On February 18, 2021, the Eighth Circuit Court of Appeals decided the United States v. Moreno[i], which serves as an excellent review regarding the law related to frisks. The facts of Moreno are as follows:
On September 13, 2018, several plain-clothes officers with Nebraska State Patrol were conducting drug surveillance at the Trailways bus station in Omaha. Trooper Brandon Wilkie was working alongside Sergeant Thomas Meola, a supervisor with the Drug Enforcement Agency Task Force in Omaha who has received counter-terrorism training. At approximately 6:00 a.m., the officers noticed a new, black hard-side suitcase on the curb, along with other pieces of luggage that had arrived from Denver, Colorado. The suitcase appeared suspicious to the officers for two reasons: it did not have a personal luggage tag, and the phone number listed on the bus company’s destination tag was a series of identical digits.
Trooper Wilkie asked a group of passengers standing nearby whether the bag belonged to them, and Moreno eventually claimed it. Trooper Wilkie identified himself, asked to see Moreno’s bus ticket, and asked about her travel plans. Moreno provided identification along with her ticket. Moreno stated that she was traveling from Las Vegas to New York. Her ticket, however, showed that she was traveling from Denver to Chicago. Trooper Wilkie noted the discrepancy, and he observed that Moreno’s hands were shaking. Sergeant Meola noticed that the destination tag on Moreno’s suitcase indicated it was checked-in at Denver, not Las Vegas. He also found it suspicious that Moreno had not checked the suitcase to her final destination, which, as a result, required Moreno to claim her luggage at every stop, then recheck it to make sure it got placed back on the bus. In Sergeant Meola’s experience, this behavior was typical in drug operations.
Trooper Wilkie asked to search Moreno’s bag, and she consented. He did not find any drugs or other incriminating evidence in the suitcase. While Trooper Wilkie searched the bag, Sergeant Meola walked over to Moreno, who was wearing a blanket around her shoulders. Sergeant Meola noticed that Moreno’s left arm appeared to be out-of-place, and she was holding the blanket together at her waistline in an unnatural way. According to Sergeant Meola, Moreno appeared to be carrying something attached to her body located underneath the blanket, which he did not believe was a bandage or a back brace, but he later testified could have been a book. When Sergeant Meola asked Moreno whether she was carrying anything on her body, Moreno responded “no” three times, emphatically. Sergeant Meola believed Moreno’s behavior showed signs of stress.
Sergeant Meola asked Moreno to open her blanket, and she turned around to do so, facing away from the officers. When Sergeant Meola asked Moreno to turn towards him, she complied, but she bent forward at the waist. Sergeant Meola viewed Moreno’s behavior as odd. Although Moreno’s shirt hung loosely, Sergeant Meola saw the outline of an object at her side, which he believed could be a gun or a bomb. Sergeant Meola later explained that he was on heightened alert because of the proximity to the September 11th anniversary, and the bus station could be a soft target for terrorist attacks, especially given its lack of other security.
Sergeant Meola again asked Moreno if she had anything strapped to her body, and she said “no.” Without permission, Sergeant Meola reached under the blanket and touched her clothing where he could see the outline of the object attached to her body. Based on his experience, Sergeant Meola immediately determined the object was a kilo-sized brick of drugs. Sergeant Meola quickly handcuffed Moreno and led her to an administrative office where she consented to a search. Officers recovered two large bricks attached to her midsection, which later field-tested positive for heroin.[ii]
Moreno was charged under federal law for possession of heroin with intent to distribute. She filed a motion to suppress and argued that the officers lacked a reasonable belief that she was armed and dangerous, and as such, the heroin was discovered by an unlawful search. The district court denied the motion. Moreno pled guilty with the right to appeal the denial of the motion to suppress. She then filed an appeal with the Eighth Circuit Court of Appeals.
There were two issues on appeal. The first issue was whether the officer had a reasonable belief that Moreno was armed and dangerous. The second issue was whether the officer exceeded the permissible scope of the frisk when he seized the drugs.
Issue One: Whether the officer had a reasonable belief that Morena was armed and dangerous?
The court first examined the law related to this issue. The court stated
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. CONST. amend. IV; Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The law nevertheless permits a law enforcement officer to conduct “a limited, warrantless search for the protection of himself or others nearby in order to discover weapons” so long as the search is based on “a reasonable, articulable suspicion that the person may be armed and presently dangerous.” United States v. Roggeman, 279 F.3d 573, 577 (8th Cir. 2002). When evaluating the lawfulness of a protective search, “the totality of the circumstances — the whole picture — must be taken into account.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Under an objective standard, the question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.[iii]
Moreno argued that there was insufficient evidence to provide the officer with a reasonable belief that she was armed and dangerous. The court of appeals noted that the level of proof needed to support reasonable suspicion is “considerably less” than the preponderance of the evidence standard and “obviously less” than the probable cause standard.[iv]
The court then set out to apply the facts in Moreno’s case to the legal principles above. First, the court noted that Moreno first caught the attention of the officers because her suitcase lacked a personal tag and appeared to have a bogus telephone number attached. Second, she did not check her bag, which indicated she wanted to keep it with her. Third, when the officer questioned her about her itinerary, her hands were visibly shaking. Fourth, although the officer observed an obvious bulge under Moreno’s clothing, she emphatically denied carrying anything on her body. Fifth, she turned her body away from the officer and bent over to attempt to obscure the officer’s view of the bulge. Sixth, the officer had received counter-terrorism training, this incident occurred near the anniversary of September 11, and bus stations could be a soft target for terrorist activity.
