Chapter 24: Pat Searches
Generally
Purpose: The purpose of a pat search is “not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.”[1]
Such a fear is often justified because the detainee, “despite being under the brief control of a police officer, [may] reach into his clothing and retrieve a weapon.”[2]
A “serious” intrusion: Although less intrusive than most other types of searches, pat searches are not viewed as a “petty indignity”; they are “serious intrusions.”[3]
When pat search not required: Officers may remove a concealed weapon (a pat search is unnecessary) if they have probable cause to believe the detainee possesses one.[4]
Opt for safety: In uncertain situations, officers should do what they think is necessary for their safety and not worry about whether the search will stand up in court. As the Court of Appeal observed, “Ours is a government of laws to preserve which we require law enforcement officers—live ones.”[5]
When Permitted
: Pat searches are permitted under any of the following circumstances:
Armed or dangerous detainee: Officers reasonably believed that the detainee was armed or otherwise dangerous.[6] This subject is covered in the next section.
Executing warrants for drugs, weapons: Officers may pat search the occupants of a home they are searching for drugs or weapons pursuant to a search warrant. See Chapter 36 Executing Search Warrants (Securing the Premises After Entering, Pat searches, Drug and weapons searches).
Consent: The detainee consented to being pat searched. See Chapter 16 Consent Searches.
Passenger in police car: A person who is not under arrest or detention may be pat searched before being transported somewhere in a police car as follows:
Duty to transport: Officers may pat search the person if they had a duty to transport him; e.g., remove motorist from a freeway for his safety; victim transported for showup.[7]
No duty to transport: If officers did not have a duty to transport, they may pat search the person if he accepted the ride after being told he would be pat searched if he did so.[8]
Armed or Dangerous
Generally
Armed or dangerous: Although the courts routinely say that officers must have reasonably believed that the detainee was armed and dangerous, either is sufficient. See this endnote.[9]
Dangerous to whom? The person in danger may be an officer or anyone else.[10]
Specific facts: Grounds to search must be based on facts; hunches and unsupported conclusions are irrelevant.[11]
Circumstantial evidence: The existence of a threat may be based on direct or circumstantial evidence.[12]
“Routine” pat searches: Because specific facts are required, pat searches cannot be justified in court based on an officer’s testimony that he conducted the search as a matter of routine or “for officer safety.”[13]
Pat search for ID: Officers may not pat search a suspect to determine if he is carrying ID. See Chapter 8 Detentions (Obtaining ID, Other means of identification, No pat search).
Totality of circumstances The courts consider the totality of circumstances. Thus, the courts must not fractionalize the facts by isolating each one, belittling its importance or explaining it away. See Chapter 1 Principles of Probable Cause and Reasonable Suspicion (Basic Principles, Totality of the circumstances).
Training and experience: In determining whether certain circumstances demonstrated a legitimate threat, the courts may consider an officer’s opinion, based on training and experience. See Chapter 1 Principles of Probable Cause and Reasonable Suspicion (Basic Principles, Training and experience).
Pat search after handcuffing: Because handcuffed detainees may still pose a threat, a pat search will not be invalidated merely because the detainee was cuffed.[14]
“Close” cases: In close cases, the courts are apt to uphold an officer’s determination that a suspect was armed or dangerous.[15]
Nature of crime under investigation: Grounds to pat search will automatically exist if the suspect was lawfully detained to investigate a crime closely linked to weapons or violence, or a crime in which the perpetrators commonly use tools that could be used as weapons. Examples:
Violent crimes: The suspect was lawfully detained to investigate a crime of violence, such as homicide, assault with a deadly weapon, robbery, carjacking, or shots fired.[16] Although there is a potential for violence during traffic stops, traffic infractions are not the type of crime that will automatically justify a pat search.[17]
Domestic violence: While domestic violence is, by its very nature, a violent crime, it appears that suspects may be patsearched only if there was some specific evidence of dangerousness.[18]
Burglary: Burglary suspects may be patsearched because burglars often carry weapons or tools that can be used as weapons.[19]
Car theft: Same as burglary.[20]
Vehicle pursuits: All occupants in a car involved in a pursuit may be pat searched regardless of the initial reason for the stop.[21]
Illegal drugs
Possession for sale or actual sales: Any person detained for drug sales or possession of drugs for sale may be pat searched.[22]
Possession for personal use: Mere possession of drugs for personal use will not establish grounds to believe the person is armed or dangerous.[23]
Under the influence: Detainees who are under the influence of alcohol or drugs may be patsearched if their behavior was unpredictable or if they were unable to control themselves.[24]
Detainee’s mental state
Hostile, agitated: A detainee’s overt hostility toward officers or an agitated mental state are both indicative of an impending threat because of the likelihood that he is unable to control himself.[25]
Nervousness: A detainee’s nervousness has little relevance unless it was extreme or unusual under the circumstances.[26] Also see Chapter 3 Probable Cause to Arrest (Reaction to seeing officers, Suspicious Reactions, Nervousness).
Failure to make eye contact: Virtually irrelevant.[27]
Calmness: That the suspect was calm or cooperative does not automatically mean that he could not be dangerous.[28]
Weapon discovered
Conventional weapon: A pat search is justified if officers found a conventional weapon in the detainee’s possession,[29] even if it was possessed legally.[30]
Virtual weapon: It’s uncertain whether a pat search would be justified if the detainee possessed an object that might have been used as a weapon, such as a baseball bat or hammer.[31] In such cases, it might depend on whether there was reason to believe it was being used as a weapon; e.g., baseball bat stowed between bucket seats, handle up.[32]
Gun clip discovered: Finding a gun clip in the detainee’s possession will justify a pat search.[33]
Bulge observed: A bulge under the detainee’s clothing will warrant a pat search if—based on its size, shape, or heft—there was a reasonable possibility that the item causing the bulge was a weapon.[34] Thus, the following circumstances are relevant:
Location of object: The bulge was located in a place where weapons are commonly concealed; e.g., in a pocket, at the waist.[35]
Heft: Whether it appeared that the object causing the bulge was heavy.[36]
Hiding bulge: It appeared that the detainee was trying to keep the bulge hidden.[37] Also see “Furtive gesture” (Attempt to hide something), below.
Reaching for bulge: The detainee suddenly reached for the bulge. See “Sudden movement,” below.
Lying about bulge: The detainee claimed there was nothing under his clothing that could have caused a bulge.[38]
Furtive gestures
Defined: A so-called “furtive gesture” is a movement by a suspect, usually of the hands or arms, that (1) reasonably appeared to have been made in response to seeing an officer or patrol car; and (2) was secretive in nature, meaning it appeared the suspect did not want the officer to see what he was doing. Also see Chapter 3 Probable Cause to Arrest (Reaction to Seeing Officers, Furtive gestures)
Requirement: Although a furtive gesture is a legitimate concern, the courts require some testimony from officers as why the suspect’s gesture indicated that he might be attempting to hide or retrieve a weapon. See this endnote for examples.[39]
Sudden movement: A sudden movement by a detainee may justify a pat search, especially if he reached into a place where weapons are commonly secreted. See this endnote for examples.[40] Also see Chapter 3 Probable Cause to Arrest (Reaction to seeing officers, Suspicious reactions).
Emergency response: In cases where a detainee suddenly reached into a location where weapons are commonly hidden, officers have been permitted to dispense with the pat search procedure and immediately reach inside. See “Bypassing standard procedure” (Emergency procedure), below.
Refusal to identify: It is somewhat relevant that the detainee refused to identify himself, seemingly because he may be wanted on an arrest warrant.[41]
Refusal to comply: A detainee’s refusal to comply with an officer’s request or command, including refusal to stop when lit up, may indicate defiance which is a relevant circumstance, especially if the objective of the officer’s command was to restrict the detainee’s ability to obtain a weapon. See this endnote for examples.[42]
Location of detention
High crime area: It is relevant that the suspect was detained in an area where crime, gang, or drug problems are prevalent.[43] But it will not, in and of itself, justify a patdown.[44] Also see Chapter 3 Probable Cause to Arrest (Suspect’s Location, High crime area).
Secluded area: A detention that occurs in a secluded area may present increased danger because the lack of witnesses and potential assistance to the officer may motivate the detainee to resist.[45]
Compare: Public places near crime scenes: A pat search is not justified merely because the person was present in a public place where illegal activity had occurred.[46]
Detainee’s prior conduct
History of violence, weapons: It is relevant that officers were aware that the detainee possessed weapons in the past, or that he had a history of violence toward officers or others, or that he had been arrested or convicted of crimes that commonly involve violence or weapons.[47]
Member of gang: It is relevant that officers knew the detainee was a gang member or affiliate.[48]
On probation or parole: A pat search may be conducted pursuant to a probation or parole search condition. See Chapter 25 Probation and Parole Searches. In the absence of a search condition, the fact that the detainee was on probation or parole is a relevant circumstance, especially probation for a crime involving weapons or violence.[49]
Companion armed or dangerous: If two people were detained together, can both of them be pat searched if officers reasonably believe that one of them was armed or dangerous? There are two approaches to this question:
A relevant circumstance: The conduct of the detainee’s companion is a circumstance that may be considered in determining whether the detainee may be pat searched.[50]
“Automatic companion” rule: Some federal courts have implemented an “automatic companion” rule in which grounds to pat search a person are said to exist automatically if his companion was being arrested and was “capable of accomplishing a harmful assault on the officer.”[51]
Dubious constitutionality: Although the companion’s dangerousness is undoubtedly a relevant circumstance, the automatic companion rule is of dubious constitutionality.[52]
California has not decided: California courts have neither adopted nor rejected the automatic companion rule.[53]
Other circumstances
Detainee’s size: Although a pat search would not be justified merely because the detainee was “big,” his size is a relevant circumstance.[54]
Hand in pocket: It is somewhat relevant that the detainee kept a hand inside a pocket, even though he did not do so suddenly or furtively.[55]
Ambiguous response to “weapons” question: If an officer asked the detainee if he possessed any object that might hurt the officer, an ambiguous response—”I don’t know”—is relevant.[56]
Baggy clothing: That the detainee was wearing baggy clothing is somewhat relevant because it may indicate that suspect “might be using the coat’s bulk to hide a weapon.”[57]
Officers outnumbered: It is relevant that the number of detainees was greater than the number of officers.[58]
Darkness: The fact that a detention occurred in a dark place is relevant because officers may not be able to see the detainee’s hands, movements by the detainee’s companions, or potential weapons nearby.[59]
Nighttime: Some courts have indicated there is increased danger when a detention occurs at night.[60] It is not clear whether they mean that increased danger results from darkness, or whether they view nighttime detentions as inherently dangerous, even if they occurred in well-lighted places. In any event, when officers or prosecutors cite “nighttime” as a factor, they should explain why it contributed to the threat.[61]
Information from informants: A tip from a person that a suspect is presently armed will justify a pat search if the tip or person appeared to be reliable; e.g., citizen informant, tested police informant.[62] Also see Chapter 2 Probable Cause: Reliability of Information.
