Fourth Amendment, 161 pp. en banc.
Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.
Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.
Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced. There might have been many reasons for the police officer to tell the deft to stand in a certain place.
Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband. Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.
CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:
Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart. Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law. Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer. When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination. Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.
DISSENT
(Refers to police officers by first name throughout.)
The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous. Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated. Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour. Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus. Looking at an unmarked car does not constitute counter-surveillance of police activity. An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place. Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search. Whren risks pretextual and discriminatory stops.
DISSENT
Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police. Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias. Whren encourages pretextual stops and leads to stereotyping. Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous. Not considering this is contrary to Supreme Court and circuit precedent. Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop. Would remand to consider this.
DISSENT
Stop was pretextual, search was unreasonable. Officers repeately noted defts race in contemporaneous accounts.