United States v. Askew

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3092 September Term, 2006
04cr00010-01

Filed On: July 12, 2007
United States of America,
Appellee

v.

Paul Askew,
Appellant

BEFORE: Ginsburg, Chief Judge, and Sentelle, Henderson, Randolph,
Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh,
Circuit Judges, and Edwards, Senior Circuit Judge

ORDER

Upon consideration of the appellant's petition for rehearing en banc, the
response thereto, and the vote in favor of the petition by a majority of the judges eligible
to participate, it is

ORDERED that the petition be granted. This case will be reheard by the court
sitting en banc. It is

FURTHER ORDERED that the court's April 6, 2007 judgment be vacated in its
entirety. It is

FURTHER ORDERED that oral argument before the en banc court will be heard
at 9:30 a.m. on Thursday, October 11, 2007. It is

FURTHER ORDERED that the parties submit thirty (30) copies each of briefs
and the appendix in accordance with the following schedule:

Brief for Appellant August 17, 2007

Appendix August 17, 2007

Brief for Appellee September 10, 2007

Reply Brief for Appellant September 21, 2007
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-3092 September Term, 2006

The briefs should address whether during a Terry stop police officers may unzip
a suspect's jacket solely to facilitate a show-up. In addressing this question, the parties
should consider whether the officers' action was a lawful search under Terry v. Ohio,
392 U.S. 1 (1968), and its progeny. The briefing should not extend to the subject
covered in Part IV of the panel opinion, i.e., the "second unzipping".

Because the briefing schedule is keyed to the date of argument, the court will
grant requests for extension of time limits only for extraordinarily compelling reasons.
The parties are directed to serve and file their submissions by hand. All briefs and
appendices must contain the date that the case is scheduled for oral argument at the
top of the cover. See D.C. Cir. Rule 28(a)(7).

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY:
Nancy G. Dunn
Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2006 Decided April 6, 2007

No. 04-3092

UNITED STATES OF AMERICA,
APPELLEE

v.

PAUL ASKEW,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00010-01)

Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.

Florence Y. Pan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, Assistant U.S. Attorney.
 2

Before: SENTELLE and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH,
in which Circuit Judge SENTELLE joins.

Dissenting opinion filed by Senior Circuit Judge EDWARDS.

KAVANAUGH, Circuit Judge: When the police have
reasonable suspicion that a person committed, is committing, or
is about to commit a crime, the officers may forcibly stop that
individual. See Terry v. Ohio, 392 U.S. 1, 22 (1968). During
the Terry stop, the officers may briefly take certain reasonable
investigative steps – including questioning the suspect and
conducting identification procedures such as fingerprinting and
“show-ups” (in a show-up, the police have a witness or victim
look at the suspect). See Hiibel v. Sixth Judicial Dist. Court of
Nev., Humboldt County, 542 U.S. 177, 185 (2004); Hayes v.
Florida, 470 U.S. 811, 817 (1985); Michigan v. Summers, 452
U.S. 692, 700 n.12 (1981).

In this case, the police learned that an armed robbery had
just occurred on a street in Washington, D.C. Shortly afterward,
an officer saw Paul Askew walking on a nearby street. Based on
reasonable suspicion that Askew had committed the armed
robbery, the officer stopped him. The police then brought the
robbery victim to the scene of the stop and conducted a show-
up. The officers unzipped Askew’s outer jacket during the
show-up so that the victim could see Askew’s clothing – that
step, the police believed, could assist the witness’s
identification. Unzipping the outer jacket ultimately led the
officers to discover that Askew was illegally carrying a gun.

Askew’s primary argument to this Court is that the initial
unzipping of his jacket was an unreasonable search. We
 3

disagree. In a show-up during a Terry stop, the Fourth
Amendment permits police officers to reasonably maneuver a
suspect’s outer clothing – such as unzipping an outer jacket so
a witness can see the suspect’s clothing – when taking that step
could assist a witness’s identification. We affirm the District
Court’s judgment.

I

1. The District Court’s findings of fact (and, where specific
findings are lacking, the relevant testimony from the suppression
hearing) show the following. See United States v. Askew, 313 F.
Supp. 2d 1, 2-3 (D.D.C. 2004).

At about 11 p.m. on December 19, 2003, a Metropolitan
Police Department radio broadcast reported an armed robbery
near 9th and G Streets, S.E., in the District of Columbia. The
radio report in part described the robbery suspect as male,
approximately six-feet tall, and wearing a blue sweatshirt and
blue jeans. While driving in his patrol car, Officer Anthony
Bowman heard the dispatch and began canvassing the area near
the robbery scene. Within minutes, Officer Bowman saw Paul
Askew walking near 9th Street and Independence Avenue, S.E.
Noticing that Askew was a man with a mustache who “vaguely
matched” the broadcast description, Officer Bowman asked the
dispatcher whether the alleged robber had a mustache. The
dispatcher replied that the robbery suspect indeed had been
described as having a mustache. Meanwhile, when Askew saw
that Officer Bowman’s car was following him, Askew turned
and walked in a different direction. Officer Bowman continued
to follow Askew in the police car.

After calling in his location to other police, Officer
Bowman parked the patrol car, got out, and stopped Askew.
Officer Bowman requested that Askew present identification
 4

and instructed Askew to keep his hands on top of his head, not
in his pockets. Askew complied with those requests. Officer
Bowman then told Askew that he had been stopped because he
matched the description of an armed robbery suspect. Officer
Bowman noticed that Askew was wearing two jackets: “[H]e
had on a navy blue jacket with a darker blue fleece type jacket
underneath.”

Other police (including Officer Anthony Willis and Officer
James Koenig) arrived at the scene. For the officers’ safety,
Officer Koenig conducted a standard patdown frisk of Askew’s
outer clothing pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
Officer Koenig did not feel a weapon.

Another officer then arrived with the robbery victim to
conduct a “show-up” procedure (which allows a witness or
victim to look at a suspect for identification purposes). The
victim remained inside the police car as the officers brought
Askew toward the car. Officer Willis recalled that the suspect
described in the radio broadcast was wearing a blue hooded
sweatshirt. As Officer Willis testified, he wanted the victim to
see what Askew had on “to make sure that he wasn’t zipping
nothing up to cover up.” To that end, Officer Willis started to
pull down Askew’s outer jacket zipper. The zipper stopped
when it hit what Officer Willis described as a “hard” or “solid”
object and “didn’t go past” the object. Askew then knocked
Officer Willis’s hand away from the zipper.

At about this time, the show-up ended, and the officer
accompanying the victim in the car drove her away from the
scene of the show-up. At this point, Officer Willis and Officer
Edward Snead were not aware of the results of the show-up.
They quickly walked Askew backward and made him sit upright
on the hood of a police car. (The testimony suggests less than
a minute passed between the end of the show-up and the walk to
 5

the police car. See Suppression Hr’g Tr. 54-55 (Mar. 10, 2004).)
Officer Willis fully unzipped Askew’s outer jacket, revealing
that Askew wore a black pouch underneath the jacket. The
pouch was partially open, and a silver object protruded from it.
The police recognized the object as a gun. The police then
handcuffed Askew and formally arrested him. Although the
record does not specify the grounds for the arrest, District of
Columbia law prohibits carrying a pistol without a license. See
D.C. CODE § 22-4504(a).

In the meantime, the victim informed the officer in the
police car that Askew was not the man who had committed the
robbery. The record does not specify the precise moment when
this occurred, although the officers on the scene did not become
aware until some undetermined time after Askew’s arrest on the
weapons violation. See 313 F. Supp. 2d at 3 & n.4 (officer
accompanying victim “did not advise Officer Willis and his
colleagues whether the complainant had made an
identification.”); see also Suppression Hr’g Tr. 13 (Mar. 26,
2004) (Officer Willis learned results of show-up “after [officers]
had handcuffed” Askew); Suppression Hr’g Tr. 54 (Mar. 10,
2004) ([Question to Officer Snead]: “So at least you never
heard from [officer accompanying victim] at that time what the
results of the show-up were? [Answer]: Not at that time.”).

2. Based on Askew’s prior felony conviction, the
Government subsequently obtained a one-count federal grand
jury indictment charging Askew with possessing a firearm as a
felon. See 18 U.S.C. § 922(g)(1).

Askew moved to suppress the evidence of the firearm on
the ground, among others, that the unzipping of the outer jacket
violated the Fourth Amendment and that the gun was the fruit of
the constitutional violation. After an evidentiary hearing, the
District Court denied the motion. 313 F. Supp. 2d at 1. At the
 6

outset, the District Court concluded that Officer Bowman had
the authority under Terry v. Ohio, 392 U.S. 1 (1968), to stop
Askew – given Askew’s proximity to the location of the
reported robbery, his physical resemblance to the armed robbery
suspect described in the police radio broadcast, and his change
of course upon seeing Officer Bowman. See 313 F. Supp. 2d at
4. The District Court also concluded that Terry authorized
Officer Koenig to frisk Askew for potential weapons (the
District Court here was referring to the initial frisk that did not
disclose Askew’s gun). Id.

The court held that the partial unzipping of the outer jacket
for the show-up procedure was also permissible. Id. at 6-7. The
court further ruled that, because Officer Willis’s partial
unzipping of Askew’s jacket for purposes of the show-up was
constitutional, the Fourth Amendment permitted the officers,
after feeling the hard object, to restrain Askew and fully unzip
his jacket to determine whether the hard object was a weapon.
Id. at 5.