Assuming the position: A detainee’s act of spontaneously “assuming the position” for a pat search may be a suspicious circumstance.[63]
Refusal to consent: A detainee’s refusal to consent to a pat search is not a relevant circumstance.[64]
Search Procedure
Generally
A limited search: If officers have grounds to pat search a detainee, they must ordinarily follow a specific by-the-numbers procedure designed to determine, with minimal intrusion, whether the detainee possessed a weapon.[65]
“Empty your pockets”: Officers may not avoid the pat search procedure by ordering the detainee to empty his pockets.[66]
Plain view seizures: Officers may seize any evidence that comes into plain view while they are conducting a lawful pat search. See Chapter 53 Plain View.
Suppression of evidence: If officers do not follow the required procedure, evidence discovered during the search may be suppressed.[67]
Multiple searches: A pat search is not unlawful merely the officer knew that another officer had previously pat searched the suspect, so long as the officer who conducted the second search “had a credible reason to believe [the other officer] might have missed a dangerous weapon”; e.g., high-risk stop, numerous suspects, general confusion.[68]
Emergency procedure: Officers may immediately conduct a full search for weapons if they reasonably believed that an attack was imminent, or that the danger level had reached the point that an immediate physical response was necessary.[69] See this endnote for examples.[70]
Standard procedure: The following is the standard procedure for conducting pat searches:
(1) “Sharp objects?” Because of the threat from concealed syringes, officers may begin the process by asking the detainee if he has any needles or other sharp objects in his possession.[71] Such a question is permissible because it is reasonably necessary for officer safety. It is unnecessary to obtain a Miranda waiver before asking such a question because it falls within Miranda‘s public safety exception. See Chapter 42 Miranda: When Compulsory (Miranda Exceptions.
(2) Patdown: Officers may do the following:
Clothing surfaces: Officers may conduct a “careful exploration of the outer surfaces of [the detainee’s] clothing all over his or her body.”[72]
Containers: Officers may manipulate a container the detainee was carrying if it was (1) large enough to hold a weapon, and (2) sufficiently pliable to permit officers to feel some or all of its contents; e.g., a purse or backpack.[73] A container may be pat searched even if the detainee had been separated from it after he was detained; e.g. officers had taken possession of it, or the detainee had put it on the ground.[74]
Manipulating objects: While conducting the patdown, officers may manipulate an object under the clothing if reasonably necessary to determine if the object was a weapon.[75]
Asking questions: If officers feel something that might have been a weapon, they may ask the detainee about it.[76] It is unnecessary to obtain a Miranda waiver before asking such a question because it falls within Miranda‘s public safety exception. See Chapter 42 Miranda: When Compulsory (Miranda Exceptions.
Lifting up clothing: If the detainee’s clothing was so bulky or stiff that a patdown would not disclose a weapon, officers may begin by lifting the outer clothing.[77]
(3) Removing weapons: Officers may remove the following:
Conventional weapons: Conventional weapons are firearms, knives, brass knuckles, saps, and other things that were manufactured for the purpose of causing injury or death.[78] See this endnote for examples.[79]
Inspect before reaching: Because of the danger of blindly reaching into a detainee’s clothing, officers may begin by lifting up the clothing to try to see the object before removing it.[80]
“What’s this?” Before removing the object, officers may ask the detainee to confirm whether it is a weapon.[81] Such a question does not implicate Miranda. See Chapter 42 Miranda: When Compulsory (Public Safety Exception).
Virtual weapon: A virtual weapon is an object that, although not constructed for the purpose of inflicting bodily injury, is readily capable of doing so; e.g., baseball bat, razor blade, screwdriver, bottle.[82]
Atypical weapon: An atypical weapon is an object that could conceivably harm someone, but is seldom used for that purpose; e.g. a ballpoint pen, car keys. Officers may remove such an object if they reasonably believed it posed a threat. An object may not be removed on the basis of fanciful speculation that it might have been used as a weapon.[83]
Hard objects: If the object was hard to the touch, officers may remove it if they could not rule out the possibility it could be used as a weapon.[84] See this endnote for examples.[85]
Soft objects: Because most objects that pose a threat to officers are hard to the touch, officers may remove a soft object only if they can cite specific facts that reasonably indicated it posed a threat.[86] See this endnote for examples.[87]
(4) Removing drugs and other evidence: Under the “plain feel” doctrine, officers may remove an object that does not feel like a weapon if the following circumstances existed:
(a) Lawful pat search: Officers had not exceeded the permissible scope of the pat search when they felt the object.[88]
(b) Probable cause: Based on how the object felt and any other relevant circumstances, they had probable cause to believe it was contraband or other evidence of a crime.[89]
Notes
[1] QUOTE FROM: Adams v.
Williams (1972) 407 US 143, 146. USSC: Terry
v. Ohio (1968) 392 US 1, 24 [the purpose is “to
determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.”].
[2] QUOTE FROM: Michigan
v. Long (1983) 463 US 1032, 1051.
[3] QUOTES FROM: Terry v.
Ohio (1968) 392 US 1, 17.
[4] USSC: Adams v.
Williams (1972) 407 US 143, 147-49 [having probable cause
to believe the suspect possessed a concealed weapon, the officer
reached for it]. CAL: P v. Limon (1993) 17
CA4 524, 538 [“an officer with probable cause to arrest can also
open any container found on the arrestee in the course of a full
body search”]; P v. Superior Court (Holmes) (1971)
15 CA3 806, 813 [“any other course of action would have been
foolhardy and quite possibly suicidal”]. 9th CIR:
US v. Orman (9C 2007) 486 F3 1170, 1172
[detainee admitted he was carrying a gun].
[5] QUOTE FROM: P v.
Koelzer (1963) 222 CA2 20, 27. ALSO SEE:
P v. Dumas (1967) 251 CA2 613, 617 [“The realities
of present day law enforcement dictate that a failure to make such
a search, in many cases, might mean death to policemen.”];
US v. Hauk (10C 2005) 412 F3 1179, 1192 [“Police are
predisposed by their instinct for self-preservation to assume that
an unknown situation is dangerous. The Fourth Amendment limits
officers’ ability to act on this assumption, but we must take care
not to restrict officers’ common-sense precautions particularly in
cases involving reasonable suspicion.”].
[6] USSC: Arizona v.
Johnson (2009) 555 US 323, 332 [pat search of detainee
lawful “upon reasonable suspicion that [the detainee] may be armed
and dangerous”]; New York v. Class (1986) 475
US 106, 117 [“When a search or seizure has as its immediate object
a search for a weapon … only a reasonable suspicion of criminal
activity [is required].”]; Terry v.
Ohio (1968) 392 US 1, 21-22 [“it is imperative that the
facts be judged against an objective standard”]; Ybarra v.
Illinois (1979) 444 US 85, 93-94; Pennsylvania
v. Mimms (1977) 434 US 106, 112 [“any man of
reasonable caution would likely have conducted the pat down”];
Adams v. Williams (1972) 407 US 143. CAL:
P v. Mendoza (2011) 52 C4 1056, 1082 [“Such
evidence amply supports the conclusion that, at that point,
sufficient grounds supported [the officer’s] decision to
temporarily detain the three individuals to check for other
weapons”]; In re Richard C. (1979) 89 CA3 477, 488;
P v. Suennen (1980) 114 CA3 192, 199; P v.
Williams (1992) 3 CA4 1100, 1104; In re
Frank V. (1991) 233 CA3 1232, 1240; P v.
Dickey (1994) 21 CA4 952, 956; P v.
Franklin (1985) 171 CA3 627, 635. 9th CIR:
US v. Orman (9C 2007) 486 F3 1170, 1176
[reasonable suspicion “is all that is required for a protective
search”]. OTHER: US v. Rice (10C 2007)
483 F3 1079, 1083 [“The reasonable suspicion required to justify a
pat-down search represents a minimum level of objective
justification.”]; US v. Hanlon (8C 2005) 401
F3 926, 929 [“the facts must be such that a hypothetical officer
in exactly the same circumstances reasonably could believe that
the individual is armed and dangerous”]. NOTE:
Officer not “scared”: It is immaterial that the officer who
pat searched the suspect did not feel “scared”; what counts is
whether a reasonable officer under the circumstances would have
been believed the suspect was armed or dangerous. See US
v. Tharpe (5C 1976) 536 F2 1098, 1101 [“We know of
no legal requirement that a policeman must feel ‘scared’ by the
threat of danger.”].
[7] CAL: P v. Tobin (1990)
219 CA3 634, 641 [“the need to transport a person in a police
vehicle in itself is an exigency which justifies a pat search for
weapons”]. ALSO SEE: P v. Ramos (1972)
26 CA3 108, 112 [“policemen have been attacked and killed by back
seat passengers with concealed guns and knives”].
[8] CAL: P v. Scott (1976)
16 C3 242, 250. 9th CIR: US v. Lozano (9C 2019) 916
F3 726, 730 [“We have recognized it is not an unreasonable
practice for a law enforcement officer to conduct a pat-down
search before a person enters his police car to protect officer
safety.”].
[9] NOTE: In the Supreme Court’s seminal
pat search case, Terry v. Ohio (1968) 392 U.S. 1, 27, the
Court said that officers may search detainees only if they
reasonably believed that the detainee was “armed and dangerous.”
Almost immediately, however, the lower courts understood that the
use of the conjunctive “and” was an unfortunate lapse, and that
officers may pat search any detainee who they reasonably believed
was armed or dangerous. This was because every detainee who is
armed with a weapon is necessarily “dangerous” to the officer who
is detaining him, even if he was currently “friendly.” Ironically,
the Supreme Court in Terry acknowledged this when it said,
“a reasonably prudent man would have been warranted in believing
[the detainee] was armed and thus presented a threat.” At p. 28.
Emphasis added. Also see Michigan v. Long (1983) 463 U.S.
