## Facts

- Police broadcast a lookout for an armed-robbery suspect, including a description that the suspect wore a blue hooded sweatshirt.
- Officers stopped Paul Askew about five blocks from the robbery scene because he somewhat matched the suspect’s physical description.
- Askew complied with orders to produce identification and to place his hands on his head.
- A second officer conducted a Terry protective frisk for weapons and found nothing.
- Officers arranged an on-the-scene show-up by driving the robbery victim to Askew’s location for identification.
- Askew was wearing an outer jacket with a blue fleece jacket underneath.
- To assist the show-up identification, and without Askew’s consent, an officer partially unzipped Askew’s outer jacket to reveal the blue fleece jacket.
- The zipper stopped when it struck a solid object near Askew’s waist; Askew knocked the officer’s hand away.
- The victim did not identify Askew as the robber.
- After the failed identification, officers placed Askew on the hood of a patrol car and unzipped his jacket further, revealing an open fanny pack at his waist with a gun partially visible.
- Askew (a convicted felon) was arrested and charged with being a felon in possession of a firearm.
- The district court denied Askew’s motion to suppress; Askew entered a conditional guilty plea preserving the suppression issue; a divided panel affirmed; the D.C. Circuit reheard the case en banc, focusing on the legality of the initial partial unzipping.

## Issues

1. Whether the officer’s initial, partial unzipping of Askew’s jacket (to reveal inner clothing for a show-up identification) constituted a Fourth Amendment search.
2. If it was a search, whether it was reasonable under Terry or any other exception to the warrant requirement.
3. Whether the firearm discovered after the unzipping had to be suppressed as the product of an unlawful search.

## Decision

- The en banc D.C. Circuit reversed the denial of the motion to suppress and remanded.
- The court held the initial partial unzipping was a Fourth Amendment search.
- The court held the search was unreasonable because it was not a protective weapons frisk and lacked consent, a warrant, probable cause, or another valid basis.
- The firearm discovered as a result of the unlawful search was subject to suppression.

## Legal Principles

- A Terry stop permits a limited pat-down for weapons only when justified by officer-safety concerns; the scope must remain tied to that safety purpose.
- Manipulating or opening a suspect’s clothing to expose what is underneath is a search that requires independent Fourth Amendment justification beyond the mere validity of the stop.
- Actions taken to assist identification or gather evidence during a stop are not automatically permitted by Terry; absent consent, probable cause, or a warrant exception, such evidentiary intrusions are unreasonable.
- Evidence found by exploiting an unconstitutional search is generally excluded unless an exception to the exclusionary rule applies.

## Conclusion

United States v. Askew held that, after a completed frisk revealed no weapons, an officer’s nonconsensual partial unzipping of a detainee’s jacket to show inner clothing to a robbery victim during a show-up identification was an unreasonable Fourth Amendment search; because the gun was found through that illegality, it had to be suppressed, and the case was remanded.


United States v. Askew, 529 F.3d 1119 (2008)