United States v. Askew ( 2007 )


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  •                  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    No. 04-3092                                              September Term, 2006
    04cr00010-01
    Filed On: July 12, 2007
    United States of America,
    Appellee
    v.
    Paul Askew,
    Appellant
    BEFORE:              Ginsburg, Chief Judge, and Sentelle, Henderson, Randolph,
    Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh,
    Circuit Judges, and Edwards, Senior Circuit Judge
    ORDER
    Upon consideration of the appellant's petition for rehearing en banc, the
    response thereto, and the vote in favor of the petition by a majority of the judges eligible
    to participate, it is
    ORDERED that the petition be granted. This case will be reheard by the court
    sitting en banc. It is
    FURTHER ORDERED that the court's April 6, 2007 judgment be vacated in its
    entirety. It is
    FURTHER ORDERED that oral argument before the en banc court will be heard
    at 9:30 a.m. on Thursday, October 11, 2007. It is
    FURTHER ORDERED that the parties submit thirty (30) copies each of briefs
    and the appendix in accordance with the following schedule:
    Brief for Appellant                 August 17, 2007
    Appendix                            August 17, 2007
    Brief for Appellee                  September 10, 2007
    Reply Brief for Appellant           September 21, 2007
    United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    No. 04-3092                                             September Term, 2006
    The briefs should address whether 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
     (1968), and its progeny. The briefing should not extend to the subject
    covered in Part IV of the panel opinion, i.e., the "second unzipping".
    Because the briefing schedule is keyed to the date of argument, the court will
    grant requests for extension of time limits only for extraordinarily compelling reasons.
    The parties are directed to serve and file their submissions by hand. All briefs and
    appendices must contain the date that the case is scheduled for oral argument at the
    top of the cover. See D.C. Cir. Rule 28(a)(7).
    Per Curiam
    FOR THE COURT:
    Mark J. Langer, Clerk
    BY:
    Nancy G. Dunn
    Deputy Clerk
    United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued November 17, 2006                 Decided April 6, 2007
    No. 04-3092
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    PAUL ASKEW,
    APPELLANT
    Appeal from the United States District Court
    for the District of Columbia
    (No. 04cr00010-01)
    Sandra G. Roland, Assistant Federal Public Defender,
    argued the cause for appellant. With her on the briefs was A. J.
    Kramer, Federal Public Defender.
    Florence Y. Pan, Assistant U.S. Attorney, argued the
    cause for appellee. With her on the brief were Kenneth L.
    Wainstein, U.S. Attorney at the time the brief was filed, and Roy
    W. McLeese, III, Assistant U.S. Attorney.
    2
    Before: SENTELLE and KAVANAUGH, Circuit Judges, and
    EDWARDS, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge KAVANAUGH,
    in which Circuit Judge SENTELLE joins.
    Dissenting opinion filed by Senior Circuit Judge EDWARDS.
    KAVANAUGH, Circuit Judge: When the police have
    reasonable suspicion that a person committed, is committing, or
    is about to commit a crime, the officers may forcibly stop that
    individual. See Terry v. Ohio, 
    392 U.S. 1
    , 22 (1968). During
    the Terry stop, the officers may briefly take certain reasonable
    investigative steps – including questioning the suspect and
    conducting identification procedures such as fingerprinting and
    “show-ups” (in a show-up, the police have a witness or victim
    look at the suspect). See Hiibel v. Sixth Judicial Dist. Court of
    Nev., Humboldt County, 
    542 U.S. 177
    , 185 (2004); Hayes v.
    Florida, 
    470 U.S. 811
    , 817 (1985); Michigan v. Summers, 
    452 U.S. 692
    , 700 n.12 (1981).
    In this case, the police learned that an armed robbery had
    just occurred on a street in Washington, D.C. Shortly afterward,
    an officer saw Paul Askew walking on a nearby street. Based on
    reasonable suspicion that Askew had committed the armed
    robbery, the officer stopped him. The police then brought the
    robbery victim to the scene of the stop and conducted a show-
    up. The officers unzipped Askew’s outer jacket during the
    show-up so that the victim could see Askew’s clothing – that
    step, the police believed, could assist the witness’s
    identification. Unzipping the outer jacket ultimately led the
    officers to discover that Askew was illegally carrying a gun.
    Askew’s primary argument to this Court is that the initial
    unzipping of his jacket was an unreasonable search. We
    3
    disagree. In a show-up during a Terry stop, the Fourth
    Amendment permits police officers to reasonably maneuver a
    suspect’s outer clothing – such as unzipping an outer jacket so
    a witness can see the suspect’s clothing – when taking that step
    could assist a witness’s identification. We affirm the District
    Court’s judgment.
    I
    1. The District Court’s findings of fact (and, where specific
    findings are lacking, the relevant testimony from the suppression
    hearing) show the following. See United States v. Askew, 
    313 F. Supp. 2d 1
    , 2-3 (D.D.C. 2004).
    At about 11 p.m. on December 19, 2003, a Metropolitan
    Police Department radio broadcast reported an armed robbery
    near 9th and G Streets, S.E., in the District of Columbia. The
    radio report in part described the robbery suspect as male,
    approximately six-feet tall, and wearing a blue sweatshirt and
    blue jeans. While driving in his patrol car, Officer Anthony
    Bowman heard the dispatch and began canvassing the area near
    the robbery scene. Within minutes, Officer Bowman saw Paul
    Askew walking near 9th Street and Independence Avenue, S.E.
    Noticing that Askew was a man with a mustache who “vaguely
    matched” the broadcast description, Officer Bowman asked the
    dispatcher whether the alleged robber had a mustache. The
    dispatcher replied that the robbery suspect indeed had been
    described as having a mustache. Meanwhile, when Askew saw
    that Officer Bowman’s car was following him, Askew turned
    and walked in a different direction. Officer Bowman continued
    to follow Askew in the police car.
    After calling in his location to other police, Officer
    Bowman parked the patrol car, got out, and stopped Askew.
    Officer Bowman requested that Askew present identification
    4
    and instructed Askew to keep his hands on top of his head, not
    in his pockets. Askew complied with those requests. Officer
    Bowman then told Askew that he had been stopped because he
    matched the description of an armed robbery suspect. Officer
    Bowman noticed that Askew was wearing two jackets: “[H]e
    had on a navy blue jacket with a darker blue fleece type jacket
    underneath.”
    Other police (including Officer Anthony Willis and Officer
    James Koenig) arrived at the scene. For the officers’ safety,
    Officer Koenig conducted a standard patdown frisk of Askew’s
    outer clothing pursuant to Terry v. Ohio, 
    392 U.S. 1
     (1968).
    Officer Koenig did not feel a weapon.
    Another officer then arrived with the robbery victim to
    conduct a “show-up” procedure (which allows a witness or
    victim to look at a suspect for identification purposes). The
    victim remained inside the police car as the officers brought
    Askew toward the car. Officer Willis recalled that the suspect
    described in the radio broadcast was wearing a blue hooded
    sweatshirt. As Officer Willis testified, he wanted the victim to
    see what Askew had on “to make sure that he wasn’t zipping
    nothing up to cover up.” To that end, Officer Willis started to
    pull down Askew’s outer jacket zipper. The zipper stopped
    when it hit what Officer Willis described as a “hard” or “solid”
    object and “didn’t go past” the object. Askew then knocked
    Officer Willis’s hand away from the zipper.
    At about this time, the show-up ended, and the officer
    accompanying the victim in the car drove her away from the
    scene of the show-up. At this point, Officer Willis and Officer
    Edward Snead were not aware of the results of the show-up.
    They quickly walked Askew backward and made him sit upright
    on the hood of a police car. (The testimony suggests less than
    a minute passed between the end of the show-up and the walk to
    5
    the police car. See Suppression Hr’g Tr. 54-55 (Mar. 10, 2004).)
    Officer Willis fully unzipped Askew’s outer jacket, revealing
    that Askew wore a black pouch underneath the jacket. The
    pouch was partially open, and a silver object protruded from it.
    The police recognized the object as a gun. The police then
    handcuffed Askew and formally arrested him. Although the
    record does not specify the grounds for the arrest, District of
    Columbia law prohibits carrying a pistol without a license. See
    D.C. CODE § 22-4504(a).
    In the meantime, the victim informed the officer in the
    police car that Askew was not the man who had committed the
    robbery. The record does not specify the precise moment when
    this occurred, although the officers on the scene did not become
    aware until some undetermined time after Askew’s arrest on the
    weapons violation. See 
    313 F. Supp. 2d at
    3 & n.4 (officer
    accompanying victim “did not advise Officer Willis and his
    colleagues whether the complainant had made an
    identification.”); see also Suppression Hr’g Tr. 13 (Mar. 26,
    2004) (Officer Willis learned results of show-up “after [officers]
    had handcuffed” Askew); Suppression Hr’g Tr. 54 (Mar. 10,
    2004) ([Question to Officer Snead]: “So at least you never
    heard from [officer accompanying victim] at that time what the
    results of the show-up were? [Answer]: Not at that time.”).
    2. Based on Askew’s prior felony conviction, the
    Government subsequently obtained a one-count federal grand
    jury indictment charging Askew with possessing a firearm as a
    felon. See 
    18 U.S.C. § 922
    (g)(1).
    Askew moved to suppress the evidence of the firearm on
    the ground, among others, that the unzipping of the outer jacket
    violated the Fourth Amendment and that the gun was the fruit of
    the constitutional violation. After an evidentiary hearing, the
    District Court denied the motion. 
    313 F. Supp. 2d at 1
    . At the
    6
    outset, the District Court concluded that Officer Bowman had
    the authority under Terry v. Ohio, 
    392 U.S. 1
     (1968), to stop
    Askew – given Askew’s proximity to the location of the
    reported robbery, his physical resemblance to the armed robbery
    suspect described in the police radio broadcast, and his change
    of course upon seeing Officer Bowman. See 
    313 F. Supp. 2d at 4
    . The District Court also concluded that Terry authorized
    Officer Koenig to frisk Askew for potential weapons (the
    District Court here was referring to the initial frisk that did not
    disclose Askew’s gun). 