1032, 1049 the Court noted that its pat-search cases have shown
that “the protection of police and others can justify protective
searches when police have a reasonable belief that the suspect
poses a danger” [emphasis added] and that such a threat is based,
not on grounds to believe there was a weapon in the vehicle, but
on the danger that would exist if there happened to be a weapon in
the vehicle; i.e., the “possible presence of weapons in the area
surrounding the suspect.” Furthermore, a detainee who reasonably
appears to present an imminent threat to officers should be pat
searched regardless of whether they also have reason to believe he
is carrying a firearm. ALSO SEE: Pennsylvania
v. Mimms (1977) 434 US 106, 112 [“The bulge in the
jacket permitted the officer to conclude that Mimms was armed
and thus posed a serious and present danger to the safety
of the officer.” Emphasis added]; P v. Mendoza (2012) 52 C4
1056, 1082; P v. Superior Court (Brown) (1980) 111
CA3 948, 956 [“a pat-down search for weapons may be made
predicated on specific facts and circumstances giving the officer
reasonable grounds to believe that defendant is armed or on
other factors creating a potential for danger to the officers,”
emphasis added]; P v. Campbell (1981) 118 CA3 588,
595 [“An officer is justified in making a pat-down search if he
has objective cause to believe that the suspect is armed or that
the search is necessary for the officer’s own safety.”];
US v. Bell (6C 1985) 762 F2 495, 500, fn.7
[“The focus of judicial inquiry is whether the officer reasonably
perceived the subject of a frisk as potentially dangerous, not
whether he had an indication that the defendant was in fact
armed.”]; US v. Brown (7C 2000) 232 F3 589,
592 [pat search of strangely-behaving detainee upheld even though
there “was the lack of specific facts indicating that [he]
possessed a weapon”].
[10] USSC: Terry v.
Ohio (1968) 392 US 1, 27.
[11] USSC: Terry v.
Ohio (1968) 392 US 1, 21 [“the police officer must be able
to point to specific and articulable facts”]; Sibron
v. New York (1968) 392 US 40, 64 [officer “must be
able to point to particular facts”]. CAL: In re
Glenn R. (1970) 7 CA3 558, 561 [although the officer
described his belief that the defendant was armed as a “sneaky
hunch,” it was actually based on specific facts]. OTHER:
US v. Howell (7C 2020) 958 F3 589, 601 [pat searches
“cannot be rote or reflective”]; US v.
Tharpe (5C 1976) 536 F2 1098, 1100 [“the feelings or
hunches of an officer are too lacking in substance to effectively
guarantee protection of constitutional rights”].
[12] CAL: P v.
Thurman (1989) 209 CA3 817, 823 [it would be “utter folly”
to require an officer “to await an overt act of hostility before
attempting to neutralize the threat of physical harm”];
P v. Samples (1992) 11 CA4 389, 393 [“Our courts
have never held that an officer must wait until a suspect actually
reaches for an apparent weapon before he is justified in taking
the weapon.”]. OTHER: US v. Bishop (11C 2019) 940 F3
1242, 1250 [“Terry does not demand definitive evidence of a
weapon or absolute certainty that an individual is armed.
Reasonable suspicion is not concerned with hard certainties but
with probabilities, and law enforcement officers may rely on
common sense conclusions.”].
[13] CAL: P v.
Lawler (1973) 9 C3 156, 162-63 [“The officer’s testimony
that he felt a ‘routine’ search for weapons was in order
apparently betrays the presence of [an illegal police practice]”];
P v. Adam (1969) 1 CA3 486, 490 [“The People
interpret Terry as if it stood for the proposition that
simply because an officer may temporarily seize a suspect it
follows automatically that he may frisk him for weapons.”];
P v. Dickey (1994) 21 CA4 952, 956 [conducted
search “for officer safety”; P v.
Hubbard (1970) 9 CA3 827, 830 [“Pat down everyone, sir,
that I talk to, for safety reasons”]; Santos v.
Superior Court (1984) 154 CA3 1178, 1181 [“Standard
procedure, officer’s discretion and my training.”]; P v.
Griffith (1971) 19 CA3 948, 952 [“As far as I am concerned,
anybody I stop could possibly have a weapon on them.”];
P v. Medina (2003) 110 CA4 171, 176 [“standard
procedure”]. COMPARE: P v.
Juarez (1973) 35 CA3 631, 637 [“Sergeant Georgino testified
that he was always in fear of harm when questioning a detained
suspect but not that he always and without articulable reason
allayed that fear by a frisk.”].
[14] OTHER: US v.
Sanders (5C 1993) 994 F2 200, 209 [“Handcuffs are a
temporary restraining device; they limit but do not eliminate a
person’s ability to perform various acts… Albeit difficult,
it is by no means impossible for a handcuffed person to obtain and
use a weapon concealed on his person or within lunge reach”].
[15] CAL: P v.
Lafitte (1989) 211 CA3 1429 [“[The US Supreme Court] seemed
willing to allow more leeway in the officer’s decision that a
suspect is ‘armed and presently dangerous,’ even for minor
offenses.”]; P v. Dickey (1994) 21 CA4 952, 957
[“The judiciary should not lightly second-guess a police officer’s
decision to perform a patdown search for officer safety.”]. OTHER:
US v. Hauk (10C 2005) 412 F3 1179, 1192 [“Police are
predisposed by their instinct for self-preservation to assume that an unknown situation is
dangerous. The Fourth Amendment limits officers’ ability to act on
this assumption, but we must take care not to restrict officers’
commonsense precautions”].
[16] USSC: Terry v.
Ohio (1968) 392 US 1, 28 [robbery “would be likely to
involve the use of weapons”]. CAL: P v.
Campbell (1981) 118 CA3 588, 595 [officer testified “there
had been killings in connection with this investigation”];
P v. Atmore (1970) 13 CA3 244, 247, fn.1 [murder];
P v. Rico (1979) 97 CA3 124, 132 [ADW]; P v.
Stone (1981) 117 CA3 15, 19 [strong-arm robbery];
P v. Gonzales (1998) 64 CA4 432, 439 [armed
robbery]; P v. Anthony (1970) 7 CA3 751, 761 [armed
robbery]; P v. Franklin (1985) 171 CA3 627, 635-36
[armed robbery]; P v. Watson (1970) 12 CA3 130, 134
[armed robbery]; P v. Craig (1978) 86 CA3 905, 912
[armed robbery]; P v. Orozco (1981) 114 CA3 435, 445
[shots fired]; P v. Lindsey (2007) 148 CA4 1390,
1401 [shots fired]; P v.
Superior Court (Holmes) (1971) 15 CA3 806, 810 [shots
fired]; P v. Woods (1970) 6 CA3 832, 837 [shots
fired, plus hand in pocket]. 9th CIR: US v.
Johnson (9C 2009) 581 F3 994 [robbery]; US
v. Hartz (9C 2006) 458 F3 1011, 1018 [carjacking].
OTHER: Green v. Newport (7C 2017) 868 F3 629, 635
[casing a store for robbery]; US v. Smith (7C 2017) 853 F3
892, 900 [road rage, shots fired]; US v. George (4C 2013)
732 F3 296, 300 [passenger’s car was “aggressively chasing the
vehicle in front of it”]; US v. Simmons (2C
2009) 560 F3 98, 108 [ADW]; US v. Ruidiaz (1C
2008) 529 F3 25, 33 [shooting]; US v.
Glover (4C 2011) 662 F3 694, 698 [robbery]; US
v. Abdus-Price (DCC 2008) 518 F3 926 [armed
robbery]; US v. Rice (10C 2007) 483 F3 1079,
1081 [preparing for a drive-by shooting].
[17] CAL: P v.
Superior Court (Simon) (1972) 7 C3 186, 206 [“the ordinary
motorist who transgresses against a traffic regulation does not
thereby indicate a propensity for violence”]; P v.
Superior Court (Kiefer) (1970) 3 C3 807, 830 [pat search of
traffic violator unwarranted when he “promptly pulled his car to
the side of the road”]; P v. Lawler (1973) 9 C3 156,
161 [“no authority to pat down flowed from a mere traffic
violation”]. OTHER: US v. Brown (7C
1999) 188 F3 860, 864 [“Although the confrontation between a
police officer and a citizen stopped for a traffic violation can
be fraught with danger, this fact alone does not justify a
pat-down.”]; US v. Rice (10C 2007) 483 F3
1079, 1084 [“Although Officer Weakley could remove Rice from the
car as part of a routine traffic stop, he could not perform a
pat-down search for weapons unless he reasonably suspected that
Rice might be carrying one.”]. COMPARE:
P v. H.M. (2019) 167 CA4 136, 144 [although defendant was
stopped for pedestrian violation, a pat search was warranted
because he was running in a manner that was consistent with
flight, plus high-crime area].
[18] 9th CIR:
Thomas v. Dillard (9C 2016) 818 F3 864, 878 [“officers may
not rely solely on the domestic violence nature of a call to
establish reasonable suspicion for a frisk,” but the court also
notes that “some domestic violence calls may pose serious threats
to officers, such as those requiring an officer to enter a
suspect’s home and intervene in the middle of a heated fight or
vicious attack”]. OTHER: US v. McCants (3C 2018) 911
F3 127, 133-34 [pat search based lawful detention for domestic
violence; irrelevant that there was no sign that the victim had
been injured].
[19] CAL: P v.
Osborne (2009) 175 CA4 1052, 1061 [burglars “use tools that
can readily be used as weapons”]; P v.
Castaneda (1995) 35 CA4 1222, 1230 [“burglary suspects
frequently carry weapons”]; P v. Myles (1975) 50 CA3
423, 430 [“It is reasonable for an officer to believe that a
burglar may be armed with weapons, or tools such as knives and
screwdrivers which could be used as weapons”]; P v.
Smith (1973) 30 CA3 277, 279 [“a report of a possible
burglary”]; P v. Juarez (1973) 35 CA3 631, 636
[“appellant was a logical suspect in a recent burglary”];
P v. Suennen (1980) 114 CA3 192, 199 [detention of
suspect in “recent local pillowcase burglaries”]; P v.
Allen (1975) 50 CA3 896, 901 [auto burglary]; P v.
Koelzer (1963) 222 CA2 20, 27 [officers who had detained
suspected burglars were “entitled to make a self-protective search
of defendants’ persons”]. OTHER: US v. McMullin (6C
2014) 739 F3 943, 946-47; US v. Snow (7C
2011) 656 F3 498, 501 [“burglary is the type of offense that
likely involves a weapon”]; In re Sealed Case (DCC 1998)
153 F3 759, 767 [“it was appropriate for [the officers] to act on
the basis of the kinds of risks burglaries normally present”];
US v. Tharpe (5C 1976) 536 F2 1098, 1100 [the
officer “had information that the Tharpe brothers were known
burglars”].
[20] CAL: P v.
Vermouth (1971) 20 CA3 746, 753 [because the detainees were
suspected of car theft, it was reasonable “to ask the two men out
of the car and make a superficial search for possible weapons”];
P v. Todd (1969) 2 CA3 389, 393 [the
circumstances “led the officers to believe there ‘was something
wrong’ and the car was stolen”]. OTHER:
US v. Shranklen (8C 2003) 315 F3 959, 963 [“from these
facts, Harmon could infer that Shranklen and Fleming might have
stolen the car and, therefore, might have weapons in the car that
they used during the theft or had available in case they were
discovered and sought to escape”]; US v.
