United States of America v. JAMES ANTONIO BROWN, AKA James Anthony Brown

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J AMES ANTONIO BROWN, AKA
James Anthony Brown,
Defendant-Appellant.
No. 19-50250
D.C. No.
3:18-cr-00058-
JLS
OPINION
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted July 10, 2020
Pasadena, California
Filed May 12, 2021
Before: Bobby R. Baldock,* Marsha S. Berzon, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
* The Honorable Bobby R. Baldock, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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2 UNITED STATES V. BROWN
SUMMARY**
Criminal Law
The panel reversed the district court’s denial of James
Antonio Brown’s motion to suppress the fruits of a search of
his pocket and his subsequent conviction for possession of
35.35 grams of heroin with intent to distribute, and
remanded.
Brown contended that his encounter with two police
officers in a motel parking lot did not comply with the
limitations set forth in Terry v. Ohio, 392 U.S. 1 (1968), and
that the evidence the officers found on him should have been
suppressed as fruits of a violation of his Fourth Amendment
rights.
The panel held that the officers’ encounter with Brown
was consensual until the point at which an officer ordered
Brown to stand up and turn around; at that point, the officer
had seized Brown, but the seizure was justified because the
officer had developed reasonable suspicion that Brown was
engaged in a drug transaction.
The panel concluded, however, that, under Sibron v. New
York, 392 U.S. 40 (1968), the officer’s search of Brown’s
pocket exceeded the limited scope of what Terry permits
because, in conducting the limited protective search for
weapons that Terry authorizes, the officer did not perform
any patdown or other initial limited intrusion but instead
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. BROWN 3
proceeded directly to extract and examine an item in
Brown’s pocket.
COUNSEL
Paul W. Blake (argued), Law Offices of Paul W. Blake,
Escondido, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Robert S. Brewer, Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
COLLINS, Circuit Judge:
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
held that if an officer has reasonable articulable suspicion
that a person is engaged in a crime, the officer may briefly
detain that person to make a limited and appropriate inquiry,
id. at 21–22, and if the officer has reason to believe that the
person detained may be armed with any sort of weapon, the
officer may further conduct a limited protective frisk for
such weapons, id. at 27–29. Appellant James Antonio
Brown contends that his encounter with two police officers
in a motel parking lot did not comply with Terry’s
limitations in multiple respects, and that, as a result, the
heroin and other evidence the officers found on him should
have been suppressed as fruits of a violation of his Fourth
Amendment rights. We conclude that the officers complied
with Terry and its progeny in all respects except one: in

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4 UNITED STATES V. BROWN
conducting the limited protective search for weapons that
Terry authorizes, the officer here did not perform any
patdown or other initial limited intrusion but instead
proceeded directly to extract and examine an item in
Brown’s pocket. We conclude that, under Sibron v. New
York, 392 U.S. 40 (1968)—a companion case to Terry that
was decided the same day—the officer’s search of Brown’s
pocket exceeded the limited scope of what Terry permits and
was therefore unreasonable under the Fourth Amendment.
We reverse the district court’s denial of Brown’s motion to
suppress the fruits of that search and Brown’s subsequent
conviction based on that evidence.
I
On the morning of November 15, 2017, El Cajon Police
Department Officers Robert Wining and Robert Nasland
responded to a radio call stating that motel staff at a
downtown Econo Lodge Motel had reported two
“transients” in the motel parking lot, one of whom was a
white male who had a bike and who had been seen urinating
in the bushes and the other of whom was a female.1 The
officers, who were in uniform, drove their patrol car over to
the Econo Lodge and turned into the parking lot on the
motel’s south side. On the other side of the parking lot from
1 On appeal from a conviction after the denial of a motion to
suppress, we recount the evidence “in the light most favorable to the
government.” United States v. Henry, 615 F.2d 1223, 1230 (9th Cir.
1980). Where, as in this case, there was a trial after the suppression
hearing, we may also rely on the testimony given at trial “to sustain the
denial of a motion to suppress evidence, even if such testimony was not
given at the suppression hearing.” United States v. Sanford, 673 F.2d
1070, 1072 (9th Cir. 1982). Here, the trial testimony provides a few
clarifying details, but it does not contain any materially different facts
from the testimony presented at the suppression hearing.

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UNITED STATES V. BROWN 5
the motel is a residential development, and the parking lot is
separated from that development by a high concrete wall and
an even taller wooden fence. Running along the wall is a
slightly raised planter area, which in turn is supported by a
relatively low retaining wall consisting of cinder blocks.
When the officers arrived just past 11:00 AM, the parking
lot was nearly empty, but there was a white U-Haul van
parked, head-out, in one of the spaces farther down along the
wall. As the officers entered the parking lot, they could not
see anyone behind the U-Haul, but as they drove past the
van, two men—later identified as James Brown and Jon
Barlett—came into view seated on the low cinder block wall
behind the van. The officers got out of their patrol car. Their
body cameras were turned on and recorded the ensuing
events.
Barlett is a white male who had a bike with him, so he fit
the general description of one of the individuals provided in
the radio call. Brown, however, did not meet the description
of either of those individuals, because he is an African-
American male and had no bicycle with him. Officer
Wining testified that the two men look surprised to see the
police, describing their reaction as a “deer-in-the-headlights
look.” Wining initiated a conversation, stating, “Howdy,
guys,” and asking, “What are we up to today?” Brown
responded that he had come to “get some stuff out of the
van,” and Barlett stated that he was going to help Brown.
Wining responded skeptically, telling Barlett “the motel
called us because they saw you urinating back here in the
bushes.” Barlett responded, “they didn’t see me,”
emphasizing the word “me.” Wining then asked Barlett
what his name was and, after he responded, Wining inquired
if he had identification. While Barlett looked for his
identification, Wining asked what room they were staying
in, and Brown gave his room number. Wining then asked