Askew entered a conditional plea of guilty, reserving his
right to bring this appeal from the District Court’s denial of the
motion to suppress. See Fed. R. Crim. P. 11(a)(2). The District
Court sentenced Askew to 36 months of imprisonment and 36
months of supervised release.

On appeal, the parties agree that the Fourth Amendment
governs the analysis and that the evidence of the gun must be
excluded if we find the search unreasonable. Askew does not
challenge the District Court’s conclusions that Officer Bowman
had reasonable suspicion to stop Askew and that Officer
Koenig’s frisk of Askew was valid. Askew focuses instead on
the conduct of the police during the show-up – in particular, the
two unzippings of the outer jacket. We review de novo the
District Court’s legal conclusion that the search was
 7

constitutional. In doing so, we accept the District Court’s
findings of fact unless clearly erroneous. See Ornelas v. United
States, 517 U.S. 690, 699 (1996).

II

1. The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The touchstone of
the Amendment is reasonableness, which “is measured in
objective terms by examining the totality of the circumstances.”
Ohio v. Robinette, 519 U.S. 33, 39 (1996). As the Supreme
Court has said, “[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application. In each case it requires a balancing of the need for
the particular search against the invasion of personal rights that
the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979).

Under the Terry line of cases, the police may forcibly stop
a person based upon “reasonable suspicion” that the individual
committed, is committing, or is about to commit a crime, “even
though there is no probable cause to make an arrest.” Terry v.
Ohio, 392 U.S. 1, 22 (1968). During a Terry stop justified by
reasonable suspicion, the police may take two kinds of actions:
Officers may take reasonable protective measures, and they may
take reasonable investigative measures. To place the issues
raised by this appeal in context, we briefly summarize the
Supreme Court precedents governing both measures.

First, during a Terry stop, the police may take reasonable
protective steps to ensure the safety of the officers and the
public. An encounter between a police officer and a potential
criminal suspect can be a dangerous situation; thousands of
officers each year are assaulted, and in 2005 more than one
officer per week was feloniously killed in the line of duty in the
 8

United States. The Fourth Amendment does not require police
officers to choose between investigating possible criminal
activity and avoiding violent attack. On the contrary, courts
appropriately give great deference to police officers’ interest in
safety as they protect the citizenry. As the Court in Terry
succinctly stated, “it would be unreasonable to require that
police officers take unnecessary risks in the performance of their
duties.” 392 U.S. at 23; see also Adams v. Williams, 407 U.S.
143, 146 (1972) (“[T]he policeman making a reasonable
investigatory stop should not be denied the opportunity to
protect himself from attack by a hostile suspect.”). Therefore,
as the Terry Court explained, when an officer stops an
individual based on reasonable suspicion and has reason to
believe the person may be “armed and dangerous,” the officer is
authorized to conduct a protective patdown frisk “limited to that
which is necessary for the discovery of weapons which might be
used to harm the officer or others nearby.” Terry, 392 U.S. at
26-27; cf. Chimel v. California, 395 U.S. 752, 763 (1969)
(similar rule for protective searches incident to arrest based on
probable cause). So too, because of the heightened danger in
Terry stops of cars, the police may conduct protective searches
for weapons in the passenger compartment of a motor vehicle.
See Michigan v. Long, 463 U.S. 1032, 1049-52 (1983); cf. New
York v. Belton, 453 U.S. 454, 457-60 (1981) (similar rule for
protective searches of cars incident to arrest based on probable
cause).

Second, in addition to reasonable protective steps, the
police may take reasonable investigative steps during a Terry
stop to determine whether the individual committed, is
committing, or is about to commit a crime (in other words, to try
to confirm or dispel the reasonable suspicion that justified the
stop in the first place). As the Supreme Court has stated, “a law
enforcement officer’s reasonable suspicion that a person may be
involved in criminal activity permits the officer to stop the
 9

person for a brief time and take additional steps to investigate
further.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt
County, 542 U.S. 177, 185 (2004); see Michigan v. Summers,
452 U.S. 692, 700 n.12 (1981) (“‘several investigative
techniques . . . may be utilized effectively in the course of a
Terry-type stop.’”) (quoting 3 WAYNE R. LAFAVE, SEARCH AND
SEIZURE § 9.2 pp. 36-37 (1978)).

2. To resolve this case, we must initially review the
Supreme Court’s case law analyzing the following key question:
What investigative steps are permissible and impermissible
during a Terry stop?

We begin by describing the category of impermissible
steps. A Terry stop occurs when the police have “reasonable
suspicion” of criminal activity – but the police’s justification has
not yet risen to the level of “probable cause” needed for an
arrest. Because the police do not yet have probable cause for an
arrest, the police during a Terry stop may not engage in what the
Supreme Court has called a “full search.” Terry, 392 U.S. at 26;
see id. at 30 (“general exploratory search for whatever evidence
of criminal activity [officer] might find”); see also Minnesota v.
Dickerson, 508 U.S. 366, 378 (1993) (“evidentiary search,”
namely one raising prospect that officer will “rummage and
seize at will” beyond “specific authorization”) (internal
quotation marks omitted); Florida v. Royer, 460 U.S. 491, 499
(1983) (plurality opinion of White, J.) (“In the name of
investigating a person who is no more than suspected of criminal
activity, the police may not carry out a full search of the person
or of his automobile or other effects.”) (emphasis added). As
the Court has explained, such a “full search” – sometimes called
an exploratory or evidentiary search – occurs when the police
rummage through a person’s pockets, bags, and clothing for
contraband the person may be carrying, such as stolen goods,
drugs, or other tangible evidence of crime. See Sibron v. New
 10

York, 392 U.S. 40, 64-65 (1968).

Other than the forbidden “full search,” the Supreme Court
has held that other investigative steps during a Terry stop are
permissible if “reasonably related in scope to the circumstances
which justified the interference in the first place.” Terry, 392
U.S. at 20; see also Hiibel, 542 U.S. at 185. The Terry
“reasonably related in scope” standard is far from self-defining,
but the Supreme Court’s rulings have provided guidance –
permitting “several investigative techniques which may be
utilized effectively in the course of a Terry-type stop.”
Summers, 452 U.S. at 700 n.12 (quoting 3 LAFAVE, SEARCH
AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible
investigative steps include the following:

• The police may ask questions to the individual who has
been stopped. See Terry, 392 U.S. at 6-7 (“Officer McFadden
approached the three men, identified himself as a police officer
and asked for their names.”); see also United States v. Hensley,
469 U.S. 221, 229 (1985) (recognizing police ability to “ask
questions, or check identification” during Terry stop); Berkemer
v. McCarty, 468 U.S. 420, 439 (1984) (“[T]he officer may ask
the detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling
the officer’s suspicions. But the detainee is not obliged to
respond.”); Terry, 392 U.S. at 34 (White, J., concurring) (“[T]he
person may be briefly detained against his will while pertinent
questions are directed to him.”).

• When the police have a reasonable basis for believing that
a traveler is carrying luggage that contains drugs, the police may
seize the luggage “briefly to investigate the circumstances” that
give rise to their suspicion, and they may subject the luggage to
a dog sniff for narcotics. United States v. Place, 462 U.S. 696,
706-07 (1983); see also Illinois v. Caballes, 543 U.S. 405, 408-
 11

09 (2005) (allowing dog sniff of motorist’s lawfully stopped
car).

• The police may obtain fingerprints; in particular, such
fingerprinting is authorized “if there is a reasonable basis for
believing that fingerprinting will establish or negate the
suspect’s connection with [a] crime, and if the procedure is
carried out with dispatch.” Hayes v. Florida, 470 U.S. 811, 817
(1985).

• A witness show-up is permissible: When it is “known that
an offense has occurred in the area, the suspect may be viewed
by witnesses to the crime.” Summers, 452 U.S. at 701 n.12
(quotation marks omitted). (Whether the resulting witness
identification may be admitted as evidence in a criminal trial is
an analytically separate question. See Manson v. Brathwaite,
432 U.S. 98, 111-14 (1977); United States v. Washington, 353
F.3d 42, 44-45 (D.C. Cir. 2004).)

III

We apply the above principles to the issues presented by
this case. To begin with, we note that there are two separate
Fourth Amendment “events” that must be analyzed. The
primary and more difficult question in this case concerns the
initial unzipping of Askew’s jacket. The secondary question is
whether, after the initial unzipping revealed a hard object and
Askew knocked away the officer’s hand, the police’s subsequent
full unzipping of the jacket was permissible. (We address that
secondary question in Part IV below.)

1. Following Officer Bowman’s stop of Askew, the police
brought the robbery victim to the scene to conduct a show-up for
identification. As part of that show-up, Officer Willis partially
unzipped Askew’s outer jacket so that the victim could see
 12

Askew’s “blue fleece type jacket” underneath. 313 F. Supp. 2d
1, 2 (D.D.C. 2004).

