FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30337 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00159-FVS

ANDREW MILTON FLATTER,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, Chief Judge, Presiding

Argued and Submitted

June 5, 2006—Seattle, Washington

Filed August 9, 2006

Before: Robert R. Beezer, Richard C. Tallman, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

9157
COUNSEL

Jeffry K. Finer, Spokane, Washington, for the defendantappellant. 

Stephanie J. Lister, Assistant United States Attorney, Spokane, Washington, for the appellee. 

OPINION

BYBEE, Circuit Judge: 

Appellant Andrew Flatter was a postal service employee

suspected of stealing mail. Before questioning him, officers

conducted a pat-down search pursuant to Terry v. Ohio, 392

U.S. 1 (1968), in order to ensure officer safety. The officers

had no evidence that Flatter had a weapon; they conducted the

search because they were concerned that their questioning

might turn confrontational. The search revealed evidence of

Flatter’s guilt, which officers seized, and Flatter was charged

with mail theft. The district court found that the search was

lawful and, after a jury trial, Flatter was convicted and sentenced to probation. He now appeals, challenging the admission of the evidence and other evidentiary rulings. Because

the officers had no reason to believe that Flatter was armed

or dangerous, the officers had no grounds for the search. We

UNITED STATES v. FLATTER 9159
reverse the ruling of the district court and vacate Flatter’s conviction.1

I. FACTS

Following a report by the Veterans’ Administration (“VA”)

that fourteen packages containing class II medications2 had

been lost, postal inspectors began to investigate the possibility

of mail theft at a postal facility in Spokane, Washington,

through which all of the lost packages had been routed. Postal

inspectors soon focused their attention on Andrew Flatter

after a cross-comparison of work schedules revealed that he

was among a handful of workers who had been present on

nearly all of the dates on which mail was lost. 

The inspectors focused on Bay 32, which housed sorted

mail that was to be delivered to Coeur d’Alene, Idaho. The

mail in Bay 32 was in large, rectangular mesh boxes, sometimes referred to as “crab pots.” Flatter’s job was to drive a

“tug,” a motorized vehicle used to move the crab pots around

the facility. Because the mail in Bay 32 was already sorted,

there was no need for Flatter to have any contact with the mail

beyond loading the crab pot into the appropriate truck in the

loading bay. 

The postal inspectors placed six decoy packages into two

of the crab pots in Bay 32. The decoys were placed on top of

the already-sorted mail so that they would be easily visible,

both to Flatter and to the inspectors, who were observing the

decoys by video camera. These decoys were white on the outside and gray on the inside, so that if someone were to tamper

with the package, the gray interior would become exposed

and the two contrasting colors would be easily visible. 

1Because we reverse on the ground that the pat-down search was unlawful, we do not consider Flatter’s other claims. 

2Most class two medications sent out by the VA are painkillers. 

9160 UNITED STATES v. FLATTER
Flatter heightened the investigators’ suspicions by handling

the mail in the crab pots while he moved them onto the mail

truck bound for Coeur d’Alene. Investigators also saw Flatter

remove a white object from one of the crab pots as he was

pushing them onto the truck, but he then moved further inside

the mail delivery truck, placing him out of the inspectors’

view. Inspectors then observed Flatter emerge from the truck

and leave the area with his tug. 

The postal inspectors then sought to retrieve their six decoy

packages from Bay 32’s crab pots, but they were only able to

locate five. They also noted that the five decoys they recovered had been moved from the spots in which they had originally been placed. 

Inspectors Schaap and Sheppard then summoned Flatter,

who was in the break room, to question him about the missing

decoy envelope. They questioned him briefly in the hallway,

and the inspectors found his responses to be evasive and

unsatisfying, so they asked Flatter to come with them to the

postal inspectors’ office for further questioning. Flatter

agreed, but requested that a union representative be present;

one was provided. When they had arrived at the office, the

inspectors told Flatter that he was not under arrest, and that

he was free to leave. The inspectors told Flatter that, in order

to ensure their own safety, they were going to pat him down

for weapons. The inspectors then asked the union representative whether he had weapons; he answered that he did not.

