Thursday, August 10, 2006

U.S. v. Flatter (9th Cir. - Aug. 9, 2006)

You know the government has done something obviously wrong when a panel that consists of Judges Bybee, Beezer and Tallman unanimously reverses a criminal conviction on the basis of an illegal search.

Which is what happens here.

Andrew Flatter allegedly is a postal worker who (allegedly) steals some (alleged) mail. After a sting operation in which they (allegedly) catch him stealing some mail, the postal inspectors interrogate Flatter. But before they do so, in a classic move, in order to "make sure he doesn't have any weapons" -- yeah, right -- they pat Flatter down. At which point, during the frisk, they feel the missing envelope that they think Flatter stole during the sting (but which they couldn't see on the videotape), seize it, and then introduce it into evidence at Flatter's trial.

But the Ninth Circuit reverses. It's clear that you have to have at least a suspicion that someone's carrying weapons in order to conduct a Terry search. And there was utterly none here. Sure, it would be dangerous if Flatter had some weapons. But that's not enough to justify a search; after all, it would be dangerous if anyone had weapons, so if that's all that was required, there'd be no limits.

You've instead got to have reason -- or at least a reasonable suspicion -- to believe that the person actually has a weapon before you can conduct your (ostensible) search for weapons. Which didn't exist here. Sure, if you've investigating a drug dealer, maybe the fact that he's an (alleged) drug dealer is good enough to justify a frisk, since lots of drug dealers carry weapons. But, last I checked, postal workers who steal mail rarely do so while packing. Hence no legitimate frisk.

Seems like the panel gets this one right.