The Supreme Court has stated that show-ups are permitted
during Terry stops. The precise question here, therefore, is
whether the added step of unzipping a jacket is permissible
when doing so could reasonably assist the witness’s
identification during the show-up – in other words, whether such
a step is “reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry v. Ohio, 392
U.S. 1, 20 (1968). That reasonableness inquiry weighs the
competing interests of the individual and the Government,
balancing “the nature and quality of the intrusion on personal
security against the importance of the governmental interests
alleged to justify the intrusion.” United States v. Hensley, 469
U.S. 221, 228 (1985); see also United States v. Place, 462 U.S.
696, 703 (1983).

In conducting the reasonableness inquiry, we consider on
one side of the balance the extent to which the challenged
investigative step promotes law enforcement aims and protects
the public – namely, “the public interest that the crime be solved
and the suspect detained as promptly as possible.” Hensley, 469
U.S. at 229. 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. And the
identification is generally more likely to be accurate if the
witness can see the characteristics of the person stopped that the
perpetrator displayed during commission of the crime. Steps
 13

furthering that interest might include, for example, temporarily
removing a hat (so a witness can view hair color or style) or
rolling up a shirt sleeve (to reveal a watch or tattoo that had been
observed by the witness on the suspect’s arm). So too, if a
robbery victim says the actual suspect was wearing a certain
color shirt underneath a jacket, the police have an interest in
unzipping the jacket to allow the victim to see if the individual
stopped is wearing such a shirt. This case is no different.

We assess on the other side of the Fourth Amendment
balance the extent of the additional intrusion on individual
privacy – that is, the additional intrusion caused by unzipping
the outer jacket. Here, to begin with, the police did not conduct
a “full search,” which Terry ruled flatly impermissible in a stop
based solely on reasonable suspicion. 392 U.S. at 26. In
unzipping Askew’s jacket, Officer Willis was not conducting a
“general exploratory search for whatever evidence of criminal
activity he might find.” Id. at 30. 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. The Supreme Court in Pennsylvania v. Mimms, for
example, authorized officers conducting traffic stops to order the
driver out of the car. The Court reasoned that during a valid
stop, the “additional intrusion” that leaving the car imposed
upon the driver’s personal privacy “can only be described as de
minimis. The driver is being asked to expose to view very little
more of his person than is already exposed.” 434 U.S. 106, 111
(1977). That provides a fair description of the additional
intrusion in this case as well.

Supreme Court precedent helps confirm that the
 14

Government’s strong interest in identification of an armed
robber outweighs the limited additional intrusion at issue in this
case. In particular, in balancing the competing interests of the
Government and Askew, we find the Court’s decision in Hayes
v. Florida instructive and important. In Hayes, the Court stated
that the Fourth Amendment permits the police to take
fingerprints during a Terry stop; such fingerprinting is
legitimate, the Court concluded, “if there is a reasonable basis
for believing that fingerprinting will establish or negate the
suspect’s connection with [a] crime, and if the procedure is
carried out with dispatch.” 470 U.S. 811, 817 (1985).

Here, as in Hayes, the police had an objective basis for
believing that the identification procedure could “establish or
negate the suspect’s connection with [a] crime.” Here, as in
Hayes, the police action was “carried out with dispatch.” And
here, as in Hayes, the intrusion fell short of the “full search” that
the Supreme Court has prohibited during Terry stops. The
purposes of the investigative steps at issue here and in Hayes are
precisely the same (to match the person with a crime that has
recently occurred), and the degree of intrusion is similar (indeed,
to many people, fingerprinting would seem more intrusive than
unzipping an outer jacket).

To be sure, the Supreme Court’s reasoning in Hayes
concerning the validity of brief, in-the-field fingerprinting might
be described as dicta. But the Court’s analysis obviously was
carefully considered; indeed, it was a point of strenuous
disagreement between the Hayes majority and Justice Brennan
in his separate opinion (joined by Justice Marshall). And we
have said that “carefully considered language of the Supreme
Court, even if technically dictum, generally must be treated as
authoritative.” United States v. Dorcely, 454 F.3d 366, 375
(D.C. Cir. 2006); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C.
Cir. 2003); NRDC v. NRC, 216 F.3d 1180, 1189 (D.C. Cir.
 15

2000); United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir.
1997). That principle comfortably covers the Hayes discussion
of fingerprinting during Terry stops.

In short, the opinion in Hayes guides us here. If the police
during a Terry stop may take fingerprints for identification
purposes, it logically follows that the police during a Terry stop
may unzip an individual’s outer jacket for identification
purposes (that is, so a witness can see the suspect’s clothing).

2. Askew has advanced three arguments why the unzipping
of the outer jacket was nonetheless unreasonable.

First, Askew notes the possibility of pretext searches: He
suggests that some officers would maneuver outer clothing as a
pretext for a full search, even though the officers lack probable
cause to conduct a full search. The risk of pretextual police
behavior has, of course, generated a great deal of concern about
Terry stops. See, e.g., 4 WAYNE R. LAFAVE, SEARCH AND
SEIZURE § 9.1(e) p. 279 (4th ed. 2004) (“For many of those who
honestly oppose . . . the power of police to stop and frisk, the
central point is that police often have utilized street encounters
for improper purposes . . . .”); David Rudovsky, Law
Enforcement by Stereotypes and Serendipity, 3 U. PA. J. CONST.
L. 296, 336 (2001) (“[J]ust as the police use the traffic stop to
place themselves in a position to search the vehicle and
occupants, they use the stop of pedestrians to gain the
opportunity to frisk.”). The Supreme Court has repeatedly held,
however, that the risk of pretextual police behavior does not
alter the Fourth Amendment analysis. Instead, the constitutional
inquiry focuses on whether the police took protective and
investigative steps that were objectively reasonable under the
circumstances. In other words, “the Fourth Amendment’s
concern with ‘reasonableness’ allows certain actions to be taken
in certain circumstances, whatever the subjective intent.” Whren
 16

v. United States, 517 U.S. 806, 814 (1996); see also Brigham
City v. Stuart, 126 S. Ct. 1943, 1948 (2006); United States v.
Arvizu, 534 U.S. 266, 273 (2002).

Second, Askew advances a slippery slope argument: He
contends that upholding the search here necessarily means that
extensive body searches or strip searches also would be
permitted. That is simply wrong. The history of Fourth
Amendment jurisprudence is a history of judicial line-drawing
as courts assess “reasonableness” by balancing the public’s
interest in preventing and detecting crime (and thereby
maintaining order and public safety) against the individual’s
interest in privacy. This case involves the police reasonably
maneuvering a suspect’s outer jacket during a show-up to assist
a witness’s identification (by allowing the witness to see the
suspect’s clothing). Of course, there are a variety of conceivable
searches – such as hypotheticals advanced by Askew – that
would be more intrusive than the search at issue here and would
more severely affect personal privacy interests. In such
hypothetical cases, the Government would face a heavier burden
in showing that the investigative step was “reasonably related in
scope to the circumstances which justified the interference in the
first place.” Terry, 392 U.S. at 20; cf. Schmerber v. California,
384 U.S. 757, 769-72 (1966); Helton v. United States, 191 F.
Supp. 2d 179, 184-85 (D.D.C. 2002).

Third, Askew makes a bright-line argument: He suggests
that Terry does not permit investigative steps that involve a
“search” of any kind, no matter how limited. The initial flaw in
this argument is that the Supreme Court has in fact authorized
certain intrusive searches during Terry stops – so long as they
are reasonable under the circumstances and are not what the
Court has called a “full search.” See Terry, 392 U.S. at 26; see
also Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality
opinion of White, J.). For example, the Terry Court itself
 17

approved the protective step of frisking for potential weapons
even though the Court recognized such action was a “serious
intrusion” and plainly entailed a “search” within the meaning of
the Fourth Amendment. 392 U.S. at 16-17.*

And as explained above, the Hayes Court endorsed the
investigative step of on-the-scene fingerprinting – even though
compelled fingerprinting is intrusive and triggers independent
Fourth Amendment protection, as the Court explained when
comparing fingerprinting to “other types of searches and
detentions.” 470 U.S. at 814. Indeed, in Hayes two Justices
strongly disagreed with the majority, warning that “on-site
fingerprinting (apparently undertaken in full view of any
passerby) would involve a singular intrusion on the suspect’s
privacy, an intrusion that would not be justifiable (as was the
patdown in Terry) as necessary for the officer’s protection.” Id.
at 819 (Brennan, J., concurring in judgment, joined by Marshall,
J.). But the position of Justice Brennan and Justice Marshall did
not prevail in Hayes; had it done so, Askew’s bright-line
argument here would of course have more force.

Askew’s bright-line argument – that an investigative step

*
Given that one side of the Fourth Amendment reasonableness balance
looks at the degree of intrusion on the individual, the Supreme Court in
certain other areas has similarly distinguished (i) the intrusion caused by so-
called full searches from (ii) the lesser intrusion caused by more limited
searches. See Maryland v. Buie, 494 U.S. 325, 335 (1990) (distinguishing
protective sweep, or “cursory inspection” of premises incident to in-home
arrest, from “full search”); United States v. Jacobsen, 466 U.S. 109, 125 n.28
(1984) (“warrantless search and seizure limited to scraping suspect’s
fingernails justified even when full search may not be”) (citing Cupp v.
Murphy, 412 U.S. 291, 296 (1973)). In certain other contexts, the Court has
held any degree of intrusion unreasonable, noting that “[a] search is a
search.” Arizona v. Hicks, 480 U.S. 321, 325 (1987). But cf. Buie, 494 U.S.
at 335 n.3 (characterizing Hicks as involving police “searching for evidence
plain and simple.”).
 18

is impermissible if it constitutes a Fourth Amendment search –
also contravenes the persuasive views of the leading Fourth
Amendment scholar. Professor LaFave has explained that
certain “identification searches” do not “require rummaging
through a suspect’s personal effects as does an ordinary full-
blown search.” 4 LAFAVE, SEARCH AND SEIZURE § 9.8(b) p.
730 (quotation marks omitted). For that reason, Professor
LaFave explained: “Taking fingernail scrapings, for example,
is a search, but yet is a very limited intrusion, and thus should
be deemed permissible” for identification during a Terry
detention. Id. (quotation marks omitted; emphasis added).
Professor LaFave’s bottom line, therefore, is that certain
investigative steps are (and should be) permitted during Terry
stops even though they constitute “searches” under the Fourth
Amendment. Based on the Supreme Court’s precedents, we
agree.

