©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 22, 2012, the Eighth Circuit Court of Appeals decided the United States v. Aquino [i], which serves as an excellent review for Constitutional law related to stops and searches of persons. The facts of Aquino, taken directly from the case are as follows:
Four officers involved in the Commercial Interdiction Unit (CIU) of the Nebraska State Patrol met at the Omaha Bus Depot on February 8, 2010, to intercept people who may be transporting controlled substances or illegal items while riding the bus. A Greyhound bus arrived from Denver on its way to Chicago with Aquino as one of its passengers. When the bus parked next to the terminal for servicing, the CIU officers observed the passengers as they exited the bus to enter the terminal.
Two CIU officers, Scott and Rasgorshek, followed one of the bus passengers as he walked through the main terminal and back outside to the terminal’s north portico. A third CIU officer, Lutter, followed the two officers to observe any activity around the two officers as they contacted the bus passenger. As the first two officers were speaking to the passenger on the north side of the terminal, Lutter noticed Aquino taking an interest in the encounter. Lutter saw Aquino talking on his cell phone, and thought Aquino was commenting on the first two officers’ encounter with the passenger. Scott and Rasgorshek finished their encounter with the first passenger and reentered the terminal to speak with a second passenger. Lutter noticed Aquino also take an interest in the officers’ encounter with a second bus passenger.
Lutter then left the bus terminal to assist the fourth CIU officer, Orduna, with a suspicious bag next to the bus. As the passengers were re-boarding the bus, the officers stood by the bus door asking each passenger if the bag was theirs. When Aquino passed by the officers, he stated the bag was not his. When a different passenger claimed ownership of the bag, Orduna and Rasgorshek began to talk with that passenger. Lutter entered the bus and immediately approached Aquino, who was seated about half-way to the back of the bus on the driver’s side. Lutter, who is 6′ 6″ tall and weighs 240 pounds, stepped past Aquino and then turned back, showing Aquino his identification as a law enforcement officer. Scott accompanied Lutter, kneeling on a seat on the opposite side of the bus, approximately two rows in front of where Aquino was seated. Both Scott and Lutter focused only on Aquino, and did not approach any other bus passengers. Lutter told Aquino he was a law enforcement officer. He then explained that no one was in trouble and no one was under arrest, but wondered if Aquino would talk to him. Aquino asked if he had to get off the bus. Lutter told Aquino he did not have to exit the bus unless he wanted to do so. Aquino remained in his seat.
Lutter first asked Aquino about his travel itinerary. Aquino informed him he was traveling from Merced, California, to Des Moines, Iowa. Aquino also gave Lutter his bus ticket after being asked to do so. Lutter noted the ticket was for a one-way passage and had been paid for in cash. Lutter next asked Aquino for some identification. Aquino gave Lutter a California ID. Lutter returned the ticket and the ID to Aquino after looking at them. By this time, the original passengers coming from Denver had all re-entered the bus and the bus driver had begun boarding the new passengers from Omaha. Lutter’s conversation with Aquino did not delay the bus’s departure as the driver was still preparing for departure.
At this point in the encounter, Lutter informed Aquino he was watching for people at the bus station who may be transporting controlled substances or illegal items such as bombs or knives. Lutter specifically informed Aquino that he wanted to talk to him because he noticed his actions in the terminal while watching two of the officers speak to other passengers, and because Aquino appeared to be nervous while observing the officer/passenger encounters. Lutter then asked Aquino if he had any bags. Aquino said he did. Lutter asked Aquino to exit the bus and show him his bag. Aquino walked off the bus followed by Lutter. Scott also exited the bus with Lutter and Aquino.
After exiting the bus, the men first went to the passenger side of the bus to look in the undercarriage area, which was filled with freight but no bags. The group then walked to the driver’s side of the bus where Aquino located his bag in the undercarriage luggage area. Lutter asked Aquino if he could search both the bag and Aquino’s person. Aquino agreed to let the officer search his bag. Lutter then asked if he could conduct a pat-down search of Aquino’s person. Aquino said he did not want the officer to touch him. Lutter then asked Aquino if he would unzip his coat and hold his clothing next to his body so that Lutter could tell if there was anything secured under his clothing. Aquino opened his jacket and pulled his clothing tight to his body. Lutter observed nothing unusual. Lutter then asked Aquino to do the same thing with his dark-colored, baggy jeans. Aquino complied by pulling the thigh area tight on both pant legs, but not the lower portion of the leg area. Lutter said Aquino appeared to be very nervous and fidgety at this point, and was unable to maintain eye contact with him.
Lutter next asked Aquino to pull the lower portion of his pant legs tight around his ankles and calf area. Aquino made half-attempts to do so by using only one hand on each leg. At this point, Lutter noticed an unnatural bulge on the inside of Aquino’s right calf. Lutter then asked Aquino to lift his pants up above the bulge. Aquino refused. Lutter then placed Aquino in handcuffs, testifying he did so as a precautionary safety measure. Without first conducting a pat down, Lutter immediately lifted Aquino’s pant leg above the bulge and saw a duct-taped bundle strapped on Aquino’s right leg. Based upon his training and experience,Lutter believed the now-revealed bundle contained a controlled substance. Aquino was then escorted into the rear office area of the bus terminal and advised of his Miranda rights. Aquino declined to waive his rights and asked for an attorney. At this point, the package was removed from Aquino’s right leg and his body was further searched. Two other packages were found taped to Aquino, one on his left leg and one in his crotch area. All of the packages contained methamphetamine. [ii]
Aquino was arrested for possession of methamphetamine with intent to distribute. He filed a motion to suppress the evidence which was granted by the district court. The government appealed the grant of the motion to suppress to the Eighth Circuit Court of Appeals.
