DC Cir: Come on... open your jacket

An alert reader points to U.S. v. Askew. In this case, the DC Circuit takes steps to assure people that it is not made up of the kind of people that would ever be stopped by the police! To do this, they hold that in the course of a Terry stop, the cops can manipulate a suspect’s clothing (i.e. open his jacket), not for “officer protection” purposes, but so that a witness could identify his clothing.  Strangely, the witness said he wasn’t the perpetrator, but a gun became visible.   So, the DC Circuit holds:

The unzipping of Askew’s jacket clearly promoted the same government interest that justified the show-up itself: the interest in reliably determining whether Askew was the armed robber. A reliable witness identification generally allows the police to determine whether to further investigate or arrest the person stopped, or to move on to someone else entirely.  This government interest is particularly important in cases (such as this one) where an armed criminal is at large and may pose a danger of causing additional harm to the public....Moreover, the primary intrusions on Askew’s individual privacy resulted from the forcible detention itself and the initial protective frisk, both of which were plainly permissible under Terry. Our focus therefore is on the additional step of unzipping a jacket to reveal clothing underneath. Contrary to Askew’s contention, this is a relatively minimal additional interference with individual privacy.

This case is written like a freakin’ powerpoint presentation.  Lots of bullet-points, and talk of “first” and “second” principles.

Edwards dissents.  He notes that everyone concedes that there is no caselaw to support the government’s view that cops can open peoples’ jackets.  It points out that most of the intrusions that the majority says are okay during a Terry stop (e.g. fingerprinting) have never really been approved, and accuses of majority of relying on words like “may permissible” to mean “of course cops can do it” and the government has therefore been given a license to stretch Hayes v. Florida, 470 U.S. 811, 817 (1985) to do whatever it wants.

Comments

[arizonalawdawg]

I'm just tired of courts trying to figure out if police action, such as that in U.S. v. Askew and everywhere else, fits within one of the 22 or so exceptions to the so-called warrant requirement. Why not flush all of the caselaw on exceptions to the warrant requirement, and face the fact that the Fourth Amendment was never intended to require a warrant to conduct a search or seizure. A warrant granted immunity from damages to officers who conducted an "unreasonable search or seizure." If an officer conducted an unreasonable search or seizure without first obtaining a warrant, he would be subject to any of the remedies available at common law. I know this is something I wish for in my dreams, and that the links of stare decisis are too lengthy and strong to go back to what the Fourth Amendment originally meant, but it needs to be aired from time to time how wrong the Supreme Court got it when it discovered a warrant requirement for all searches and seizures, and then how badly the federal courts have bastardized that requirement with the myriad exceptions to the so-called "rule" (with 22 or so exceptions--can that even be called a rule? I digress).