What Has it Got in its Pocketses? No Terry Search Guessing Game

Terry searches, and their subsequent suppression appeals, would be far more interesting had Ivan Rochin won this case before the Tenth Circuit Court of Appeals.

Rochin argued in his unreasonable search appeal that drug paraphernalia recovered from his pockets during a Terry patdown should be suppressed because the searching officer did not confirm through a "tactile investigation" exactly what the objects were before removing them.

The Tenth Circuit did not buy his argument.

Officer Joe Moreno stopped Rochin's car for an expired registration at 2:30 in the morning. As the officer approached the vehicle, a radio dispatcher warned him that the vehicle and its driver were suspected of involvement in a drive-by shooting, and that the driver might be armed and dangerous. When the officer reached the car and asked for a driver's license, vehicle registration, or insurance information, Rochin could provide none.

Moreno was concerned for his own safety, so he asked Rochin to step out of his car for a protective pat down. During the Terry search that followed, the court notes that "Officer Moreno felt two bulges, one filling each of Mr. Rochin's trouser pockets. The objects felt long and hard, but the officer couldn't tell exactly what they were."

After a garbled Spanish exchange filled with misunderstandings, Moreno removed the objects, which turned out to be glass pipes containing drugs, from Rochin's pockets. Moreno arrested Rochin for drug possession. After a later inventory search of the car turned up a gun, Rochin was eventually convicted of a federal firearm offense.

Rochin argued to the Tenth Circuit Court of Appeals that he was the victim of an unreasonable search because Moreno didn't know what was in Rochin's pockets when he completed the patdown.

The Tenth Circuit disagreed, noting that "a reasonable officer isn't credited with x-ray vision and can't be faulted for having failed to divine the true identity of the objects," and that a reasonable officer could have concluded that Rochin's pocket pipes were weapons.

Since "the Fourth Amendment is not a game of blind man's bluff," the Tenth Circuit upheld the search.

We actually like Rochin's proposed guessing-game modification to the Terry search, but it doesn't seem sporting without the Riddles-in-the-Dark treatment. If the Tenth Circuit Court of Appeals ever decides that police officers should have to guess what a suspect has in his pockets to use the pocket contents as evidence, the suspect should be required to offer clues.

Related Resources:

• U.S. v. Rochin (Tenth Circuit Court of Appeals)
• Fourth Circuit Won't Tolerate Terry Search Abuses (FindLaw's Fourth Circuit blog)
• Unreasonable Search: Drug Theft Violates Civil Rights (FindLaw's Sixth Circuit blog)
• No Qualified Immunity in Traffic Misdemeanor Warrantless Search (FindLaw's Tenth Circuit blog)
• No Reasonable Person Here: Court Refuses to Suppress Evidence (FindLaw's Tenth Circuit blog)