FILED

United States Court of Appeals

Tenth Circuit

December 13, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IVAN ROCHIN,

Defendant-Appellant.

No. 11-2024

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. 1:10-CR-00766-JB-1)

Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, for the

Defendant-Appellant.

Andrea W. Hattan, Assistant United States Attorney (Kenneth J. Gonzales, United

States Attorney, with her on the brief), Las Cruces, New Mexico, for the PlaintiffAppellee.

Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

No one likes being pulled over for a traffic violation. Still, for most drivers

the experience usually proves no more than an unwelcome (if often self-induced)

detour from the daily routine. But not every traffic stop is so innocuous. 
Sometimes what begins innocently enough turns violent, often rapidly and

unexpectedly. Every year, thousands of law enforcement officers are assaulted —

and many are killed — in what seem at first to be routine stops for relatively

minor traffic infractions. See Maryland v. Wilson, 519 U.S. 408, 413 (1997);

Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted,

2010, Figure 4, available at http://www.fbi.gov/about-us/cjis/ucr/leoka/

leoka-2010/officers-assaulted/fig-4-circumstances-10. This case asks us to

address what an officer may lawfully do to guard against adding himself to those

regrettable statistics. 

The Fourth Amendment stands as a bulwark against unreasonable

governmental searches and seizures. It applies during traffic stops just as it does

to all encounters with law enforcement. But the Amendment’s prohibition of

unreasonable searches and seizures bears with it the implicit acknowledgment

that reasonable searches and seizures are another matter. And Fourth

Amendment jurisprudence has long recognized the reasonableness of allowing law

enforcement officers to pat down or frisk lawfully detained individuals who might

pose a threat to their safety or the safety of others nearby. See Terry v. Ohio, 392

U.S. 1, 23-24 (1968). Of course, the Amendment’s ever-present reasonableness

requirement places strict limits on the scope or nature of the frisk an officer may

administer. Because the aim of a pat down is to ensure the physical safety of the

officer and others, any frisk must be reasonably designed to discover “concealed

- 2 -
objects which might be used as instruments of assault.” Sibron v. New York, 392

U.S. 40, 65 (1968). But if a reasonably tailored pat down reveals an object that

appears to meet that description, the officer may then (and only then) “reach

inside the suspect’s clothing and remove it” without offending the Fourth

Amendment. United States v. Harris, 313 F.3d 1228, 1237 (10th Cir. 2002). 

In our case, Mr. Rochin doesn’t dispute the legality of his initial traffic stop

(everyone agrees his registration had long expired). Neither does he dispute

Officer Joe Moreno had constitutionally sufficient reason to frisk him (Mr.

Rochin concedes the officer had reason to believe he was armed and dangerous). 

Instead, and much more narrowly, Mr. Rochin argues that Officer Moreno

exceeded the scope of a permissible protective frisk when he (Officer Moreno)

removed objects from his (Mr. Rochin’s) trouser pockets. By way of remedy, Mr.

Rochin asks us to suppress the items the officer found and, of necessity, to

dismiss the criminal charges against him that followed from the encounter.

But narrow though Mr. Rochin’s argument may be, it is no more persuasive

for it. Working alone, Officer Moreno stopped Mr. Rochin’s car for an expired

registration at 2:30 in the morning. As the officer approached the vehicle, a radio

dispatcher warned him that the vehicle and its driver were suspected of

involvement in a drive-by shooting — and that the driver might be armed and

dangerous. When the officer reached the car and asked for a driver’s license,

vehicle registration, or insurance information, Mr. Rochin could provide none. At

- 3 -
this point Officer Moreno, fearing for his safety, asked Mr. Rochin to step out of

his car for a protective pat down. During the brief frisk that followed, Officer

Moreno felt two bulges, one filling each of Mr. Rochin’s trouser pockets. The

objects felt long and hard, but the officer couldn’t tell exactly what they were. So

he asked Mr. Rochin in Spanish, “quien es?” or “who is this?” Of course, the

officer meant to ask “what is this?” But the officer’s garbled question led to an

equally garbled reply, with Mr. Rochin responding “no sabe,” or “he doesn’t

know,” which the officer later said he understood to mean “I don’t know.” In any

event, after this exchange left Officer Moreno none the wiser about the objects in

Mr. Rochin’s pockets, he decided to remove them for inspection. When they

turned out to be glass pipes containing drugs, Officer Moreno arrested Mr. Rochin

for drug possession and, after a later inventory search of the car turned up a gun,

Mr. Rochin was charged with and eventually convicted of a federal firearm

offense.

