D.C. Cir.: Unzipping jacket was a search; bumping into a hard object and not searching at time violated Dickerson

A zipped jacket manifests an expectation of privacy in what is underneath so it is a search. Here, officers unzipped appellant’s jacket to facilitate a showup. In the process, the officer bumped into a hard object but did not go futher, and defendant was moved to nearby spot for the showup. The search thus violated Dickerson. United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (en banc):

The disputed search of appellant in this case cannot be distinguished in any meaningful way from the impermissible search in Dickerson. Here, as in Dickerson, neither the constitutionality of the initial stop nor the protective frisk was at issue. In addition, neither the frisk of Dickerson nor the frisk of appellant produced any evidence of a weapon. Nevertheless, in each case, the police undertook a further search aimed at determining whether certain physical evidence would identify the stopped individual as the perpetrator of the crime in question. In Dickerson, the police officer manipulated the outside of the suspect’s jacket pocket to determine whether the small lump in that pocket felt like crack cocaine. Here, the police manipulated appellant’s jacket, partially unzipping and opening it, so that the complainant could see the sweatshirt underneath appellant’s jacket. In each case, the goal of the officer was to obtain information about a physical object in the suspect’s possession that the officer believed might identify the suspect as having committed the crime in question. In other words, the officer’s goal in each case was to determine whether the object of the search, the lump in Dickerson and the sweatshirt here, had particular incriminating characteristics that would contribute to a probable cause determination. And in each case, the officer sought to accomplish this goal pursuant to a search that exceeded the bounds of Terry.