In sum: Balancing the competing interests and taking our
cues from Supreme Court precedent, especially Hayes, we
conclude that the police during a Terry show-up may reasonably
maneuver a suspect’s outer clothing (such as unzipping an outer
jacket so a witness can see the suspect’s clothing) when taking
that step could assist a witness’s identification. In this case,
therefore, the Fourth Amendment allowed the police to initially
unzip Askew’s outer jacket so that the robbery victim could see
Askew’s clothing, thereby assisting the victim’s identification
during the show-up. That step was “reasonably related in scope
to the circumstances which justified” stopping Askew in the first
place. Terry, 392 U.S. at 20.

IV

Askew argues that, even assuming the first unzipping was
permissible, the second unzipping was impermissible. The
District Court rejected that argument, concluding: “If it was
 19

constitutional for Officer Willis to unzip the jacket in the course
of the show-up, the later investigation to determine whether the
hard object was a weapon certainly was constitutional.” 313 F.
Supp. 2d 1, 5 (D.D.C. 2004). We agree with the District Court.

To review: The first unzipping of the outer jacket occurred
during the show-up itself. During that unzipping, Officer Willis
discovered that Askew had a hard object underneath the jacket
zipper, and Askew knocked Officer Willis’s hand away from the
zipper. The show-up ended, and the officer accompanying the
victim in the car drove her away from the scene. At this point,
the officers remaining with Askew were not yet aware of the
results of the show-up. Shortly thereafter, based on the hard
object underneath the jacket and Askew’s knocking away
Officer Willis’s hand, the officers walked Askew over to a
police car, made him sit up on it, engaged in a second (and this
time complete) unzipping of the jacket, and seized a gun found
on Askew’s person.

We conclude that the second unzipping was justified on any
of three alternative grounds. First, it was justified as a
protective step as part of the continuing Terry stop for suspicion
of armed robbery. Second, it was justified as a protective step
to prevent the possibility of armed violence while the police
disengaged at the conclusion of that Terry stop. Third, it was
justified because the initial unzipping gave the officers
reasonable suspicion to detain and investigate Askew for a new
crime – carrying a dangerous weapon in public in violation of
District of Columbia law.

First, the developments during the initial unzipping –
Officer Willis discovering a hard object underneath Askew’s
jacket in the initial unzipping and Askew knocking away Officer
Willis’s hand – justified the officers in believing that Askew may
have been “armed and presently dangerous.” Terry v. Ohio, 392
 20

U.S. 1, 30 (1968). Under Supreme Court precedent, these facts
entitled the officers to take the protective step of unzipping
Askew’s jacket in full and seizing the weapon. See Adams v.
Williams, 407 U.S. 143, 146, 148 (1972) (officer’s “reaching to
the spot” where driver was said to have been hiding gun to
remove it was “limited intrusion designed to insure [the
officer’s] safety”; “So long as the officer is entitled to make a
forcible stop, and has reason to believe that the suspect is armed
and dangerous, he may conduct a weapons search limited in
scope to [the] protective purpose.”) (footnote omitted); see also
Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (bulge in
driver’s jacket allowed officer to conclude driver “was armed
and thus posed a serious and present danger to the safety of the
officer,” authorizing search).

That Officer Koenig had not felt a weapon in conducting the
earlier pat-down frisk did not prevent the officers from acting on
the new information at this point. The Fourth Amendment does
not impose a rigid “one-frisk” rule requiring officers to ignore
new information that might lead them to realize that an initial
frisk was an inadequate safeguard. See United States v.
Osbourne, 326 F.3d 274, 278 (1st Cir. 2003) (reasonableness of
second or subsequent protective step is “determined under a
standard that takes account of the fact that context is vital”)
(internal quotation marks omitted).

It bears mention, moreover, that the officers involved in the
second unzipping did not yet know the results of the show-up
procedure when they conducted that second unzipping. On the
contrary, as the District Court found, only after Askew’s formal
arrest on the gun charge did these officers on the scene learn
Askew had not been identified by the victim as the armed robber.
See 313 F. Supp. 2d at 3 n.4 (officer accompanying victim “did
not advise Officer Willis and his colleagues whether the
complainant had made an identification.”). In a fast-moving and
 21

inherently dangerous Terry stop, we think it entirely reasonable
for officers on the scene to continue to protect their safety, and
the public’s safety, until these officers themselves know that the
initial basis for the stop has dissipated (at least so long as there
is not unreasonable delay in obtaining that information). Cf.
United States v. Brown, 334 F.3d 1161, 1166 n.2 (D.C. Cir.
2003) (in assessing reasonable suspicion and fear of danger, “this
court cannot take into account . . . facts . . . not known to the
investigating officers at the time of the search,” including facts
complainant never told officers conducting search and facts
suspect later told another officer). Here, moreover, the police
acted promptly; they did not continue to hold Askew for an
unreasonably lengthy period of time, as may have occurred, for
example, in United States v. Babwah, 972 F.2d 30, 33 (2d Cir.
1992). In short, the officers here still had justification for
holding Askew when they conducted the second unzipping, and
the second unzipping was thus a reasonable protective step under
Terry.

Second, even if the reasonable suspicion of armed robbery
had dissipated before the second unzipping, the police in any
event could take steps to protect themselves while disengaging
from the encounter with Askew. In Michigan v. Long, the
Supreme Court held that, during a Terry stop of a driver, the
Fourth Amendment allows officers to conduct a protective search
of the car’s passenger compartment based on reasonable fear that
the driver poses a danger. 463 U.S. 1032, 1045-52 (1983). One
rationale for this holding was the Supreme Court’s concern that
absent a protective search, at the end of the Terry stop, “if the
suspect is not placed under arrest, he will be permitted to reenter
his automobile, and he will then have access to any weapons
inside.” Id. at 1052. It follows that a Terry protective search of
the person or vehicle is a proper response to fear not only that a
suspect might use a weapon during the Terry stop, but also that
the suspect might use a weapon after the stop ends and before the
 22

police have disengaged. So too here: Had the police not
unzipped the jacket a second time to identify and remove the
weapon and instead permitted Askew to leave, Askew would
have had access to that weapon as the officers departed. As this
Court has recognized, Long teaches that it is “appropriate to
conduct a Terry search to ensure that such access would not
endanger the lives of the departing officers.” United States v.
Christian, 187 F.3d 663, 671 (D.C. Cir. 1999); see id. at 665,
669-671 (protective search of suspect’s car reasonable when
suspect stood next to car with six-inch bladed dagger by driver’s
seat visible through partially open window). Askew’s argument,
in other words, “misunderstands the nature of the protective
search; the fear of a person’s gaining immediate control of
weapons does not limit itself to the time of the stop, but extends
through the entire interaction between him and the officer.”
United States v. Wallen, 388 F.3d 161, 166 (5th Cir. 2004). A
protective search is therefore justified in a case where “a
reasonable officer would . . . be concerned about the ever-present
possibility of violent interaction when the suspect[] [was]
released at the conclusion of the investigatory stop.” United
States v. Holmes, 376 F.3d 270, 278 (4th Cir. 2004).

Third, even assuming the officers no longer had justification
to hold Askew on suspicion of armed robbery when they
conducted the second unzipping, the second unzipping was
constitutional for yet another reason: Once the officers
discovered the hard object during the show-up and Askew
knocked Officer Willis’s hand away in response to the discovery,
the officers had reasonable suspicion that Askew was committing
a crime distinct from armed robbery – namely, carrying a
dangerous weapon in violation of District of Columbia law.
District of Columbia law provides: “No person shall carry
within the District of Columbia either openly or concealed on or
about their person, a pistol, without a license issued pursuant to
District of Columbia law, or any deadly or dangerous weapon
 23

capable of being so concealed.” D.C. CODE § 22-4504(a). The
police officers reasonably believed that a hard object carried
underneath a jacket could be a dangerous weapon. From the fact
that Askew knocked away Officer Willis’s hand, the officers
could also reasonably infer that Askew was attempting to
conceal a weapon. See Terry, 392 U.S. at 21 (officers must be
“able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant” their action). Based on the reasonable suspicion that
Askew was carrying a concealed weapon, the officers acted well
within Fourth Amendment bounds in seizing the weapon: “So
long as the officer is entitled to make a forcible stop, and has
reason to believe that the suspect is armed and dangerous, he
may conduct a weapons search limited in scope to [the]
protective purpose.” Adams, 407 U.S. at 146 (footnote omitted).
During a Terry stop, when the officers feel or observe an object
that might be a weapon, or develop reasonable suspicion that the
suspect may be carrying a weapon in a specific place on his
person or in his car, the police may seize the weapon. See id. at
146, 148; United States v. Holmes, 385 F.3d 786, 790-91 (D.C.
Cir. 2004) (Roberts, J.) (officer reasonably removed from
suspect’s outer coat pocket a “hard, square object”); see also
United States v. Harris, 313 F.3d 1228, 1237 (10th Cir. 2002)
(“If the officer discovers what he believes to be a weapon, he
may reach inside the suspect’s clothing and remove it.”) (citing
Adams, 407 U.S. at 148); United States v. Swann, 149 F.3d 271,
272, 276-77 (4th Cir. 1998) (officer reasonably removed hard,
rectangular object from suspect’s sock).

