United States v. Askew

Opinion for the Court filed by Senior Circuit Judge EDWARDS, with whom Circuit Judges ROGERS, TATEL, and

BROWN join, and with whom Circuit Judge GRIFFITH joins except as to Part III.D, and with whom Circuit Judges GINSBURG and GARLAND join as to Parts I, III.D, III. E, and IV.

Concurring opinion filed by Circuit Judge GRIFFITH, with whom Circuit Judges ROGERS and TATEL join, except as to footnote 2.

Dissenting opinion filed by Circuit Judge KAVANAUGH, with whom Chief Judge SENTELLE and Circuit Judges HENDERSON and RANDOLPH join.

On the evening of December 19, 2003, police officers received a broadcast “lookout” for an armed robber. Appellant Paul Askew, who wore clothing similar, but not identical to that described in the lookout, was stopped. The police then conducted a Terry “frisk” which produced nothing. Some time after the frisk was completed, the police moved appellant to a place where he could be seen by the complaining witness. The officers’ purpose was to determine whether the complainant could identify appellant as her assailant. The District Court’s findings of fact indicate that appellant complied during the stop and was not handcuffed during the identification show-up. Preparatory to the show-up, but without appellant’s consent, one of the officers attempted to unzip appellant’s outer jacket to reveal to the complainant what appellant had on under the jacket. The officer’s unfastening of the jacket was interrupted when the zipper hit a hard object at appellant’s waist. Appellant then pushed the officer’s hand away from his jacket. These latter events aroused the officer’s suspicion, but the officer did nothing and the show-up continued. Although appellant was not implicated by the com*1122plaining witness, the police officers continued to detain him, walked him backwards towards a police vehicle, placed him on the hood of the car, and then fully unzipped his jacket. The officers found a gun in an open waist pouch and arrested appellant.

In April 2004, after the District Court denied his Fourth Amendment motion to suppress the Government’s evidence, appellant entered a conditional guilty plea to a one-count indictment charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Appellant reserved his right to appeal the District Court’s denial of his motion to suppress. See Fed.R.CrimP. 11(a)(2). On June 29, 2004, the District Court sentenced appellant to 36 months’ imprisonment, followed by three years’ supervised release. Gov’t En Banc Br. at 2; Appellant En Banc Br. at 2.

On April 6, 2007, a divided panel of the court affirmed the District Court’s denial of appellant’s motion to suppress. On July 12, 2007, the panel’s judgment was vacated and an order was issued granting appellant’s petition for rehearing en banc. The order granting en banc review instructed the parties to address the following issue:

[Wjhether during a Terry stop police officers may unzip a suspect’s jacket solely to facilitate a show-up. In addressing this question, the parties should consider whether the officers’ action was a lawful search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.

United States v. Askew, No. 04-3092, Order Granting En Banc Review (D.C.Cir. July 12, 2007). The. order made clear that the only issue before the en banc court was whether the first, partial unzipping was unlawful. There is no dispute that if the partial unzipping was unlawful, the discovery of the hard object at appellant’s waist during that unzipping cannot justify the second full unzipping that yielded the gun.

On April 10, 2008, after oral arguments were heard by the en banc court, an order was issued instructing the parties to submit supplemental briefs addressing the following questions:

1. Assuming, arguendo, that it is not dispositive that the unzipping was a search, was the gun evidence nonetheless inadmissible as the product of steps taken to facilitate a show-up witness’ identification, on a theory that there were not reasonable grounds for believing that unzipping the jacket would establish or negate the suspect’s connection with the crime under investigation?

2. Was the gun evidence admissible as the product of a valid protective search, on a theory that regardless of the officer’s subjective intent the initial unzipping was an objectively reasonable response to the suspect’s conduct during the pat-down?

3. Was the gun evidence admissible under the doctrine of inevitable discovery, on a theory that the officers had not completed the pat-down but would have done so after the show-up?

United States v. Askew, No. 04-3092, Order (directing supplemental briefing) (D.C.Cir. Apr. 10, 2008).

As described in its opening brief, the Government submits that the principal question for this court is whether the police “violate[d] appellant’s Fourth Amendment rights by partially unzipping [his] outer jacket during a show-up identification procedure, so that a robbery victim could see whether appellant’s sweatshirt matched that of the robbery perpetrator.” Gov’t En Banc Br. at 13; see also id. at 22, 24. Applying Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 *1123(1993), and the precedent on which it rests, to the District Court’s uncontested findings of fact, a five-judge plurality of this court concludes that the answer to this question is yes. Because the police officer’s unzipping of appellant’s jacket went beyond what was necessary to protect the investigating officers or others nearby, it amounted to precisely the sort of eviden-tiary search that is impermissible in the context of a Terry stop.

