• "Search" Requires Compliance
  • July 31, 2012 | Author: G. Ross Trindle
  • Law Firm: Best Best & Krieger LLP - Los Angeles Office
  • Overview: In a case of first impression, the Ninth Circuit has held that a suspect must actually comply with an officer’s command to produce suspected contraband in order for a search to occur. Analyzing two separate police commands, the court found no intrusion into a subject’s reasonable expectation of privacy where the officer reasonably suspected marijuana possession, ordered the subject to “empty his pockets,” and the subject refused to do so. But, the court found that a search did occur after the subject responded to the officer’s second command to produce the suspected contraband by placing the marijuana on the hood of the patrol car.

    Training Points: This case defines a search - a seemingly basic concept that had not previously been defined in the Ninth Circuit. For a search to occur, police must have “visual access” to a private space. While officers may try to gain “visual access” to suspected evidence and contraband by giving various orders, verbal commands alone do not invade a person’s reasonable expectation of privacy and, therefore, do not constitute a search. A subject must actually comply with the order by revealing some thing or area in response to the command in order for a search to occur.

    Summary Analysis: In U.S. v. Pope, a forest officer commanded Travis Pope to empty his pockets after he admitted to smoking marijuana. Pope did not comply. He later admitted to having marijuana in his possession and placed it on the hood of the patrol car after the officer issued a second command to do so. Pope argued that the officer’s two commands constituted illegal searches. The Ninth Circuit disagreed, finding that, without Pope’s compliance, the officer’s first command was not a search because it did not cause an intrusion upon Pope’s reasonable expectation of privacy. The second command did result in a search, however, because Pope complied and produced the suspected contraband. (The court found exigent circumstances to support the second search and Pope’s conviction was upheld.)