On any of these three alternative grounds, we reject
Askew’s claim that the second unzipping was unreasonable.

V

Because the first and second unzippings were both
 24

reasonable, the gun seized from Askew was admissible evidence.
That principle is, of course, settled: When taking permissible
protective and investigative steps during a Terry stop, the police
may come across contraband or evidence that the police could not
have searched for directly; in such cases, the evidence
nonetheless may be seized and used in a criminal prosecution of
the suspect. See Michigan v. Long, 463 U.S. 1032, 1050 (1983);
Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

For purposes of clarity, we also identify two questions that
we need not and do not reach in this case. First, because we
conclude that the initial unzipping of the jacket was a reasonable
step during the show-up, we do not decide whether the police
even without a witness present could reasonably maneuver a
suspect’s outer clothing, such as unzipping an outer jacket to see
the suspect’s clothing, when necessary for identification
purposes. Second, because the Government has not pressed the
point, we also do not consider whether the police could have
justified the initial unzipping of Askew’s jacket as a protective
step and not just as an investigative step: Several federal courts
have approved initial frisks that go beyond a patdown of outer
clothing when necessary to ensure that the person stopped is in
fact not carrying a weapon. See United States v. Reyes, 349 F.3d
219, 225 (5th Cir. 2003); United States v. Baker, 78 F.3d 135,
138 (4th Cir. 1996); United States v. Thompson, 597 F.2d 187,
191 (9th Cir. 1979).

***

We affirm the judgment of the District Court.

So ordered.
 EDWARDS, Senior Circuit Judge, dissenting.
THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
FIRST PRINCIPLE
“The police officer is not entitled to seize and search
every person whom he sees on the street or of whom
he makes inquiries.” Sibron v. New York, 392 U.S. 40,
64 (1968).
A SIMPLE TRUTH
A police officer may not detain a person on the street
and, with no probable cause or warrant, insist that the
person remove his or her clothing; nor, in these
circumstances, may the officer undo the person’s
clothing without his or her consent. If this is not the
law, then the Fourth Amendment is a dead letter in our
Constitution.
_______________________________________
This appeal is about a citizen’s right to enforce Fourth
Amendment protections against unlawful searches of his person.
The case is important, because, as is clear from the argument
presented to this court, the Government seeks to wreak havoc
with the law under the Fourth Amendment. The majority holds
that, following a Terry stop and a protective pat down that
produces nothing, police officers may – without probable cause
or a warrant – search a suspect, not for self-protection, but
solely to facilitate an “investigation.” Because this holding
reflects an extraordinary departure from well-established
Supreme Court precedent, I respectfully dissent.
 2

I. THE FACTS
The facts in this case, which are largely undisputed, are set
forth in the District Court’s opinion. See United States v. Askew,
313 F. Supp. 2d 1 (D.D.C. 2004). The material facts bear
repeating here, if only to show precisely how the Government
seeks to strip the Fourth Amendment of content.
On the night of December 19, 2003, around 11:00 p.m.,
a radio run alerted Officer Anthony Bowman of the
Metropolitan Police Department to a report of an armed
robbery in the 700 block of 9th Street, S.E., in Washington,
D.C. Officer Bowman canvassed the area in his patrol car,
looking for individuals matching the description of the
perpetrator: a black male, approximately six-feet tall,
wearing a blue sweatshirt and blue jeans. The radio report
reflected that the perpetrator had been last seen moving on
9th Street, S.E., in an unknown direction.
. . . [W]ithin approximately ten minutes of the robbery,
Officer Bowman spotted defendant Paul Askew walking in
the 200 block of 9th Street, S.E., five blocks from the scene
of the robbery. . . . While the description of the perpetrator
mentioned a blue sweatshirt and blue jeans, Officer
Bowman testified that the defendant was wearing blue
sweatpants, “a navy blue jacket[, and] a darker blue fleece
type jacket underneath. He had on two jackets.” Officer
Bowman reported to the dispatcher that Askew “vaguely
match[ed] th[e] description.” After noticing that the
defendant had a moustache, Officer Bowman checked with
the dispatcher to determine whether the robber also had a
moustache. When the dispatcher responded affirmatively,
Officer Bowman stopped the defendant.
Officer Bowman asked the defendant to come to the
patrol car, and he complied. The defendant also complied
with Officer Bowman’s further requests that he produce
 3

some identification, take his hands out of his pockets, and
place his hands on the top of his head. Officer Bowman
then told the defendant that he was being stopped because
of his physical similarity to the description of a robber.
When back-up units arrived, Officer Bowman returned to
the interior of his car to check whether the police
department computer returned any information on the
defendant. . . .
Officer James Koenig conducted a pat-down of the
defendant and found nothing.[FN 2]
[FN 2] . . . The government acknowledges that when
Officer Koenig patted the defendant down, he did not
find anything. The subsequent discovery of the gun at
issue here was not the result of this pat-down.
Shortly afterwards, another officer, Officer Benton, drove
the robbery victim to the place where the defendant was
being detained, for the purpose of conducting a show-up.
The victim remained in the car while Officer Koenig and
Officer Anthony Willis brought the defendant to a place
where he could be seen by the victim. The defendant was
not in handcuffs at that time. Preparatory to the show-up,
Officer Willis attempted to unzip the defendant’s outer
jacket to reveal the sweatshirt underneath so the victim
could better determine if the defendant was the robber.
Officer Willis testified that he remembered the “blue
hooded sweatshirt” described in the radio run and “wanted
the complainant to see what [the defendant] had on to make
sure that he wasn’t zipping nothing up to cover up. So I
went to unzip it down so that . . . they could see what he
had on.” Officer Willis had difficulty, however, in
unzipping the jacket when the zipper hit what he described
as a “hard” or “solid” object and “didn’t go past [the
object]. It stopped there. And at that time, that’s when [the
defendant] knocked my hand down,” away from the zipper.
 4

After the show-up, Officer Willis and Officer Edward
Snead walked the defendant backwards toward the car,
placed him on the hood of the car, and unzipped his jacket.
Visible once the jacket was unzipped was an open black
waist pouch, or “fanny pack,” with a silver object sticking
out. On further inspection, the silver object was identified
as a gun, and the defendant was handcuffed and arrested.
Id. at 1-3 & n.2 (internal citations and footnotes omitted).
_______________________________________
In reviewing the District Court’s findings, there are several
important points that are worth highlighting:
• The police requested Askew’s identification, which he
produced without protest. The police next conducted
a lawful Terry pat-down search, to determine whether
Askew posed a danger to the officers on the scene. See
Terry v. Ohio, 392 U.S. 1 (1968).
• The police officers’ pat down of Askew produced
nothing.
• The police then brought Askew in front of the robbery
victim and, without his consent and with no fear of
danger, an officer partially opened Askew’s jacket to
display what he was wearing underneath.
• The robbery victim who was brought to the scene for
the show-up did not identify Askew as the perpetrator
of the crime.
• Following the pat down and the show-up, the police
officers no longer had reasonable suspicion to detain
Askew pursuant to Terry, and they did not have
probable cause or a warrant to further detain, arrest, or
search him.
 5

• However, after the show-up, when they had no
reasonable suspicion and no probable cause, the
officers continued to detain Askew against his will. As
the District Court found: “Officer Willis and Officer
Edward Snead walked the defendant backwards toward
the car, placed him on the hood of the car, and
unzipped his jacket.” Askew, 313 F. Supp. 2d at 3.
• The officers found a gun on Askew’s person only after
they unzipped his jacket without his consent.
_______________________________________

It is important to emphasize here that the police officers
engaged in two separate acts of unzipping Askew’s jacket. And
in each instance, the officers acted without Askew’s consent.
The first search occurred when an officer partially unzipped the
jacket to reveal Askew’s sweatshirt to the robbery victim who
was at the show-up. See id. at 4-5; Tr. of Motions Hr’g 8-10,
Mar. 26, 2004 (Officer Anthony Willis describing two distinct
unzippings of Askew’s jacket); Br. for Gov’t at 5-6 (describing
two distinct unzippings). The second search occurred after the
show-up was completed, and it was done to determine whether
Askew had contraband on his person. Askew, 313 F. Supp. 2d
at 4-5; Tr. of Motions Hr’g 18-20, Mar. 26, 2004; Br. for Gov’t
at 6. Thus, the second unzipping could not have facilitated the
show-up, because it did not occur until “after the show-up
procedure had ended.” Br. for Gov’t at 6.
 6