Even assuming, arguendo, that an unzipping to facilitate a show-up is permissible under some circumstances, a majority of the court is nonetheless satisfied that the police officer’s actions cannot be justified here since there were no reasonable grounds for believing that the unzipping would establish or negate appellant’s identification as the robber in question.1 A majority of the court is also satisfied that the Government’s alternative argument, that the search of appellant can be justified as an objectively reasonable continuation of the protective frisk, is both contrary to the District Court’s factual findings and unsupportable on any plausible reading of the record.

Finally, the Government concedes that “[t]he gun is not admissible under a theory of ‘inevitable discovery.’ ” Gov’t Supplemental Br. at 12. As the Government explains, it “did not make an inevitable-discovery argument before the district court, and thus failed to elicit” the testimony necessary to support such a theory under Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Gov’t Supplemental Br. at 14. Moreover, the Government acknowledges that “[bjecause the inevitable-discovery theory raises factual issues that could have been addressed at the suppression hearing but were not, [it does] not believe that [it is] in a position to request a remand for further development of the record.” Id. at 15 n. 7.

I. The District Court’s Factual Findings

Following completion of the hearing on appellant’s suppression motion, the District Court set forth its factual findings in a published opinion. See United States v. Askew, 313 F.Supp.2d 1 (D.D.C. 2004). “[A]ppellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotation marks omitted). Thus, as the Government rightly points out, “[t]his court must accept the district court’s findings of fact unless clearly erroneous.” Gov’t En Banc Br. at 15. This rule is firmly entrenched in Supreme Court precedent, see Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and in applying it we “overstepf ] the bounds of [our] duty ... if [we] undertaken to duplicate the role of the lower court,” Bessemer City, 470 U.S. at 573, 105 S.Ct. 1504. This is especially so when, as here, the trial court is required to reconcile differences in testimony in order to make factual findings. See Mar. 26 Tr. at 29-31; see generally Bessemer City, 470 U.S. at 573-76, 105 S.Ct. 1504.

Notably, neither party challenged the District Court’s findings in this case. In fact, in its brief filed with the panel, the Government characterized the District Court’s factual findings as “consistent with the government’s evidence at the suppression hearing.” Gov’t Panel Br. at 9. Even if those findings had been challenged, we could not overturn them unless we were “definitely and firmly convinced that a mis*1124take [had] been committed.” Bessemer City, 470 U.S. at 573, 105 S.Ct. 1504. Because there are no grounds for such a conclusion, the District Court’s factual findings constitute the record by which appellate review is bound. Consequently, they are, in pertinent part, reproduced below.

On the night of December 19, 2003, around 11:00 p.m., a radio run alerted Officer Anthony Bowman of the Metropolitan Police Department to a report of an armed robbery in the 700 block of 9th Street, S.E., in Washington, D.C. Officer Bowman canvassed the area in his patrol car, looking for individuals matching the description of the perpetrator: a black male, approximately six-feet tall, wearing a blue sweatshirt and blue jeans. The radio report reflected that the perpetrator had been last seen moving on 9th Street, S.E., in an unknown direction.

Within two minutes of the radio report, and within approximately ten minutes of the robbery, Officer Bowman spotted defendant Paul Askew walking in the 200 block of 9th Street, S.E., five blocks from the scene of the robbery. Upon seeing Officer Bowman, the defendant turned and walked in a different direction, but Officer Bowman continued to follow the defendant in the patrol car. Defendant is a black male, six-feet, three-inches tall, and at the time was wearing clothing quite similar — but not identical — to the description broadcast over the police radio. While the description of the perpetrator mentioned a blue sweatshirt and blue jeans, Officer Bowman testified that the defendant was wearing blue sweatpants, “a navy blue jacket[, and] a darker blue fleece type jacket underneath. He had on two jackets.” Officer Bowman reported to the dispatcher that Askew “vaguely matchfed] th[e] description.” After noticing that the defendant had a mous-tache, Officer Bowman checked with the dispatcher to determine whether the robber also had a moustache. When the dispatcher responded affirmatively, Officer Bowman stopped the defendant.