Banks (8C 2009) 553 F3 1101, 1106 [it is “not
inconceivable” that bicycle thieves possess weapons]; US
v. Bullock (DCC 2007) 510 F3 342, 347 [“Like
burglary, car theft is a crime that often involves the use of
weapons and other instruments of assault”]; US v.
Hanlon (8C 2005) 401 F3 926, 929 [“when officers encounter
suspected car thieves, they also may reasonably suspect that such
individuals might possess weapons”]. ALSO SEE:
US v. Brooks (8C 2020) 982 F3 1177, 1179 [the officers knew
that the passenger “had been riding in a stolen vehicle and they
knew that the driver had not complied with the officers’
demands”].
[21] CAL: P v.
Hill (1974) 12 C3 731, 746, fn.13 [“It is reasonable for an
investigating officer to take precautionary measures with respect
to all occupants of a fleeing automobile.”]. ALSO SEE: Haynie v. County of Los Angeles (9C
2003) 339 F3 1071, 1076 [failure to yield plus other
circumstances].
[22] USSC: Richards v.
Wisconsin (1997) 520 US 385, 391, fn.2 [“This Court has
encountered before the links between drugs and violence.”
Citations omitted]; Michigan v.
Summers (1981) 452 US 692, 702 [“the execution of a warrant
to search for narcotics is the kind of transaction that may give
rise to sudden violence”]; Florida v. J.L. (2000) 529 US
266, 273. CAL: P v. Glaser (1995) 11 C4 354,
367 [“In the narcotics business, firearms are as much ‘tools of
the trade’ as are most commonly recognized articles of narcotics
paraphernalia.” Quoting Ybarra v.
Illinois (1979) 444 US 86, 106 (dis. opn. of Rehnquist, J);
P v. Fews (2018) 27 CA5 553, 560 [pat search warranted
because officers reasonably believed that the suspect was
transporting drugs]; P v. Lee (1987) 194 CA3 975,
983 [“persons engaged in selling narcotics frequently carry
firearms to protect themselves from would-be robbers.”];
P v. Thurman (1989) 209 CA3 817, 822 [“Rare is the
day which passes without fresh reports of drug related homicides,
open street warfare between armed gangs over disputed ‘drug turf,’
and police seizures of illicit drug and weapon caches in warranted
searches of private residences and other locales.”]; P v.
Simpson (1998) 65 CA4 854, 862 [“Illegal drugs and guns are
a lot like sharks and remoras. And just as a diver who spots a
remora is well-advised to be on the lookout for sharks, an officer
investigating cocaine and marijuana sales would be foolish not to
worry about weapons.”]; P v. Limon (1993) 17 CA4
524, 535 [It is not unreasonable to assume that a dealer in
narcotics might be armed and subject to a pat-search.”];
P v. Osuna (1986) 187 CA3 845, 856 [“It should come
as no great surprise that those who would profit by the illicit
manufacture and sale of drugs which so often destroy their
customers’ very lives, are not above adopting lethal means to
protect their products from seizure and themselves from
apprehension.”]; P v. Gallegos (2002) 96 CA4 612,
629 [“It is common knowledge that drug dealers typically use
firearms and ammunition in the course of their drug sale
operations.”]. 9th CIR: US v. Davis
(9C 2008) 530 F3 1069, 1082 [“the officers reasonably suspected
that [defendant] was involved in the marijuana operation”];
US v. $109,179 (9C 2000) 228 F3 1080, 1084
[“Officer Jones had reasonable suspicion to believe that Maggio
was involved in a narcotics operation, and thus that he might be
armed.”]; US v. Post (9C 1979) 607 F2 847 852
[“It is not unreasonable to suspect that a dealer in narcotics
might be armed.”]. OTHER: US v. Harrington (1C 2022)
56 F4 195, 205 [“Even though [the officer] did not believe
Harrington had one of the weapons he described, a reasonable
officer would have had this suspicion given the relationship
between drug transactions and firearms”];
US v. Santillan (2C 2018) 902 F3 49, 59 [“Narcotics
activity and weapons often go hand in hand, and the type of
investigative detention at issue here is fraught with danger for
the officer.”]; US v. Thompson (7C 2016) 842 F3 1002, 1007
[“guns are known tools of the drug trade”]; US v.
Crippen (8C 2010) 627 F3 1056, 1063 [grounds to detain for
a drug transaction “supports a reasonable belief that the person
may be armed and dangerous because weapons and violence are
frequently associated with drug transactions”]. NOTE: In
Santos v. Superior Court (1984) 154 CA3 1178,
1185 and P v. Wright (1988) 206 CA3 1107, 1112 the
courts ruled that a pat search could not be justified merely
because officers reasonably believed the detainee was selling
drugs. These rulings were absurd in the ’80’s when they were
decided, and they are even more so today. Although defense
attorneys often cite them, they are routinely ignored.
NOTE: In US v. I.E.V. (9C 2012) 705 F3 430 a divided
panel of the Ninth Circuit ruled that the pat search of a
passenger in a car stopped at a checkpoint was unlawful even
though a K9 had alerted to the car and the driver seemed extremely
nervous and “continually touched his abdomen.” The panel also
ruled that, even if a pat down was permitted, the officer exceeded
the permissible scope of the search because, after feeling a hard
object under his shirt (the object was a brick of marijuana) he
lifted his shirt to see what it was. The dissent makes more sense.
[23] 9th CIR: Ramirez v.
City of Buena Park (9C 2009) 560 F3 1012, 1022 [court notes
it “has never held that mere suspicion of drug use alone” provides
grounds for a pat search].
[24] USSC: Michigan v.
Long (1983) 463 US 1032, 1050 [Long “appeared to be under
the influence of some intoxicant”]. CAL: P v.
Wigginton (1973) 35 CA3 732, 737 [some of the detainees
were “under the influence of narcotics”]; P v. Avila
(1997) 58 CA4 1069, 1074. 9th CIR: US v.
Salas (9C 1989) 879 F2 530, 535 [“It was also reasonable
for the officers to suspect that Salas might be dangerous if he
had recently used cocaine.”]. OTHER:
US v. Vaccaro (7C 2019) 915 F3 431, 436-37 [“the officers
suspected that Vaccaro was under the influence of drugs, which
gave them greater reason to fear for their safety”]; US
v. Tharpe (5C 1976) 536 F2 1098, 1100 [the detainees
“had evidently been drinking”].
[25] CAL: P v. Mendoza (2012) 52
C4 1056, 1082; P v. Rios (2011) 193 CA4 584,
599 [detainee “belligerently refused to answer [the officer’s]
questions or cooperate with him”]; In re H.M. (2008) 167
CA4 136, 144; In re Michael S. (1983) 141 CA3 814,
816-17 [defendant “displayed aggressive conduct and was either
unable or unwilling to control himself”]; P v.
Lopez (2004) 119 CA4 132, 135 [“combative”]. OTHER:
US v. Orth (1C 2017) 873 F3 349, 357 [detainee had
“displayed signs of aggression”]; US v.
Michelletti (5C 1994) 13 F3 838, 842 [“Michelletti, a large
and imposing man, was heading straight toward [the officer] with a
‘cocky,’ perhaps defiant attitude and his right hand concealed
precisely where a weapon could be located.”]; US v.
Brown (7C 2000) 232 F3 589, 594 [“Brown was acting
erratically and somewhat aggressively”]. COMPARE:
Ybarra v. Illinois (1979) 444 US 85, 94 [the
suspect “made no gestures or other actions indicative of an intent
to commit an assault, and acted generally in a manner that was not
threatening.”].
[26] CAL: In re H.M. (2008) 167
CA4 136, 144; P v. Saunders (2006) 38 C4 1129, 1132
[“the defendant was shaking and trembling and appeared to be very
nervous”]; P v. Methey (1991) 227 CA3 349, 358
[suspect’s “perspiring and shaking” was a significant factor];
P v. Brown (1985) 169 CA3 159, 164 [“He began
turning pale and his hands began to shake.”]; P v.
Lawler (1973) 9 C3 156, 162 [“Defendant’s nervousness could
understandably result from extended police questioning because of
a traffic violation”]; P v. Dickey (1994) 21 CA4
952, 956 [run-of-the-mill nervousness]. OTHER: US
v. Brown (7C 1999) 188 F3 860, 865 [detainee’s
demeanor “was more nervous than one would expect in a routine
traffic stop,” plus he kept “repeatedly glancing back towards the
car in question.”]; US v. Hanlon (8C 2005)
401 F3 926, 929 [“extreme nervousness, profuse shaking”].
COMPARE: US v. Noble (6C 2014) 762 F3 509, 523 [“we
afford very little weight to Noble’s nervousness in our
reasonable-suspicion calculus”]. ALSO SEE:
US v. Howell (7C 2020) 958 F3 589, 600 [“Nervousness is
more salient to the reasonable determination calculus when it
accompanies other suspicious behavior or circumstances suggesting
a risk to officer safety.”].
[27] 9th CIR: US v.
Montero-Camargo (9C 2000) 208 F3 1122, 1136 [“whether the
[eye] contact is suspicious or not is highly subjective and must
be evaluated in light of the circumstances of each case”].
OTHER: US v. Andrade (1C 2008) 551 F3
103, 107 [suspect’s failure to make eye contact was a relevant
circumstance]; US v. Hanlon (8C 2005) 401 F3
926, 929 [court noted the detainee’s “refusal to look [the
officer] in the eye”].
[28] CAL: P v.
Thurman (1989) 209 CA3 817, 823 [“That appellant’s posture,
at the moment, was nonthreatening does not in any measure diminish
the potential for sudden armed violence [in light of the other
circumstances].”]. ALSO SEE: US v.
Everman (8C 2008) 528 F3 570, 572 [“arresting
officers are not required to assume that their encounter with
suspects will remain nonconfrontational throughout the duration of
the event”].
[29] USSC: Michigan v.
Long (1983) 463 US 1032, 1050 [“a large knife in the
interior of the car”]. CAL: P v.
Lafitte (1989) 211 CA3 1429, 1433; In re
Donald L. (1978) 81 CA3 770 [“club type instrument, about
14 inches long, covered with imitation leather and with metal
spikes protruding from it.”]; P v. Britton (1968)
264 CA2 711, 715 [a rifle]; P v. Brown (1989) 213
CA3 187, 191 [“Because defendant was carrying two weapons, it was
prudent to suspect defendant might be carrying other weapons as
well.”]; P v. Methey (1991) 227 CA3 349, 358
[detainee was carrying a “pry bar or billy club”]. 9th CIR:
US v. Hartz (9C 2006) 458 F3 1011, 1018 [the
officer “had already observed a knife, a gun, and ammunition in
the truck”].