    Id.
    The court held that the partial unzipping of the outer jacket
    for the show-up procedure was also permissible. 
    Id. at 6-7
    . The
    court further ruled that, because Officer Willis’s partial
    unzipping of Askew’s jacket for purposes of the show-up was
    constitutional, the Fourth Amendment permitted the officers,
    after feeling the hard object, to restrain Askew and fully unzip
    his jacket to determine whether the hard object was a weapon.
    
    Id. at 5
    .
    Askew entered a conditional plea of guilty, reserving his
    right to bring this appeal from the District Court’s denial of the
    motion to suppress. See Fed. R. Crim. P. 11(a)(2). The District
    Court sentenced Askew to 36 months of imprisonment and 36
    months of supervised release.
    On appeal, the parties agree that the Fourth Amendment
    governs the analysis and that the evidence of the gun must be
    excluded if we find the search unreasonable. Askew does not
    challenge the District Court’s conclusions that Officer Bowman
    had reasonable suspicion to stop Askew and that Officer
    Koenig’s frisk of Askew was valid. Askew focuses instead on
    the conduct of the police during the show-up – in particular, the
    two unzippings of the outer jacket. We review de novo the
    District Court’s legal conclusion that the search was
    7
    constitutional. In doing so, we accept the District Court’s
    findings of fact unless clearly erroneous. See Ornelas v. United
    States, 
    517 U.S. 690
    , 699 (1996).
    II
    1. The Fourth Amendment guarantees “[t]he right of the
    people to be secure in their persons, houses, papers, and effects,
    against unreasonable searches and seizures.” The touchstone of
    the Amendment is reasonableness, which “is measured in
    objective terms by examining the totality of the circumstances.”
    Ohio v. Robinette, 
    519 U.S. 33
    , 39 (1996). As the Supreme
    Court has said, “[t]he test of reasonableness under the Fourth
    Amendment is not capable of precise definition or mechanical
    application. In each case it requires a balancing of the need for
    the particular search against the invasion of personal rights that
    the search entails.” Bell v. Wolfish, 
    441 U.S. 520
    , 559 (1979).
    Under the Terry line of cases, the police may forcibly stop
    a person based upon “reasonable suspicion” that the individual
    committed, is committing, or is about to commit a crime, “even
    though there is no probable cause to make an arrest.” Terry v.
    Ohio, 
    392 U.S. 1
    , 22 (1968). During a Terry stop justified by
    reasonable suspicion, the police may take two kinds of actions:
    Officers may take reasonable protective measures, and they may
    take reasonable investigative measures. To place the issues
    raised by this appeal in context, we briefly summarize the
    Supreme Court precedents governing both measures.
    First, during a Terry stop, the police may take reasonable
    protective steps to ensure the safety of the officers and the
    public. An encounter between a police officer and a potential
    criminal suspect can be a dangerous situation; thousands of
    officers each year are assaulted, and in 2005 more than one
    officer per week was feloniously killed in the line of duty in the
    8
    United States. The Fourth Amendment does not require police
    officers to choose between investigating possible criminal
    activity and avoiding violent attack. On the contrary, courts
    appropriately give great deference to police officers’ interest in
    safety as they protect the citizenry. As the Court in Terry
    succinctly stated, “it would be unreasonable to require that
    police officers take unnecessary risks in the performance of their
    duties.” 
    392 U.S. at 23
    ; see also Adams v. Williams, 
    407 U.S. 143
    , 146 (1972) (“[T]he policeman making a reasonable
    investigatory stop should not be denied the opportunity to
    protect himself from attack by a hostile suspect.”). Therefore,
    as the Terry Court explained, when an officer stops an
    individual based on reasonable suspicion and has reason to
    believe the person may be “armed and dangerous,” the officer is
    authorized to conduct a protective patdown frisk “limited to that
    which is necessary for the discovery of weapons which might be
    used to harm the officer or others nearby.” Terry, 
    392 U.S. at 26-27
    ; cf. Chimel v. California, 
    395 U.S. 752
    , 763 (1969)
    (similar rule for protective searches incident to arrest based on
    probable cause). So too, because of the heightened danger in
    Terry stops of cars, the police may conduct protective searches
    for weapons in the passenger compartment of a motor vehicle.
    See Michigan v. Long, 
    463 U.S. 1032
    , 1049-52 (1983); cf. New
    York v. Belton, 
    453 U.S. 454
    , 457-60 (1981) (similar rule for
    protective searches of cars incident to arrest based on probable
    cause).
    Second, in addition to reasonable protective steps, the
    police may take reasonable investigative steps during a Terry
    stop to determine whether the individual committed, is
    committing, or is about to commit a crime (in other words, to try
    to confirm or dispel the reasonable suspicion that justified the
    stop in the first place). As the Supreme Court has stated, “a law
    enforcement officer’s reasonable suspicion that a person may be
    involved in criminal activity permits the officer to stop the
    9
    person for a brief time and take additional steps to investigate
    further.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt
    County, 
    542 U.S. 177
    , 185 (2004); see Michigan v. Summers,
    
    452 U.S. 692
    , 700 n.12 (1981) (“‘several investigative
    techniques . . . may be utilized effectively in the course of a
    Terry-type stop.’”) (quoting 3 WAYNE R. LAFAVE, SEARCH AND
    SEIZURE § 9.2 pp. 36-37 (1978)).
    2. To resolve this case, we must initially review the
    Supreme Court’s case law analyzing the following key question:
    What investigative steps are permissible and impermissible
    during a Terry stop?
    We begin by describing the category of impermissible
    steps. A Terry stop occurs when the police have “reasonable
    suspicion” of criminal activity – but the police’s justification has
    not yet risen to the level of “probable cause” needed for an
    arrest. Because the police do not yet have probable cause for an
    arrest, the police during a Terry stop may not engage in what the
    Supreme Court has called a “full search.” Terry, 
    392 U.S. at 26
    ;
    see 
    id. at 30
     (“general exploratory search for whatever evidence
    of criminal activity [officer] might find”); see also Minnesota v.
    Dickerson, 
    508 U.S. 366
    , 378 (1993) (“evidentiary search,”
    namely one raising prospect that officer will “rummage and
    seize at will” beyond “specific authorization”) (internal
    quotation marks omitted); Florida v. Royer, 
    460 U.S. 491
    , 499
    (1983) (plurality opinion of White, J.) (“In the name of
    investigating a person who is no more than suspected of criminal
    activity, the police may not carry out a full search of the person
    or of his automobile or other effects.”) (emphasis added). As
    the Court has explained, such a “full search” – sometimes called
    an exploratory or evidentiary search – occurs when the police
    rummage through a person’s pockets, bags, and clothing for
    contraband the person may be carrying, such as stolen goods,
    drugs, or other tangible evidence of crime. See Sibron v. New
    
    10 York, 392
     U.S. 40, 64-65 (1968).
    Other than the forbidden “full search,” the Supreme Court
    has held that other investigative steps during a Terry stop are
    permissible if “reasonably related in scope to the circumstances
    which justified the interference in the first place.” Terry, 
    392 U.S. at 20
    ; see also Hiibel, 
    542 U.S. at 185
    . The Terry
    “reasonably related in scope” standard is far from self-defining,
    but the Supreme Court’s rulings have provided guidance –
    permitting “several investigative techniques which may be
    utilized effectively in the course of a Terry-type stop.”
    Summers, 
    452 U.S. at
    700 n.12 (quoting 3 LAFAVE, SEARCH
    AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible
    investigative steps include the following:
    • The police may ask questions to the individual who has
    been stopped. See Terry, 
    392 U.S. at 6-7
     (“Officer McFadden
    approached the three men, identified himself as a police officer
    and asked for their names.”); see also United States v. Hensley,
    
    469 U.S. 221
    , 229 (1985) (recognizing police ability to “ask
    questions, or check identification” during Terry stop); Berkemer
    v. McCarty, 
    468 U.S. 420
    , 439 (1984) (“[T]he officer may ask
    the detainee a moderate number of questions to determine his
    identity and to try to obtain information confirming or dispelling
    the officer’s suspicions. But the detainee is not obliged to
    respond.”); Terry, 
    392 U.S. at 34
     (White, J., concurring) (“[T]he
    person may be briefly detained against his will while pertinent
    questions are directed to him.”).
    • When the police have a reasonable basis for believing that
    a traveler is carrying luggage that contains drugs, the police may
    seize the luggage “briefly to investigate the circumstances” that
    give rise to their suspicion, and they may subject the luggage to
    a dog sniff for narcotics. United States v. Place, 
    462 U.S. 696
    ,
    706-07 (1983); see also Illinois v. Caballes, 
    543 U.S. 405
    , 408-
    11
    09 (2005) (allowing dog sniff of motorist’s lawfully stopped
    car).
    • The police may obtain fingerprints; in particular, such
    fingerprinting is authorized “if there is a reasonable basis for
    believing that fingerprinting will establish or negate the
    suspect’s connection with [a] crime, and if the procedure is
    carried out with dispatch.” Hayes v. Florida, 
    470 U.S. 811
    , 817
    (1985).
    • A witness show-up is permissible: When it is “known that
    an offense has occurred in the area, the suspect may be viewed
    by witnesses to the crime.” Summers, 
    452 U.S. at
    701 n.12
    (quotation marks omitted). (Whether the resulting witness
    identification may be admitted as evidence in a criminal trial is
    an analytically separate question. See Manson v. Brathwaite,
    
    432 U.S. 98
    , 111-14 (1977); United States v. Washington, 
    353 F.3d 42
    , 44-45 (D.C. Cir. 2004).)
