Hill had stolen from

the bank. Id. at 1192–93. In holding that the officer’s

actions “did not transcend the permissible bounds

established by Terry,” we emphasized that the officer had

not conducted a “general exploratory search[],” but only a

“direct and specific inquiry” that corresponded to the report

of a gun in the suspect’s waistband under his shirt. Id. at

1193. Notably, we distinguished Sibron on the grounds that

it “involve[d] pocket searches,” and we also noted that in

Sibron there was no justification for a protective search in

the first place. Id. Hill, like Adams, confirms that in some

circumstances, the initial method for conducting a protective

search during a Terry stop need not be a patdown. See

United States v. Baker, 78 F.3d 135, 136, 138 (4th Cir. 1996)

(officer’s order that suspect lift his shirt, thereby revealing a

gun, was justified by Terry after officer noticed a bulge

under the suspect’s shirt). But neither case supports the quite

24 UNITED STATES V. BROWN

different proposition that the initial method may be a pocket

search of a fully compliant detainee.

The Government nonetheless seizes on Hill’s comment

that, “[a]ny limited intrusion designed to discover guns,

knives, clubs or other instruments of assault are [sic]

permissible” during a Terry protective search, id. at 1193,

and it therefore argues that immediate pocket searches are

always allowed during Terry stops. The Government errs in

overreading this comment, which says nothing more than

that a properly “limited” intrusion is permissible. We know

from Sibron that the intrusion in this case was not “limited”

in the manner that Terry and Sibron require. Moreover, the

Government’s overreading of this remark is impossible to

square with the Court’s holding in Dickerson. There, as we

have explained, the Court held that a patdown of a pocket

exceeded in length and intrusiveness what was necessary to

verify that the suspect did not have a weapon. 508 U.S. at

378–79. According to the Government’s view, however, the

primary error that the officer in Dickerson made was

apparently not to exercise his supposed authority to

immediately start with a direct pocket search. Such a view

would eviscerate both Dickerson and Sibron, and so it cannot

be correct. Indeed, the Government’s position that officers

can always choose to begin with pocket searches would

erase the critical distinction that Dickerson underscored

between a limited intrusion to detect weapons and a general

search “‘to discover evidence of crime.’” Id. at 373 (citation

omitted).

The Government also claims that this court “has already

specifically approved pocket searches as reasonable

protective searches,” citing United States v. Thompson, 597

F.2d 187 (9th Cir. 1979), and United States v. Hoffman, 762

F. App’x 397 (9th Cir. 2019). These cases are

UNITED STATES V. BROWN 25

distinguishable in a way that proves the Government’s error.

In both cases, the officer only performed a pocket search

after initially performing a less intrusive patdown that was

inconclusive. See Thompson, 597 F.2d at 191 (holding that

pocket search was “justified” because of the officer’s

“inability to determine from a pat-down whether the pocket

of the bulky coat contained a weapon”); Hoffman, 762

F. App’x at 399–400 (holding that officer was justified in

removing objects from Hoffman’s pocket that, based on his

initial patdown, “he had not yet ruled out as a weapon”).

Nothing in these cases supports what the Government asserts

here, which is a right directly to proceed to a pocket search

as the initial method of conducting a protective search of a

fully cooperative detainee during a Terry stop.

Finally, the Government relies on the Fifth Circuit’s

decision in United States v. Reyes, 349 F.3d 219 (5th Cir.

2003), which concluded that an officer’s order to the

detainee to empty his pockets and lift his shirt was a

reasonable protective search under Terry. Id. at 225.

However, the Government overlooks the fact that Reyes does

not indicate that anything was found in Reyes’s pockets and

that the opinion instead describes his motion to suppress as

directed only to the discovery of a taped package of drugs

when he was asked to lift his shirt. Id. at 222, 225. Although

the Fifth Circuit also suggested that the order to empty the

pockets was reasonable, id. at 225, that observation was dicta

and is inconsistent with Sibron and Dickerson.

Given that Brown was fully compliant and there were no

special circumstances indicating a need for more

immediately intrusive measures, the officer’s direct search

of Brown’s pocket “was not reasonably limited in scope to

the accomplishment of the only goal which might

conceivably have justified its inception—the protection of

26 UNITED STATES V. BROWN

the officer by disarming a potentially dangerous man.”

Sibron, 392 U.S. at 65; see also United States v. Casado, 303

F.3d 440, 448–49 (2d Cir. 2002) (where “[t]he less intrusive

alternative of a frisk was obvious, commonly employed, and

would have been effective” to ensure officer safety, a pocket

search was unreasonable); United States v. Aquino, 674 F.3d

918, 925–26 (8th Cir. 2012) (searching underneath

handcuffed suspect’s pant leg was unreasonable because

“[s]earching under articles of clothing . . . is necessarily

more intrusive than a pat down”). And the Government has

pointed us to nothing else concerning the traditional

understanding of the Fourth Amendment’s protections that

would justify the pocket search conducted here. Cf.

Dickerson, 508 U.S. at 381–82 (Scalia, J., concurring)

(discussing the extent to which the limited frisk authority

recognized in Terry is consistent with original meaning).

Because the scope of the search in this case exceeded

Sibron’s limits, that search was “no longer valid under Terry

and its fruits [must] be suppressed.” Id. at 373 (citing

Sibron, 392 U.S. at 65–66). The district court therefore erred

in denying Brown’s motion to suppress. 4

REVERSED and REMANDED.

4

We reject, however, Brown’s contention that the evidence at trial

was insufficient to sustain a conviction, thereby barring on that basis any

possibility of a retrial. See United States v. Lewis, 787 F.2d 1318, 1323

(9th Cir. 1986) (“Even though we reverse that conviction, we must

address the sufficiency of the evidence supporting it, for if the evidence

were insufficient, retrial is barred by the Double Jeopardy Clause.”).

Especially given the motel surveillance video showing various persons

briefly interacting with Brown over the hour preceding his encounter

with the officers, a rational jury could reasonably conclude that he was

distributing heroin in the motel parking lot.