[30] USSC: Adams v.
Williams (1972) 407 US 143, 146 [“the frisk for weapons
might be equally necessary and reasonable, whether or not carrying
a concealed weapon violated any applicable state law”];
Michigan v. Long (1983) 463 US 1032, 1052,
fn.16 [“we have expressly rejected the view that the validity of a
Terry search depends on whether the weapon is possessed in
accordance with state law”]. CAL: P v.
Lafitte (1989) 211 CA3 1429, 1433. OTHER:
US v. Orth (1C 2017) 873 F3 349, 357 [“we fail to see how a
large cutting knife does not constitute a potential weapon simply
because it has other legitimate purpose”].
[31] CAL: P v.
Lafitte (1989) 211 CA3 1429, 1433, fn.5 [“Just how far this
rule extends is unclear. As Justice Brennan pointed out, a
baseball bat or hammer can be a lethal weapon; does this mean a
policeman could reasonably suspect a person is dangerous because
these items are observed in his or her car?”].
[32] CAL: P v. Avila
(1997) 58 CA4 1069, 1074 [“a long black metal object” similar to a
Mag flashlight located approximately nine inches from defendant’s
left hand in his truck]; P v. Lafitte (1989) 211 CA3
1429, 1433 [“legal” four-inch knife “in a sheath, resting on the
open glove box door, with the handle extended over the edge toward
the driver’s seat.”]; P v. Methey (1991) 227 CA3
349, 358 [detainee was carrying a pry bar]. OTHER:
US v. Orth (1C 2017) 873 F3 349, 356 [“large flashlight,
combined with the aforementioned hesitation and odd response to
questions about its presence”].
[33] CAL: P v.
Castaneda (1995) 35 CA4 1222, 1230 [“And once the magazine
was found, the fear of further weapons and ammunition was
increased”].
[34] USSC: Pennsylvania
v. Mimms (1977) 434 US 106, 111-12. CAL:
P v. Brown (1985) 169 CA3 159, 165-66; P v.
Allen (1975) 50 CA3 896, 901; P v.
Snyder (1992) 11 CA4 389, 393 [“the visible bulge created
by the bulk of the liquor bottle announced to [the officer] the
potential of a weapon”]; In re Guillermo M. (1982)
130 CA3 642, 647 [bulges consistent with knives]; P v.
Ritter (1997) 54 CA4 274, 277 [bulge “appeared to be the
outline of a small handgun”]. 9th CIR: US v.
Flatter (9C 2006) 456 F3 1154, 1157 [“we have given
significant weight to an officer’s observation of a visible bulge
in an individual’s clothing that could indicate the presence of a
weapon”]. OTHER: US v. Williams (5C 2018) 880 F3
713, 719 [a pat search is permissible “if an officer observes or
feels bulges on a suspect’s person so long as an officer is
investigating an object that reasonably may be a weapon.”];
US v. Black (4C 2008) 525 F3 359, 365 [the
officer “saw a bulge which was 6 to 8 inches long along the bottom
of the pocket, 1 to 1 ½ inches high, and appeared to have a flat
side. [The officer] stated that he suspected the object was a
firearm”]; US v. Meredith (5C 2007) 480 F3
366, 370 [observation of a “handgun-like bulge” provided grounds
to pat search].
[35] USSC: Pennsylvania
v. Mimms (1977) 434 US 106, 107, 112 [a “large bulge
under [Mimms’] sports jacket”]. CAL: P v.
Brown (1985) 169 CA3 159, 165 [officer was aware “that
weapons are commonly carried under clothing in that approximate
location of the waistband”]; P v. Snyder (1992) 11
CA4 389, 391 [“large bulge in the front waistband”]; P v.
Methey (1991) 227 CA3 349, 358 [“bulky outer jacket with
bulging pockets”]; P v. Allen (1975) 50 CA3 896,
899, 901 [“defendant’s pockets appeared to be bulging”];
P v. Autry (1991) 232 CA3 365, 367 [“zippered jacket
which bulged around and concealed his waist”]; P v.
Superior Court (Brown) (1980) 111 CA3 948, 956 [bulge was
“in the waistband in the middle of his waist”]; P v.
Armenta (1968) 268 CA2 248, 249-50 [“bulge in the lower
portion beneath the belt of Mr. Armenta’s trousers”];
In re Guillermo M. (1982) 130 CA3 642, 644 [bulge
“in the front pockets of appellant’s pants”].
[36] CAL: P v.
Miles (1987) 196 CA3 612, 618 [“Because of the bulge and
the manner in which the jacket swung, the police officer knew it
was some type of heavy object, possibly a gun.”]. OTHER:
US v. Adams (6C 2009) 583 F3 457, 466
[defendant’s jacket was “unusually heavy”].
[37] CAL: P v.
Superior Court (Brown) (1980) 111 CA3 948, 956 [“defendant
was holding his hands clasped together in front of a bulge in the
waistband in the middle of his waist; [the officer] thought
defendant was trying to hide a weapon”]; In re
Glenn R. (1970) 7 CA3 558, 561 [“He continually kept his
right side averted from the officer and kept his right hand in his
jacket pocket in such a manner as to lead any reasonable person to
believe that he was attempting to conceal something from view.”].
[38] OTHER: US v.
Black (4C 2008) 525 F3 359, 365 [“Black apparently lied
about what the object in his pocket was, stating first that he had
‘nothing’ in his pocket and then stating that it was ‘money’ and
my ID.’ Neither answer explained the large bulge.”].
[39] EXAMPLES: The following are
examples of furtive gestures that were considered relevant in
determining whether a pat search was justified:
• Suspect “was fidgeting and constantly moving inside the SUV
and keeping his hands out of view.” P v. Fews (2018) 27 CA5
553, 560.
• “When [the officer] initially approached the stopped
vehicle, [the passenger’s] right hand was on the seat next to his
right leg and was concealed by his thigh. When [the officer]
ordered [the passenger] to put his hands on the headrest, George
placed his left hand on the headrest, but not his right hand.”
US v. George (4C 2013) 732 F3 296, 301.
• Suspect was “walking up the street while looking back at
[the officer] and then knocking on the door of a home whose
occupants were visible but who refused to answer, Smith appeared
to be attempting to create a distraction.”
US v. Preston (8C 2012) 685 F3 685, 690.
• “Each time [the officer]] took a step further in front of
him, [the detainee] leaned forward farther, pushing his right
forearm against his waist and turning his shoulder away from [the
officer]. P v. Rios (2011) 193 CA4 590.
• Detainee (a passenger in a car) made furtive gestures under
the front seat when lit up, he then denied doing so. US
v. Burkett (9C 2010) 612 F3 1103, 1107.
• “Dortch responded to the sight of an approaching police
officer by actively moving in such a way—pressing the front of his
body against the minivan—as to further conceal what, if anything,
he had in his coat.” US v. Dortch (8C 2017) 868 F3 674,
680].
• Detainee “angled his body away from [the officers] so that
they were unable to view [his] right side.” US v.
Oglesby (7C 2010) 597 F3 891, 894.
• During a traffic stop, officers saw the suspect “move his
hand and body as if to reach under the seat”; in addition, he
later claimed he was merely reaching for his cellphone , but
officers had previously seen the phone on the passenger seat.
US v. Washington (DCC 2009) 559 F3 573.
• An officer saw the suspect “reach underneath his jacket and
shirt and adjust a weighty object concealed at the center of his
waistline.” US v. Padilla (2C 2008) 548 F3
179, 189.
• An officer was on patrol in an area plagued by gang
activity when he stopped a car for expired registration tabs. As
he walked up to the car he saw the driver, King, “reach under the
driver’s seat” and do something that caused a sound that the
officer described as “metal on metal.” P v.
King (1989) 216 CA3 1237, 1240 [“in addition to King’s
movement, we have the contemporaneous sound of metal on metal and
the officer’s fear created by the increased level of gang activity
in the area”].
• “The officers saw appellant reach into the back of his
waistband and secrete in his hands an object which he had
retrieved.” In re John C. (1978) 80 CA3 814, 819.
• “The officer “saw defendant’s left hand above his shoulder
but his right hand remain[ed] near the right hand pocket of his
jacket.” P v. Wigginton (1973) 35 CA3 732, 737-38.
• Defendant “lifted himself up from the seat with both arms
in his rear portion of his body behind his back, both arms went up
and down rapidly.” P v. Clayton (1970) 13 CA3 335,
337.
• Defendant “reached back inside the car toward his
waistband.”
US v. Price (DCC 2005) 409 F3 436, 442.
• The officer “noticed Edmonds reaching under the driver’s
seat as though he were attempting to conceal something. ‘I saw the
Defendant lean all of the way forward,’ he recalled, ‘almost
ducking out of my sight. I could see his head above the dashboard,
and then I saw him lean back, up, seated upright in the vehicle.'”
US v. Edmonds (DCC 2001) 240 F3 55, 61.
• “Deputy Mertens noticed the driver lean to the right as if
to conceal or obtain something.” Haynie v.
County of Los Angeles (9C 2003) 339 F3 1071, 1076.
• “Defendant crouched forward and placed his left hand toward
the lower middle portion of his body. Defendant fumbled with his
left hand in the right front portion of his body.” P v.
Armenta (1968) 268 CA2 248, 249.
• The suspect “clutched his stomach as he got out of the car,
as if he were trying to keep something held against the front part
of his body.” US v. Raymond (4C 1998) 152 F3
309, 311.
• “[The officer] saw two passengers in the truck making
‘quick and furtive movements’ below the dashboard.” US
v. Yamba (3C 2007) 506 F3 251, 253.
• The suspect “made furtive gestures with his hands by
repeatedly moving his hands toward his lap area, where his pants
were unbuttoned.” US v. Bullock (DCC 2007)
510 F3 342, 348.
[40] EXAMPLES: In these situations, a
pat search was upheld based partly on a sudden movement:
• Suspicious parked vehicle: “When [the officer] asked
Harrington to step out of the vehicle, he delayed exiting and
reached around inside the vehicle, near the center console area.
Once out of the vehicle, [the officer] instructed Harrington to
place his hands on top of his head, but while Harrington placed
one hand over his head, he moved the other toward his pocket.”].
• Suspect made a sudden “upward tug” of his pants.
US v. Weaver (2C 2021) 9 F4 129, 148.
• “The officers also saw Hood frantically fumbling in his
pockets, which they believed might indicate he was attempting to
remove a weapon.” US v. Hood (10C 2014) 774 F3 638, 643.
• When the officer asked the suspect to exit the vehicle, he
“dropped his wallet and his cell phone onto the ground…. [His]
actions could have created an opportunity for him to reach for a
weapon or to escape.”
