W.D.Tenn.: Seeing a split of authorities, the court concludes lifting a suspect’s shirt is a search requiring PC

Defendant’s shirt was lifted by the officer to look for a potential weapon. The court finds here that it was without reasonable suspicion. Considering various federal cases from circuit and district courts, there is a split of authority. The court here finds lifting one’s shirt to be a search requiring probable cause only after a frisk reveals a gun. United States v. Motley, 2014 U.S. Dist. LEXIS 81964 (W.D. Tenn. June 17, 2014):

Upon review in the instant case, the Court believes that the Terry, Sibron, and Dickerson courts, while not entirely restricting the scope of an investigative search to a pat-down, relied heavily upon the importance of determining the apparent substance of any perceived bulges beneath the clothing by touch before inspecting beneath a person’s outer garments. Thus, the Court finds the reasoning of the Casado, Aquino, and Hairston courts to be most persuasive in the resolution of the instant case. When Officer Gibson viewed the bulge at the Defendant’s waist, it would have been reasonable for him to conduct a pat-down under Terry of the bulge to determine if it was a weapon that could be used to harm him or others. If there had been any circumstances that arose in which a pat-down had not been a safe and feasible option for him, the Court may have found his chosen course of action to be reasonable. But when Officer Gibson elected to immediately lift the Defendant’s shirt to search beneath his clothing to determine the content of the bulge absent any indication that the less-intrusive pat-down was a viable option, the Court believes that this went beyond the scope permitted by Terry.

Therefore, for Officer Gibson’s actions to be permissible under the Fourth Amendment, the search required probable cause. The Government has not argued that Officer Gibson had developed probable cause when he lifted the Defendant’s shirt, and the Court believes that the mere viewing of the bulge along with the Defendant’s prior unrelated arrest for unlawful firearms possession did not constitute probable cause. See Aquino, 674 F.3d at 924 (reasoning that “an officer’s observation of a concealed bulge, standing alone, does not amount to probable cause to support an arrest”); United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir. 1999) (same); United States v. Jones, 254 F.3d 692 (8th Cir. 2001) (same). Further, while these cases pertained to probable cause of illegal drug activity, in the instant case, Officer Gibson believed that the bulge was a firearm. At the point he reached beneath the Defendant’s clothing to determine the nature of the bulge, he did not know whether the Defendant could lawfully possess a firearm. Thus, his lack of probable cause to conduct a search for a firearm is especially evident.