The police do not have the right to detain you you without reasonable suspicion. The police do not have the right to demand certain information from you without cause. However, if the police demand that information from you and you invoke your rights and decline, that gives them reasonable suspicion to detain you. Follow that?
Orin Kerr has some questions about it.
Still, as a matter of law, the court's explanation strikes me as incredibly lame. I can perhaps see the case for detaining Cady temporarily in light of the strangeness of his appearance and the unusual time and place. But what facts justified frisking Cady, rummaging through his briefcase, and finally taking away his briefcase for the duration of the questioning? What was the threat to officer safety? Invoking your constitutional rights doesn't pose a threat to officer safety. Nor does asking an officer to clarify if he has seized under the Fourth Amendment you pose a threat. Acting like a lawyer doesn't mean you have a gun or a knife.
Plus, frisks are only permitted under Terry if the search is for weapons. As far as I can tell, there was no reason to think that there was a gun in the briefcase. In their deposition, the officers made what strikes me as a highly unpersuasive claim that they were worried that after pulling out Black's Law dictionary and the Fed R. Civ. Pro., Cady might also have a gun in there that might come out next. Yeah, sure. Any ideas why they looked through the Bible, opening it up to the cover page where a name might be? What, did they think Cady had a very thin gun tucked in the cover page? It seems obvious that the officers searched the brief case because they wanted to know who Cady was. It was a search for ID, not guns. Now, maybe that's an understandable human reaction. But Terry just doesn't allow it, and Terry is the law.
However, Kerr clearly fails to understand the crucial legal principle of OMGWTF9/11!!!!!
Anyway, the oral argument and the opinion suggest that the panel was just inclined to give court security officers the benefit of the doubt here. For example, at one point in the oral argument, Judge Williams says that we now live in a dangerous world, and that "perhaps if we were in a pre-9/11 world, we would have a different case."
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