Moreno argued that a bulge under her clothing was insufficient to establish a reasonable belief that she was armed and dangerous. However, the officers had more than just the presence of a bulge, citing the six facts listed in the preceding paragraph. The court stated
Sergeant Meola “need not be absolutely certain” that Moreno was armed; the question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27. We find that Sergeant Meola was warranted in performing a brief protective search to determine whether, in fact, the bulge at Moreno’s side was a weapon or bomb. See Roggeman, 279 F.3d at 579-80 (officer’s observance of a bulge in suspect’s pants was a “substantial factor” in justifying the protective frisk); see also United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (HN5[ ] “Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction.”).[v]
Thus, the court held that the officer did possess a reasonable belief that Moreno was armed and dangerous such that a frisk was reasonable under the Fourth Amendment.
Issue Two: Whether the officer exceeded the permissible scope of the frisk when he seized the drugs?
When an officer is authorized to conduct a frisk, that frisk must be reasonable in scope, meaning that it can be no more intrusive than necessary to dispel or confirm if the suspect is armed. The court discussed the relevant legal principles and stated
A protective frisk “must be 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. “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, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).[vi]
Additionally, the court discussed the “plain-feel doctrine,” established by the Supreme Court in Minnesota v. Dickerson. The court stated
In Dickerson, the Supreme Court acknowledged that — at times — when conducting an otherwise lawful protective frisk for weapons, an officer may discover contraband through the sense of touch. Id. at 375-76. This concept has been referred to as “plain touch” or “plain feel.” Bustos-Torres, 396 F.3d at 944. “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons . . . .” Dickerson, 508 U.S. at 375.[vii]
Moreno argued that the officer exceeded the permissible scope of the frisk when he seized the drugs from her body. She cited the United States v. Aquino[viii] from the Eighth Circuit. In Aquino, an officer saw a bulge concealed on the suspect’s leg. The officer skipped the “pat-down” and, rather than frisking the suspect and his leg, he raised the suspect’s pant leg to examine his leg under his clothing. The Eighth Circuit held that this exceeded the permissible scope of the protective search (the frisk of the exterior of the clothing), because the police immediately conducted a more intrusive search.
The court of appeals noted that Aquino was different from Moreno’s case. In Aquino, the officer saw a bulge and immediately conducted an intrusive search by raising the pant leg. In Moreno’s case, the officer first conducted a limited frisk of the exterior of her clothing and felt the object, which he immediately recognized, based on this training and experience, to be contraband. The court stated
It is also significant that Sergeant Meola used the least intrusive means reasonably necessary in conducting the protective search. United States v. Correa, 641 F.3d 961, 967 (8th Cir. 2011); see Roggeman, 279 F.3d at 577 protective search must be “reasonably designed to discover concealed weapons”). He did not reach under Moreno’s clothing — he briefly touched an area on top of her clothes, that was visible to him after Moreno had lifted the blanket. See United States v. Hawkins, 830 F.3d 742, 745 (8th Cir. 2016) (“Though a pat-down is often the least intrusive way to search for a hidden firearm, concern for officer safety may justify lifting clothing . . . .”); Aquino, 674 F.3d at 925 (“Searching under articles of clothing, whether it be a man’s pant leg or a woman’s blouse, is necessarily more intrusive than a pat-down.”). When Sergeant Meola touched the suspicious object, it was “immediately apparent” to him that the object was contraband. United States v. Cowan, 674 F.3d 947, 953 (8th Cir. 2012). Sergeant Meola’s targeted, protective search was sufficiently limited to dispel his concerns that the bulge may have been a weapon.[ix]
The court then held that the officer did not exceed the permissible scope of the frisk, and they affirmed the denial of the motion to suppress.
[i] No. 19-3483 (8th Cir. Decided February 24, 2021)
[ii] Id. at 2-4
[iii] Id. at 5-6 (emphasis added)
[iv] Id. at 7
[v] Id. at 8-9 (emphasis added)
[vi] Id. at 9 (emphasis added)
[vii] Id. (emphasis added)
[viii] 674 F.3d 918 (8th Cir. 2012)
[ix] Moreno at 10-11 (emphasis added)