Mr. Rochin argues that Officer Moreno violated the Fourth Amendment

because he removed the items for inspection when he had no idea what they were. 

But this argument makes the common mistake of emphasizing the officer’s

(subjective) state of mind. Here, as is typically the case in the Fourth

Amendment context, the subjective beliefs and knowledge of the officer are

legally irrelevant. See United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.

2004); Whren v. United States, 517 U.S. 806, 813 (1996). Instead, because

- 4 -
reasonableness remains the Amendment’s touchstone, the constitutional inquiry

turns on whether an objectively reasonable officer could have feared that the

detected objects might be used as instruments of assault. See Sibron, 392 U.S. at

65; United States v. Holmes, 385 F.3d 786, 790 (D.C. Cir. 2004). 

And we don’t hesitate to hold that test satisfied here. A reasonable officer

could have concluded that the long and hard objects detected in Mr. Rochin’s

pockets might be used as instruments of assault, particularly given that an effort

to ask Mr. Rochin about the identity of the objects had proved fruitless. To be

sure, the pipes Mr. Rochin turned out to have aren’t conventionally considered

weapons. But a reasonable officer isn’t credited with x-ray vision and can’t be

faulted for having failed to divine the true identity of the objects. And neither is

“the scope of a Terry frisk . . . limited to [traditional] weapons.” Holmes, 385

F.3d at 791. During a lawful pat down an officer may remove not just objects

that seem to be guns, knives and the like, but also any other objects that he

reasonably thinks “might be used as instruments of assault” against him or others

who may be in the area. Sibron, 392 U.S. at 65. And two hard and long objects

filling a suspect’s trouser pockets “fit that description well,” better than the “hard,

square object” at issue in Holmes, 385 F.3d at 791, and better than many other

objects courts have held officers may lawfully remove during Terry stops, see,

e.g., United States v. Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope); United

States ex rel. McNeil v. Rundle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch). 

- 5 -
None of this is to say we necessarily endorse (or reject) the conclusions reached

about the objects at issue in these other cases. It is instead only to emphasize by

comparison how much more (objectively reasonable) reason there was for an

officer to worry about the objects in the case at hand.

In arguing for a different result, Mr. Rochin draws our attention to

Minnesota v. Dickerson, 508 U.S. 366 (1993), and United States v. Albert, 579

F.3d 1188 (10th Cir. 2009). But neither of these cases can save his cause. They

simply hold that an officer cannot continue to explore a defendant’s clothing after

determining it doesn’t contain any threatening object (except if, in the course of

the frisk, he has identified objects he immediately recognizes as contraband). 

Dickerson, 508 U.S. at 377-78; Albert, 579 F.3d at 1195. By definition, exactly

none of this speaks to the situation before us — where the identity of the objects

felt remained unknown after the frisk and a reasonable officer could have thought

they posed a threat. In these circumstances, Dickerson’s and Albert’s

admonitions against further investigation simply do not apply. United States v.

Richardson, 657 F.3d 521, 524 (7th Cir. 2011). 

Finally, Mr. Rochin suggests that a reasonable officer may not remove

objects from a suspect’s pockets unless and until he can confirm, through further

tactile investigation, exactly what they are. Had Officer Moreno followed this

procedure, Mr. Rochin submits, he would have realized eventually that he had no

reason to be concerned about them. Mr. Rochin, however, cites no authority for

- 6 -
his proposed protocol — and for good reason. The Fourth Amendment is not a

game of blind man’s bluff. It doesn’t require an officer to risk his safety or the

safety of those nearby while he fishes around in a suspect’s pockets until he can

correctly guess the identity of and risks associated with an unknown object. All

while standing in extreme proximity to someone already suspected of being

dangerous. The Fourth Amendment requires reasonableness, not such potentially

reckless punctiliousness. And where (as here) an otherwise lawful protective

frisk suggests an item an objectively reasonable officer could believe might be

used as an instrument of assault, the officer may — reasonably and so

consistently with the Fourth Amendment — “reach inside the suspect’s clothing

and remove it” without further delay. Harris, 313 F.3d at 1237. 

Affirmed.

- 7 -