II. THE GOVERNMENT’S ARGUMENT
During oral argument, counsel was asked to explain how the
Government could justify the officers’ searches of Askew’s
person without reasonable suspicion, probable cause, or a
warrant. The Assistant United States Attorney’s exchange with
a member of the court is illuminating:
JUDGE: Is there a single case in the history of the
United States [issued by either a] Court of Appeals [or the]
Supreme Court, that says [that an officer may], post pat
down, having found nothing [during the pat down,] get into
[the defendant’s] clothing either by unzipping it, unbuttoning
it, or removing it under Terry. Is there a single case that
says that?
....
AUSA: There might not be a case directly on point as
a show-up procedure if you’ve already had a pat down.
Although the Assistant United States Attorney grudgingly
acknowledged that she could cite no case law to support the
officers’ search of Askew, she still went on to amplify an
astonishing view of the Fourth Amendment on behalf of the
Government:
JUDGE: Suppose [the officers] know from the
[dispatcher’s] report that the [robbery suspect] wasn’t
wearing a whole lot [and] a tattoo was clearly seen [on] her
or his top of the chest.
....
JUDGE: Then the officers say [to the suspect],
“Remove your clothing.”
AUSA: They might be able to do that under the totality
of the circumstances.
JUDGE: Really? Wow.
AUSA: Yes.
 7

JUDGE: Under the Fourth Amendment, [an officer can
require a person to remove his or her clothing], with no
probable cause? . . . That’s the Government’s position?
No probable cause, pat down produces nothing, and under
Terry [an officer] can say to someone on the street,
“remove your clothes?”
AUSA: Under the totality of the circumstances, it’s a –
JUDGE: Wow.
AUSA: It may be . . . feasible.
This is the Government’s theory of this case. And, as
counsel initially indicated, there is no case law to support this
stunningly dangerous reading of the Fourth Amendment.
Indeed, later in her oral argument, counsel appeared to
understand the breathtaking sweep of the Government’s
position:
JUDGE: [In the hypothetical that we were discussing
earlier], we know there is a tattoo on [the] skin [of] the
person [who has been detained], so [the officers can] start
removing clothes?
AUSA: Well, maybe under the totality of the
circumstances it would not be reasonable to remove his
clothes.
The Assistant United States Attorney was surely correct in
offering this belated concession that it would not be reasonable
for an officer to remove clothes. It is quite clear under Fourth
Amendment law that it is not reasonable for an officer to detain
a person on the street and then, with no probable cause or
warrant, insist that the person remove his or her clothing or,
even worse, undo the person’s clothing without his or her
consent.
 8

III. THE CONTROLLING LEGAL PRINCIPLES
Almost 60 years ago, the Supreme Court reminded us that
the Fourth Amendment’s
guarantee of protection against unreasonable searches and
seizures extends to the innocent and guilty alike. It marks
the right of privacy as one of the unique values of our
civilization and, with few exceptions, stays the hands of the
police unless they have a search warrant issued by a
magistrate on probable cause supported by oath or
affirmation. And the law provides as a sanction against the
flouting of this constitutional safeguard the suppression of
evidence secured as a result of the violation . . . .
McDonald v. United States, 335 U.S. 451, 453 (1948). These
fundamental precepts have not faded with time. Just this past
Term, the Court again made it clear that “‘[w]arrants are
generally required to search a person’s home or his person
unless “the exigencies of the situation” make the needs of law
enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment.’”
Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1947 (2006)
(emphasis added) (quoting Mincey v. Arizona, 437 U.S. 385,
393-94 (1978)).
“Beginning with Terry v. Ohio, 392 U.S. 1 (1968), the
Court has recognized that a law enforcement officer’s
reasonable suspicion that a person may be involved in criminal
activity permits the officer to stop the person for a brief time and
take additional steps to investigate further. To ensure that the
resulting seizure is constitutionally reasonable, a Terry stop
must be limited. The officer’s action must be justified at its
inception, and reasonably related in scope to the circumstances
which justified the interference in the first place.” Hiibel v.
Sixth Jud. Dist. Ct. of Nev., Humboldt County, 542 U.S. 177,
185 (2004) (internal alterations, citations, and quotation marks
 9

omitted). Terry authorizes “protective searches.” Terry does
not, however, authorize other searches as being within a class of
“steps to investigate further.” Rather, Terry
held that when an officer is justified in believing that the
individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer
or to others, the officer may conduct a patdown search to
determine whether the person is in fact carrying a weapon.
The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue his
investigation without fear of violence. Rather, a protective
search – permitted without a warrant and on the basis of
reasonable suspicion less than probable cause – must be
strictly limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or
others nearby. If the protective search goes beyond what
is necessary to determine if the suspect is armed, it is no
longer valid under Terry and its fruits will be suppressed.
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (internal
alterations, citations, and quotation marks omitted).
The Government argues that the disputed searches in this
case were permissible, because they were only “minimally
intrusive” and “taken for the sole and legitimate purpose of
facilitating the show-up procedure.” Br. for Gov’t at 18. The
majority agrees, holding that a show-up authorizes investigative
searches which are to be assessed according to a balancing test.
This is not the law. The Court’s rationale in support of the
decision in Terry always has been that “there must be a narrowly
drawn authority to permit a reasonable search for weapons for
the protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest
 10

the individual for a crime.” Terry, 392 U.S. at 27 (emphasis
added).
The majority cites a number of cases in an attempt to create
an exception to or gloss on Terry that gives police officers
authority to search a suspect in furtherance of a show-up during
a Terry stop. Were such an exception to be indulged, it would
inevitably swallow the Court’s holding in Terry. The meaning
of Terry and its very limited scope are clear:
The police officer is not entitled to seize and search every
person whom he sees on the street or of whom he makes
inquiries. Before he places a hand on the person of a citizen
in search of anything, he must have constitutionally
adequate, reasonable grounds for doing so. In the case of
the self-protective search for weapons, he must be able to
point to particular facts from which he reasonably inferred
that the individual was armed and dangerous.
Sibron, 392 U.S. at 64. And nothing in the cases the majority
relies upon changes the basic requirements of Terry. Terry
allows only limited “protective searches,” not “investigative
searches.”

IV. THE OFFICERS’ UNZIPPINGS OF ASKEW’S JACKET
WERE “SEARCHES”
The Government does not dispute that the officers’
unzippings of Askew’s jacket were “searches” under the Fourth
Amendment. This is unsurprising, because the Court in Terry
made it clear that even a “frisk” rises to the level of a “search”
that is within the purview of the Fourth Amendment. The Court
said:
[I]t is nothing less than sheer torture of the English
language to suggest that a careful exploration of the outer
surfaces of a person’s clothing all over his or her body in an
 11

attempt to find weapons is not a “search.” Moreover, it is
simply fantastic to urge that such a procedure performed in
public by a policeman while the citizen stands helpless,
perhaps facing a wall with his hands raised, is a “petty
indignity.” It is a serious intrusion upon the sanctity of the
person, which may inflict great indignity and arouse strong
resentment, and it is not to be undertaken lightly.
Terry, 392 U.S. at 16-17 (internal footnotes omitted); see also
Sibron, 392 U.S. at 45 (officer’s “thrust[ing] his hand into [the
suspect’s] pocket, discovering several glassine envelopes,
which, it turned out, contained heroin” was an illegal search).

V. THE OFFICERS’ UNLAWFUL UNZIPPING OF
ASKEW’S JACKET DURING THE TERRY STOP
Askew first contends that his Fourth Amendment rights
were violated when the officers partially unzipped his jacket
during the show-up:
On reasonable suspicion that criminal activity may be
afoot and that the suspect may be armed and dangerous,
police officers may briefly detain the person and may
conduct a limited pat-down search of the suspect’s outer
clothing for weapons. The police officer violated the
Fourth Amendment here when, after the pat-down search
failed to reveal any weapon, he unzipped Mr. Askew’s
jacket during a show-up procedure for the purpose of
revealing to the victim what was underneath. The district
court erred when it held the search did not implicate the
Fourth Amendment at all because it occurred during a
show-up identification procedure.
Appellant’s Br. at 8. Appellant is correct in what he asserts.
The partial unzipping of Askew’s jacket constituted a
warrantless search; and the search was unlawful because it did
not adhere to the requirements of the Fourth Amendment.
 12