    III
    We apply the above principles to the issues presented by
    this case. To begin with, we note that there are two separate
    Fourth Amendment “events” that must be analyzed. The
    primary and more difficult question in this case concerns the
    initial unzipping of Askew’s jacket. The secondary question is
    whether, after the initial unzipping revealed a hard object and
    Askew knocked away the officer’s hand, the police’s subsequent
    full unzipping of the jacket was permissible. (We address that
    secondary question in Part IV below.)
    1. Following Officer Bowman’s stop of Askew, the police
    brought the robbery victim to the scene to conduct a show-up for
    identification. As part of that show-up, Officer Willis partially
    unzipped Askew’s outer jacket so that the victim could see
    12
    Askew’s “blue fleece type jacket” underneath. 
    313 F. Supp. 2d 1
    , 2 (D.D.C. 2004).
    The Supreme Court has stated that show-ups are permitted
    during Terry stops. The precise question here, therefore, is
    whether the added step of unzipping a jacket is permissible
    when doing so could reasonably assist the witness’s
    identification during the show-up – in other words, whether such
    a step is “reasonably related in scope to the circumstances which
    justified the interference in the first place.” Terry v. Ohio, 
    392 U.S. 1
    , 20 (1968). That reasonableness inquiry weighs the
    competing interests of the individual and the Government,
    balancing “the nature and quality of the intrusion on personal
    security against the importance of the governmental interests
    alleged to justify the intrusion.” United States v. Hensley, 
    469 U.S. 221
    , 228 (1985); see also United States v. Place, 
    462 U.S. 696
    , 703 (1983).
    In conducting the reasonableness inquiry, we consider on
    one side of the balance the extent to which the challenged
    investigative step promotes law enforcement aims and protects
    the public – namely, “the public interest that the crime be solved
    and the suspect detained as promptly as possible.” Hensley, 
    469 U.S. at 229
    . The unzipping of Askew’s jacket clearly promoted
    the same government interest that justified the show-up itself:
    the interest in reliably determining whether Askew was the
    armed robber. A reliable witness identification generally allows
    the police to determine whether to further investigate or arrest
    the person stopped, or to move on to someone else entirely.
    This government interest is particularly important in cases (such
    as this one) where an armed criminal is at large and may pose a
    danger of causing additional harm to the public. And the
    identification is generally more likely to be accurate if the
    witness can see the characteristics of the person stopped that the
    perpetrator displayed during commission of the crime. Steps
    13
    furthering that interest might include, for example, temporarily
    removing a hat (so a witness can view hair color or style) or
    rolling up a shirt sleeve (to reveal a watch or tattoo that had been
    observed by the witness on the suspect’s arm). So too, if a
    robbery victim says the actual suspect was wearing a certain
    color shirt underneath a jacket, the police have an interest in
    unzipping the jacket to allow the victim to see if the individual
    stopped is wearing such a shirt. This case is no different.
    We assess on the other side of the Fourth Amendment
    balance the extent of the additional intrusion on individual
    privacy – that is, the additional intrusion caused by unzipping
    the outer jacket. Here, to begin with, the police did not conduct
    a “full search,” which Terry ruled flatly impermissible in a stop
    based solely on reasonable suspicion. 
    392 U.S. at 26
    . In
    unzipping Askew’s jacket, Officer Willis was not conducting a
    “general exploratory search for whatever evidence of criminal
    activity he might find.” 
    Id. at 30
    . Moreover, the primary
    intrusions on Askew’s individual privacy resulted from the
    forcible detention itself and the initial protective frisk, both of
    which were plainly permissible under Terry. Our focus
    therefore is on the additional step of unzipping a jacket to reveal
    clothing underneath. Contrary to Askew’s contention, this is a
    relatively minimal additional interference with individual
    privacy. The Supreme Court in Pennsylvania v. Mimms, for
    example, authorized officers conducting traffic stops to order the
    driver out of the car. The Court reasoned that during a valid
    stop, the “additional intrusion” that leaving the car imposed
    upon the driver’s personal privacy “can only be described as de
    minimis. The driver is being asked to expose to view very little
    more of his person than is already exposed.” 
    434 U.S. 106
    , 111
    (1977). That provides a fair description of the additional
    intrusion in this case as well.
    Supreme Court precedent helps confirm that the
    14
    Government’s strong interest in identification of an armed
    robber outweighs the limited additional intrusion at issue in this
    case. In particular, in balancing the competing interests of the
    Government and Askew, we find the Court’s decision in Hayes
    v. Florida instructive and important. In Hayes, the Court stated
    that the Fourth Amendment permits the police to take
    fingerprints during a Terry stop; such fingerprinting is
    legitimate, the Court concluded, “if there is a reasonable basis
    for believing that fingerprinting will establish or negate the
    suspect’s connection with [a] crime, and if the procedure is
    carried out with dispatch.” 
    470 U.S. 811
    , 817 (1985).
    Here, as in Hayes, the police had an objective basis for
    believing that the identification procedure could “establish or
    negate the suspect’s connection with [a] crime.” Here, as in
    Hayes, the police action was “carried out with dispatch.” And
    here, as in Hayes, the intrusion fell short of the “full search” that
    the Supreme Court has prohibited during Terry stops. The
    purposes of the investigative steps at issue here and in Hayes are
    precisely the same (to match the person with a crime that has
    recently occurred), and the degree of intrusion is similar (indeed,
    to many people, fingerprinting would seem more intrusive than
    unzipping an outer jacket).
    To be sure, the Supreme Court’s reasoning in Hayes
    concerning the validity of brief, in-the-field fingerprinting might
    be described as dicta. But the Court’s analysis obviously was
    carefully considered; indeed, it was a point of strenuous
    disagreement between the Hayes majority and Justice Brennan
    in his separate opinion (joined by Justice Marshall). And we
    have said that “carefully considered language of the Supreme
    Court, even if technically dictum, generally must be treated as
    authoritative.” United States v. Dorcely, 
    454 F.3d 366
    , 375
    (D.C. Cir. 2006); Sierra Club v. EPA, 
    322 F.3d 718
    , 724 (D.C.
    Cir. 2003); NRDC v. NRC, 
    216 F.3d 1180
    , 1189 (D.C. Cir.
    15
    2000); United States v. Oakar, 
    111 F.3d 146
    , 153 (D.C. Cir.
    1997). That principle comfortably covers the Hayes discussion
    of fingerprinting during Terry stops.
    In short, the opinion in Hayes guides us here. If the police
    during a Terry stop may take fingerprints for identification
    purposes, it logically follows that the police during a Terry stop
    may unzip an individual’s outer jacket for identification
    purposes (that is, so a witness can see the suspect’s clothing).
    2. Askew has advanced three arguments why the unzipping
    of the outer jacket was nonetheless unreasonable.
    First, Askew notes the possibility of pretext searches: He
    suggests that some officers would maneuver outer clothing as a
    pretext for a full search, even though the officers lack probable
    cause to conduct a full search. The risk of pretextual police
    behavior has, of course, generated a great deal of concern about
    Terry stops. See, e.g., 4 WAYNE R. LAFAVE, SEARCH AND
    SEIZURE § 9.1(e) p. 279 (4th ed. 2004) (“For many of those who
    honestly oppose . . . the power of police to stop and frisk, the
    central point is that police often have utilized street encounters
    for improper purposes . . . .”); David Rudovsky, Law
    Enforcement by Stereotypes and Serendipity, 3 U. PA. J. CONST.
    L. 296, 336 (2001) (“[J]ust as the police use the traffic stop to
    place themselves in a position to search the vehicle and
    occupants, they use the stop of pedestrians to gain the
    opportunity to frisk.”). The Supreme Court has repeatedly held,
    however, that the risk of pretextual police behavior does not
    alter the Fourth Amendment analysis. Instead, the constitutional
    inquiry focuses on whether the police took protective and
    investigative steps that were objectively reasonable under the
    circumstances. In other words, “the Fourth Amendment’s
    concern with ‘reasonableness’ allows certain actions to be taken
    in certain circumstances, whatever the subjective intent.” Whren
    16
    v. United States, 
    517 U.S. 806
    , 814 (1996); see also Brigham
    City v. Stuart, 
    126 S. Ct. 1943
    , 1948 (2006); United States v.
    Arvizu, 
    534 U.S. 266
    , 273 (2002).
    Second, Askew advances a slippery slope argument: He
    contends that upholding the search here necessarily means that
    extensive body searches or strip searches also would be
    permitted. That is simply wrong. The history of Fourth
    Amendment jurisprudence is a history of judicial line-drawing
    as courts assess “reasonableness” by balancing the public’s
    interest in preventing and detecting crime (and thereby
    maintaining order and public safety) against the individual’s
    interest in privacy. This case involves the police reasonably
    maneuvering a suspect’s outer jacket during a show-up to assist
    a witness’s identification (by allowing the witness to see the
    suspect’s clothing). Of course, there are a variety of conceivable
    searches – such as hypotheticals advanced by Askew – that
    would be more intrusive than the search at issue here and would
    more severely affect personal privacy interests. In such
    hypothetical cases, the Government would face a heavier burden
    in showing that the investigative step was “reasonably related in
    scope to the circumstances which justified the interference in the
    first place.” Terry, 
    392 U.S. at 20
    ; cf. Schmerber v. California,
    
    384 U.S. 757
    , 769-72 (1966); Helton v. United States, 
    191 F. Supp. 2d 179
    , 184-85 (D.D.C. 2002).
