©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)

On July 17, 2012, the Ninth Circuit Court of Appeals decided the United States v. Pope [i] in which they analyzed, under the Fourth Amendment, an officer’s command to a suspect to empty his pockets.  The facts of Pope are as follows:

On August 16, 2009, Forest Law Enforcement Officer Marcus drove to a large gathering of people in the El Dorado National Forest after receiving reports of loud music and use of a public address system. He was the only officer at the scene.

Pope approached Officer Marcus after Officer Marcus had placed one of Pope’s passengers in the back of the officer’s patrol car. From his observation of Pope, Officer Marcus almost immediately formed the belief that Pope was under the influence of marijuana. Officer Marcus asked Pope if he had been smoking marijuana, and Pope admitted that he had. Officer Marcus then asked Pope if he had any marijuana “on him.” Pope denied this. Officer Marcus then ordered Pope to empty his pockets. Although Pope’s hands were close to his pockets, he made no move to empty them. Officer Marcus asked him again if he had any marijuana in his possession. This time, Pope admitted that he did. Officer Marcus then directed Pope to place the marijuana on the hood of the patrol car. In response, Pope produced marijuana from his pockets and placed it on the hood of the patrol car. Officer Marcus cited Pope for possession of marijuana and allowed him to leave.

The government filed an information charging Pope with one count of misdemeanor possession of marijuana in violation of 21 U.S.C. § 844(a). [ii]

Pope filed a motion to suppress and alleged that the officer’s commands to empty his pockets were illegal searches under the Fourth Amendment.  The trial disagreed and denied the motion.  He pled guilty with the right appeal the denial of his motion to suppress.  He then appealed the denial of the motion to suppress to the Ninth Circuit Court of Appeals.

On appeal, Pope argued that (1) the first order to empty his pockets was an illegal search under the Fourth Amendment, (2) the second command was illegal because it was not supported by probable cause, and (3) the search incident to arrest exception did not apply because he was never arrested.

The first issue the court addressed was whether the officer’s first command to Pope to empty his pockets, the command with which Pope did not comply was an illegal search under the Fourth Amendment.  The Ninth Circuit stated:

We conclude it does not [violate the Fourth Amendment]. Pope did nothing to comply with Officer Marcus’ initial command and thus nothing that was not already exposed to the public was revealed. Neither Officer Marcus nor his verbal command produced any invasion of privacy, whether based on societal expectations or physical trespass. Therefore, Officer Marcus’ initial command, without compliance, did not effect a search under the Fourth Amendment. Cf. California v. Hodari D., 499 U.S. 621, 629, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (holding no Fourth Amendment seizure occurred when juvenile did not comply with officer’s command to halt). [iii]

It is important to note that the reason this first command was not a violation of the Fourth Amendment was because Pope did not comply.  The Ninth Circuit contrasted Pope’s case with a previous Ninth Circuit case, United States v. Winsor. [iv] In Winsor, officers commanded the defendant to open the door of his motel room.  He complied, which allowed officers to see into the room, although they were standing outside the doorway.  The Ninth Circuit held that because the police command of authority is what gave them a view of a constitutionally protected area, it was a “search” under the Fourth Amendment.  However, in Winsor, unlike Pope, the suspect complied and opened the door, which consummated the “search.”

The second issue considered by the court was whether the second command to Pope to empty his pockets was properly held by the district court as a search incident to arrest.  Pope argues it was not a search incident to arrest because he was never arrested.  The Ninth Circuit stated that there was no legal authority (case law) that was offered to support the search incident to arrest justification when there is no actual arrest.  However, the court also stated that the search may be upheld under a different rationale.  The Ninth Circuit stated:

The United States Supreme Court in Murphy made clear that a formal arrest is not always necessary to conduct a search without a warrant. Id. at 295-96. In Murphy, the Court upheld the warrantless search for scrapings under a suspect’s fingernails, which ultimately revealed traces of blood and skin cells and fabric from the strangled victim’s nightgown, even though the suspect had not been placed under formal arrest. Id. First, prior to the search there was probable cause to believe the suspect committed murder. Id. at 294-95. Second, the search of the suspect’s fingernails was reasonably related to the circumstances necessitating the intrusion because (1) the detention of the suspect “sufficiently apprised” the suspect of the officer’s suspicions “to motivate him to attempt to destroy what evidence he could without attracting further attention”; (2) the evidence (the residue of blood, skin, and fabric under the suspect’s fingernails) was “read[ily] destructib[ le]”; and (3) the search itself was a “very limited intrusion.” Id. at 296.

The court, in applying the Supreme Court’s decision in Murphy to Pope’s case noted that probable cause existed when Pope admitted that he possessed marijuana.  The court also noted that marijuana is easily destroyable and would have been lost if the officer had taken the time to obtain a warrant. Lastly, the court noted that the “search” that was conducted was minimally intrusive in that the officer merely instructed Pope to place whatever marijuana he had on the hood of the car.  As such, the Ninth Circuit upheld the warrantless search of Pope’s pockets.

The court stated:

Officer Marcus’ second command for Pope to empty his pockets, which constituted a Fourth Amendment search, was a justified warrantless search because there was probable cause to believe Pope was possessing marijuana, there was a high risk that the evidence would be destroyed, and the search was a very limited intrusion. [v]

As such, the Ninth Circuit affirmed the denial of the motion to suppress.


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] 11-10311, 2012 U.S. App. LEXIS 14612 (9th Cir. 2012)

[ii] Id. at 2-4

[iii] Id. at 6-7

[iv] 846 F.2d 1569 (1988)

[v] Id. at 17

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