CA2 en banc: Directions to a suspect don’t make a stop a search without a trespass or an intrusion into a REP

CA2 en banc, summary by the court (8-3): “This case presents what is, in some respects, a familiar question: whether a police officer’s pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. Based on the facts presented, we conclude that it was. We write en banc to confirm several fundamental, and well-settled, principles of Fourth Amendment jurisprudence. First, a police officer’s verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring. Second, a police officer’s subjective intent bears no weight in determining when that officer’s interaction with the suspect constitutes a search. Third, in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene. When the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect’s behavior before deciding to conduct a pat-down for his safety.” United States v. Weaver, 2021 U.S. App. LEXIS 24251 (2d Cir. Aug. 16, 2021).