(CN) - A brick of marijuana that Border Patrol agents found in a boy's pants while frisking him illegally should have been excluded as evidence, the 9th Circuit ruled Wednesday.
In a pointed dissent, Chief Judge Alex Kozinski called the ruling "dangerous" and contrary to common sense and the principles of deference.
Agents detained the unnamed teenager in question at a highway checkpoint about 100 miles north of the U.S.-Mexico border in Cochise County. They questioned I.E.V., a minor, and his brother after a police dog indicated the possible presence of humans or drugs in the brothers' vehicle.
Though the agents found nothing in the car, I.E.V.'s brother allegedly seemed nervous, so they frisked both teens and found a brick of marijuana tucked into I.E.V.'s pants.
U.S. District Judge David Bury refused to suppress the drugs as evidence against the boy and convicted him after a bench trial.
But a federal appeals panel in San Francisco reversed Wednesday after finding that the pat-down was "a prohibited fishing expedition for evidence."
"The police officers had no particularized suspicions directed at the unthreatening defendant to justify the frisk at its inception," according to the ruling authored by Judge N. Randy Smith and joined by Judge Morgan Christen. "In addition, the searching officer exceeded the lawful scope of the frisk by lifting the defendant's shirt to retrieve an object, because there is no evidence that the searching officer immediately recognized the object as a weapon or an unlawful item; the searching officer did not testify."
Precedent dating back to the 1970s, law enforcement officers can frisk a suspect, absent probable cause, only if he appears armed or threatening. The officers lacked such justification in this case, the majority found.
"The officers' argument that their safety was in danger is contradicted by the absence of any suspicious behavior directly attributable to the defendant, the scant evidence of drug possession prior to the frisk, the lack of immediate actions by officers to ensure safety, and the nonthreatening and compliant behavior of two teenagers, one of them a minor, surrounded by officers in an open area," Smith wrote.
But Kozinski argued in dissent that the pat-down was justified by the "totality of the circumstances," which included "proximity to the border, the canine alert to contraband, [and] the nervous behavior and gestures."
In the agent's experience, "individuals transporting contraband also carry firearms," Kozinski added.
"Common sense tells us that people engaged in legitimate business don't tape bricks to their bodies," he added. "This would be true even if the encounter had been on a street corner in Pocatello, but at a checkpoint on a highway heading from the Mexican border, after a dog had alerted to possible drugs? 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.
The dissent also states that "an unknown object could be contraband and could also be a weapon, just as a cat locked in a steel chamber for an hour could be alive and could also be dead."
"It's easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety," he added. "But if we'd been there when I.E.V. and his brother pulled up in their car, heard the police dog alert 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."
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