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6 UNITED STATES V. BROWN
Brown if he had identification. After Brown felt the outside
of his pants pockets, he said that his wallet was inside the
motel. Barlett mentioned that there were “some other folks
back there” and pointed to an area farther back in the parking
lot. Wining said to Barlett, “You’re not staying here, are
you, Jon?” Barlett responded that he was not.
Wining then asked the two men directly, “So, do we have
a drug deal going on here, or what do we got going?” Barlett
mumbled a response, and Brown said, “A drug deal? No,
sir.” Wining, who had 22 years of experience as a
policeman, stated that “that’s not uncommon in this area, so
don’t—you don’t need to look at me so surprised.” At
Wining’s request, Brown supplied his name, date of birth,
height, and weight. For almost the next full minute, Wining
wrote down information and communicated over his radio.
Brown then spoke up, saying, “Didn’t you say your call was
for him urinating in the bushes; what does this got to do with
me?” After Wining reiterated what the call was about,
Brown said, referring to Barlett, “he just barely rode up.”
Wining said, “OK, there was somebody on a bike mentioned.
Alright? So, we’re here just to check it out.” Wining asked
Brown if the manager could verify that he was staying at the
motel, and Brown said yes and explained that he was staying
with another person there.
The officers radioed in the identifying information about
the two men, which took over one minute. Wining then
asked if either of the men had any warrants. Brown said no,
but Barlett answered that he had “just cleared up some,”
having been released on bond from jail only two weeks ago.
Pointing to the visible needle marks on Barlett’s arms,
Wining asked him whether he was using heroin. Barlett said,
“not anymore,” but he acknowledged that he “ha[d] a history
of it.” Shortly thereafter, Brown’s cell phone went off, and

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UNITED STATES V. BROWN 7
while still seated on the cinder block wall Brown engaged in
a nearly minute-long casual conversation, laughing at one
point at what the caller said. After the call ended, Wining
asked Barlett where he had gotten his gold-colored watch.
Barlett mumbled a response about Walmart, and Brown
interjected, “you heard the old saying, everything that
glitters ain’t gold.” Barlett said it was a “nice watch” and he
“almost sold it for $40 the other day.” Wining then inquired
about a small Leatherman-brand multi-tool that was still in
its bright-yellow packaging and that was sitting just next to
Barlett on the top of the cinder block wall, between Barlett
and Brown. Wining asked if Barlett was selling it to Brown,
and Barlett said no and claimed that he just found the
unopened package “under [a] bridge.”
At this point, the encounter between the four men had
lasted just over seven minutes. While asking about the
multi-tool, Wining noticed that Brown “put his hands down
to his sides” and that he then “reach[ed] his index finger into
his right pocket.” Wining walked over to Brown who raised
his hands to his sides and said: “Oh, my bad, man, my bad.”
Wining ordered Brown to stand up and turn around. Wining
explained, “I saw you reaching in that pocket,” and when
Brown denied that he had done so, Wining said, “Yeah, you
were.” Brown complied with Wining’s instructions and
allowed Wining to secure his arms behind his back in a
finger hold. Pointing with his free hand to Brown’s pants
pocket, Wining asked, “What’s in here?” Brown responded,
“I’m not quite sure.” Wining then stated “I’m going to
check, OK?” Brown grunted a monosyllabic response that
is unintelligible on the officers’ body camera video. Wining
then reached into Brown’s pocket and pulled out a plastic
bag. Brown claimed that it was coffee, but after inspecting
it, Wining said “that is not coffee, James, that’s heroin.”
Wining conducted a more thorough search of Brown, finding

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8 UNITED STATES V. BROWN
several thousand dollars, a number of unused syringes, and
suboxone strips used to treat opioid withdrawal.
The police subsequently obtained the motel’s security
camera footage from the hour immediately before Brown’s
and Barlett’s encounter with the officers. It showed several
people driving up to the vicinity of the U-Haul, briefly
interacting with Brown, and then leaving.
Brown was charged with one felony count of possession
of 35.35 grams of heroin with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1). Brown moved to suppress the
items found during Wining’s search, including the heroin
and cash, on the basis that they were illegally obtained in
violation of the Fourth Amendment. See Fed. R. Crim. P.
12(b)(3)(C). Brown argued, inter alia, that Wining had
unlawfully seized Brown without adequate reasonable
suspicion and that Wining’s search of Brown’s pocket was
unreasonable because a “pat down for weapons does not
allow further intrusion into a citizen’s pockets.” After an
evidentiary hearing, the district court denied the motion,
finding that Wining was credible and that his actions were
“reasonable in light of the totality of the circumstances.”
At trial, Brown testified that he never sold heroin to
anyone and that he possessed the heroin that day only for his
personal use. He testified that, at the time of his arrest, he
was smoking at least three grams a day to alleviate the pain
from injuries sustained in a car accident. The jury returned
a guilty verdict and Brown was sentenced to 41 months in
prison and three years of supervised release. Brown timely
appealed, and we have jurisdiction under 28 U.S.C. § 1291.