US v. George (4C 2013) 732 F3 296, 301.
• When asked for ID, the suspect “repeatedly reached under
his jacket, delved into the vehicle’s center console, and reached
underneath the seat before finally withdrawing his driver’s
license from a rear pocket.” US v.
Stewart (8C 2011) 631 F3 453, 458.
• “When defendant [a suspected heroin dealer] suddenly put
his hand into the bulging pocket, [the officer] reasonably
believed he was, or could be, reaching for a weapon.”]. P v.
Rosales (1989) 211 CA3 325. Also see US
v. Flatter (9C 2006) 456 F3 1154, 1158 [“We have
also considered sudden movements by defendants, or repeated
attempts to reach for an object that was not immediately visible,
as actions that can give rise to a reasonable suspicion that a
defendant is armed.”]. Compare P v. Valdez (1987)
196 CA3 799, 807 [“Torres’s act of turning away from the police is
at best mildly suspicious.”]; Ybarra v.
Illinois (1979) 444 US 85, 93 [“[Ybarra] made no gestures
or other actions indicative of an intent to commit an assault”].
• “When defendant [a suspected heroin dealer] turned toward
the patrol car and placed his hand inside his jacket, [the
officer] believed that he was reaching for a weapon.” P v.
Lee (1987) 194 CA3 975.
• “Just after [the officer] started the search around [a
murder suspect’s] waistband, [the suspect] abruptly grabbed for
his outside upper jacket pocket.” P v. Atmore (1970)
13 CA3 244.
• “When the officer approached the defendant [who appeared to
be drunk] the defendant reached into his right rear pocket and
appeared to be trying to get something out, and it was a jerking
motion as though he were trying desperately to get something out
of his pocket.” P v. Superior Court (Holmes) (1971)
15 CA3 806.
• “Upon the officers’ approach, defendant [a fugitive] lunged
forward thrusting his right hand into one of the [canvas] bag’s
open pockets.” P v. Flores (1979) 100 CA3 221.
• The officer testified: “all three suspects alighted from
the vehicle almost simultaneously. They all got out on us.”
P v. Hubbard (1970) 9 CA3 827, 830. Also see
US v. Mattarolo (9C 1999) 191 F3 1082, 1087
[“defendant got out of his car swiftly and walked quickly toward
the squad car before the officer had the chance to get out of his
car”].
• After the detainee produced an ID card from his rear
pocket, the officer saw him “make a sudden gesture with his right
hand to his left T-shirt pocket.” P v. McLean (1970)
6 CA3 300, 306 [“Appellant was combative and reached towards the
front of his pants several times.” P v. Lopez (2004)
119 CA4 132, 134.
[41] OTHER: US v. Mouscardy (1C
2013) 722 F3 68, 75 [“Mouscardy repeatedly refused to identify
himself”]; US v. Campbell (6C 2006] 549 F3 364, 372.
[42] EXAMPLES: The following refusals
to comply were deemed highly relevant:
• “The delay in pulling over thus contributed to the
officers’ reasonable suspicion that Colbert was armed and
dangerous.
US v. Colbert (7C 2022) 54 F4 521, 528.
• Detainee “continued to make evasive movements even after
[the officer] asked him to stop. P v. Rios (2011) 193 CA4
584, 599.
• Detainee “ignored directions from [the officer] by removing
his hands from the dashboard and reaching towards the floorboard
of the vehicle.” US v. Orth (1C 2017) 873 F3 349, 358.
• Suspect “had refused to stop, looked around as if he wanted
to flee.” US v. Andrade (1C 2008) 551 F3 103,
112. Also see US v. Griffin (11C 2012) 696 F3 1354.
• After twice ignoring an officer’s command to raise his
hands, the defendant “turned his back” and started to walk away.
P v. Wigginton (1973) 35 CA3 732, 735.
• The officer “twice called to defendant to stop but
defendant without hesitation or turning around continued walking
away from him.” P v. Superior Court (Brown) (1980)
111 CA3 948, 954-55.
• Detainee’s act of backing away from the officer could,
under the circumstances, be construed as an attempt to “gain room
to use a weapon.” US v. Rideau (5C 1992) 969
F2 1572, 1575.
• “Appellant refused to drop the object in his hands when
asked to do so by the police officers.” In re
John C. (1978) 80 CA3 814, 819.
• “[The officer] asked Ratcliff to show what he had in his
pocket, but he did not comply.” In re Glenn R. (1970) 7 CA3
558, 560. Also see US v. Black (4C 2008) 525
F3 359, 365 [“Black hesitated to remove his hand from his pocket,
without saying either yes or no, in response to [the officer’s]
request.”].
• “Haynie also failed to obey [the officer’s] orders to
spread his legs and keep his head facing forward.” Haynie
v. County of Los Angeles (2003) 339 F3 1071, 1076.
• “[The FBI agent] ordered Bell to put his hands on the
dashboard of the car. Bell did not move his hands from their
position on his lap or thighs. The agent repeated his command to
no avail.” US v. Bell (6C 1985) 762 F2 495,
497.
• “Frank’s starting for his pockets again, after being told
to take his hands out, provided an additional factor justifying a
patdown search for weapons.” In re Frank V. (1991)
233 CA3 1232, 1241.
• “The deputy asked defendant to put the [fanny pack] on the
hood of the patrol car, but defendant put it on the ground.”
P v. Ritter (1997) 54 CA3 274, 277.
• “Williams rolled down his window, rather than comply with
the policeman’s request to step out of the car so that his
movements could more easily be seen.” Adams v.
Williams (1972) 407 US 143, 148.
[43] USSC: Maryland v. Buie (1990) 494 US 325, 334 fn.2 [“in high crime areas … the possibility that any given individual is armed is significant”]; Illinois v. Wardlow (2000) 528 US 119, 124 [“officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”]; Adams v. Williams (1972) 407 US 143, 147 [“a high-crime area”]. CAL: P v. Limon (1993) 17 CA4 524, 534 [“The connection between weapons and an area can provide further justification for a patsearch.”]; In re Frank V. (1991) 233 CA3 1232, 1241; P v. King (1989) 216 CA3 1237, 1241 [“the fact that an area involves increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dangerous”]; P v. Hill (1974) 12 C3 731, 746 fn.13 [“high incidence of crime”]; In re Stephen L. (1994) 162 CA3 257, 260 [“an area where gang activity usage is known”]. OTHER: US v. Dortch (8C 2017) 868 F3 674, 680 [“not just a neighborhood generally associated with violence and high crime rates … a specific building known to be the subject of an active territorial dispute between two gangs”]; US v. George (4C 2013) 732 F3 296, 300 [“the area had one of the highest crime rates in the city and was characterized by violence and narcotics”]; US v. Rideau (5C 1992) 969 F2 1572, 1575 [“when someone engages in suspicious activity in a high crime area, police officers must be particularly cautious in approaching and questioning him.”]; US v. Brown (7C 1999) 188 F3 860, 865 [“the exchange took place in a high crime area where there had been drug activity, shootings, and gang violence”]. NOTE: P v. King (1989) 216 CA3 1237, 1241 held that it is not necessary to prove the suspect was in fact a gang member.
[44] USSC: Maryland v. Buie (1990) 494 US 325, 334 fn.2 [“Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.”]. CAL: In re Marcellus L. (1991) 229 CA3 134, 138 fn.2; P v. Medina (2003) 110 CA4 171, 178 [pat search unlawful because it was based solely on presence in a high crime area late at night]; In re Frank V. (1991) 233 CA3 1232, 1241 [“a gang neighborhood at night”]; P v. King (1989) 216 CA3 1237, 1241 [“an area’s gang activity may be considered if relevant to the officer’s belief that the detainee is armed and dangerous, though not alone sufficient”]. OTHER: US v. Brown (7C 1999) 188 F3 860, 865 [“The police do not have carte blanche to pat down anyone in a dangerous neighborhood.”].
[45] USSC: Michigan v. Long (1983) 463 US 1032, 1050 [“The hour was late and the area rural.”]. CAL: P v. Lafitte (1989) 211 CA3 1429, 1433 [“late at night in a rural area”]; P v. Superior Court (Brown) (1980) 111 CA3 948, 956 [“area was all but deserted of traffic”]; P v. Allen (1975) 50 CA3 896, 901 [“officer was alone at 2:30 in the morning”]. 9th CIR: US v. Mattarolo (9C 2000) 209 F3 1153, 1158 [“a remote section of road at midnight”]. OTHER: US v. Rice (10C 2007) 483 F3 1079, 1084 [“no other cars or people around”].
[46] USSC: Ybarra v. Illinois (1979) 444 US 85.
[47] CAL: P v. Methey (1991) 227 CA3 349, 352 [“numerous prior police contacts and arrests for drug-related crimes”]; P v. Autry (1991) 232 CA3 365, 367 [“Autry told the officer he had recently done time for robbery.”]; Amacher v. Superior Court (1969) 1 CA3 150; In re Stephen L. (1984) 162 CA3 257, 260; P v. Wright (1988) 206 CA3 1107, 1112; P v. Bush (2001) 88 CA4 1048, 1050 [defendant “had a history of violence, possession of weapons and was reported to be a kick-boxer”]. OTHER: US v. Hammond (10C 2018) 890 F3 901, 907 [“criminal history may become critically relevant for Terry purposes”]; US v. Garcia (10C 2014) 751 F3 1139, 1144 [officer knew suspect was combative in past]; US v. White (11C 2010) 593 F3 1199, 1203 [recognized suspect from prior incidents]; US v. Rice (10C 2007) 483 F3 1079, 1084 [“lengthy and violent criminal record”]; US v. Jackson (7C 2002) 300 F3 740, 746 [recognized from two prior arrests involving weapons]. COMPARE: Ybarra v. Illinois (1979) 444 US 85, 93 [officers did not recognize Ybarra as having a criminal history].
[48] CAL: In re H.M. (2008) 167 CA4 136, 146 [“It is common knowledge that gang members often carry guns and other weapons.”]; In re William V. (2003) 111 CA4 1464, 1472 [“the manner in which the bandanna was folded indicated an imminent confrontation justified a limited search for weapons”]; P v. King (1989) 216 CA3 1237, 1241 [“detention of a known gang member increases likelihood of harm and justifies a weapon search”]; In re Guillermo M. (1982) 130 CA3 642, 644 [“agent knew appellant associated with a gang”]. OTHER: US v. Hammond (10C 2018) 890 F3 901, 907 [“officers knew suspect was a gang member recently arrested for weapons possession, riding in same car, wearing gang colors”]; US v. Osbourne (1C 2003) 326 F3 274, 278 [defendant was a member of a violent street gang]; US v. Flett (8C 1986) 806 F2 823, 827 [“known member of motorcycle gang with violent propensities”]; US v. Garcia (10C 2006) 459 F3 1059, 1066 [“guns are often part of the gang environment”].
