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Court reverses drug conviction over faulty frisk; dissent calls ruling ‘dangerous’

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Wednesday, Nov. 28, 2012
By Matthew Standerfer
Cronkite News

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.