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UNITED STATES V. BROWN 9
II
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. Searches and seizures “conducted outside the
judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established
and well delineated exceptions.” Minnesota v. Dickerson,
508 U.S. 366, 372 (1993) (simplified). One such exception
is the so-called “Terry stop,” which refers to a brief
investigative detention as described in Terry v. Ohio, 392
U.S. 1 (1968). Under the authority recognized in Terry, a
police officer who “‘observes unusual conduct which leads
him reasonably to conclude in light of his experience that
criminal activity may be afoot’” may “briefly stop the
suspicious person and make ‘reasonable inquiries’ aimed at
confirming or dispelling his suspicions.” Dickerson, 508
U.S. at 373 (quoting Terry, 392 U.S. at 30). In the event that,
during the Terry stop, the officer justifiably believes that
“‘the individual whose suspicious behavior he is
investigating at close range is armed and presently
dangerous to the officer or to others,’” the officer “may
conduct a patdown search” or frisk “‘to determine whether
the person is in fact carrying a weapon.’” Id. (quoting Terry,
392 U.S. at 24). “Each element, the stop and the frisk, must
be analyzed separately; the reasonableness of each must be
independently determined.” United States v. Thomas, 863
F.2d 622, 628 (9th Cir. 1988).
On appeal, Brown contends both that he was unlawfully
seized by Officer Wining without the requisite reasonable
suspicion and that, even if Wining had authority to detain
Brown under Terry, the search of Brown’s pocket exceeded

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10 UNITED STATES V. BROWN
the scope of a permissible protective frisk during an
investigative detention. We consider these contentions in
turn, reviewing the denial of the motion to suppress de novo
and any associated factual findings for clear error. United
States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).
A
We conclude that the officers’ encounter with Brown
was consensual until the point at which Officer Wining
ordered Brown to stand up and turn around. At that point,
Wining had seized Brown, but the seizure was justified
because, by that time, Wining had developed reasonable
suspicion that Brown was engaged in a drug transaction with
Barlett.
1
The Supreme Court has held that “a seizure does not
occur simply because a police officer approaches an
individual and asks a few questions.” Florida v. Bostick, 501
U.S. 429, 434 (1991). “So long as a reasonable person
would feel free to disregard the police and go about his
business, the encounter is consensual and no reasonable
suspicion is required.” Id. (simplified). But once the officer,
“by means of physical force or show of authority, has in
some way restrained the liberty of a citizen,” then a seizure
has occurred and the requisite level of justification for the
seizure must be shown. Id. If the consensual encounter has
ripened into an investigatory detention under Terry, then the
officer must have “‘reasonable suspicion’—that is, ‘a
particularized and objective basis for suspecting the
particular person stopped’ of breaking the law.” Heien v.
North Carolina, 574 U.S. 54, 60 (2014) (citation omitted).
But if the encounter has ripened into a full-blown arrest, then

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UNITED STATES V. BROWN 11
it must be supported by probable cause. See United States v.
Guzman-Padilla, 573 F.3d 865, 876–77 (9th Cir. 2009).
A consensual encounter with a police officer ripens into
a seizure when, under “all the circumstances surrounding the
encounter,” the “police conduct would have communicated
to a reasonable person that the person was not free to decline
the officers’ requests or otherwise terminate the encounter.”
Bostick, 501 U.S. at 439. This “‘reasonable person’ test
presupposes an innocent person.” Id. at 438. Having
reviewed the record evidence, including the videotape of the
incident, we conclude that Wining’s encounter with Brown
and Barlett did not ripen into a seizure of Brown until the
point at which Wining ordered Brown to stand up and turn
around.
Several factors confirm that the officers’ approach began
as a consensual encounter. The “encounter occurred in the
middle of the day” and “in public view,” United States v.
Crapser, 472 F.3d 1141, 1146 (9th Cir. 2007), and it took
place in an area where Brown was already seated when the
police arrived and from which he showed no inclination to
depart, see Bostick, 501 U.S. at 435–46 (in determining
whether the encounter was consensual, court should consider
that person approached by officer is in a place that he or she
“has no desire to leave”). The officers’ initial approach was
casual and nonthreatening, opening with the greeting,
“Howdy, guys,” followed by an open-ended question about
what they were doing. Wining promptly disclosed that the
officers were there to investigate the motel’s report of public
urination, and Wining accused Barlett of committing it.
Brown correctly realized—and said aloud—that that report
did not involve him. Officer Wining stated his suspicion that
the men were perhaps engaged in a drug deal, but both
denied it, and Wining’s questioning then shifted almost