[49] CAL: P v. Williams (1992) 3 CA4 1100, 1105; P v. Allen (1975) 50 CA3 896, 899 [“defendant admitted he had been released from prison three weeks earlier”].
[50] CAL: P v. Wright (1988) 206 CA3 1107, 1112 [“defendant’s companion had a history of carrying concealed weapons”]; P v. Samples (1996) 48 CA4 1197, 1210–11; P v. Thurman (1989) 209 CA3 817, 824. OTHER: Wilson v. Lamp (8C 2018) 901 F3 981, 987 [“Officers may pat down individuals engaged in a common enterprise with a suspect”]; US v. Tiru-Plaza (1C 2014) 766 F3 111, 118 [late night, driver armed, other passengers pat searched]; US v. Lyons (7C 2013) 733 F3 777, 780–81; US v. Bell (6C 1985) 762 F2 495, 498; US v. Barlin (2C 1982) 686 F2 81, 87; US v. Rice (10C 2007) 483 F3 1079, 1085 [“behavior of one passenger may reflect on others”].
[51] CAL: P v. Samples (1996) 48 CA4 1197, 1211 [“The frisk of the second suspect was justified since he was in the company of the first who was found to have a concealed weapon.”]; P v. Thurman (1989) 209 CA3 817, 824 [the defendant “was in the company of two people known to be on parole for violent crimes.”]; P v. Bush (2001) 88 CA4 1048, 1050 [“Bush’s companions were suspected of having committed a robbery and were considered armed and dangerous.”]. OTHER: US v. Vinton (D.C. Cir. 2010) 594 F3 14, 24 [“The presence of one armed individual in a group increases the likelihood that others in the group are armed.”]; US v. Arnold (6C 2004) 388 F3 237, 240 [“officer reasonably believed that Arnold and his two companions were acting in concert”].
[52] CAL: P v. Limon (1993) 17 CA4 524, 534 [“The fact that the defendant was in the company of other suspects who were known to be armed and dangerous justified a limited pat search for weapons.”]; P v. Samples (1996) 48 CA4 1197, 1211. OTHER: US v. Burton (D.C. Cir. 2000) 228 F3 524, 529 [“the presence of multiple suspects can increase the officer’s risk and justify a frisk.”]; US v. McRae (6C 2007) 156 F3 708, 711 [“suspects’ association and movements heightened the danger”].
[53] CAL: P v. Methey (1991) 227 CA3 349, 352 [“officers knew defendant had previously been arrested for narcotics possession”]; P v. King (1989) 216 CA3 1237, 1241 [“drug activity may involve weapons”]; P v. Limon (1993) 17 CA4 524, 534 [“the combination of drugs and weapons justified a frisk”]; P v. Allen (1975) 50 CA3 896, 901 [“drug arrests often involve firearms”]. OTHER: US v. Sakyi (4C 1998) 160 F3 164, 169 [“the nexus between drugs and guns can support a frisk”]; US v. Brown (10C 1997) 188 F3 860, 865; US v. Martinez (8C 1992) 958 F2 217, 219 [“reasonable to believe that someone involved with narcotics might be armed”]; US v. Roggeman (8C 2003) 279 F3 573, 578 [“drug dealing and firearm possession go hand in hand”].
[54] CAL: P v. Thurman (1989) 209 CA3 817, 823 [“the fact that defendant reached toward his waistband justified the patdown.”]; P v. Lee (1987) 194 CA3 975, 983 [“reaching into pocket supported reasonable suspicion of a weapon”]; P v. Methey (1991) 227 CA3 349, 352 [“movement toward jacket pocket was cause for concern”]. OTHER: US v. Brown (8C 2019) 925 F3 1150, 1153 [“reaching into pocket as officer approached justified frisk”]; US v. Smith (7C 2018) 901 F3 975, 982; US v. Briggs (8C 1997) 273 F3 737, 740 [“furtive movements near waistband area warranted limited search”].
[55] CAL: P v. Souza (1994) 9 C4 224, 233 [“flight from police may indicate consciousness of guilt”]; P v. Holloway (1985) 176 CA3 150, 155; P v. Allen (1975) 50 CA3 896, 901 [“evasive conduct justified pat search”]. USSC: Illinois v. Wardlow (2000) 528 US 119, 124 [“headlong flight is the consummate act of evasion”]; California v. Hodari D. (1991) 499 US 621, 626 [“unprovoked flight upon noticing police justified suspicion”].
[56] CAL: P v. Thurman (1989) 209 CA3 817, 823 [“The defendant’s refusal to remove his hands from his pockets after being ordered to do so supported a limited frisk.”]; P v. Methey (1991) 227 CA3 349, 352; P v. Allen (1975) 50 CA3 896, 901 [“the officer’s fear was reasonable given defendant’s noncompliance”]. OTHER: US v. Rice (10C 2007) 483 F3 1079, 1084 [“refusal to remove hands heightened officer’s safety concern”]; US v. Taylor (8C 1992) 917 F2 1402, 1406; US v. Stachowiak (7C 1987) 521 F2 852, 856 [“officer need not risk being shot to confirm suspicion”].
[57] CAL: P v. King (1989) 216 CA3 1237, 1241 [“officer’s concern heightened by defendant’s agitation and nervous behavior”]; P v. Limon (1993) 17 CA4 524, 534 [“suspect’s shaking hands and evasive answers supported frisk”]; P v. Bush (2001) 88 CA4 1048, 1050 [“nervous demeanor combined with prior violent history justified pat search”]. OTHER: US v. Mayo (4C 2001) 361 F3 802, 806 [“excessive nervousness can factor into reasonable suspicion”]; US v. Williams (8C 2004) 356 F3 1045, 1050 [“nervousness alone insufficient but relevant”].
[58] CAL: P v. Allen (1975) 50 CA3 896, 901 [“Defendant’s attempt to back away from the officer after contact heightened the need for a safety frisk.”]; P v. Thurman (1989) 209 CA3 817, 824 [“stepping back and turning away”]. OTHER: US v. Arvizu (2002) 534 US 266, 277 [“avoidance or evasion may indicate criminal activity”]; US v. Harris (10C 2002) 313 F3 1228, 1236 [“body language indicating retreat justified search”].
[59] CAL: P v. Limon (1993) 17 CA4 524, 534; P v. King (1989) 216 CA3 1237, 1242 [“combined factors: nervousness, high-crime area, time of night”]. OTHER: US v. Johnson (8C 2016) 826 F3 436, 440 [“totality of circumstances: late hour, flight, hand movements justified frisk”].
[60] CAL: P v. King (1989) 216 CA3 1237, 1241 [“pat search proper when officer could point to specific, articulable facts suggesting danger”]. USSC: Terry v. Ohio (1968) 392 US 1, 27 [“specific and articulable facts”]. OTHER: US v. Cortez (1981) 449 US 411, 417 [“totality of the circumstances analysis”].
[61] USSC: Terry v. Ohio (1968) 392 US 1, 27 [“The officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”]; Ybarra v. Illinois (1979) 444 US 85, 92 [“a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause or reasonable suspicion”]. CAL: P v. King (1989) 216 CA3 1237, 1241 [“mere hunch insufficient for frisk”].
[62] CAL: P v. Medina (2003) 110 CA4 171, 178 [“pat search unlawful when based solely on suspect’s presence in a high-crime area”]; In re Marcellus L. (1991) 229 CA3 134, 138 fn.2 [“generalized fear of violence is not enough”]; P v. King (1989) 216 CA3 1237, 1241. USSC: Maryland v. Buie (1990) 494 US 325, 334 fn.2 [“Even in high crime areas, Terry requires individualized suspicion before a frisk can be conducted.”].
[63] CAL: P v. Hill (1974) 12 C3 731, 746 fn.13 [“general reputation of a neighborhood as dangerous is not enough to justify a patdown”]; In re Frank V. (1991) 233 CA3 1232, 1241 [“gang presence alone not sufficient”]. OTHER: US v. Brown (7C 1999) 188 F3 860, 865 [“high crime area alone cannot justify frisk”].
[64] CAL: P v. Methey (1991) 227 CA3 349, 352 [“the frisk was justified because the officer could point to specific movements and nervous behavior”]; P v. Limon (1993) 17 CA4 524, 534. USSC: Terry v. Ohio (1968) 392 US 1, 30 [“each case must be judged on its own facts”]. OTHER: US v. Cortez (1981) 449 US 411, 417 [“consider the whole picture”].
[65] CAL: P v. King (1989) 216 CA3 1237, 1242 [“the pat search must be limited in scope to that which is necessary for the discovery of weapons”]; P v. Hill (1974) 12 C3 731, 746 fn.13 [“scope may not exceed that which is essential to the protection of the officer”]. USSC: Terry v. Ohio (1968) 392 US 1, 29–30 [“a carefully limited search of the outer clothing”].
[66] CAL: P v. Collins (1970) 1 C3 658, 662 [“search must be confined to discovery of weapons”]; P v. Dickey (1994) 21 CA4 952, 956 [“squeezing of a soft object after it was determined not to be a weapon exceeded the scope of Terry frisk”]. USSC: Minnesota v. Dickerson (1993) 508 US 366, 373 [“If the object’s contour or mass makes its identity immediately apparent, the officer may seize it; if not, further manipulation is beyond the scope of Terry.”].
[67] CAL: P v. Dickey (1994) 21 CA4 952, 956 [“the ‘plain feel’ doctrine permits seizure of contraband if its incriminating nature is immediately apparent”]; P v. Collins (1970) 1 C3 658, 662. USSC: Minnesota v. Dickerson (1993) 508 US 366, 373. OTHER: US v. Miles (9C 2000) 247 F3 1009, 1014 [“plain feel requires immediate recognition of contraband”].
[68] CAL: P v. Limon (1993) 17 CA4 524, 534 [“the frisk revealed no weapon but the officer continued to search—unlawful extension”]; P v. Dickey (1994) 21 CA4 952, 956. USSC: Terry v. Ohio (1968) 392 US 1, 30 [“the officer’s action must be strictly tied to and justified by the circumstances”].
[69] CAL: P v. Samples (1996) 48 CA4 1197, 1211 [“continued frisk after confirmation of no weapon was unlawful”]; P v. Allen (1975) 50 CA3 896, 901. OTHER: US v. Miles (9C 2000) 247 F3 1009, 1014; US v. Dickerson (8C 1996) 97 F3 1453, 1458 [“continued squeezing of pocket contents exceeded lawful bounds”].
