CA9: Frisk without reasonable suspicion of nervous crime victim unreasonable

Defendant was on probation and he was an assault victim beaten on a bus. When the police arrived, they treated him like the suspect and searched him, and the motion to suppress should have been granted. Inevitable discovery does not apply because the officers did not know that he was on probation, and there was no reasonable suspicion for any search. United States v. Hernandez, 489 Fed. Appx. 157 (9th Cir. 2012):

There is no dispute that Hernandez was the victim of a crime. The bus driver reported to police that two assailants had entered his bus, beaten Hernandez, and threatened to kill him. Hernandez was identified as the victim of possible criminal activity to the police as soon as they arrived at the scene. However, instead of investigating and detaining the assailants, who simply ran away after police arrived, the police extensively questioned and searched the victim. Nervousness alone does not justify the search. Moreno v. Baca, 431 F.3d 633, 642 (9th Cir. 2005). Suspicion of drug use or a conclusory statement about officer safety do not provide the reasonable suspicion necessary to conduct a search for weapons. Ramirez v. City of Buena Park, 560 F.3d 1012, 1022 (9th Cir. 2009). In sum, the totality of circumstances in this case does not justify the search.

Nor is the search justified by the inevitable discovery doctrine. The government argues that if the officers had checked, they would have discovered an outstanding arrest warrant. This theory is persuasive only if “there is no question that the initial stop was based on reasonable suspicion.” Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 184 (2004). Here, it was not.

Another question is why the District Court didn’t suppress.