Officer Bowman asked the defendant to come to the patrol car, and he complied. The defendant also complied with Officer Bowman’s further requests that he produce some identification, take his hands out of his pockets, and place his hands on the top of his head. Officer Bowman then told the defendant that he was being stopped because of his physical similarity to the description of a robber. When back-up units arrived, Officer Bowman returned to the interior of his car to check whether the police department computer returned any information on the defendant. Officer Bowman’s back was turned for the next couple of minutes and he did not see the pat-down of the defendant that followed.

Officer James Koenig conducted a pat-down of the defendant and found nothing. Shortly afterwards, another officer, Officer Benton, drove the robbery victim to the place where the defendant was being detained, for the purpose of conducting a show-up. The victim remained in the car while Officer Koenig and Officer Anthony Willis brought the defendant to a place where he could be seen by the victim. The defendant was not in handcuffs at that time. Preparatory to the show-up, Officer Willis attempted to unzip the defendant’s outer jacket to reveal the sweatshirt underneath so the victim could better determine if the defendant was the robber. Officer Willis testified that he remembered the “blue hooded sweatshirt” described in the radio run and “wanted the complainant to see what [the defendant] had on to make sure that he wasn’t zipping nothing up *1125to cover up. So I went to unzip it down so that ... they could see what he had on.” Officer Willis had difficulty, however, in unzipping the jacket when the zipper hit what he described as a “hard” or “solid” object and “didn’t go past [the object]. It stopped there. And at that time, that’s when [the defendant] knocked my hand down,” away from the zipper.

After the show-up, Officer Willis and Officer Edward Snead walked the defendant backwards toward the car, placed him on the hood of the car, and unzipped his jacket. Visible once the jacket was unzipped was an open black waist pouch, or “fanny pack,” with a silver object sticking out. On further inspection, the silver object was identified as a gun, and the defendant was handcuffed and arrested.

Askew, 313 F.Supp.2d at 2-3 (alterations in original) (footnotes and transcript citations omitted).

In the course of its legal analysis, the District Court concluded that the disputed unzipping was undertaken to facilitate the show-up. Id. at 4. This conclusion is consistent with its factual findings that Officer Koenig found “nothing” during the frisk and that the complainant was brought to where appellant was detained “shortly af-terwards.” Id. at 3; see also id. at 4. In a footnote, the District Court notes that Officer Koenig did not testify at the suppression hearing. Rather, the testimony regarding the pat down was provided by Officer Willis. Id. at 3 n. 2. (In fact, the motions hearing transcript reveals that the Government, as part of its trial strategy, chose not to put on Officer Koenig. See Mar. 26 Tr. at 21, 24, 38.) In this same footnote, the Court describes Officer Willis’s “suggestion] that Officer Koenig had not completed the pat-down ... when Officer Benton arrived with the robbery victim for a show-up.” Askew, 313 F.Supp.2d at 3 n. 2 (emphasis added). The Court also notes Officer Willis’s testimony that “perhaps ” the pat down had not been completed “because of some resistance by the defendant.” Id. (emphasis added). The Court then points to “[t]he government acknowledge[ment] that when Officer Koe-nig patted the defendant down, he did not find anything” and reiterates its own finding that “[t]he subsequent discovery of the gun at issue was not the result of this pat-down.” Id.; see also id. at 4 (“[t]he initial pat-down by Officer Koenig did not reveal the presence of any weapon”). In other words, the District Court does not credit Officer Willis’s suggestion ■ that the pat down may have been incomplete or Officer Willis’s speculation regarding why that may have been the case.

II. Overview

“Time and again” the Supreme Court “has observed that 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.” Dickerson, 508 U.S. at 372, 113 S.Ct. 2130 (quotation marks omitted) (collecting cases). And the Court has made it clear that the “inestimable right of personal security” embodied in the Fourth Amendment “belongs as much to the citizen on the streets ... as to the homeowner closeted in his study.... For, as [the Supreme] Court has always recognized, ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ ” Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891)).

*1126In Terry v. Ohio, the Supreme Court defined one of the few exceptions to the prohibition against warrantless searches of a person. The Court held that in the context of a properly justified on-the-street stop, if a police officer has a reasonable articulable suspicion “that the individual whose suspicious behavior, he is investigating at close range is armed and presently dangerous to the officer or to others,” that officer may conduct a limited protective search “to determine whether the person is in fact carrying a weapon.” 392 U.S. at 24, 88 S.Ct. 1868; see also id. at 30-31, 88 S.Ct. 1868. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), an opinion issued on the same day as Terry, the Court confirmed the limited nature of the Terry search exception, explicitly stating that the “only goal which might conceivably” justify a search in the context of a Terry stop is a search for weapons. Id. at 65, 88 S.Ct. 1889.