The majority argues that the Government’s interest in
identification of an armed robber tends to outweigh the intrusion
on privacy at issue in this case. This is not the test to determine
the legality of a search during a Terry stop. Rather, the only
search authorized by Terry is a “protective search” which “must
be strictly limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others
nearby.” Dickerson, 508 U.S. at 373 (internal quotation marks
omitted). Terry does not authorize police officers to search the
person of a suspect without a warrant solely to facilitate a show-
up investigation. As Government counsel conceded, no federal
appellate court has ever held that police officers can continue to
search a suspect after a Terry pat-down search produces nothing.
“If the protective search goes beyond what is necessary to
determine if the suspect is armed, it is no longer valid under
Terry and its fruits will be suppressed.” Id.
The majority then suggests that the officers’ partial
unzipping of Askew’s coat was permissible because it was not
a “full search.” There is no less-than-a-full-search exception to
Terry. Indeed, the Terry decision categorically rejects
talismanic distinctions between a so-called “full-blown search”
and conduct short of it. 392 U.S. at 19. The Court was even
clearer in Arizona v. Hicks, 480 U.S. 321 (1987), rejecting the
suggestion that only victims of “full-blown” warrantless
searches deserve protection under the Fourth Amendment:
[The] dissent suggests that we uphold the action here on the
ground that it was a “cursory inspection” rather than a “full-
blown search,” and could therefore be justified by
reasonable suspicion instead of probable cause. As already
noted, a truly cursory inspection – one that involves merely
looking at what is already exposed to view, without
disturbing it – is not a “search” for Fourth Amendment
purposes, and therefore does not even require reasonable
suspicion. We are unwilling to send police and judges into
 13

a new thicket of Fourth Amendment law, to seek a creature
of uncertain description that is neither a “plain view”
inspection nor yet a “full-blown search.”
Id. at 328-29. Under the Fourth Amendment, “[a] search is a
search, even if it happens to disclose nothing [of any great
personal value to the suspect].” Id. at 325. And if a search
done pursuant to a Terry stop does not satisfy the strictures of
Terry, then it is illegal. The Court has noted time and again that
“[t]he sole justification of the search in [a Terry stop and frisk]
situation is the protection of the police officer and others nearby,
and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other
hidden instruments for the assault of the police officer.” Terry,
392 U.S. at 29.
In an effort to employ a balancing test with a de minimis
exception for less than full-blown investigative searches, the
majority is faced with the task of trying to find support for its
claim that Terry allows more than just “protective searches.”
This is an impossible task, because the law is not what the
majority claims.
The majority first suggests that the strictures of Terry can
be modified if necessary to facilitate a show-up procedure. But
this supposition finds no support in the case law, and neither the
majority nor the Government cites a single Supreme Court or
Court of Appeals decision endorsing this view. The majority
cites Michigan v. Summers, 452 U.S. 692, 701 n.12 (1981), in
support of the proposition that a witness show-up may be
permissible in some circumstances. But Summers does not say
that police officers may search a suspect solely to facilitate a
show-up. The requirements of Terry remain inviolate even
during a show-up, and there is no case that says otherwise. This
explains why Government counsel backpedaled during oral
argument from first asserting that a police officer can insist that
a suspect take off her clothing during a Terry stop to facilitate a
 14

show-up, to a concession that, “[w]ell, maybe under the totality
of the circumstances it would not be reasonable to remove . . .
clothes.”
The majority also contends that, because police officers
may take reasonable investigative steps during a lawful Terry
stop, it necessarily follows that they may search a suspect solely
to facilitate a show-up. The majority cites Hiibel, apparently to
suggest that the decision somehow carves out an exception to
the rules governing Terry stops. There is nothing in Hiibel to
support this reading of the decision. Hiibel’s reference to
“investigate further” certainly was not meant to loosen Terry
from its moorings. Hiibel says that “questions concerning a
suspect’s identity are a routine and accepted part of many Terry
stops.” 542 U.S. at 186. But it does not say that a police officer
may search a suspect’s person solely to facilitate a show-up. As
the Court made clear in Dickerson, police officers may not use
a Terry stop to conduct an “evidentiary search that Terry
expressly refused to authorize.” 508 U.S. at 378. Officers may
not “rummage and seize at will” during a Terry stop. Id. It is
noteworthy that the Government does not cite Hiibel at all,
much less for the proposition that it creates an investigative-
search gloss on Terry.
In amplifying on investigative techniques that may be
utilized during Terry stops, the majority additionally cites
United States v. Hensley, 469 U.S. 221, 228 (1985). But this
case does not hold that police officers may search a suspect
solely to facilitate a show-up. In Hensley, the Court merely
holds that, “if police have a reasonable suspicion, grounded in
specific and articulable facts, that a person they encounter was
involved in or is wanted in connection with a completed felony,
then a Terry stop may be made to investigate that suspicion.”
Id. at 229. Nothing in Hensley even hints that police officers
may conduct an investigative search of a suspect’s person
during a Terry stop. The Hensley Court simply confirms that
 15

police officers are “authorized to take such steps as . . .
reasonably necessary to protect their personal safety and to
maintain the status quo during the course of the stop,” id. at 235,
which of course is the rationale underlying Terry. The Hensley
decision also notes that the “police [are] entitled to seize
evidence revealed in plain view in the course of [a] lawful
[Terry] stop,” id., but this is a far cry from saying that a
warrantless search is permissible under Terry after a lawful pat
down has given the officers no cause for concern over their
safety.
For want of any authority endorsing the legality of the
officers’ search of Askew during the show-up, the majority
looks to the Supreme Court’s decision in Hayes v. Florida, 470
U.S. 811 (1985), for support. Indeed, the portion of the majority
opinion upholding the officers’ first unzipping of Askew’s
jacket appears to rest almost entirely on Hayes. This is
unfathomable.
Hayes involved a situation in which the petitioner was the
principal suspect in a burglary-rape. The police went to
petitioner’s home to obtain fingerprints. When petitioner
expressed reluctance to accompany officers to the station house,
one officer said that they would arrest him. Petitioner replied
that he would rather go to the station than be arrested. He was
then taken to the station and fingerprinted. When it was
determined that his prints matched those taken at the scene of
the crime, he was arrested. The Supreme Court found that,
because there was no probable cause to arrest petitioner, no
consent to the journey to the police station, and no prior judicial
authorization for detaining him, the investigative detention at the
station for fingerprinting purposes violated petitioner’s rights
under the Fourth Amendment. The majority gives Hayes new
meaning, however, claiming that the case stands for the
proposition that the Fourth Amendment permits the police to
 16

take fingerprints during a Terry stop. This is not what Hayes
says. Rather, the Court in Hayes held that
the line is crossed when the police, without probable cause
or a warrant, forcibly remove a person from his home or
other place in which he is entitled to be and transport him
to the police station, where he is detained, although briefly,
for investigative purposes. We adhere to the view that such
seizures, at least where not under judicial supervision, are
sufficiently like arrests to invoke the traditional rule that
arrests may constitutionally be made only on probable
cause.
Id. at 816. Following this holding, the opinion goes on to say,
in passing, that “[n]one of the foregoing implies that a brief
detention in the field for the purpose of fingerprinting, where
there is only reasonable suspicion not amounting to probable
cause, is necessarily impermissible under the Fourth
Amendment.” Id. (emphasis added).
The Supreme Court has never held that fingerprinting
during a Terry stop is lawful, neither in Hayes nor in any other
decision. And, in the 22 years since Hayes was decided, the
fingerprints comment upon which the majority relies so heavily
in this case has never been invoked by the Court. One need only
look at the Court’s decision in a case like Minnesota v.
Dickerson – decided eight years after Hayes – to understand that
the comment in Hayes has been of no moment to the Court, and
that it certainly has not altered the analytical framework
governing cases involving Terry stops. It is also noteworthy that
the Government’s brief relegates Hayes to a “cf.” citation, with
the following cryptic parenthetical: “(suggesting that ‘brief
detention in the field for the purpose of fingerprinting’ may be
permissible ‘where there is only reasonable suspicion not
amounting to probable cause’).” Br. for Gov’t at 20 (emphasis
added). This is unsurprising, because no good authority has ever
attributed so much to Hayes as does the majority here. To say
 17

that reliance on Hayes is a reach is an understatement, which
may be why the majority appears to go out of its way in
attempting to explain how Hayes governs the judgment in this
case.
The simple, uncontested point here is that there is no worthy
precedent supporting the Government’s claim that a police
officer may search a suspect’s person solely to facilitate a show-
up during a Terry stop. And, neither Hayes, Hiibel, Hensley,
Summers, nor any other decision issued by the Court offers any
support for the majority’s investigative-search gloss on Terry.
As Government counsel conceded during oral argument, there
is no case under the Fourth Amendment that allows an officer to
detain a person on the street and then, with no reasonable
suspicion, probable cause, or warrant, to undo the person’s
clothing, searching the person without his or her consent.
Warrantless searches during Terry stops are appropriate in only
one circumstance – where officers, though lacking reasonable
cause for arrest, must search for weapons to ensure their own
safety. Michigan v. Long, 463 U.S. 1032, 1049-50 n.14 (1983).
Terry does not otherwise condone the physical search of a
person. In other words, the only search allowed during a Terry
stop is a “protective search” that is demonstrably necessary for
the discovery of weapons. There is no such thing as an
investigative search under Terry. See Dickerson, 508 U.S. at
373 (“If the protective search goes beyond what is necessary to
determine if the suspect is armed, it is no longer valid under
Terry and its fruits will be suppressed.”).
In the instant case, the officers had no basis to conduct a
search of Askew’s person by partially unzipping his jacket. The
pat down did not reveal a gun, so the officers had no grounds to
fear for their safety. The sole justification for a search following
a Terry stop and frisk is the protection of police officers and
others who are nearby. If the frisk or pat down produces
nothing, then the officers have no reason to be concerned about
 18

their safety or the safety of others nearby. When Askew pushed
the officer’s hand away from the zipper on his jacket, he was
merely giving vent to his Fourth Amendment right to avoid an
unwarranted search of his person. He had already been frisked,
so the officers were not entitled to pursue a further search of his
person. Terry and its progeny make it clear that the officers
were forbidden from attempting to partially unzip Askew’s coat
without his permission, which they neither sought nor received.
At bottom, the majority’s decision rests almost entirely on
its interpretation of Hayes. As the majority sees it, Hayes allows
the police during a Terry stop to take fingerprints for
identification purposes, so it follows that the police during a
Terry stop may unzip an individual’s jacket for identification
purposes. This is very much akin to the argument advanced by
Government counsel that, if police officers are told that a
suspect has a tattoo on her chest, the officers during a Terry stop
may order the suspect to remove her clothing for identification
purposes. Neither Hayes nor any other Supreme Court decision
supports this extraordinary view of the Fourth Amendment.
“Before [a police officer] places a hand on the person of a
citizen in search of anything, he must have constitutionally
adequate, reasonable grounds for doing so.” Sibron, 392 U.S. at
64. The officers discovered nothing during their pat down of
Askew and thus had no “reasonable grounds to believe that [he]
was armed and dangerous.” Id. at 63. Therefore, when they
acted to partially unzip his coat without a warrant, without
probable cause, and without consent, their initial search of
Askew violated the Fourth Amendment.
 19