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12 UNITED STATES V. BROWN
entirely to Barlett—asking him about his needle marks and
heroin usage, his bond status, his gold-colored watch, and
his brand new Leatherman multi-tool. Wining’s questions
to Brown were generic, asking him about identification and
whether he was staying at the motel, and Wining never
suggested that Brown was not free to decline to answer or to
ignore the officer. INS v. Delgado, 466 U.S. 210, 216 (1984)
(routine request for identification “does not, by itself,
constitute a Fourth Amendment seizure”). Indeed, during
the encounter Brown felt free to take a personal phone call,
during which he was chatting and laughing, for nearly a full
minute. The officers also “made no effort to draw [Brown’s]
attention to their weapons,” and—at least initially—they did
not “use any form of physical force” or “affirmatively assert
authority over [his] movements.” Crapser, 472 F.3d at
1146; cf. United States v. Washington, 387 F.3d 1060, 1068–
69 (9th Cir. 2004) (finding a seizure where officers moved
the suspect “twenty to thirty feet away from his [apartment]
door,” refused to close the suspect’s door at the suspect’s
request, and repeatedly warned the suspect that he could be
arrested). Considering the totality of the circumstances, we
conclude that, up to the point at which Wining issued a
command to Brown to stand up and turn around, a
reasonable innocent person in Brown’s situation would have
felt free to terminate the encounter. See Delgado, 466 U.S.
at 216 (fact that “most citizens will respond to a police
request,” and “do so without being told they are free not to
respond, hardly eliminates the consensual nature of the
response”).
But the nature of the encounter changed once Wining
ordered Brown to stand up and turn around. By giving this
order, Wining “affirmatively assert[ed] authority over
[Brown’s] movements,” Crapser, 472 F.3d at 1146, and at
that point Brown was seized for Fourth Amendment

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UNITED STATES V. BROWN 13
purposes. In distinguishing between a Terry stop and a full-
blown arrest, we consider whether “a reasonable person
would believe that he [or she] is being subjected to more than
a temporary detention,” Guzman-Padilla, 573 F.3d at 884
(simplified), as well as “the justification for the use of such
tactics, i.e., whether the officer had sufficient basis to fear
for his safety to warrant the intrusiveness of the action
taken,” United States v. Edwards, 761 F.3d 977, 981 (9th
Cir. 2014) (simplified). Given that it was apparent, even to
Brown, that the order was occasioned by the officers’
perceived safety concerns arising from Brown’s movement
of his hand near his pocket, a reasonable person would have
understood that the ensuing seizure was a temporary one that
was justified by safety considerations. Accordingly, this was
a Terry seizure. See id. at 981–82.
2
The only remaining question concerning the legality of
this temporary seizure of Brown is whether Wining had the
requisite reasonable suspicion to justify it. In “discussing
how reviewing courts should make reasonable-suspicion
determinations,” the Supreme Court has said “repeatedly
that they must look at the ‘totality of the circumstances’ of
each case to see whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273
(2002) (citation omitted). “This process allows officers to
draw on their own experience and specialized training to
make inferences from and deductions about the cumulative
information available to them that ‘might well elude an
untrained person.’” Id. (citation omitted).
As an initial matter, we reject the Government’s
suggestion that, as soon as the officers arrived at the motel,
they already had reasonable suspicion that Brown was

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14 UNITED STATES V. BROWN
engaged in a crime. Upon arrival, the officers had
reasonable suspicion, based on the motel staff’s report, that
Barlett may have committed public urination in violation of
California Penal Code § 370. See People v. McDonald, 40
Cal. Rptr. 3d 422, 435 (Cal. Ct. App. 2006) (“public
urination falls within the type of conduct prohibited by
section 370”). But they did not have reason to believe that
Brown had done so, because, unlike Barlett, he did not fit the
description supplied by the motel. And for similar reasons,
we reject the Government’s suggestion that, upon arrival, the
officers already had reasonable suspicion that Brown was
loitering in violation of California Penal Code § 647(h).
That section defines loitering as “to delay or linger without
a lawful purpose for being on the property [of another] and
for the purpose of committing a crime as opportunity may be
discovered.” Id. Upon arrival, the officers had no
articulable basis for concluding that Brown lacked a lawful
purpose to be on the property, much less that he was there
“for the purpose of committing a crime as opportunity may
be discovered.” Merely sitting next to a vehicle in a motel
parking lot does not, without more, give rise to reasonable
suspicion of loitering or any other crime.
But by the time that Brown was asked to stand up and
turn around—which is when the seizure commenced—the
officers had acquired additional information that gave rise to
reasonable suspicion that Barlett was there to purchase drugs
from Brown. Barlett had visible needle marks on his arms
and admitted to having used heroin in the past. His
explanation for why he had the unopened multi-tool—he had
found it “under [a] bridge”—strained credulity, and Wining
knew from his prior experience that heroin addicts may try
to barter items for drugs. Wining also knew that drug deals
were not uncommon at motels in the area, and it was also
notable that Brown and Barlett were seated behind the van,

