D.Me.: Govt failed to prove frisk was for safety reasons; it was really a search for drugs without RS

The officers didn’t testify to a safety reason for a frisk, and the dashcam video did not support it either. Moreover, this was not a frisk for weapons; it was a search for drugs and it was without reasonable suspicion. United States v. Look, 2020 U.S. Dist. LEXIS 24505 (D. Me. Jan. 12, 2020)*:

The record in this case does not speak to the Troopers’ perception of danger. Neither Austin nor Gould testified that they perceived danger based on the behavior or appearance of either Look or Miranda. Based on my own review of the dash-cam video, neither of these young men appeared in any way aggressive or threatening. While both men appeared to be relatively solid in terms of build, neither gave off the least hint of a truculent or combative demeanor. They were entirely passive and compliant. Miranda, furthermore, exited the vehicle in the presence of three Troopers. The three Troopers also walked Miranda to the back of the vehicle and conducted a pat-down frisk, together. There was no testimony to explain why they felt their collective safety required a pat-down frisk in the space between Miranda’s buttocks. Although Austin testified he was patting Miranda down “for weapons,” in fact he was exploring the space between Miranda’s buttocks specifically because he suspected he would find contraband drugs in that location. The totality of the circumstances as set out in the facts as I find them from the record leaves no other reasonable conclusion.

I do not have to resolve the question related to the reasonableness of the decision to remove Miranda from the vehicle and subject him to a pat-down frisk because, on this record, I am not persuaded that the Troopers subjected Miranda to a minimally-intrusive pat-down frisk. Instead, they performed a more invasive physical search for drug contraband, to include feeling or manipulating the space between Miranda’s buttocks. It is one thing to conduct a pretextual stop so long as there is a reasonable articulable suspicion to do so. But the Government must bear up under scrutiny in such cases that the steps taken after the pretextual stop stay within the navigational beacons set out by fundamental Fourth Amendment jurisprudence. As is always true of such cases, context matters. The stop was permissibly motivated by law enforcement suspicion that Look and his passenger were engaged in the drug trade, not by the desire to deploy three Troopers to stem the tide of the loud muffler epidemic afflicting Maine communities. The Defendants broke the first rule of an alleged criminal enterprise; to wit, don’t break the law while you’re breaking the law. The loud exhaust furnished a reasonable basis to conduct the stop. But the ensuing encounter and in particular, the muscular Terry frisk of Miranda, appears to have been influenced at least in part by the Troopers’ expectation that they would find drug contraband. Which is to say, there is nothing in the record suggesting that any of the Troopers purposely exceeded the limitations of a minimally intrusive frisk, but they exceeded those limitations nonetheless.