    Third, Askew makes a bright-line argument: He suggests
    that Terry does not permit investigative steps that involve a
    “search” of any kind, no matter how limited. The initial flaw in
    this argument is that the Supreme Court has in fact authorized
    certain intrusive searches during Terry stops – so long as they
    are reasonable under the circumstances and are not what the
    Court has called a “full search.” See Terry, 
    392 U.S. at 26
    ; see
    also Florida v. Royer, 
    460 U.S. 491
    , 499 (1983) (plurality
    opinion of White, J.). For example, the Terry Court itself
    17
    approved the protective step of frisking for potential weapons
    even though the Court recognized such action was a “serious
    intrusion” and plainly entailed a “search” within the meaning of
    the Fourth Amendment. 
    392 U.S. at 16-17
    .*
    And as explained above, the Hayes Court endorsed the
    investigative step of on-the-scene fingerprinting – even though
    compelled fingerprinting is intrusive and triggers independent
    Fourth Amendment protection, as the Court explained when
    comparing fingerprinting to “other types of searches and
    detentions.” 
    470 U.S. at 814
    . Indeed, in Hayes two Justices
    strongly disagreed with the majority, warning that “on-site
    fingerprinting (apparently undertaken in full view of any
    passerby) would involve a singular intrusion on the suspect’s
    privacy, an intrusion that would not be justifiable (as was the
    patdown in Terry) as necessary for the officer’s protection.” 
    Id. at 819
     (Brennan, J., concurring in judgment, joined by Marshall,
    J.). But the position of Justice Brennan and Justice Marshall did
    not prevail in Hayes; had it done so, Askew’s bright-line
    argument here would of course have more force.
    Askew’s bright-line argument – that an investigative step
    *
    Given that one side of the Fourth Amendment reasonableness balance
    looks at the degree of intrusion on the individual, the Supreme Court in
    certain other areas has similarly distinguished (i) the intrusion caused by so-
    called full searches from (ii) the lesser intrusion caused by more limited
    searches. See Maryland v. Buie, 
    494 U.S. 325
    , 335 (1990) (distinguishing
    protective sweep, or “cursory inspection” of premises incident to in-home
    arrest, from “full search”); United States v. Jacobsen, 
    466 U.S. 109
    , 125 n.28
    (1984) (“warrantless search and seizure limited to scraping suspect’s
    fingernails justified even when full search may not be”) (citing Cupp v.
    Murphy, 
    412 U.S. 291
    , 296 (1973)). In certain other contexts, the Court has
    held any degree of intrusion unreasonable, noting that “[a] search is a
    search.” Arizona v. Hicks, 
    480 U.S. 321
    , 325 (1987). But cf. Buie, 
    494 U.S. at
    335 n.3 (characterizing Hicks as involving police “searching for evidence
    plain and simple.”).
    18
    is impermissible if it constitutes a Fourth Amendment search –
    also contravenes the persuasive views of the leading Fourth
    Amendment scholar. Professor LaFave has explained that
    certain “identification searches” do not “require rummaging
    through a suspect’s personal effects as does an ordinary full-
    blown search.” 4 LAFAVE, SEARCH AND SEIZURE § 9.8(b) p.
    730 (quotation marks omitted). For that reason, Professor
    LaFave explained: “Taking fingernail scrapings, for example,
    is a search, but yet is a very limited intrusion, and thus should
    be deemed permissible” for identification during a Terry
    detention. Id. (quotation marks omitted; emphasis added).
    Professor LaFave’s bottom line, therefore, is that certain
    investigative steps are (and should be) permitted during Terry
    stops even though they constitute “searches” under the Fourth
    Amendment. Based on the Supreme Court’s precedents, we
    agree.
    In sum: Balancing the competing interests and taking our
    cues from Supreme Court precedent, especially Hayes, we
    conclude that the police during a Terry show-up may reasonably
    maneuver a suspect’s outer clothing (such as unzipping an outer
    jacket so a witness can see the suspect’s clothing) when taking
    that step could assist a witness’s identification. In this case,
    therefore, the Fourth Amendment allowed the police to initially
    unzip Askew’s outer jacket so that the robbery victim could see
    Askew’s clothing, thereby assisting the victim’s identification
    during the show-up. That step was “reasonably related in scope
    to the circumstances which justified” stopping Askew in the first
    place. Terry, 
    392 U.S. at 20
    .
    IV
    Askew argues that, even assuming the first unzipping was
    permissible, the second unzipping was impermissible. The
    District Court rejected that argument, concluding: “If it was
    19
    constitutional for Officer Willis to unzip the jacket in the course
    of the show-up, the later investigation to determine whether the
    hard object was a weapon certainly was constitutional.” 
    313 F. Supp. 2d 1
    , 5 (D.D.C. 2004). We agree with the District Court.
    To review: The first unzipping of the outer jacket occurred
    during the show-up itself. During that unzipping, Officer Willis
    discovered that Askew had a hard object underneath the jacket
    zipper, and Askew knocked Officer Willis’s hand away from the
    zipper. The show-up ended, and the officer accompanying the
    victim in the car drove her away from the scene. At this point,
    the officers remaining with Askew were not yet aware of the
    results of the show-up. Shortly thereafter, based on the hard
    object underneath the jacket and Askew’s knocking away
    Officer Willis’s hand, the officers walked Askew over to a
    police car, made him sit up on it, engaged in a second (and this
    time complete) unzipping of the jacket, and seized a gun found
    on Askew’s person.
    We conclude that the second unzipping was justified on any
    of three alternative grounds. First, it was justified as a
    protective step as part of the continuing Terry stop for suspicion
    of armed robbery. Second, it was justified as a protective step
    to prevent the possibility of armed violence while the police
    disengaged at the conclusion of that Terry stop. Third, it was
    justified because the initial unzipping gave the officers
    reasonable suspicion to detain and investigate Askew for a new
    crime – carrying a dangerous weapon in public in violation of
    District of Columbia law.
    First, the developments during the initial unzipping –
    Officer Willis discovering a hard object underneath Askew’s
    jacket in the initial unzipping and Askew knocking away Officer
    Willis’s hand – justified the officers in believing that Askew may
    have been “armed and presently dangerous.” Terry v. Ohio, 392
    
    20 U.S. 1
    , 30 (1968). Under Supreme Court precedent, these facts
    entitled the officers to take the protective step of unzipping
    Askew’s jacket in full and seizing the weapon. See Adams v.
    Williams, 
    407 U.S. 143
    , 146, 148 (1972) (officer’s “reaching to
    the spot” where driver was said to have been hiding gun to
    remove it was “limited intrusion designed to insure [the
    officer’s] safety”; “So long as the officer is entitled to make a
    forcible stop, and has reason to believe that the suspect is armed
    and dangerous, he may conduct a weapons search limited in
    scope to [the] protective purpose.”) (footnote omitted); see also
    Pennsylvania v. Mimms, 
    434 U.S. 106
    , 112 (1977) (bulge in
    driver’s jacket allowed officer to conclude driver “was armed
    and thus posed a serious and present danger to the safety of the
    officer,” authorizing search).
    That Officer Koenig had not felt a weapon in conducting the
    earlier pat-down frisk did not prevent the officers from acting on
    the new information at this point. The Fourth Amendment does
    not impose a rigid “one-frisk” rule requiring officers to ignore
    new information that might lead them to realize that an initial
    frisk was an inadequate safeguard. See United States v.
    Osbourne, 
    326 F.3d 274
    , 278 (1st Cir. 2003) (reasonableness of
    second or subsequent protective step is “determined under a
    standard that takes account of the fact that context is vital”)
    (internal quotation marks omitted).
    It bears mention, moreover, that the officers involved in the
    second unzipping did not yet know the results of the show-up
    procedure when they conducted that second unzipping. On the
    contrary, as the District Court found, only after Askew’s formal
    arrest on the gun charge did these officers on the scene learn
    Askew had not been identified by the victim as the armed robber.
    See 
    313 F. Supp. 2d at
    3 n.4 (officer accompanying victim “did
    not advise Officer Willis and his colleagues whether the
    complainant had made an identification.”). In a fast-moving and
    21
    inherently dangerous Terry stop, we think it entirely reasonable
    for officers on the scene to continue to protect their safety, and
    the public’s safety, until these officers themselves know that the
    initial basis for the stop has dissipated (at least so long as there
    is not unreasonable delay in obtaining that information). Cf.
    United States v. Brown, 
    334 F.3d 1161
    , 1166 n.2 (D.C. Cir.
    2003) (in assessing reasonable suspicion and fear of danger, “this
    court cannot take into account . . . facts . . . not known to the
    investigating officers at the time of the search,” including facts
    complainant never told officers conducting search and facts
    suspect later told another officer). Here, moreover, the police
    acted promptly; they did not continue to hold Askew for an
    unreasonably lengthy period of time, as may have occurred, for
    example, in United States v. Babwah, 
    972 F.2d 30
    , 33 (2d Cir.
    1992). In short, the officers here still had justification for
    holding Askew when they conducted the second unzipping, and
    the second unzipping was thus a reasonable protective step under
    Terry.
    Second, even if the reasonable suspicion of armed robbery
    had dissipated before the second unzipping, the police in any
    event could take steps to protect themselves while disengaging
    from the encounter with Askew. In Michigan v. Long, the
    Supreme Court held that, during a Terry stop of a driver, the
    Fourth Amendment allows officers to conduct a protective search
    of the car’s passenger compartment based on reasonable fear that
    the driver poses a danger. 
    463 U.S. 1032
    , 1045-52 (1983). One
    rationale for this holding was the Supreme Court’s concern that
    absent a protective search, at the end of the Terry stop, “if the
    suspect is not placed under arrest, he will be permitted to reenter
    his automobile, and he will then have access to any weapons
    inside.” 
    Id. at 1052
    . It follows that a Terry protective search of
    the person or vehicle is a proper response to fear not only that a
    suspect might use a weapon during the Terry stop, but also that
    the suspect might use a weapon after the stop ends and before the
    22
    police have disengaged. So too here: Had the police not
    unzipped the jacket a second time to identify and remove the
    weapon and instead permitted Askew to leave, Askew would
    have had access to that weapon as the officers departed. As this
    Court has recognized, Long teaches that it is “appropriate to
    conduct a Terry search to ensure that such access would not
    endanger the lives of the departing officers.” United States v.
