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Clarifying the scope of U.S. Supreme Court search and seizure case law, a federal appeals court has ruled that removing an item from a suspect’s pocket cannot be justified as an action meant to protect a law enforcement officer. In United States v. Casado, 01-1488, the 2nd U.S. Circuit Court of Appeals, in a decision by Judge Robert D. Sack, reversed a lower court decision refusing to suppress drugs found in a defendant’s pocket during what the officer claimed was a “protective search” meant to discover weapons. Jose Antonio Casado had claimed that an officer who reached into his pocket and found cocaine violated the prohibition against unreasonable searches and seizures in the Fourth Amendment to the U.S. Constitution. Casado was arrested on Nov. 24, 1998, by Investigator John Storer of the Ontario County, N.Y., sheriff’s office. Storer was staking out a known drug location in Geneva, N.Y., when he saw Casado emerge from the building. After witnessing Casado being handed something by another suspect, the investigator approached him and ordered him to remove his hand from his right front pocket. When Casado refused, Storer pulled his gun and repeated the order. The investigator then forcibly removed Casado’s hand from his pocket and, without patting him down, reached into the pocket and retrieved the cocaine. Chief Judge David G. Larimer of the Western District of New York adopted a magistrate’s recommendation and refused to suppress the cocaine, agreeing that the seizure was proper because the investigator reasonably believed Casado was armed. Casado fled before trial, but was captured 10 months later in Philadelphia. Upon his return, he pleaded guilty to cocaine possession and was sentenced in August 2001 to serve 63 months in prison. On appeal, the government contended that under Terry v. Ohio, 392 U.S. 1 (1968), Storer was justified in reaching into Casado’s pocket because he thought it might contain a weapon and he was concerned about his own safety. In Terry, the Supreme Court upheld the frisk of a suspect’s clothing as legal under the Fourth Amendment, but only when the officer has a reasonable suspicion the suspect might be armed, and the search is “confined in scope to an intrusion reasonably designed to discover” hidden weapons that can be used to assault the officer. In a second case decided simultaneously with Terry, the Supreme Court found illegal an officer’s decision to pluck from a suspect’s pocket glassine envelopes containing heroin. The Court, in Sibron v. New York, 392 U.S. 40 (1968), found the search “was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” Writing for the 2nd Circuit in Casado, Judge Sack said, “Since Sibron, neither the Supreme Court nor we have addressed a case in which an officer, in the course of a weapons search, reached into a suspect’s pocket without first conducting a patdown of the ‘outer clothing,’” as outlined in Terry. Sack began by assuming that the first prong of Terry had been met: that Storer had reasonable suspicion Casado was in position to gain immediate control of a weapon. But as to the second prong, the scope of the search, Sack said, “There is no indication in the record that once Storer took Casado’s hand out of the pocket, Storer could not have patted down the pocket to determine whether his fear of a weapon was justified.” And despite the government’s argument that Casado’s refusal to remove his hand from his pocket made Storer justifiably concerned that Casado was going to “escalate the violence,” Sack said, “This does not distinguish this case from Terry and Sibron in any significant way.” OTHER OFFICERS PRESENT Nothing prevented the investigator from patting down Casado, Judge Sack said, an action that remained an option after Casado’s hand was forcibly removed from his pocket. Moreover, the investigator had other officers at the scene, the judge said. “We are keenly aware that an analysis of the reasonableness of police conduct must allow for an officer’s need to make quick decisions with limited information at the risk of injury or death to himself, other law enforcement officers, and bystanders,” Sack said. “But that analysis is nonetheless necessarily informed by the options available to the police officer.” Sack said the court was not excluding “the possibility that in some circumstances a patdown is not required.” “And we hesitate before criticizing Storer’s choice of the means to protect himself in emergent circumstances on the street from the relative calm and safety of chambers,” he said. “But we are not permitted to leave the choice of alternatives for self-protection entirely to Storer’s discretion.” The panel also included 2nd Circuit judges Amalya Kearse and Barrington D. Parker Jr. Michael P. Schiano of Rochester, N.Y., represented Casado. Assistant U.S. Attorney Everardo A. Rodriguez represented the government.

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