In subsequent cases, the Court has been unequivocal in explaining that “[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (emphasis added). Thus, the fruit of a search that “goes beyond what is necessary to determine if [a] suspect is armed ... will be suppressed.” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (citing Sibron, 392 U.S. at 65-66, 88 S.Ct. 1889). This is so, the Court explained in Minnesota v. Dickerson, because searches that exceed what is necessary to determine if an individual is armed “amount[] to the sort of evidentiary search that Terry expressly refused to authorize” and that the Court “condemned” in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917, and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Dickerson, 508 U.S. at 378, 113 S.Ct. 2130.

Appellant argues that pursuant to this well-established body of law, the unzipping of his jacket was unlawful, because it was not undertaken for protective purposes, but rather amounted to an impermissible evidentiary search unsupported by probable cause or a warrant. The Government, in contrast, asserts that this question is not controlled by Dickerson and the precedent on which Dickerson rests, but rather should be decided through application of the reasonableness balancing test. Under this test, the permissibility of a Government action is determined by “balancing the [governmental] need to search [or seize] against the invasion which the search [or seizure] entails.” Terry, 392 U.S. at 21, 88 S.Ct. 1868 (second and third alteration in original) (quotation marks omitted). Pursuant to this test, the Government argues that because the unzipping of appellant’s jacket “was a reasonable, de minimis investigative measure that appropriately facilitated the show-up procedure,” it need not have been supported by a warrant or probable cause. Gov’t En Banc Br. at 13.

When the Supreme Court has weighed the interests relevant to determining whether a certain type of official conduct is reasonable under the Fourth Amendment, lower courts are not free to strike a new and different balance. With respect to searches of individuals detained during on-the-street encounters on less than probable cause, the balance was struck in Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. Employing the reasonableness test to which the Government refers, the Court in Terry authorized a strictly circumscribed search for weapons when an officer has reasonable articulable suspicion to believe that a prop*1127erly stopped individual is armed and dangerous to the officers or others nearby. 392 U.S. at 30-31, 88 S.Ct. 1868; see also New York v. Class, 475 U.S. 106, 117, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“When a search or seizure has as its immediate object a search for a weapon, ... we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasonable suspicion of criminal activity.”). The Sibron Court, applying Terry’s holding, made clear that Terry did not permit police officers to undertake searches not justified on a safety rationale. See 392 U.S. at 63-64, 88 S.Ct. 1889. It also established that protective searches that extend beyond the strictly circumscribed bounds of Terry are impermissible evidentiary searches. Id. at 65-66, 88 S.Ct. 1889. Most important, for our purposes, the Court’s opinion in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334, confirms that when an on-the-street search of an individual who has been stopped on reasonable articulable suspicion extends beyond what is authorized in Terry, there is no reweighing to be undertaken on the grounds that the search might be described as minimally intrusive or that the evidence sought might provide probable cause to believe that the suspect committed the crime in question.

Because there is no principled way to distinguish the initial unzipping in this case from the search in Dickerson, this court is not free to reweigh the interests at issue to create the new and wholly unprecedented identification exception to the warrant and probable cause requirements that the Government urges upon us. Rather, applying the balance that the Supreme Court struck in Terry and Sibron to the uncontested factual findings of the District Court, we are convinced that the unzipping of appellant’s jacket was a non-protective evidentiary search that violated the Fourth Amendment.

III. Analysis of the Legal Issues

A. The Partial Unzipping and Opening of Appellant’s Jacket Was a Search

Before turning to the issues before the en banc court, we must determine whether the unzipping of appellant’s jacket was, in fact, a search. Clearly it was. By zipping up his jacket, appellant unquestionably evidenced an intent to keep private whatever lay under it. The only question, then, is whether society is prepared to recognize such an expectation as reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

This question was unequivocally answered by the Supreme Court in Terry. At issue there was the touching of the outer surface of the defendant’s overcoat. Terry, 392 U.S. at 7, 88 S.Ct. 1868. As the Court explained, even that limited action rose to the level of a “search” within the purview of the Fourth Amendment. Id. at 16, 88 S.Ct. 1868. Because the opening of a fastened coat, like the opening of most other clothing, renders visible whatever lies underneath, such an action involves an even greater intrusion in precisely the same socially recognized expectation of privacy. And such an intrusion is particularly great when, as here, the opening takes place on a public street. In describing the level of personal intrusion occasioned by a public frisk, the Terry Court stated:

[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.