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UNITED STATES V. BROWN 15
far into the parking lot, where they would be out of view of
passing pedestrians and street traffic. Wining had also noted
their “deer-in-the-headlights” surprise when the patrol car
unexpectedly pulled into the parking lot. Giving appropriate
regard for the “specific reasonable inferences which [an
officer] is entitled to draw from the facts in light of his [or
her] experience,” Terry, 392 U.S. at 27; see also Arvizu, 534
U.S. at 273–74, we conclude that, at the point Wining
ordered Brown to stand up, he had reasonable, articulable
suspicion that Brown might be engaged in drug trafficking.
The seizure of Brown was thus lawful.
B
We turn, therefore, to whether Wining’s search of
Brown’s pocket was consistent with the Fourth Amendment.
We conclude that Wining had ample justification to conduct
a protective frisk, but that the search of Brown’s pocket
exceeded the permissible scope of such a frisk.
1
In connection with an otherwise lawful investigative
detention under Terry, “an officer may conduct a brief pat-
down (or frisk) of an individual when the officer reasonably
believes that ‘the persons with whom he [or she] is dealing
may be armed and presently dangerous.’” United States v.
I.E.V., 705 F.3d 430, 434 (9th Cir. 2012) (quoting Terry, 392
U.S. at 30). The test, again, is an objective one: “‘whether a
reasonably prudent [officer] in the circumstances would be
warranted in the belief that his [or her] safety or that of others
was in danger.’” Id. at 435 (quoting Terry, 392 U.S. at 27).
Wining testified that he saw Brown “reach his index
finger into his right pocket,” and the district court did not

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16 UNITED STATES V. BROWN
clearly err in crediting that testimony.2 We have recognized
that “abrupt movements or . . . suspicious, furtive behavior”
may “justifiably prompt[]” an officer “to fear for his [or her]
safety,” Thomas, 863 F.2d at 629, and even Brown, by
immediately raising his hands and saying “Oh, my bad, man,
my bad,” recognized that the movement of his hands had
reasonably given the officer some concern. Moreover, we
have already explained that Wining had reasonable
suspicion that Brown was engaged in narcotics trafficking,
see supra at 14–15, and we have recognized that where
“officers reasonably suspected that [a person] was involved
in narcotics activity, it was also reasonable for them to
suspect that he [or she] might be armed.” United States v.
Davis, 530 F.3d 1069, 1082–83 (9th Cir. 2008); see also
United States v. Flatter, 456 F.3d 1154, 1158 (9th Cir. 2006).
Wining therefore had adequate justification to conduct a
frisk of Brown.
2
Brown nonetheless contends that, even if Wining was
authorized to conduct a protective frisk, his search of
Brown’s right pocket exceeded what Terry and its progeny
allow. We agree.
In describing the scope of the permissible protective frisk
that is authorized during a brief investigative detention,
Terry emphasized that the “sole justification” for such a
search “is the protection of the police officer and others
nearby,” and any such search “must therefore be confined in
scope to an intrusion reasonably designed to discover guns,
2 The officers’ body camera videos confirm that Brown’s right hand
was near his pocket, but given their angles of sight, neither video
discloses what he was doing with his hand.

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UNITED STATES V. BROWN 17
knives, clubs, or other hidden instruments for the assault of
the police officer.” 392 U.S. at 29. Thus, “unlike a search
without a warrant incident to a lawful arrest,” the limited
protective intrusion permitted by Terry “is not justified by
any need to prevent the disappearance or destruction of
evidence of crime.” Id. “If the protective search goes
beyond what is necessary to determine if the suspect is
armed, it is no longer valid under Terry and its fruits will be
suppressed.” Dickerson, 508 U.S. at 373. In Terry itself, the
Court held that the officer there, after stopping three men
based on reasonable suspicion that they were planning to
commit a robbery, properly limited his protective search to
“what was minimally necessary to learn whether the men
were armed and to disarm them once he discovered the
weapons.” 392 U.S. at 30. Specifically, the officer “patted
down the outer clothing” of the three men, and he “did not
place his hands in their pockets or under the outer surface of
their garments until he had felt weapons” in the clothing of
two of the men, and “then he merely reached for and
removed the guns” that he felt. Id. at 29–30 (emphasis
added); see also id. at 7. As to the third man, the officer
“never did invade [his] person beyond the outer surfaces of
his clothes, since [the officer] discovered nothing in his pat-
down which might have been a weapon.” Id. at 30.
In a companion case to Terry, the Supreme Court
addressed how these limits apply in the context of an officer
who, as in this case, performed a protective pocket search
rather than a patdown. See Sibron, 392 U.S. 40. In Sibron,
the officer observed “Sibron talking to a number of known
narcotics addicts over a period of eight hours,” id. at 62, and
the officer ultimately approached Sibron at a restaurant and
“told him to come outside,” id. at 45. Once outside, the
officer said to Sibron, “You know what I am after.” Id.
Sibron reached into his pocket, and the officer then “thrust

