W.D.N.Y.: Order to empty pockets after a frisk for weapons was excessive under Terry

Defendant was stopped for a traffic offense, and he reeked of smoked marijuana. He was ordered out of the car, and the officer saw a bulge in the pocket, felt it, and knew it was not a weapon. He told defendant to empty his pockets thinking it was a baggy of marijuana, and it was. Cash also was produced. This was excessive under Terry. The government’s argument it was valid as a search incident is rejected since it argued that defendant was not arrested to claim the benefits of Terry. United States v. Mitchell, 2012 U.S. Dist. LEXIS 184187 (W.D. N.Y. November 27, 2012):

Applying the foregoing constitutional standards to the evidence adduced at the suppression hearing I conclude that Officer Funderburk’s post-frisk order to Mitchell to “empty his pockets” was not reasonable under the Fourth Amendment. Funderburk never testified that the bulks felt like weapons or even that he suspected that they contained weapons. Indeed, Officer Funderburk testified that before commencing the frisk he “had a suspicion” that the bulk was a baggie of marijuana based on the odor coming from the Van (see 4/27/12 Tr. at p. 55) and after the frisk never suspected that the bulge was a weapon. The Government did not present evidence that the contour or mass of the bulge made its identity as contraband immediately apparent to Officer Funderburk. Accordingly, I find that the seizure of the currency after the Terry frisk was improper. See United States v. Owens, No. 07-20568-CR, 2008 WL 151978, at *5 (S.D. Fla. Jan. 15, 2008) (Officer’s “failure to state any reason for suspecting that the bulge in the defendant’s pocket was a weapon or contraband made the removal of the object impermissible under Terry.”); United States v. Thornton, 493 F. Supp. 2d 1024, 1034 (S.D. Ohio 2007) (In the absence of “testimony that either the cellphones or the cash felt like a weapon” the government “failed to show that the frisking/searching officer stayed within the bounds marked by Terry.”).