    Christian, 
    187 F.3d 663
    , 671 (D.C. Cir. 1999); see 
    id. at 665, 669-671
     (protective search of suspect’s car reasonable when
    suspect stood next to car with six-inch bladed dagger by driver’s
    seat visible through partially open window). Askew’s argument,
    in other words, “misunderstands the nature of the protective
    search; the fear of a person’s gaining immediate control of
    weapons does not limit itself to the time of the stop, but extends
    through the entire interaction between him and the officer.”
    United States v. Wallen, 
    388 F.3d 161
    , 166 (5th Cir. 2004). A
    protective search is therefore justified in a case where “a
    reasonable officer would . . . be concerned about the ever-present
    possibility of violent interaction when the suspect[] [was]
    released at the conclusion of the investigatory stop.” United
    States v. Holmes, 
    376 F.3d 270
    , 278 (4th Cir. 2004).
    Third, even assuming the officers no longer had justification
    to hold Askew on suspicion of armed robbery when they
    conducted the second unzipping, the second unzipping was
    constitutional for yet another reason: Once the officers
    discovered the hard object during the show-up and Askew
    knocked Officer Willis’s hand away in response to the discovery,
    the officers had reasonable suspicion that Askew was committing
    a crime distinct from armed robbery – namely, carrying a
    dangerous weapon in violation of District of Columbia law.
    District of Columbia law provides: “No person shall carry
    within the District of Columbia either openly or concealed on or
    about their person, a pistol, without a license issued pursuant to
    District of Columbia law, or any deadly or dangerous weapon
    23
    capable of being so concealed.” D.C. CODE § 22-4504(a). The
    police officers reasonably believed that a hard object carried
    underneath a jacket could be a dangerous weapon. From the fact
    that Askew knocked away Officer Willis’s hand, the officers
    could also reasonably infer that Askew was attempting to
    conceal a weapon. See Terry, 
    392 U.S. at 21
     (officers must be
    “able to point to specific and articulable facts which, taken
    together with rational inferences from those facts, reasonably
    warrant” their action). Based on the reasonable suspicion that
    Askew was carrying a concealed weapon, the officers acted well
    within Fourth Amendment bounds in seizing the weapon: “So
    long as the officer is entitled to make a forcible stop, and has
    reason to believe that the suspect is armed and dangerous, he
    may conduct a weapons search limited in scope to [the]
    protective purpose.” Adams, 
    407 U.S. at 146
     (footnote omitted).
    During a Terry stop, when the officers feel or observe an object
    that might be a weapon, or develop reasonable suspicion that the
    suspect may be carrying a weapon in a specific place on his
    person or in his car, the police may seize the weapon. See 
    id. at 146, 148
    ; United States v. Holmes, 
    385 F.3d 786
    , 790-91 (D.C.
    Cir. 2004) (Roberts, J.) (officer reasonably removed from
    suspect’s outer coat pocket a “hard, square object”); see also
    United States v. Harris, 
    313 F.3d 1228
    , 1237 (10th Cir. 2002)
    (“If the officer discovers what he believes to be a weapon, he
    may reach inside the suspect’s clothing and remove it.”) (citing
    Adams, 
    407 U.S. at 148
    ); United States v. Swann, 
    149 F.3d 271
    ,
    272, 276-77 (4th Cir. 1998) (officer reasonably removed hard,
    rectangular object from suspect’s sock).
    On any of these three alternative grounds, we reject
    Askew’s claim that the second unzipping was unreasonable.
    V
    Because the first and second unzippings were both
    24
    reasonable, the gun seized from Askew was admissible evidence.
    That principle is, of course, settled: When taking permissible
    protective and investigative steps during a Terry stop, the police
    may come across contraband or evidence that the police could not
    have searched for directly; in such cases, the evidence
    nonetheless may be seized and used in a criminal prosecution of
    the suspect. See Michigan v. Long, 
    463 U.S. 1032
    , 1050 (1983);
    Terry v. Ohio, 
    392 U.S. 1
    , 30-31 (1968).
    For purposes of clarity, we also identify two questions that
    we need not and do not reach in this case. First, because we
    conclude that the initial unzipping of the jacket was a reasonable
    step during the show-up, we do not decide whether the police
    even without a witness present could reasonably maneuver a
    suspect’s outer clothing, such as unzipping an outer jacket to see
    the suspect’s clothing, when necessary for identification
    purposes. Second, because the Government has not pressed the
    point, we also do not consider whether the police could have
    justified the initial unzipping of Askew’s jacket as a protective
    step and not just as an investigative step: Several federal courts
    have approved initial frisks that go beyond a patdown of outer
    clothing when necessary to ensure that the person stopped is in
    fact not carrying a weapon. See United States v. Reyes, 
    349 F.3d 219
    , 225 (5th Cir. 2003); United States v. Baker, 
    78 F.3d 135
    ,
    138 (4th Cir. 1996); United States v. Thompson, 
    597 F.2d 187
    ,
    191 (9th Cir. 1979).
    ***
    We affirm the judgment of the District Court.
    So ordered.
    EDWARDS, Senior Circuit Judge, dissenting.
    THE FOURTH AMENDMENT TO THE
    UNITED STATES CONSTITUTION
    The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable
    searches and seizures, shall not be violated, and no
    Warrants shall issue, but upon probable cause,
    supported by Oath or affirmation, and particularly
    describing the place to be searched, and the persons
    or things to be seized.
    FIRST PRINCIPLE
    “The police officer is not entitled to seize and search
    every person whom he sees on the street or of whom
    he makes inquiries.” Sibron v. New York, 
    392 U.S. 40
    ,
    64 (1968).
    A SIMPLE TRUTH
    A police officer may not detain a person on the street
    and, with no probable cause or warrant, insist that the
    person remove his or her clothing; nor, in these
    circumstances, may the officer undo the person’s
    clothing without his or her consent. If this is not the
    law, then the Fourth Amendment is a dead letter in our
    Constitution.
    _______________________________________
    This appeal is about a citizen’s right to enforce Fourth
    Amendment protections against unlawful searches of his person.
    The case is important, because, as is clear from the argument
    presented to this court, the Government seeks to wreak havoc
    with the law under the Fourth Amendment. The majority holds
    that, following a Terry stop and a protective pat down that
    produces nothing, police officers may – without probable cause
    or a warrant – search a suspect, not for self-protection, but
    solely to facilitate an “investigation.” Because this holding
    reflects an extraordinary departure from well-established
    Supreme Court precedent, I respectfully dissent.
    2
    I. THE FACTS
    The facts in this case, which are largely undisputed, are set
    forth in the District Court’s opinion. See United States v. Askew,
    
    313 F. Supp. 2d 1
     (D.D.C. 2004). The material facts bear
    repeating here, if only to show precisely how the Government
    seeks to strip the Fourth Amendment of content.
    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.
    . . . [W]ithin 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. . . . 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
    match[ed] th[e] description.” After noticing that the
    defendant had a moustache, 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
    3
    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 James Koenig conducted a pat-down of the
    defendant and found nothing.[FN 2]
    [FN 2] . . . The government acknowledges that when
    Officer Koenig patted the defendant down, he did not
    find anything. The subsequent discovery of the gun at
    issue here was not the result of this pat-down.
    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 to 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.
    4
    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.
    
    Id.
     at 1-3 & n.2 (internal citations and footnotes omitted).
    _______________________________________
    In reviewing the District Court’s findings, there are several
    important points that are worth highlighting:
    •    The police requested Askew’s identification, which he
    produced without protest. The police next conducted
    a lawful Terry pat-down search, to determine whether
    Askew posed a danger to the officers on the scene. See
    Terry v. Ohio, 
    392 U.S. 1
     (1968).
    •    The police officers’ pat down of Askew produced
    nothing.
    •    The police then brought Askew in front of the robbery
    victim and, without his consent and with no fear of
    danger, an officer partially opened Askew’s jacket to
    display what he was wearing underneath.
    •    The robbery victim who was brought to the scene for
    the show-up did not identify Askew as the perpetrator
    of the crime.
    •    Following the pat down and the show-up, the police
    officers no longer had reasonable suspicion to detain
    Askew pursuant to Terry, and they did not have
    probable cause or a warrant to further detain, arrest, or
    search him.
    5
    •    However, after the show-up, when they had no
    reasonable suspicion and no probable cause, the
    officers continued to detain Askew against his will. As
    the District Court found: “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.” Askew, 
    313 F. Supp. 2d at 3
    .
    •    The officers found a gun on Askew’s person only after
    they unzipped his jacket without his consent.
    _______________________________________
    It is important to emphasize here that the police officers
    engaged in two separate acts of unzipping Askew’s jacket. And
    in each instance, the officers acted without Askew’s consent.
    The first search occurred when an officer partially unzipped the
    jacket to reveal Askew’s sweatshirt to the robbery victim who
    was at the show-up. See 
    id. at 4-5
    ; Tr. of Motions Hr’g 8-10,
    Mar. 26, 2004 (Officer Anthony Willis describing two distinct
    unzippings of Askew’s jacket); Br. for Gov’t at 5-6 (describing
    two distinct unzippings). The second search occurred after the
    show-up was completed, and it was done to determine whether
    Askew had contraband on his person. Askew, 
    313 F. Supp. 2d at 4-5
    ; Tr. of Motions Hr’g 18-20, Mar. 26, 2004; Br. for Gov’t
    at 6. Thus, the second unzipping could not have facilitated the
    show-up, because it did not occur until “after the show-up
    procedure had ended.” Br. for Gov’t at 6.