VI. THE OFFICERS’ UNLAWFUL SEARCH OF ASKEW AFTER
THE SHOW-UP HAD ENDED

Because it is clear that the police officers violated Askew’s
Fourth Amendment rights when they partially unzipped his
jacket during the show-up, there is nothing more that need be
decided. There is no dispute over the fact that the police officers
never would have uncovered the gun but for their initial search
of Askew. Therefore, the District Court should have granted
Askew’s motion to suppress on this ground alone. Nonetheless,
Askew presses the claim that his Fourth Amendment rights were
additionally violated when the officers unzipped his jacket after
the show-up was completed:
Although the seizure and the pat-down were justified
by a reasonable suspicion that Mr. Askew resembled the
robber, the reasonable suspicion, tenuous to begin with, was
dissipated by the additional information: the pat down did
not reveal a gun, and the show-up procedure did not result
in a positive identification of Mr. Askew as the robber.
Taking all the circumstances together, the officers’
particularized and objective basis for suspecting the
particular person stopped of criminal activity had vanished.
At that point, there was no basis for further detention. The
officers knew that their original suspicion that Mr. Askew
had committed an armed robbery – the very basis for the
stop – was wrong, and they knew that a pat-down search for
weapons produced nothing. Mr. Askew was entitled to be
released after the robbery victim did not identify him as the
person who had robbed her.
Appellant’s Br. at 13-14 (internal citations and quotation marks
omitted). Askew is right in what he asserts. See, e.g., United
States v. Babwah, 972 F.2d 30, 34 (2d Cir. 1992) (holding that
“instead of terminating the seizure when their suspicions
concerning contraband proved unfounded, the Agents continued
to detain the defendants while they embarked upon [an]
 20

expedition for evidence in the hope that something might turn
up. . . . This continued detention was nothing more than an
unlawful fishing expedition. The fact that it happened to be
successful does not, of course, make it lawful.” (internal
citations and quotation marks omitted)).
The majority argues that the officers who conducted the
second search of Askew may not have known of the results of
the show-up when they unzipped Askew’s jacket in search of
contraband. This supposed ignorance on the part of the officers
surely did not justify their second unlawful search of Askew.
Were the courts to endorse such a rule, police officers would be
free to extend Terry stops into indefinite detentions. It goes
without saying that the Constitution does not condone this.
Apparently recognizing the fragility of this line of analysis,
the Government wisely does not pursue it. In dodging the issue,
the Government first acknowledges that “it is undisputed that
appellant was not identified as the robber,” and then “assume[s]
for purposes of this appeal” that the facts support appellant’s
contention that “the officers’ reasonable suspicion justifying the
Terry stop . . . ‘dissipated’ when ‘the pat down [of appellant] did
not reveal a gun, and the show-up procedure did not result in a
positive identification of Mr. Askew as the robber.’” Br. for
Gov’t at 24-25 & n.12 (quoting Appellant’s Br. at 13). It is easy
to understand why the Government chose to present its
argument on these terms. It is clear from the record here that,
after the show-up concluded, the robbery victim and the officer
with her simply drove away without implicating Askew. In
these circumstances, it would have been obvious to any
reasonable officer on the scene that Askew had not been
identified by the victim as the armed robber. Why? Because if
the robbery victim had identified Askew as the armed robber, it
is inconceivable to think that the officer in the car with her
would have left the show-up without first alerting the remaining
officers on the scene that Askew had been identified as the
 21

armed robber. Therefore, when the officer in the car left without
indicating a positive identification, the officers on the scene had
no further grounds to hold Askew.
Under established Fourth Amendment law, it is not
reasonable for an officer to detain a person on the street and
then, with no reasonable suspicion, probable cause, or warrant,
insist that the person remove his or her clothing or, even worse,
undo the person’s clothing without his or her consent. Neither
the majority opinion nor the Government’s brief to this court
offers any authority to suggest otherwise. Askew should have
been released after the show-up was completed. He certainly
would have posed no threat to the officers at that point. Askew
undoubtedly would have continued on his way, just as he had
been doing before he was stopped by the police.
The Government argues that, because an officer felt a hard
object near Askew’s waist when the officer partially unzipped
his jacket during the show-up procedure, “the police developed
reasonable articulable suspicion during the show-up that
appellant had a weapon near his waistband, which was
independent of their suspicion that he had committed the
robbery.” Br. for Gov’t at 25. Thus, according to the
Government, the officers could search Askew after the show-up.
And the majority, in turn, advances a claim (not raised by the
Government) that the officers could search Askew after the
show-up to protect themselves while disengaging from their
encounter with him. These claims are fatally flawed. It is quite
disingenuous for the Government to claim that any alleged risk
faced by the officers during the show-up allowed the officers to
search Askew after the show-up had ended. If there was any
risk, it arose during the show-up – when a witness and several
officers were nearby – not afterwards. And if the police officers
had an “objectively reasonable” basis to believe that a protective
search was necessary, they would have acted immediately,
during the show-up, to diffuse any potential for danger. They
 22

did not do this. Therefore, once the officers patted down Askew
and found nothing and then completed the show-up without
Askew being implicated in the robbery, Askew should have
been free to leave.
The crucial point that the Government simply ignores is that
an
officer’s continued exploration of [a suspect’s clothing]
after having concluded that it contained no weapon [is]
unrelated to “the sole justification of the search [under
Terry, namely,] the protection of the police officer and
others nearby.”
Dickerson, 508 U.S. at 378 (quoting Terry, 392 U.S. at 29). A
continued search by the officers in these circumstances is “the
sort of evidentiary search” that has been “condemned” by the
Supreme Court. Id.
The majority concedes that the officers’ second search of
Askew was conducted only because of the officers’ initial
unzipping of Askew’s jacket. In other words, the officers had
no new information justifying the second search. The second
search would not have occurred if the officers had not partially
unzipped Askew’s jacket during the show-up. As the Court
made clear in Dickerson, police officers may not use the fruits
of one unlawful search to justify a further search:
Although the officer was lawfully in a position to feel the
lump in respondent’s pocket, because Terry entitled him to
place his hands upon respondent’s jacket, the court below
determined that the incriminating character of the object
was not immediately apparent to him. Rather, the officer
determined that the item was contraband only after
conducting a further search, one not authorized by Terry or
by any other exception to the warrant requirement. Because
this further search of [the suspect’s] pocket was
 23

constitutionally invalid, the seizure of the cocaine that
followed is likewise unconstitutional.
Id. at 379. “In order to make effective the fundamental
constitutional guarantee[] . . . of the . . . inviolability of the
person,” the Supreme Court has made it clear “that evidence
seized during an unlawful search [cannot] constitute proof
against the victim of the search. The exclusionary prohibition
extends as well to the indirect as the direct products of such
invasions.” Wong Sun v. United States, 371 U.S. 471, 484
(1963) (internal citation omitted); see also United States v.
Scios, 590 F.2d 956, 959 (D.C. Cir. 1978) (en banc). Because
the initial unzipping of Askew’s jacket constituted an
unconstitutional search of his person, it could not provide a
lawful ground for the second search.

CONCLUSION
During oral argument, the Government conceded that the
District Court erred in holding that “the Fourth Amendment
presents no impediment to show-ups involving suspects who are
constitutionally detained.” Askew, 313 F. Supp. 2d at 5. And
the majority acknowledges that the Fourth Amendment should
control the disposition of this case. The concession and
acknowledgment are of little solace, however, because the
majority’s decision effectively holds that procedures relating to
show-ups are not subject to the strictures of Terry. The Supreme
Court has never held that police officers may search a suspect
during a Terry stop merely to facilitate a show-up. And no
federal appellate court has held that the Court’s decision in
Hayes allows police officers to continue searching a suspect
after a Terry pat-down search produces nothing. The majority
ignores this legal landscape and reaches a result never before
condoned by a federal appellate court.
 24

We are bound to follow the precedent of the Supreme
Court. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
460 U.S. 533, 535 (1983) (per curiam) (holding that “only [the
Supreme] Court may overrule one of its precedents”). The
Court has not overruled Terry and its progeny, nor has it ever
endorsed an investigative-search gloss on Terry. This court has
no authority to rewrite Fourth Amendment law.
I fear that, if this judgment survives as precedent, the Fourth
Amendment soon will be a dead letter in our Constitution, at
least with respect to cases brought before this court.