United States v. Askew and the Scope of Investigative Stops:
The D.C. Circuit handed down an interesting stop-and-frisk case involving an officer's unzipping a suspect's jacket during an investigative stop, revealing a gun. Judge Kavanaugh (joined by Judge Sentelle) ruled that the unzipping of the jacket was a permissible part of the investigative stop; Judge Edwards dissented on the ground that the unzipping of the jacket exceeded the scope of Terry v. Ohio. The case is United States v. Askew, found via How Appealing.
A quick summary of the facts: The defendant was identified in the street as a possible suspect in an armed robbery nearby, and was brought before an eyewitness of the robbery to see if the eyewitness recognized him. Before the ID procedure, the officer had conducted a "pat down" that hadn't revealed any weapons. Next, the officer partially unzipped the suspect's jacket to help an eyewitness identify whether the suspect was in fact the robber. When unzipping the jacket, the officer felt a hard object that blocked him from being able to unzip the jacket all the way. However, he did not stop to investigate further at that time. Finally, after the identification procedure was over, the officer unzipped the jacket the rest of the way, revealing a black pouch with part of a gun sticking out. It later turned out that the suspect was not the armed robber; he just happened to have been walking near the scene of the robbery with a gun in a black pouch on his person. The suspect was charged with gun offenses, and argued that the unzipping of his jacket violated his Fourth Amendment rights.
I think this is a very close case, and after thinking about it for a while I'm not sure where I come out. My initial instincts were that Edwards was right, because Terry allows an investigative stop and a protective search for weapons but not an investigative search. Judge Kavanaugh makes two arguments in support of the view that Terry does allow investigative searches, but neither seem terribly strong. First, he argues that fingerprinting can be allowed during Terry stops, and that these are intrusions much like unzipping a jacket. However, unzipping a person's jacket is plainly a search of his person; fingerprinting generally is thought not to be a search (although some lower courts disagree). Second, he notes that Fourth Amendment scholar Wayne LaFave has suggested that he thinks some limited investigative searches during Terry stops should be okay. But with all due respect to my co-author Wayne LaFave, his personal opinion about what the law should be is not the same as what the law is.
On the other hand, this case does seem different from the usual case, in that the first partial unzipping was not really investigatory. Its purpose was to expose what the suspect was wearing underneath his jacket so the eyewitness could help identify whether the suspect was the robber, not to find something underneath the jacket. Given that, it seems plausible that you should subject the initial unzipping to a general Terry reasonableness analysis, as Judge Kavanaugh does. As for the reasonableness analysis, it seems plausible too, although it's hard to know without knowing more details. Was removing the jacket really helpful to the ID process, given that the jacket underneath was apparently already visible (as suggested by the fact the officer ended up not bothering to remove the jacket after the zipper became stuck when it hit the hard object)? On the other side, is unzipping a person's jacket really just a de minimis intrusion on his privacy, as Kavanaugh suggests? (slip op at 13). Perhaps, but I'm not entirely sure.
I also have some doubts about the second unzipping. Was the second unzipping really about officer safety? If the officers were really concerned about their safety, why wait until the show-up was over to continue to unzip the jacket? Anyway, very interesting case.
A quick summary of the facts: The defendant was identified in the street as a possible suspect in an armed robbery nearby, and was brought before an eyewitness of the robbery to see if the eyewitness recognized him. Before the ID procedure, the officer had conducted a "pat down" that hadn't revealed any weapons. Next, the officer partially unzipped the suspect's jacket to help an eyewitness identify whether the suspect was in fact the robber. When unzipping the jacket, the officer felt a hard object that blocked him from being able to unzip the jacket all the way. However, he did not stop to investigate further at that time. Finally, after the identification procedure was over, the officer unzipped the jacket the rest of the way, revealing a black pouch with part of a gun sticking out. It later turned out that the suspect was not the armed robber; he just happened to have been walking near the scene of the robbery with a gun in a black pouch on his person. The suspect was charged with gun offenses, and argued that the unzipping of his jacket violated his Fourth Amendment rights.
I think this is a very close case, and after thinking about it for a while I'm not sure where I come out. My initial instincts were that Edwards was right, because Terry allows an investigative stop and a protective search for weapons but not an investigative search. Judge Kavanaugh makes two arguments in support of the view that Terry does allow investigative searches, but neither seem terribly strong. First, he argues that fingerprinting can be allowed during Terry stops, and that these are intrusions much like unzipping a jacket. However, unzipping a person's jacket is plainly a search of his person; fingerprinting generally is thought not to be a search (although some lower courts disagree). Second, he notes that Fourth Amendment scholar Wayne LaFave has suggested that he thinks some limited investigative searches during Terry stops should be okay. But with all due respect to my co-author Wayne LaFave, his personal opinion about what the law should be is not the same as what the law is.
On the other hand, this case does seem different from the usual case, in that the first partial unzipping was not really investigatory. Its purpose was to expose what the suspect was wearing underneath his jacket so the eyewitness could help identify whether the suspect was the robber, not to find something underneath the jacket. Given that, it seems plausible that you should subject the initial unzipping to a general Terry reasonableness analysis, as Judge Kavanaugh does. As for the reasonableness analysis, it seems plausible too, although it's hard to know without knowing more details. Was removing the jacket really helpful to the ID process, given that the jacket underneath was apparently already visible (as suggested by the fact the officer ended up not bothering to remove the jacket after the zipper became stuck when it hit the hard object)? On the other side, is unzipping a person's jacket really just a de minimis intrusion on his privacy, as Kavanaugh suggests? (slip op at 13). Perhaps, but I'm not entirely sure.
I also have some doubts about the second unzipping. Was the second unzipping really about officer safety? If the officers were really concerned about their safety, why wait until the show-up was over to continue to unzip the jacket? Anyway, very interesting case.