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18 UNITED STATES V. BROWN
his hand into the same pocket, discovering several glassine
envelopes, which, it turned out, contained heroin.” Id. The
Court concluded that, with the meager information the
officer had about Sibron, there were no reasonable grounds
to suspect him of a crime. Id. at 62–63. And given that the
officer had not claimed that he thought Sibron was reaching
for a weapon, the Court also concluded that there was no
justification for a protective search of Sibron for weapons.
Id. at 64 & n.21.
But the Court also went on to hold that, “[e]ven assuming
arguendo that there were adequate grounds to search Sibron
for weapons, the nature and scope of the search conducted
by [the officer] were so clearly unrelated to that justification
as to render the heroin inadmissible.” Id. at 65. As the Court
explained, the “search for weapons approved in Terry
consisted solely of a limited patting of the outer clothing of
the suspect for concealed objects which might be used as
instruments of assault,” and it was only after feeling such
weapons that the officer in Terry had “place[d] his hands in
the pockets of the men he searched.” Id. By contrast, the
officer in Sibron made “no attempt at an initial limited
exploration for arms,” but simply “thrust his hand into
Sibron’s pocket and took from him envelopes of heroin.” Id.
As a result, the Court concluded, “[t]he 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.” Id. The search of Sibron’s
pocket therefore “violate[d] the guarantee of the Fourth
Amendment, which protects the sanctity of the person
against unreasonable intrusions on the part of all government
agents.” Id. at 65–66.

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UNITED STATES V. BROWN 19
In Dickerson, the Supreme Court reaffirmed these
limitations on the scope of a protective search during a Terry
stop, stating that “[t]hese principles were settled 25 years ago
when, on the same day, the Court announced its decisions in
Terry and Sibron.” 508 U.S. at 373. The officer in
Dickerson conducted a Terry stop and a patdown for
weapons, and in doing so, he felt inside Dickerson’s pocket
a “small, hard object” that the officer recognized was not a
weapon. Id. at 377–78. The Court acknowledged that, if it
had been “immediately apparent” to the officer, from the
patdown, that the object was narcotics, then probable cause
would exist for a warrantless seizure of those narcotics. Id.
at 375–77. But the Court noted that, on the facts of the case
before it, the officer made that discovery “only after
squeezing, sliding and otherwise manipulating the contents
of [Dickerson’s] pocket—a pocket which the officer already
knew contained no weapon.” Id. at 378 (citation and internal
quotation marks omitted). The Court held that, by
continuing to probe the feel of the item in Dickerson’s
pocket after having already determined that it was not a
weapon, “the police officer in this case overstepped the
bounds of the ‘strictly circumscribed’ search for weapons
allowed under Terry.” Id. (quoting Terry, 392 U.S. at 26).
The Court reiterated that the “sole justification” for such
protective searches during Terry stops is to determine
whether weapons are present, and by employing methods
that went beyond that objective, the officer in Dickerson
conducted “the sort of evidentiary search that Terry
expressly refused to authorize.” Id.
Here, as in Sibron and Dickerson, the officer exceeded
the bounds of the weapons search permitted by Terry. That
conclusion is compelled by Sibron, which in the relevant
respects is on all fours with this case. Here, as in Sibron, the
police officer did not bother to conduct “an initial limited

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20 UNITED STATES V. BROWN
exploration for arms,” or any other less intrusive
examination, but instead proceeded immediately to search
the detainee’s pocket.3 Sibron, 392 U.S. at 65. And here, as
in Sibron, there were no special factors that might have
suggested the need for such immediate and more intrusive
measures. In both cases, for example, the detainee was
compliant, the officers were not outnumbered, and the
encounter occurred in a public place. In such circumstances,
Sibron expressly distinguished this sort of failure to
undertake any less intrusive measure to accomplish the
protective search from the “search for weapons approved in
Terry,” in which the officer first conducted a patdown and
only reached into the pocket when the patdown revealed that
weapons might be inside. 392 U.S. at 65. Sibron held that,
by immediately proceeding to extract and examine contents
from the detainee’s pocket, the officer conducted a search
that “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.” Id. The same is
true here.
Although Brown relied on Sibron for this point in his
opening brief, the Government failed even to mention the
case in its answering brief. At argument, the Government
suggested that Sibron is distinguishable because the Court
noted that the officer in Sibron had not testified that he acted
out of safety concerns. But this goes more to the Court’s
3 In this case, unlike in Sibron, the officer announced, “I’m going to
check, OK?” before putting his fingers in Brown’s pocket. The
Government has not contended, either in the district court or in this court,
that Wining’s comment somehow means that Brown provided voluntary
consent to the search. Any such contention has therefore been forfeited.
United States v. Johnson, 812 F.3d 757, 762 n.1 (9th Cir. 2016).

