Multiple constitutional seizures may occur during a stop. Aside from the stop itself, unzipping defendant’s jacket is a seizure. In this case, it was reasonable. United States v. Askew, 482 F.3d 532 (D.C. Cir. 2007. D.C. Cir. decides to explain what is permissible under Terry, apparently to clarify, which is at least worth reading, too:
To resolve this case, we must initially review the Supreme Court’s case law analyzing the following key question: What investigative steps are permissible and impermissible during a Terry stop?
We begin by describing the category of impermissible steps. A Terry stop occurs when the police have “reasonable suspicion” of criminal activity — but the police’s justification has not yet risen to the level of “probable cause” needed for an arrest. Because the police do not yet have probable cause for an arrest, the police during a Terry stop may not engage in what the Supreme Court has called a “full search.” Terry, 392 U.S. at 26; see id. at 30 (“general exploratory search for whatever evidence of criminal activity [officer] might find”); see also Minnesota v. Dickerson, 508 U.S. 366, 378, 124 L. Ed. 2d 334 (1993) (“evidentiary search,” namely one raising prospect that officer will “rummage and seize at will” beyond “specific authorization”)(internal quotation marks omitted); Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion of White, J.) (“In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects.”) (emphasis added). As the Court has explained, such a “full search” — sometimes called an exploratory or evidentiary search — occurs when the police rummage through a person’s pockets, bags, and clothing for contraband the person may be carrying, such as stolen goods, drugs, or other tangible evidence of crime. See Sibron v. New York, 392 U.S. 40, 64-65 (1968).
Other than the forbidden “full search,” the Supreme Court has held that other investigative steps during a Terry stop are permissible if “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20; see also Hiibel, 542 U.S. at 185. The Terry “reasonably related in scope” standard is far from self-defining, but the Supreme Court’s rulings have provided guidance — permitting “several investigative techniques which may be utilized effectively in the course of a Terry-type stop.” Summers, 452 U.S. at 700 n.12 (quoting 3 LAFAVE, SEARCH AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible investigative steps include the following:
. The police may ask questions to the individual who has been stopped. See Terry, 392 U.S. at 6-7 (“Officer McFadden approached the three men, identified himself as a police officer and asked for their names.”); see also United States v. Hensley, 469 U.S. 221, 229 (1985) (recognizing police ability to “ask questions, or check identification” during Terry stop); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (“[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.”); Terry, 392 U.S. at 34 (White, J., concurring) (“[T]he person may be briefly detained against his will while pertinent questions are directed to him.”).
. When the police have a reasonable basis for believing that a traveler is carrying luggage that contains drugs, the police may seize the luggage “briefly to investigate the circumstances” that give rise to their suspicion, and they may subject the luggage to a dog sniff for narcotics. United States v. Place, 462 U.S. 696, 706-07 (1983); see also Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (allowing dog sniff of motorist’s lawfully stopped car).
. The police may obtain fingerprints; in particular, such fingerprinting is authorized “if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with [a] crime, and if the procedure is carried out with dispatch.” Hayes v. Florida, 470 U.S. 811, 817 (1985).
. A witness show-up is permissible: When it is “known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime.” Summers, 452 U.S. at 701 n.12 (quotation marks omitted). (Whether the resulting witness identification may be admitted as evidence in a criminal trial is an analytically separate question. See Manson v. Brathwaite, 432 U.S. 98, 111-14 (1977); United States v. Washington, 359 U.S. App. D.C. 185, 353 F.3d 42, 44-45 (D.C. Cir. 2004).)
. . .
We assess on the other side of the Fourth Amendment balance the extent of the additional intrusion on individual privacy — that is, the additional intrusion caused by unzipping the outer jacket. Here, to begin with, the police did not conduct a “full search,” which Terry ruled flatly impermissible in a stop based solely on reasonable suspicion. 392 U.S. at 26. In unzipping Askew’s jacket, Officer Willis was not conducting a “general exploratory search for whatever evidence of criminal activity he might find.” Id. at 30. Moreover, the primary intrusions on Askew’s individual privacy resulted from the forcible detention itself and the initial protective frisk, both of which were plainly permissible under Terry. Our focus therefore is on the additional step of unzipping a jacket to reveal clothing underneath. Contrary to Askew’s contention, this is a relatively minimal additional interference with individual privacy. The Supreme Court in Pennsylvania v. Mimms, for example, authorized officers conducting traffic stops to order the driver out of the car. The Court reasoned that during a valid stop, the “additional intrusion” that leaving the car imposed upon the driver’s personal privacy “can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed.” 434 U.S. 106, 111 (1977). That provides a fair description of the additional intrusion in this case as well.
. . .
In sum: Balancing the competing interests and taking our cues from Supreme Court precedent, especially Hayes, we conclude that the police during a Terry show-up may reasonably maneuver a suspect’s outer clothing (such as unzipping an outer jacket so a witness can see the suspect’s clothing) when taking that step could assist a witness’s identification. In this case, therefore, the Fourth Amendment allowed the police to initially unzip Askew’s outer jacket so that the robbery victim could see Askew’s clothing, thereby assisting the victim’s identification during the show-up. That step was “reasonably related in scope to the circumstances which justified” stopping Askew in the first place. Terry, 392 U.S. at 20.
Prosecutorial immunity for allegedly ordering illegal wiretaps could not be decided at this point in the proceedings. There was no absolute immunity because this involved alleged illegal searches they ordered, and plaintiff alleged enough to go forward until the defense came up with more to defeat it. Bansal v. Russ, 513 F. Supp. 2d 264 (E.D. Pa. 2007).*
Defendant’s stop for a traffic offense was valid, and the officer detected “an especially strong smell of marijuana that he suspected emanated from the trunk. Given these facts, [the officer] had probable cause to search the trunk” under the automobile exception. United States v. Carter, 2007 U.S. Dist. LEXIS 25519 (E.D. Va. April 5, 2007).
