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Concealed Bulge Does Not Give Rise to Reasonable Suspicion

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By Tanya Roth, Esq. on March 23, 2012 10:03 AM

Appellee Luis Aquino was first noticed by police officers at a Greyhound rest stop in Omaha, Nebraska. As passengers were being questioned in search of contraband, Aquino appeared nervous and the officers decided to question him, eventually taking him off the bus to search his bags.

As officers searched his bags, he was asked if they could search his person. Aquino responded that he did not want officers to touch him. When officers noticed a bulge on the side of a pant leg, they asked him to lift his pants up. He refused and the officers handcuffed him. They conducted no pat-down but rather, lifted the pants up to find methamphetamine taped to Aquino’s leg and crotch area.

There are several important questions here-- whether Aquino consented to a search of his person, whether there was an arrest and if so, whether the arrest was proper. The court, in citing United States v. Villa-Gonzalez, states that the Fourth Amendment is not triggered by a consensual encounter between an officer and a private citizen.

A consensual encounter can, however, become non-consensual and trigger the Fourth Amendment when the facts are such that a reasonable person would not have believed himself free to leave.

The 8th Circuit determined that the officer's act of searching under Aquino's pant leg to reveal the concealed bulge was not consensual.

The search under Aquino's pant leg was not the "least intrusive means" necessary to protect the officer's safety. Once the officer lifted Aquino's pant leg, the investigatory Terry stop turned into an arrest and without probable cause for the arrest, a non-consensual search was not appropriate. The 8th Circuit held that the concealed bulge did not support reasonable suspicion, let alone probable cause.

Based on these facts, the 8th Circuit court affirmed the District Court's granting of the motion to suppress evidence.

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