Id. at 16-17, 88 S.Ct. 1868. The undoing of clothing to reveal whatever is under*1128neath to whomever happens to be on the street necessarily involves an even more serious intrusion upon the sanctity of the person. The involuntary opening of someone’s clothing reveals to the world at large (not just to the searching police officer) what an individual obviously intends to keep private.

As noted above, the Government did not dispute the characterization of the unzipping as a search during arguments before the panel. Before the en banc court, however, the Government refused to concede the point. Stating that it was only “assuming], arguendo, that the unzipping of appellant’s jacket was a ‘search,’ ” Gov’t En Banc Br. at 23 n. 11, the Government maintained that the police action did not actually amount to a search because the sweatshirt that the police expected to reveal “presumably was widely visible when appellant was in indoor settings.” Id. This argument is flawed in both its legal and factual premises.

Relying primarily on United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), the Government likens appellant’s sweatshirt to a “physical characteristic ... constantly exposed to the public.” Gov’t En Banc Br. at 23 n. 11 (omissions in original). This analogy is inapt. In Dionisio, the Supreme Court held that production of a voice exemplar pursuant to a grand jury subpoena did not constitute a search, because “[t]he physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear.” 410 U.S. at 14, 93 S.Ct. 764. As the Court explained, “while the content of a communication is entitled to Fourth Amendment protection ... the underlying identifying characteristics — the constant factor throughout both public and private communications — are open for all to see or hear.” Id. (quotation marks omitted) (omission in original). Consequently, “[n]o person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” Id.

The same cannot be said of a piece of clothing when the only information that the police have about that clothing is that the wearer has chosen to shield most of it from public view. Contrary to the Government’s assertion, there is nothing about a sweatshirt that — like the characteristics of an individual’s voice, handwriting, or face — must necessarily be revealed to the public in the course of daily life. An individual may choose to expose all or part of an article of clothing to the public or he may choose to keep all or part of that clothing covered.

The only evidence presented by the Government regarding appellant’s sweatshirt was that appellant had demonstrated an intent to shield most of it from public view. When a government agent unfastens, lifts, pulls down, pats, or otherwise manipulates clothing to reveal or determine what lies underneath, that manipulation necessarily involves the sort of “ ‘probing into an individual’s private life’” that the Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), characterized as the mark of a search or interrogation. Dionisio, 410 U.S. at 15, 93 S.Ct. 764 (quoting Davis v. Mississippi). Citing Terry, the Dionisio Court reiterated that even the minimal intrusion involved in a Terry frisk of outer clothing necessarily amounts to a Fourth Amendment search. Contrasting the seizure of voice exemplars to permissible Terry pat downs, the Court explained that the former “does not involve the severe, though brief, intrusion upon cherished personal security, effected *1129by” the latter. Dionisio, 410 U.S. at 15, 93 S.Ct. 764 (quotation marks omitted).

The Government’s argument that the unzipping of appellant’s jacket was not a search is also based on fundamentally flawed factual premises. First, the Government assumes that the unzipping of appellant’s jacket would reveal only appellant’s already partially visible sweatshirt. One need only consider the special medical needs of certain individuals, including those who are forced to use colostomy bags and heart monitors (to name a few) to recognize the fallacy of this assumption. Such devices frequently are attached to an individual’s abdominal area and often require those wearing them to hike up the clothing around their midsection to accommodate the device. Second, many individuals wear clothing that is comfortable to them but would appear unseemly to others. In such circumstances, the individual who does not want the unseemly portions of his clothing publicly exposed will cover or partially cover that clothing with another garment. Appellant’s fastening of his jacket effectively expressed a recognized and reasonable expectation of privacy. And its unfastening cannot be characterized as a non-search given the inability of the police to know what other information pertaining to appellant’s private life that unfastening would reveal.

B. Minnesota v. Dickerson Dictates the Conclusion That the Unzipping of Appellant’s Jacket Was an Impermissible Search for Evidence

The legal principles controlling the disposition of this case were largely established in three post-Terry Supreme Court cases, all of which were relied on by the Court in Minnesota v. Dickerson. Those cases are Sibron, 392 U.S. 40, 88 S.Ct. 1889; Ybarra v. Illinois, 444 U.S. 85,