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UNITED STATES V. BROWN 21
alternative conclusion that the officer in Sibron lacked
adequate cause to conduct a protective search in the first
place, id. at 63–64, and it ignores the fact that the Court also
proceeded to hold that, “[e]ven assuming arguendo that
there were adequate grounds to search Sibron for weapons,
the nature and scope of the search conducted by [the officer]
were so clearly unrelated to that justification as to render the
heroin inadmissible,” id. at 65 (emphasis added). This
alternative holding is not dicta, see Woods v. Interstate
Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a decision
rests on two or more grounds, none can be relegated to the
category of obiter dictum.”); accord United States v.
Bagdasarian, 652 F.3d 1113, 1118 & n.16 (9th Cir. 2011),
and that is especially true given Dickerson’s express
reaffirmation that the relevant principles governing the
scope of a protective search “were settled 25 years ago when,
on the same day, the Court announced its decisions in Terry
and Sibron.” 508 U.S. at 373 (specifically citing this portion
of Sibron, 392 U.S. at 65–66). Sibron’s holding that the
“nature and scope” of the immediate pocket search were
unreasonable confirms that the relevant inquiry is an
objective one that focuses on whether the intrusion was
“reasonably limited in scope to the accomplishment” of its
protective purpose. 392 U.S. at 65. Here, the officer’s
immediate action in proceeding to remove and examine an
item from Brown’s pocket objectively exceeded what was
necessary to verify that Brown did not have a weapon.
The Government notes that courts have not required that
officers employ a patdown as the sole initial method of
conducting a protective search under Terry. This
observation provides no basis for evading Sibron here. The
Government cites no case in which the Supreme Court or this
court has ever upheld a pocket search as the initial means of
conducting a protective search of a fully compliant detainee

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22 UNITED STATES V. BROWN
during a Terry stop. Moreover, the cases that have upheld
initial methods, other than a patdown, for conducting a
protective search only serve to highlight the
unreasonableness of the initial pocket search here.
For example, in Adams v. Williams, 407 U.S. 143 (1972),
an officer conducted a Terry stop based on an informant’s
tip that a man sitting in a particular nearby vehicle at 2:15
AM in a high-crime area “had a gun at his waist” and was
carrying drugs. Id. at 144–45. After the officer approached
the car and asked the occupant to open the car door and to
step outside, the occupant ignored that request and instead
stayed in the car and rolled down the window. Id. at 145,
148. The officer immediately reached through the window
and grabbed a loaded gun, which had not been visible from
outside of the car, from the occupant’s waistband, “precisely
the place indicated by the informant.” Id. at 145. The Court
held that, “[u]nder these circumstances the policeman’s
action in reaching to the spot where the gun was thought to
be hidden constituted a limited intrusion designed to insure
his safety,” “was reasonable,” and was consistent with Terry.
Id. at 148. Adams bears no resemblance to this case. It did
not involve a pocket search as the initial means of intrusion;
rather, it involved the immediate grabbing of a gun from the
waistband of an uncooperative suspect in precisely the place
where an informant had said it would be. Indeed, the Court
in Adams specifically highlighted the fact that the suspect’s
refusal “to step out of the car so that his movements could
more easily be seen” presented an “even greater threat” to
the officer’s safety that justified a more direct and focused
protective intrusion. Id. Moreover, the encounter in Adams
took place in middle-of-the-night circumstances that would
reasonably be thought to present additional risks. Id. at 147.
Nothing in Adams justifies the officer’s decision in this case

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UNITED STATES V. BROWN 23
to conduct an immediate pocket search of a fully compliant
detainee in broad daylight in a public place.
The Government relies on our decision in United States
v. Hill, 545 F.2d 1191 (9th Cir. 1976), but it too is inapposite.
In Hill, police officers were investigating an armed robbery
of a local bank. Id. at 1192. The report of the robbery
indicated that the perpetrator, “lifting his shirt,” had
“displayed to the teller what appeared to be a gun.” Id.
Thus, as in Adams, the officers had specific information
indicating that a gun would be in a particular place on a
particular individual. An officer encountered Hill in the
immediate vicinity of the robbery and intended to ask him
whether he had seen the suspect “running through the area,”
but the officer “noticed a large bulge at [Hill’s] waistband
which he suspected of being caused by a weapon.” Id.
Without patting Hill down, the officer lifted Hill’s untucked
shirt and found not a gun, but the money Hill had stolen from
the bank. Id. at 1192–93. In holding that the officer’s
actions “did not transcend the permissible bounds
established by Terry,” we emphasized that the officer had
not conducted a “general exploratory search[],” but only a
“direct and specific inquiry” that corresponded to the report
of a gun in the suspect’s waistband under his shirt. Id. at
1193. Notably, we distinguished Sibron on the grounds that
it “involve[d] pocket searches,” and we also noted that in
Sibron there was no justification for a protective search in
the first place. Id. Hill, like Adams, confirms that in some
circumstances, the initial method for conducting a protective
search during a Terry stop need not be a patdown. See
United States v. Baker, 78 F.3d 135, 136, 138 (4th Cir. 1996)
(officer’s order that suspect lift his shirt, thereby revealing a
gun, was justified by Terry after officer noticed a bulge
under the suspect’s shirt). But neither case supports the quite