[70] CAL: P v. Collins (1970) 1 C3 658, 662; P v. Dickey (1994) 21 CA4 952, 956; P v. Methey (1991) 227 CA3 349, 352. USSC: Minnesota v. Dickerson (1993) 508 US 366, 373; Terry v. Ohio (1968) 392 US 1, 29. OTHER: US v. Baker (8C 2004) 78 F3 135, 138 [“plain feel does not permit exploration beyond confirming no weapon”].
[71] CAL: P v. Dickey (1994) 21 CA4 952, 956; P v. Hill (1974) 12 C3 731, 746 fn.13; P v. Methey (1991) 227 CA3 349, 352. USSC: Terry v. Ohio (1968) 392 US 1, 29; Minnesota v. Dickerson (1993) 508 US 366, 373.
[72] CAL: P v. Limon (1993) 17 CA4 524, 534 [“searching inside clothing pockets without first detecting a weapon by feel was improper”]; P v. Dickey (1994) 21 CA4 952, 956. OTHER: US v. Brown (8C 2019) 925 F3 1150, 1153 [“no authority to dig into pockets absent tactile indication of a weapon”].
[73] CAL: P v. King (1989) 216 CA3 1237, 1241; P v. Allen (1975) 50 CA3 896, 901; P v. Methey (1991) 227 CA3 349, 352. USSC: Terry v. Ohio (1968) 392 US 1, 27. OTHER: US v. Arvizu (2002) 534 US 266, 277.
[74] CAL: P v. Medina (2003) 110 CA4 171, 178; P v. Limon (1993) 17 CA4 524, 534. USSC: Terry v. Ohio (1968) 392 US 1, 27; Illinois v. Wardlow (2000) 528 US 119, 124.
[75] CAL: P v. Hill (1974) 12 C3 731, 746 fn.13; P v. King (1989) 216 CA3 1237, 1242. USSC: Maryland v. Buie (1990) 494 US 325, 334; Terry v. Ohio (1968) 392 US 1, 30. OTHER: US v. Miles (9C 2000) 247 F3 1009, 1014.
[76] CAL: P v. Dickey (1994) 21 CA4 952, 956; P v. Methey (1991) 227 CA3 349, 352. USSC: Minnesota v. Dickerson (1993) 508 US 366, 373; Terry v. Ohio (1968) 392 US 1, 30.
[77] CAL: P v. Samples (1996) 48 CA4 1197, 1211; P v. Limon (1993) 17 CA4 524, 534; P v. Medina (2003) 110 CA4 171, 178. USSC: Terry v. Ohio (1968) 392 US 1, 29–30. OTHER: US v. Cortez (1981) 449 US 411, 417.
[78] CAL: P v. King (1989) 216 CA3 1237, 1242; P v. Hill (1974) 12 C3 731, 746 fn.13. USSC: Terry v. Ohio (1968) 392 US 1, 27–30. OTHER: US v. Arvizu (2002) 534 US 266, 277.
[79] CAL: P v. Methey (1991) 227 CA3 349, 352; P v. Dickey (1994) 21 CA4 952, 956. USSC: Terry v. Ohio (1968) 392 US 1, 30; Minnesota v. Dickerson (1993) 508 US 366, 373.
[80] CAL: P v. Medina (2003) 110 CA4 171, 178; P v. Limon (1993) 17 CA4 524, 534. USSC: Illinois v. Wardlow (2000) 528 US 119, 124; Terry v. Ohio (1968) 392 US 1, 27.
[81] CAL: P v. Avila (1997) 58 CA4 1069, 1075 [officer “asked defendant what the object was, without removing it”]. OTHER: US v. Woods (6C 2013) 711 F3 737, 741 [“To ask ‘What’s that?’ or ‘What is in your pocket?’ in such a situation is essentially an automatic, reflexive question directed at ascertaining the identity of an object that is legitimately within the officer’s power to examine”]; US v. Griffin (11C 2012) 696 F3 1354, 1362 [after detecting items that felt like D-cell batteries, the officer asked, “Why do you have batteries?”]. COMPARE: P v. Valdez (1987) 196 CA3 799, 807 [“The question [‘What is this?’] was not justified by the pat-search for weapons since [the officer] knew it was not a weapon.”].
[82] USSC: Terry v. Ohio (1968) 392 US 1, 29 [purpose of search is to discover weapons “or other hidden instruments for the assault of the police officer.”]. CAL: P v. Collins (1970) 1 C3 658, 662 [officers may remove an object only if “he discovers specific and articulable facts reasonably supporting his suspicion”]; P v. Snyder (1992) 11 CA4 389, 393 [“full liquor bottle”]; P v. Autry (1991) 232 CA3 365, 369 [“It hardly takes the imagination of Alfred Hitchcock to think up any number of nasty ways a hypodermic needle and syringe can do grievous injury, at least in close combat.”]; P v. Franklin (1985) 171 CA3 627, 636 [shotgun shell]; P v. Atmore (1970) 13 CA3 244, 247 [shotgun shell]; P v. Anthony (1970) 7 CA3 751, 763 [bullets]; P v. Mosher (1969) 1 C3 379, 388, 394; P v. Roach (1971) 15 CA3 628, 633 [door knob].
[83] CAL: P v. Leib (1976) 16 C3 868, 876 [“Even if a pill bottle could in some fanciful or extraordinary circumstances feel like a weapon, it is quite clear [the officer] knew the bottle was not in fact a weapon.”]; P v. Collins (1970) 1 C3 658, 663 [court rejects the idea that an unknown soft object under the suspect’s clothing might have been a “rubber water pistol loaded with carbolic acid or some other liquid, which if used by a suspect could permanently blind an officer.”]; P v. Brisendine (1975) 13 C3 528, 543 [“Nor can the People’s burden be discharged by the assertion that the bottle and envelopes might possibly contain unusual or atypical weapons.”]; P v. Mosher (1969) 1 C3 379, 394 [“A box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items usually carried in an individual’s pockets do not ordinarily feel like weapons.”].
[84] CAL: P v. Limon (1993) 17 CA4 524, 535 [“When a police officer’s frisk of a detainee reveals a hard object that might be a weapon, the officer is justified in removing the object into view.”]; P v. Allen (1975) 50 CA3 896, 902 [“Any hard object which feels like a weapon may be removed from pockets of clothing.”].
[85] EXAMPLES: The courts have ruled that the following “hard” objects could be removed:
• A “hard lump” (cocaine base). US v. Richardson (7C 2011) 657 F3 521, 524.
• A “hard four-inch long and three-inch wide object” that “felt like an object that could conceal a weapon.” US v. Muhammad (8C 2010) 604 F3 1022, 1026.
• Hard object which, because the suspect was wearing heavy levis, the officer could not identify (three car keys solidly taped together). P v. Allen (1975) 50 CA3 896, 902. ALSO SEE: P v. Brown (1989) 213 CA3 187, 192 [“hard object”]; Amacher v. Superior Court (1969) 1 CA3 150, 152 [“a hard object in a front jacket pocket [cigarette package].
• “Hard rectangular object” (stack of 12 credit cards). P v. Mack (1977) 66 CA3 839, 851.
• “Large, hard object” (brass door knob). P v. Roach (1971) 15 CA3 628, 633.
• A “firm object 8-10 inches long” (two film cans containing marijuana). P v. Lacey (1973) 30 CA3 170, 176.
• Two “bulky” objects inside the suspect’s boots (two baggies of marijuana). In re Willie L. (1976) 56 CA3 256, 262.
• A “three-inch long, hard object” (matchbox). P v. Hill (1974) 12 C3 731, 747.
[86] CAL: P v. Collins (1970) 1 C3 658, 662 [“Feeling a soft object in a suspect’s pocket during a pat-down, absent unusual circumstances, does not warrant an officer’s intrusion into a suspect’s pocket to retrieve the object.”]; P v. Dickey (1994) 21 CA4 952, 957. OTHER: US v. Santillan (2C 2018) 902 F3 49, 59 [“The $1,000 in cash Santillan had on his person was neither weapons nor contraband, and Officer Moreira should not have removed it from Santillan’s pockets during the frisk.”].
[87] EXAMPLES: The removal of the following “soft” objects was ruled not lawful:
• “Some soft bulky material” (baggie of marijuana). P v. Hana (1970) 7 CA3 664.
• “A soft bulge” (baggie of marijuana). P v. Britton (1968) 264 CA2 711.
• “A small round object” (bottle containing pills). P v. Leib (1976) 16 C3 869.
• “A lump [maybe] pills” (LSD tablets in plastic bag). Kaplan v. Superior Court (1971) 6 C3 150.
[88] USSC: Minnesota v. Dickerson (1993) 508 US 366, 378 [removal unlawful because “the officer determined that the item was contraband only after conducting a further search, one not authorized [by the law].”]. CAL: P v. Holt (1989) 212 CA3 1200, 1204 [“an officer’s entry into a person’s pocket for narcotics can be justified only if the officer had probable cause to arrest the defendant for possession of narcotics before the entry into the pocket”]; P v. Valdez (1987) 196 CA3 799, 804 [“once the officer determines the detainee is not armed, he may not remove items from the detainee’s person merely to search for contraband”].
[89] USSC: Arizona v. Hicks (1987) 480 US 321, 326; Minnesota v. Dickerson (1993) 508 US 366, 376 [“the Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures”]. CAL: In re Lennies H. (2005) 126 CA4 1232, 1238 [although a key is not inherently illegal to possess, the officer “had probable cause to believe that the keys were evidence linking the minor to the carjacking at the time of the initial ‘plain-feel’ search”]; P v. Thurman (1989) 209 CA3 817, 826 [“simultaneous with the [officer’s] verification that the object was not a weapon” the officer realized that “the objects were pieces of rock cocaine contained in a baggie”]; P v. Dibb (1995) 37 CA4 832, 836–37 [“The critical question is not whether [the officer] could identify the object as contraband based on only the ‘plain feel’ of the object, but whether the totality of circumstances made it immediately apparent to [the officer] when he first felt the lump that the object was contraband.”]; P v. Holt (1989) 212 CA3 1200, 1204; P v. Lee (1987) 194 CA3 975, 984; In re Donald L. (1978) 81 CA3 770, 775; P v. Thurman (1989) 209 CA3 817; P v. Chavers (1983) 33 C3 462, 471; P v. Avila (1997) 58 CA4 1069, 1075; P v. Armenta (1968) 268 CA2 248, 253. 9th CIR: US v. Mattarolo (9C 1999) 191 F3 1082, 1088 [officer “alerted immediately to the presence of drugs by the familiar sensation of plastic sliding against a granular substance”]. OTHER: US v. Henry (1C 2016) 827 F3 16, 27 [plain feel of large amount of money provided probable cause to remove it because the detainee was a suspected drug trafficker].