    6
    II. THE GOVERNMENT’S ARGUMENT
    During oral argument, counsel was asked to explain how the
    Government could justify the officers’ searches of Askew’s
    person without reasonable suspicion, probable cause, or a
    warrant. The Assistant United States Attorney’s exchange with
    a member of the court is illuminating:
    JUDGE: Is there a single case in the history of the
    United States [issued by either a] Court of Appeals [or the]
    Supreme Court, that says [that an officer may], post pat
    down, having found nothing [during the pat down,] get into
    [the defendant’s] clothing either by unzipping it, unbuttoning
    it, or removing it under Terry. Is there a single case that
    says that?
    ....
    AUSA: There might not be a case directly on point as
    a show-up procedure if you’ve already had a pat down.
    Although the Assistant United States Attorney grudgingly
    acknowledged that she could cite no case law to support the
    officers’ search of Askew, she still went on to amplify an
    astonishing view of the Fourth Amendment on behalf of the
    Government:
    JUDGE: Suppose [the officers] know from the
    [dispatcher’s] report that the [robbery suspect] wasn’t
    wearing a whole lot [and] a tattoo was clearly seen [on] her
    or his top of the chest.
    ....
    JUDGE: Then the officers say [to the suspect],
    “Remove your clothing.”
    AUSA: They might be able to do that under the totality
    of the circumstances.
    JUDGE: Really? Wow.
    AUSA: Yes.
    7
    JUDGE: Under the Fourth Amendment, [an officer can
    require a person to remove his or her clothing], with no
    probable cause? . . . That’s the Government’s position?
    No probable cause, pat down produces nothing, and under
    Terry [an officer] can say to someone on the street,
    “remove your clothes?”
    AUSA: Under the totality of the circumstances, it’s a –
    JUDGE: Wow.
    AUSA: It may be . . . feasible.
    This is the Government’s theory of this case. And, as
    counsel initially indicated, there is no case law to support this
    stunningly dangerous reading of the Fourth Amendment.
    Indeed, later in her oral argument, counsel appeared to
    understand the breathtaking sweep of the Government’s
    position:
    JUDGE: [In the hypothetical that we were discussing
    earlier], we know there is a tattoo on [the] skin [of] the
    person [who has been detained], so [the officers can] start
    removing clothes?
    AUSA:   Well, maybe under the totality of the
    circumstances it would not be reasonable to remove his
    clothes.
    The Assistant United States Attorney was surely correct in
    offering this belated concession that it would not be reasonable
    for an officer to remove clothes. It is quite clear under Fourth
    Amendment law that it is not reasonable for an officer to detain
    a person on the street and then, with no probable cause or
    warrant, insist that the person remove his or her clothing or,
    even worse, undo the person’s clothing without his or her
    consent.
    8
    III. THE CONTROLLING LEGAL PRINCIPLES
    Almost 60 years ago, the Supreme Court reminded us that
    the Fourth Amendment’s
    guarantee of protection against unreasonable searches and
    seizures extends to the innocent and guilty alike. It marks
    the right of privacy as one of the unique values of our
    civilization and, with few exceptions, stays the hands of the
    police unless they have a search warrant issued by a
    magistrate on probable cause supported by oath or
    affirmation. And the law provides as a sanction against the
    flouting of this constitutional safeguard the suppression of
    evidence secured as a result of the violation . . . .
    McDonald v. United States, 
    335 U.S. 451
    , 453 (1948). These
    fundamental precepts have not faded with time. Just this past
    Term, the Court again made it clear that “‘[w]arrants are
    generally required to search a person’s home or his person
    unless “the exigencies of the situation” make the needs of law
    enforcement so compelling that the warrantless search is
    objectively reasonable under the Fourth Amendment.’”
    Brigham City, Utah v. Stuart, 
    126 S. Ct. 1943
    , 1947 (2006)
    (emphasis added) (quoting Mincey v. Arizona, 
    437 U.S. 385
    ,
    393-94 (1978)).
    “Beginning with Terry v. Ohio, 
    392 U.S. 1
     (1968), the
    Court has recognized that a law enforcement officer’s
    reasonable suspicion that a person may be involved in criminal
    activity permits the officer to stop the person for a brief time and
    take additional steps to investigate further. To ensure that the
    resulting seizure is constitutionally reasonable, a Terry stop
    must be limited. The officer’s action must be justified at its
    inception, and reasonably related in scope to the circumstances
    which justified the interference in the first place.” Hiibel v.
    Sixth Jud. Dist. Ct. of Nev., Humboldt County, 
    542 U.S. 177
    ,
    185 (2004) (internal alterations, citations, and quotation marks
    9
    omitted). Terry authorizes “protective searches.” Terry does
    not, however, authorize other searches as being within a class of
    “steps to investigate further.” Rather, Terry
    held that when an officer is justified in believing 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 to
    determine whether the person is in fact carrying a weapon.
    The 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. Rather, a protective
    search – permitted without a warrant and on the basis of
    reasonable suspicion less than probable cause – must be
    strictly limited to that which is necessary for the discovery
    of weapons which might be used to harm the officer or
    others nearby. 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.
    Minnesota v. Dickerson, 
    508 U.S. 366
    , 373 (1993) (internal
    alterations, citations, and quotation marks omitted).
    The Government argues that the disputed searches in this
    case were permissible, because they were only “minimally
    intrusive” and “taken for the sole and legitimate purpose of
    facilitating the show-up procedure.” Br. for Gov’t at 18. The
    majority agrees, holding that a show-up authorizes investigative
    searches which are to be assessed according to a balancing test.
    This is not the law. The Court’s rationale in support of the
    decision in Terry always has been that “there must be a narrowly
    drawn authority to permit a reasonable search for weapons for
    the protection of the police officer, where he has reason to
    believe that he is dealing with an armed and dangerous
    individual, regardless of whether he has probable cause to arrest
    10
    the individual for a crime.” Terry, 392 U.S. at 27 (emphasis
    added).
    The majority cites a number of cases in an attempt to create
    an exception to or gloss on Terry that gives police officers
    authority to search a suspect in furtherance of a show-up during
    a Terry stop. Were such an exception to be indulged, it would
    inevitably swallow the Court’s holding in Terry. The meaning
    of Terry and its very limited scope are clear:
    The police officer is not entitled to seize and search every
    person whom he sees on the street or of whom he makes
    inquiries. Before he places a hand on the person of a citizen
    in search of anything, he must have constitutionally
    adequate, reasonable grounds for doing so. In the case of
    the self-protective search for weapons, he must be able to
    point to particular facts from which he reasonably inferred
    that the individual was armed and dangerous.
    Sibron, 392 U.S. at 64. And nothing in the cases the majority
    relies upon changes the basic requirements of Terry. Terry
    allows only limited “protective searches,” not “investigative
    searches.”
    IV. THE OFFICERS’ UNZIPPINGS OF ASKEW’S JACKET
    WERE “SEARCHES”
    The Government does not dispute that the officers’
    unzippings of Askew’s jacket were “searches” under the Fourth
    Amendment. This is unsurprising, because the Court in Terry
    made it clear that even a “frisk” rises to the level of a “search”
    that is within the purview of the Fourth Amendment. The Court
    said:
    [I]t is nothing less than sheer torture of the English
    language to suggest that a careful exploration of the outer
    surfaces of a person’s clothing all over his or her body in an
    11
    attempt to find weapons is not a “search.” Moreover, it 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, and it is not to be undertaken lightly.
    Terry, 
    392 U.S. at 16-17
     (internal footnotes omitted); see also
    Sibron, 
    392 U.S. at 45
     (officer’s “thrust[ing] his hand into [the
    suspect’s] pocket, discovering several glassine envelopes,
    which, it turned out, contained heroin” was an illegal search).
    V. THE OFFICERS’ UNLAWFUL UNZIPPING OF
    ASKEW’S JACKET DURING THE TERRY STOP
    Askew first contends that his Fourth Amendment rights
    were violated when the officers partially unzipped his jacket
    during the show-up:
    On reasonable suspicion that criminal activity may be
    afoot and that the suspect may be armed and dangerous,
    police officers may briefly detain the person and may
    conduct a limited pat-down search of the suspect’s outer
    clothing for weapons. The police officer violated the
    Fourth Amendment here when, after the pat-down search
    failed to reveal any weapon, he unzipped Mr. Askew’s
    jacket during a show-up procedure for the purpose of
    revealing to the victim what was underneath. The district
    court erred when it held the search did not implicate the
    Fourth Amendment at all because it occurred during a
    show-up identification procedure.
    Appellant’s Br. at 8. Appellant is correct in what he asserts.
    The partial unzipping of Askew’s jacket constituted a
    warrantless search; and the search was unlawful because it did
    not adhere to the requirements of the Fourth Amendment.
    12
    The majority argues that the Government’s interest in
    identification of an armed robber tends to outweigh the intrusion
    on privacy at issue in this case. This is not the test to determine
    the legality of a search during a Terry stop. Rather, the only
    search authorized by Terry is a “protective search” which “must
    be strictly limited to that which is necessary for the discovery of
    weapons which might be used to harm the officer or others
    nearby.” Dickerson, 
    508 U.S. at 373
     (internal quotation marks
    omitted). Terry does not authorize police officers to search the
    person of a suspect without a warrant solely to facilitate a show-
    up investigation. As Government counsel conceded, no federal
    appellate court has ever held that police officers can continue to
    search a suspect after a Terry pat-down search produces nothing.
    “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.” 
    Id.