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24 UNITED STATES V. BROWN
different proposition that the initial method may be a pocket
search of a fully compliant detainee.
The Government nonetheless seizes on Hill’s comment
that, “[a]ny limited intrusion designed to discover guns,
knives, clubs or other instruments of assault are [sic]
permissible” during a Terry protective search, id. at 1193,
and it therefore argues that immediate pocket searches are
always allowed during Terry stops. The Government errs in
overreading this comment, which says nothing more than
that a properly “limited” intrusion is permissible. We know
from Sibron that the intrusion in this case was not “limited”
in the manner that Terry and Sibron require. Moreover, the
Government’s overreading of this remark is impossible to
square with the Court’s holding in Dickerson. There, as we
have explained, the Court held that a patdown of a pocket
exceeded in length and intrusiveness what was necessary to
verify that the suspect did not have a weapon. 508 U.S. at
378–79. According to the Government’s view, however, the
primary error that the officer in Dickerson made was
apparently not to exercise his supposed authority to
immediately start with a direct pocket search. Such a view
would eviscerate both Dickerson and Sibron, and so it cannot
be correct. Indeed, the Government’s position that officers
can always choose to begin with pocket searches would
erase the critical distinction that Dickerson underscored
between a limited intrusion to detect weapons and a general
search “‘to discover evidence of crime.’” Id. at 373 (citation
omitted).
The Government also claims that this court “has already
specifically approved pocket searches as reasonable
protective searches,” citing United States v. Thompson, 597
F.2d 187 (9th Cir. 1979), and United States v. Hoffman, 762
F. App’x 397 (9th Cir. 2019). These cases are

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UNITED STATES V. BROWN 25
distinguishable in a way that proves the Government’s error.
In both cases, the officer only performed a pocket search
after initially performing a less intrusive patdown that was
inconclusive. See Thompson, 597 F.2d at 191 (holding that
pocket search was “justified” because of the officer’s
“inability to determine from a pat-down whether the pocket
of the bulky coat contained a weapon”); Hoffman, 762
F. App’x at 399–400 (holding that officer was justified in
removing objects from Hoffman’s pocket that, based on his
initial patdown, “he had not yet ruled out as a weapon”).
Nothing in these cases supports what the Government asserts
here, which is a right directly to proceed to a pocket search
as the initial method of conducting a protective search of a
fully cooperative detainee during a Terry stop.
Finally, the Government relies on the Fifth Circuit’s
decision in United States v. Reyes, 349 F.3d 219 (5th Cir.
2003), which concluded that an officer’s order to the
detainee to empty his pockets and lift his shirt was a
reasonable protective search under Terry. Id. at 225.
However, the Government overlooks the fact that Reyes does
not indicate that anything was found in Reyes’s pockets and
that the opinion instead describes his motion to suppress as
directed only to the discovery of a taped package of drugs
when he was asked to lift his shirt. Id. at 222, 225. Although
the Fifth Circuit also suggested that the order to empty the
pockets was reasonable, id. at 225, that observation was dicta
and is inconsistent with Sibron and Dickerson.
Given that Brown was fully compliant and there were no
special circumstances indicating a need for more
immediately intrusive measures, the officer’s direct search
of Brown’s pocket “was not reasonably limited in scope to
the accomplishment of the only goal which might
conceivably have justified its inception—the protection of

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26 UNITED STATES V. BROWN
the officer by disarming a potentially dangerous man.”
Sibron, 392 U.S. at 65; see also United States v. Casado, 303
F.3d 440, 448–49 (2d Cir. 2002) (where “[t]he less intrusive
alternative of a frisk was obvious, commonly employed, and
would have been effective” to ensure officer safety, a pocket
search was unreasonable); United States v. Aquino, 674 F.3d
918, 925–26 (8th Cir. 2012) (searching underneath
handcuffed suspect’s pant leg was unreasonable because
“[s]earching under articles of clothing . . . is necessarily
more intrusive than a pat down”). And the Government has
pointed us to nothing else concerning the traditional
understanding of the Fourth Amendment’s protections that
would justify the pocket search conducted here. Cf.
Dickerson, 508 U.S. at 381–82 (Scalia, J., concurring)
(discussing the extent to which the limited frisk authority
recognized in Terry is consistent with original meaning).
Because the scope of the search in this case exceeded
Sibron’s limits, that search was “no longer valid under Terry
and its fruits [must] be suppressed.” Id. at 373 (citing
Sibron, 392 U.S. at 65–66). The district court therefore erred
in denying Brown’s motion to suppress.4
REVERSED and REMANDED.
4 We reject, however, Brown’s contention that the evidence at trial
was insufficient to sustain a conviction, thereby barring on that basis any
possibility of a retrial. See United States v. Lewis, 787 F.2d 1318, 1323
(9th Cir. 1986) (“Even though we reverse that conviction, we must
address the sufficiency of the evidence supporting it, for if the evidence
were insufficient, retrial is barred by the Double Jeopardy Clause.”).
Especially given the motel surveillance video showing various persons
briefly interacting with Brown over the hour preceding his encounter
with the officers, a rational jury could reasonably conclude that he was
distributing heroin in the motel parking lot.

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