CA8: Lifting defendant’s pant leg was without RS or consent, and search suppressed

Defendant was stopped at the Omaha bus terminal apparently because he showed an interest in what the police were doing with bags on the bus. [Note: Every criminal defense lawyer does too. Does that give reasonable suspicion? Not here.] The government conceded there was no reasonable suspicion, but it argued that defendant consented. The District Court’s finding of no consent was supported by the evidence, and lifting defendant’s pant leg was without reasonable suspicion. Meth was found and suppressed. United States v. Aquino, 674 F.3d 918 (8th Cir. 2012)*:

The government contends the dispositive issue in this case is whether Aquino’s compliance with Lutter’s request to pull the bottom portion of his pant leg tight against his body was a consensual act which gave rise to reasonable suspicion when Lutter noticed the concealed bulge, in turn justifying a subsequent investigatory detention. We disagree. This case turns not on Aquino’s last act before being handcuffed, but rather Lutter’s first act after placing Aquino in handcuffs, which was to lift Aquino’s pant leg to reveal the concealed bulge. Under the circumstances involved in this case, Lutter violated the Fourth Amendment when he searched underneath an article of Aquino’s clothing without his consent and without probable cause to do so, instead of performing a pat down to confirm whether the concealed bulge was a weapon.