    The majority then suggests that the officers’ partial
    unzipping of Askew’s coat was permissible because it was not
    a “full search.” There is no less-than-a-full-search exception to
    Terry. Indeed, the Terry decision categorically rejects
    talismanic distinctions between a so-called “full-blown search”
    and conduct short of it. 392 U.S. at 19. The Court was even
    clearer in Arizona v. Hicks, 
    480 U.S. 321
     (1987), rejecting the
    suggestion that only victims of “full-blown” warrantless
    searches deserve protection under the Fourth Amendment:
    [The] dissent suggests that we uphold the action here on the
    ground that it was a “cursory inspection” rather than a “full-
    blown search,” and could therefore be justified by
    reasonable suspicion instead of probable cause. As already
    noted, a truly cursory inspection – one that involves merely
    looking at what is already exposed to view, without
    disturbing it – is not a “search” for Fourth Amendment
    purposes, and therefore does not even require reasonable
    suspicion. We are unwilling to send police and judges into
    13
    a new thicket of Fourth Amendment law, to seek a creature
    of uncertain description that is neither a “plain view”
    inspection nor yet a “full-blown search.”
    
    Id. at 328-29
    . Under the Fourth Amendment, “[a] search is a
    search, even if it happens to disclose nothing [of any great
    personal value to the suspect].” 
    Id. at 325
    . And if a search
    done pursuant to a Terry stop does not satisfy the strictures of
    Terry, then it is illegal. The Court has noted time and again that
    “[t]he sole justification of the search in [a Terry stop and frisk]
    situation is the protection of the police officer and others nearby,
    and it must therefore be confined in scope to an intrusion
    reasonably designed to discover guns, knives, clubs, or other
    hidden instruments for the assault of the police officer.” Terry,
    392 U.S. at 29.
    In an effort to employ a balancing test with a de minimis
    exception for less than full-blown investigative searches, the
    majority is faced with the task of trying to find support for its
    claim that Terry allows more than just “protective searches.”
    This is an impossible task, because the law is not what the
    majority claims.
    The majority first suggests that the strictures of Terry can
    be modified if necessary to facilitate a show-up procedure. But
    this supposition finds no support in the case law, and neither the
    majority nor the Government cites a single Supreme Court or
    Court of Appeals decision endorsing this view. The majority
    cites Michigan v. Summers, 
    452 U.S. 692
    , 701 n.12 (1981), in
    support of the proposition that a witness show-up may be
    permissible in some circumstances. But Summers does not say
    that police officers may search a suspect solely to facilitate a
    show-up. The requirements of Terry remain inviolate even
    during a show-up, and there is no case that says otherwise. This
    explains why Government counsel backpedaled during oral
    argument from first asserting that a police officer can insist that
    a suspect take off her clothing during a Terry stop to facilitate a
    14
    show-up, to a concession that, “[w]ell, maybe under the totality
    of the circumstances it would not be reasonable to remove . . .
    clothes.”
    The majority also contends that, because police officers
    may take reasonable investigative steps during a lawful Terry
    stop, it necessarily follows that they may search a suspect solely
    to facilitate a show-up. The majority cites Hiibel, apparently to
    suggest that the decision somehow carves out an exception to
    the rules governing Terry stops. There is nothing in Hiibel to
    support this reading of the decision. Hiibel’s reference to
    “investigate further” certainly was not meant to loosen Terry
    from its moorings. Hiibel says that “questions concerning a
    suspect’s identity are a routine and accepted part of many Terry
    stops.” 
    542 U.S. at 186
    . But it does not say that a police officer
    may search a suspect’s person solely to facilitate a show-up. As
    the Court made clear in Dickerson, police officers may not use
    a Terry stop to conduct an “evidentiary search that Terry
    expressly refused to authorize.” 
    508 U.S. at 378
    . Officers may
    not “rummage and seize at will” during a Terry stop. 
    Id.
     It is
    noteworthy that the Government does not cite Hiibel at all,
    much less for the proposition that it creates an investigative-
    search gloss on Terry.
    In amplifying on investigative techniques that may be
    utilized during Terry stops, the majority additionally cites
    United States v. Hensley, 
    469 U.S. 221
    , 228 (1985). But this
    case does not hold that police officers may search a suspect
    solely to facilitate a show-up. In Hensley, the Court merely
    holds that, “if police have a reasonable suspicion, grounded in
    specific and articulable facts, that a person they encounter was
    involved in or is wanted in connection with a completed felony,
    then a Terry stop may be made to investigate that suspicion.”
    
    Id. at 229
    . Nothing in Hensley even hints that police officers
    may conduct an investigative search of a suspect’s person
    during a Terry stop. The Hensley Court simply confirms that
    15
    police officers are “authorized to take such steps as . . .
    reasonably necessary to protect their personal safety and to
    maintain the status quo during the course of the stop,” 
    id. at 235
    ,
    which of course is the rationale underlying Terry. The Hensley
    decision also notes that the “police [are] entitled to seize
    evidence revealed in plain view in the course of [a] lawful
    [Terry] stop,” 
    id.,
     but this is a far cry from saying that a
    warrantless search is permissible under Terry after a lawful pat
    down has given the officers no cause for concern over their
    safety.
    For want of any authority endorsing the legality of the
    officers’ search of Askew during the show-up, the majority
    looks to the Supreme Court’s decision in Hayes v. Florida, 
    470 U.S. 811
     (1985), for support. Indeed, the portion of the majority
    opinion upholding the officers’ first unzipping of Askew’s
    jacket appears to rest almost entirely on Hayes. This is
    unfathomable.
    Hayes involved a situation in which the petitioner was the
    principal suspect in a burglary-rape. The police went to
    petitioner’s home to obtain fingerprints. When petitioner
    expressed reluctance to accompany officers to the station house,
    one officer said that they would arrest him. Petitioner replied
    that he would rather go to the station than be arrested. He was
    then taken to the station and fingerprinted. When it was
    determined that his prints matched those taken at the scene of
    the crime, he was arrested. The Supreme Court found that,
    because there was no probable cause to arrest petitioner, no
    consent to the journey to the police station, and no prior judicial
    authorization for detaining him, the investigative detention at the
    station for fingerprinting purposes violated petitioner’s rights
    under the Fourth Amendment. The majority gives Hayes new
    meaning, however, claiming that the case stands for the
    proposition that the Fourth Amendment permits the police to
    16
    take fingerprints during a Terry stop. This is not what Hayes
    says. Rather, the Court in Hayes held that
    the line is crossed when the police, without probable cause
    or a warrant, forcibly remove a person from his home or
    other place in which he is entitled to be and transport him
    to the police station, where he is detained, although briefly,
    for investigative purposes. We adhere to the view that such
    seizures, at least where not under judicial supervision, are
    sufficiently like arrests to invoke the traditional rule that
    arrests may constitutionally be made only on probable
    cause.
    
    Id. at 816
    . Following this holding, the opinion goes on to say,
    in passing, that “[n]one of the foregoing implies that a brief
    detention in the field for the purpose of fingerprinting, where
    there is only reasonable suspicion not amounting to probable
    cause, is necessarily impermissible under the Fourth
    Amendment.” 
    Id.
     (emphasis added).
    The Supreme Court has never held that fingerprinting
    during a Terry stop is lawful, neither in Hayes nor in any other
    decision. And, in the 22 years since Hayes was decided, the
    fingerprints comment upon which the majority relies so heavily
    in this case has never been invoked by the Court. One need only
    look at the Court’s decision in a case like Minnesota v.
    Dickerson – decided eight years after Hayes – to understand that
    the comment in Hayes has been of no moment to the Court, and
    that it certainly has not altered the analytical framework
    governing cases involving Terry stops. It is also noteworthy that
    the Government’s brief relegates Hayes to a “cf.” citation, with
    the following cryptic parenthetical: “(suggesting that ‘brief
    detention in the field for the purpose of fingerprinting’ may be
    permissible ‘where there is only reasonable suspicion not
    amounting to probable cause’).” Br. for Gov’t at 20 (emphasis
    added). This is unsurprising, because no good authority has ever
    attributed so much to Hayes as does the majority here. To say
    17
    that reliance on Hayes is a reach is an understatement, which
    may be why the majority appears to go out of its way in
    attempting to explain how Hayes governs the judgment in this
    case.
    The simple, uncontested point here is that there is no worthy
    precedent supporting the Government’s claim that a police
    officer may search a suspect’s person solely to facilitate a show-
    up during a Terry stop. And, neither Hayes, Hiibel, Hensley,
    Summers, nor any other decision issued by the Court offers any
    support for the majority’s investigative-search gloss on Terry.
    As Government counsel conceded during oral argument, there
    is no case under the Fourth Amendment that allows an officer to
    detain a person on the street and then, with no reasonable
    suspicion, probable cause, or warrant, to undo the person’s
    clothing, searching the person without his or her consent.
    Warrantless searches during Terry stops are appropriate in only
    one circumstance – where officers, though lacking reasonable
    cause for arrest, must search for weapons to ensure their own
    safety. Michigan v. Long, 
    463 U.S. 1032
    , 1049-50 n.14 (1983).
    Terry does not otherwise condone the physical search of a
    person. In other words, the only search allowed during a Terry
    stop is a “protective search” that is demonstrably necessary for
    the discovery of weapons. There is no such thing as an
    investigative search under Terry. See Dickerson, 
    508 U.S. at 373
     (“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.”).
    In the instant case, the officers had no basis to conduct a
    search of Askew’s person by partially unzipping his jacket. The
    pat down did not reveal a gun, so the officers had no grounds to
    fear for their safety. The sole justification for a search following
    a Terry stop and frisk is the protection of police officers and
    others who are nearby. If the frisk or pat down produces
    nothing, then the officers have no reason to be concerned about
    18
    their safety or the safety of others nearby. When Askew pushed
    the officer’s hand away from the zipper on his jacket, he was
    merely giving vent to his Fourth Amendment right to avoid an
    unwarranted search of his person. He had already been frisked,
    so the officers were not entitled to pursue a further search of his
    person. Terry and its progeny make it clear that the officers
    were forbidden from attempting to partially unzip Askew’s coat
    without his permission, which they neither sought nor received.
