WASHINGTON — A federal appeals court overturned a juvenile’s felony drug conviction Wednesday, ruling that a Border Patrol pat-down that turned up marijuana during a vehicle stop in Arizona was not justified.
Writing for a split three-judge panel of the 9th U.S. Circuit Court of Appeals, Judge N.R. Smith said the frisk “exceeded the scope of a constitutional … search,” which requires a reasonable belief that a suspect poses a threat to officers.
But in a scathing dissent, Judge Alex Kozinski said the majority opinion in the case of the juvenile, identified only as I.E.V., was “wrong” and “dangerous.”
“Any officer who sent I.E.V. on his way without finding out what he was hiding under his shirt should have been fired for incompetence,” Kozinski wrote.
The juvenile was riding in a vehicle driven by his brother, Joseph Mendez, when they entered a Border Patrol checkpoint near Whetstone, Ariz., about 100 miles from the Mexican border. After a police dog signaled the possible presence of people or drugs hidden in the vehicle, officers had the two get out of the car.
At that point, the dog gave no indication that the two had contraband on them. When Mendez consented to a search of the vehicle, nothing turned up.
One officer frisked Mendez and found no contraband, but when another officer frisked I.E.V. he felt a lump and lifted the youth’s shirt to find a “brick” of marijuana taped to his abdomen. That sparked a second pat-down of Mendez, uncovering more drugs.
The arrest report mentioned “nervous behavior and gestures of Mendez,” but not of I.E.V. They both cooperated.
Smith wrote that this was not a situation where the officers could reasonably have believed they were in danger, which might have justified frisks. He pointed to testimony that officers did not find the passengers to be threatening, in possession of an observable weapon or attempting to flee.
“The officers largely completed their investigatory tasks before frisking Mendez, the fidgety one,” Smith wrote.
“Though we take no satisfaction in the consequence that a possessor of marijuana will escape punishment in this case, our overriding concern is that to hold otherwise would allow police officers to frisk every individual in a vehicle stopped based on reasonable suspicion of criminal activity,” he wrote.
Kozinski agreed that frisking is an “indignity and intrusion” but that it needs to be balanced against the safety of the officers.
“It’s easy enough … to say that officers in the field had no cause to fear for their safety,” he wrote. “But if we’d been there … and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.”
I.E.V.’s attorney, John Kaufmann, said the judges wanted to spell out what the law is on stop-and-frisk.
“The important thing to remember is this was less than a pound of marijuana,” Kaufmann said.
“The juvenile got the aggravated felony of possession of marijuana with intent to distribute,” he said. “The brother was given a misdemeanor. I don’t think the appellate court thought that was right.”
Kaufmann said I.E.V. has served more time than Mendez, and regardless of the final court outcome, his punishment is already over.
A Justice Department spokesman declined to comment on the ruling.
- Deciding when you need knee surgery
- Celebrating Fourth of July is much cooler in these AZ towns
- Top ten road trip bathrooms in America
- Six things causing a pain in your neck
- 5 things to make your summer move easier
- Three elements of a strong timeshare exit guarantee
- Stretches and exercises for carpal tunnel syndrome
- The best Major League ballparks have their own personality
- Comparing the best regular seasons: The '96 Bulls and '16 Warriors
- 3 Arizona road trips and the vehicles to get you there
- Colon cancer is preventable. Check these signs and symptoms to stay healthy.
- 6 of the biggest skin cancer myths
- Affordable small home makeover ideas
- Locals helping locals: 6 success stories you need to know about
- Sunscreen facts that could save your life
- 6 energy saving hacks for your home
- 5 tips for choosing a company to end your timeshare
- Overlooked water tips to save you money
- 5 of the most adored gentlemen in professional sports today
- The real danger of sitting at your desk
- Most surprising NBA playoff performances of the last 40 years
- 11 classic baseball movies you must see again
- Finally getting rid of fat: 3 methods that actually work
- 4 reasons cancer survivors should focus on food
- 5 spring cleaning spots everyone forgets
- 5 reasons to look forward to watching the D-backs this season
- Common virus attributed to spike in head and neck cancers
- 5 signs it’s time to end your timeshare ownership
- 3 most overlooked ways to keep your home healthy
- 6 ways the air in your home could be making you sick