The issue before the court of appeals was whether the officer’s observations of a bulge underneath Aquino’s clothing, standing alone, amounted to probable cause to arrest and search him.
At the outset of its examination of law relevant to this case, the court of appeals noted that the Fourth Amendment is not implicated by officers when they engage in a consensual encounter with a person. [iii] They also noted, however, that a consensual encounter can become non-consensual and trigger the Fourth Amendment, when the officers act in a manner that would lead a reasonable person to believe that he or she was not free to leave. [iv] The court further noted that whether an encounter is consensual or non-consensual is an issue that must be determined based upon the totality of the circumstances in consideration of seven factors. The seven factors are as follows:
[The] officers positioning themselves in a way to limit the person’s freedom of movement, the presence of several officers, the display of weapons by officers, physical touching, the use of language or intonation indicating compliance is necessary, the officer’s retention of the person’s property, or an officer’s indication the person is the focus of a particular investigation. United States v. Griffith, 533 F.3d 979, 983 (8th Cir. 2008). [v]
While the above factors are not exclusive, they should be considered when determining whether or not an encounter is consensual. If the encounter is not consensual, then it is either an investigative detention, also known as a Terry stop, or an arrest. If the encounter is an investigative detention, it must be supported by reasonable, articulable suspicion that the person being detained is involved in criminal activity. Further, if the officer has reasonable, articulable suspicion that the person being detained may be armed and presently dangerous, the officer may conduct a limited search of the person for weapons. [vi] Regarding this limited search for weapons, the court of appeals stated:
Because of the limited scope of an investigatory detention under Terry, officers “must use the least intrusive means that are reasonably necessary” to protect officer safety. United States v. Correa, 641 F.3d 961, 967 (8th Cir. 2011). [vii]
This limited search has typically been described as a pat-down of the outer clothing for weapons.
The court of appeals also noted that if an officer exceeds the permissible scope of an investigative detention, the detention is transformed into an arrest, which must be supported by probable cause. [viii]
Regarding Eighth Circuit precedents related directly to the issue of whether an officer’s observation of a bulge underneath a person’s clothing amounts to probable cause to arrest for drug possession, the court examined three cases that all stand for the proposition that:
[T]he mere presence of a bulge under a person’s clothing, which is not part of the person’s anatomy, does not amount to evidence of drug possession. [ix]
The court also noted that searching under person’s clothing is more intrusive than a typical “pat-down” type of search and, as such, is not the least intrusive means that can be employed to protect the officer. [x]
In light of the aforementioned legal principals, in Aquino, the court of appeals stated:
We conclude that, as a matter of law on this record, [the officer] could have protected his safety and the safety of others by employing the less serious intrusion, a patdown, that the method was obvious and well known to him, and that there is no valid reason apparent on the record for his not using it. We therefore hold that the failure to use the pat-down in these circumstances rendered the search “unreasonable.” [xi]
Thus, this court holding indicates that the observation of the bulge would have allowed the officer to legally conduct a pat-down of the outer clothing at the bulge to determine if it was a weapon. However, lifting the clothing to observe was a more intrusive search that transformed the incident into an arrest that was not supported by probable cause.
As such, the Eight Circuit Court of Appeals upheld the grant of the motion to suppress.
Important Safety Note
It is important to note that the court did state that there are situations where it is considered reasonable for an officer to by-pass the less intrusive pat-down and immediately conduct a more intrusive search. [xii] The first case discussed to support this principle was the United States Supreme Court case of Adams v. Williams. [xiii] In Adams, the Supreme Court concluded that:
An officer who “was alone early in the morning on car patrol duty in a high-crime area” and investigating a reliable tip that a suspect “was carrying narcotics and had a gun at his waist” acted reasonably when he reached into the suspect’s open car window and removed a loaded weapon from the suspect’s waistband without first conducting a pat down. [xiv]
The second case discussed in support of the above legal principal was the United States v. Baker[xv], from the Fourth Circuit Court of Appeals. In Baker, the Fourth Circuit held that:
An officer who noticed a bulge underneath the front of a suspect’s shirt acted reasonably by directing the suspect to raise his shirt instead of conducting a pat down because of “the inordinate risk of danger to law enforcement officers during traffic stops” and because the request “allowed [the officer to immediately determine whether [the suspect] was armed without having to come in close contact with him. [xvi]
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-1372, 2012 U.S. App. LEXIS 5970 (8th Cir. Decided March 22, 2012)
[ii] Id. at 2-7
[iii] Id. at 10
[v] Id. at 10-11
[vi] Id. at 12
[vii] Id. at 13
[viii] Id. (See Peterson v. City of Plymouth, Minn., 945 F.2d 1416, 1419 (8th Cir. 1991) (listing the factors a court should consider “[i]n determining whether an officer’s conduct during a purported investigatory stop exceeded the scope justified under the circumstances, thereby transforming the stop into an arrest”); see also United States v. Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (addressing whether an investigatory detention exceeded [*14] the permissible scope of Terry due to its length and became a “de facto arrest”).
[ix] Id. at 16 (see United States v. Eustaquio, 198 F.3d 1068 (8th Cir. 1999); United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir. 1999); United States v. Jones, 254 F.3d 692 (8th Cir. 2001))
[x] Id. at 19
[xi] Id. at 20-21
[xii] Id at 21
[xiii] 407 U.S. 143 (1972)
[xiv] Id. (citing Adams, 407 U.S. at 144-148)
[xv] 78 F.3d 135 (4th Cir. 1996)
[xvi] Id. at 21-22 (citing Baker, 78 F.3d 137-138)