    At bottom, the majority’s decision rests almost entirely on
    its interpretation of Hayes. As the majority sees it, Hayes allows
    the police during a Terry stop to take fingerprints for
    identification purposes, so it follows that the police during a
    Terry stop may unzip an individual’s jacket for identification
    purposes. This is very much akin to the argument advanced by
    Government counsel that, if police officers are told that a
    suspect has a tattoo on her chest, the officers during a Terry stop
    may order the suspect to remove her clothing for identification
    purposes. Neither Hayes nor any other Supreme Court decision
    supports this extraordinary view of the Fourth Amendment.
    “Before [a police officer] places a hand on the person of a
    citizen in search of anything, he must have constitutionally
    adequate, reasonable grounds for doing so.” Sibron, 392 U.S. at
    64. The officers discovered nothing during their pat down of
    Askew and thus had no “reasonable grounds to believe that [he]
    was armed and dangerous.” Id. at 63. Therefore, when they
    acted to partially unzip his coat without a warrant, without
    probable cause, and without consent, their initial search of
    Askew violated the Fourth Amendment.
    19
    VI. THE OFFICERS’ UNLAWFUL SEARCH OF ASKEW AFTER
    THE SHOW-UP HAD ENDED
    Because it is clear that the police officers violated Askew’s
    Fourth Amendment rights when they partially unzipped his
    jacket during the show-up, there is nothing more that need be
    decided. There is no dispute over the fact that the police officers
    never would have uncovered the gun but for their initial search
    of Askew. Therefore, the District Court should have granted
    Askew’s motion to suppress on this ground alone. Nonetheless,
    Askew presses the claim that his Fourth Amendment rights were
    additionally violated when the officers unzipped his jacket after
    the show-up was completed:
    Although the seizure and the pat-down were justified
    by a reasonable suspicion that Mr. Askew resembled the
    robber, the reasonable suspicion, tenuous to begin with, was
    dissipated by the additional information: the pat down did
    not reveal a gun, and the show-up procedure did not result
    in a positive identification of Mr. Askew as the robber.
    Taking all the circumstances together, the officers’
    particularized and objective basis for suspecting the
    particular person stopped of criminal activity had vanished.
    At that point, there was no basis for further detention. The
    officers knew that their original suspicion that Mr. Askew
    had committed an armed robbery – the very basis for the
    stop – was wrong, and they knew that a pat-down search for
    weapons produced nothing. Mr. Askew was entitled to be
    released after the robbery victim did not identify him as the
    person who had robbed her.
    Appellant’s Br. at 13-14 (internal citations and quotation marks
    omitted). Askew is right in what he asserts. See, e.g., United
    States v. Babwah, 
    972 F.2d 30
    , 34 (2d Cir. 1992) (holding that
    “instead of terminating the seizure when their suspicions
    concerning contraband proved unfounded, the Agents continued
    to detain the defendants while they embarked upon [an]
    20
    expedition for evidence in the hope that something might turn
    up. . . . This continued detention was nothing more than an
    unlawful fishing expedition. The fact that it happened to be
    successful does not, of course, make it lawful.” (internal
    citations and quotation marks omitted)).
    The majority argues that the officers who conducted the
    second search of Askew may not have known of the results of
    the show-up when they unzipped Askew’s jacket in search of
    contraband. This supposed ignorance on the part of the officers
    surely did not justify their second unlawful search of Askew.
    Were the courts to endorse such a rule, police officers would be
    free to extend Terry stops into indefinite detentions. It goes
    without saying that the Constitution does not condone this.
    Apparently recognizing the fragility of this line of analysis,
    the Government wisely does not pursue it. In dodging the issue,
    the Government first acknowledges that “it is undisputed that
    appellant was not identified as the robber,” and then “assume[s]
    for purposes of this appeal” that the facts support appellant’s
    contention that “the officers’ reasonable suspicion justifying the
    Terry stop . . . ‘dissipated’ when ‘the pat down [of appellant] did
    not reveal a gun, and the show-up procedure did not result in a
    positive identification of Mr. Askew as the robber.’” Br. for
    Gov’t at 24-25 & n.12 (quoting Appellant’s Br. at 13). It is easy
    to understand why the Government chose to present its
    argument on these terms. It is clear from the record here that,
    after the show-up concluded, the robbery victim and the officer
    with her simply drove away without implicating Askew. In
    these circumstances, it would have been obvious to any
    reasonable officer on the scene that Askew had not been
    identified by the victim as the armed robber. Why? Because if
    the robbery victim had identified Askew as the armed robber, it
    is inconceivable to think that the officer in the car with her
    would have left the show-up without first alerting the remaining
    officers on the scene that Askew had been identified as the
    21
    armed robber. Therefore, when the officer in the car left without
    indicating a positive identification, the officers on the scene had
    no further grounds to hold Askew.
    Under established Fourth Amendment law, it is not
    reasonable for an officer to detain a person on the street and
    then, with no reasonable suspicion, probable cause, or warrant,
    insist that the person remove his or her clothing or, even worse,
    undo the person’s clothing without his or her consent. Neither
    the majority opinion nor the Government’s brief to this court
    offers any authority to suggest otherwise. Askew should have
    been released after the show-up was completed. He certainly
    would have posed no threat to the officers at that point. Askew
    undoubtedly would have continued on his way, just as he had
    been doing before he was stopped by the police.
    The Government argues that, because an officer felt a hard
    object near Askew’s waist when the officer partially unzipped
    his jacket during the show-up procedure, “the police developed
    reasonable articulable suspicion during the show-up that
    appellant had a weapon near his waistband, which was
    independent of their suspicion that he had committed the
    robbery.” Br. for Gov’t at 25. Thus, according to the
    Government, the officers could search Askew after the show-up.
    And the majority, in turn, advances a claim (not raised by the
    Government) that the officers could search Askew after the
    show-up to protect themselves while disengaging from their
    encounter with him. These claims are fatally flawed. It is quite
    disingenuous for the Government to claim that any alleged risk
    faced by the officers during the show-up allowed the officers to
    search Askew after the show-up had ended. If there was any
    risk, it arose during the show-up – when a witness and several
    officers were nearby – not afterwards. And if the police officers
    had an “objectively reasonable” basis to believe that a protective
    search was necessary, they would have acted immediately,
    during the show-up, to diffuse any potential for danger. They
    22
    did not do this. Therefore, once the officers patted down Askew
    and found nothing and then completed the show-up without
    Askew being implicated in the robbery, Askew should have
    been free to leave.
    The crucial point that the Government simply ignores is that
    an
    officer’s continued exploration of [a suspect’s clothing]
    after having concluded that it contained no weapon [is]
    unrelated to “the sole justification of the search [under
    Terry, namely,] the protection of the police officer and
    others nearby.”
    Dickerson, 
    508 U.S. at 378
     (quoting Terry, 
    392 U.S. at 29
    ). A
    continued search by the officers in these circumstances is “the
    sort of evidentiary search” that has been “condemned” by the
    Supreme Court. 
    Id.
    The majority concedes that the officers’ second search of
    Askew was conducted only because of the officers’ initial
    unzipping of Askew’s jacket. In other words, the officers had
    no new information justifying the second search. The second
    search would not have occurred if the officers had not partially
    unzipped Askew’s jacket during the show-up. As the Court
    made clear in Dickerson, police officers may not use the fruits
    of one unlawful search to justify a further search:
    Although the officer was lawfully in a position to feel the
    lump in respondent’s pocket, because Terry entitled him to
    place his hands upon respondent’s jacket, the court below
    determined that the incriminating character of the object
    was not immediately apparent to him. Rather, the officer
    determined that the item was contraband only after
    conducting a further search, one not authorized by Terry or
    by any other exception to the warrant requirement. Because
    this further search of [the suspect’s] pocket was
    23
    constitutionally invalid, the seizure of the cocaine that
    followed is likewise unconstitutional.
    Id. at 379. “In order to make effective the fundamental
    constitutional guarantee[] . . . of the . . . inviolability of the
    person,” the Supreme Court has made it clear “that evidence
    seized during an unlawful search [cannot] constitute proof
    against the victim of the search. The exclusionary prohibition
    extends as well to the indirect as the direct products of such
    invasions.” Wong Sun v. United States, 
    371 U.S. 471
    , 484
    (1963) (internal citation omitted); see also United States v.
    Scios, 
    590 F.2d 956
    , 959 (D.C. Cir. 1978) (en banc). Because
    the initial unzipping of Askew’s jacket constituted an
    unconstitutional search of his person, it could not provide a
    lawful ground for the second search.
    CONCLUSION
    During oral argument, the Government conceded that the
    District Court erred in holding that “the Fourth Amendment
    presents no impediment to show-ups involving suspects who are
    constitutionally detained.” Askew, 
    313 F. Supp. 2d at 5
    . And
    the majority acknowledges that the Fourth Amendment should
    control the disposition of this case. The concession and
    acknowledgment are of little solace, however, because the
    majority’s decision effectively holds that procedures relating to
    show-ups are not subject to the strictures of Terry. The Supreme
    Court has never held that police officers may search a suspect
    during a Terry stop merely to facilitate a show-up. And no
    federal appellate court has held that the Court’s decision in
    Hayes allows police officers to continue searching a suspect
    after a Terry pat-down search produces nothing. The majority
    ignores this legal landscape and reaches a result never before
    condoned by a federal appellate court.
    24
    We are bound to follow the precedent of the Supreme
    Court. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
    
    460 U.S. 533
    , 535 (1983) (per curiam) (holding that “only [the
    Supreme] Court may overrule one of its precedents”). The
    Court has not overruled Terry and its progeny, nor has it ever
    endorsed an investigative-search gloss on Terry. This court has
    no authority to rewrite Fourth Amendment law.
    I fear that, if this judgment survives as precedent, the Fourth
    Amendment soon will be a dead letter in our Constitution, at
    least with respect to cases brought before this court.