The inspectors later testified that they searched Flatter

because they thought the situation might turn confrontational

and the inspectors, Flatter, and the union representative were

meeting in a small room. 

Inspector Sheppard then proceeded to pat down Flatter. To

facilitate the pat down, Sheppard had Flatter stand up. Sheppard stood behind Flatter while conducting the frisk. In the

course of the check for weapons, Sheppard noticed at least

half of an inch of white and gray plastic protruding from the

UNITED STATES v. FLATTER 9161
top of Flatter’s rear pocket. The inspector immediately suspected that this was the missing decoy package. He therefore

removed it from Flatter’s pocket, placed it on the table, and

resumed searching Flatter for weapons. The envelope proved

to be the decoy. 

Flatter was indicted on one count of mail theft in violation

of 18 U.S.C. § 1709. Flatter moved to suppress the envelope

on the ground that it had been obtained in violation of the

Fourth Amendment. He also made a motion to depose the

postal inspector witnesses. Both motions were denied. Flatter

was convicted after a jury trial and sentenced to three years’

probation and a $100 special penalty assessment. He now

appeals the district court’s denial of these two pre-trial

motions, as well as certain evidentiary rulings that the district

court made during his trial. 

II. STANDARD OF REVIEW

We review a district court’s denial of a motion to suppress

de novo. United States v. Beardslee, 197 F.3d 378, 386 (9th

Cir. 1999). The trial court’s factual findings are reviewed for

clear error. United States v. Aukai, 440 F.3d 1168, 1171 (9th

Cir. 2006). 

III. ANALYSIS

[1] In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court

considered what constitutes sufficient suspicion under the

Fourth Amendment to justify frisking an individual for weapons. Citing “the . . . immediate interest of the police officer

in taking steps to assure himself that the person with whom

he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him,” the Terry Court ruled

that a search for weapons need not be supported by probable

cause. Id. at 23, 27. The Court held that a search for weapons

is permissible “for the protection of the police officer, where

he has reason to believe that he is dealing with an armed and

9162 UNITED STATES v. FLATTER
dangerous individual.” Id. at 27; see also Minnesota v. Dickerson, 508 U.S. 366, 376 n.4 (1993); Ybarra v. Illinois, 444

U.S. 85, 92-93 (1979) (“The initial frisk of [the defendant]

was simply not supported by a reasonable belief that he was

armed and presently dangerous, a belief which this Court has

invariably held must form the predicate to a patdown of a person for weapons.”); Adams v. Williams, 407 U.S. 143, 146

(1972) (“The Court recognized in Terry that . . . ‘[w]hen 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,’ he may

conduct a limited protective search for concealed weapons.”

(citation omitted)). 

Inspector Sheppard, who searched Flatter for weapons, testified that he conducted the pat down search of Flatter out of

concern for officer safety. Sheppard stated that the interrogation room was small, placing the two officers in close quarters

with Flatter and the union representative. He also stated that

he feared that the questioning was likely to become confrontational, particularly because they suspected Flatter of a crime

instead of a lesser form of misconduct. Sheppard stated that,

in his experience, individual responses to such circumstances

vary dramatically, and that he therefore felt it was prudent to

insure that Flatter was not carrying any weapons. However,

Sheppard admitted that “[he] had no idea if [Flatter] had

weapons on him.” Based on these facts, the district court

upheld the weapons search. 

These facts merely establish that if Flatter was armed, he

would be dangerous; nothing in the record suggests that there

was any reason to believe that Flatter actually was armed. Our

prior cases have identified a wide variety of factors that can

support a reasonable belief that an individual is armed. For

example, we have given significant weight to an officer’s

observation of a visible bulge in an individual’s clothing that

could indicate the presence of a weapon. See, e.g., United

States v. Alvarez, 899 F.2d 833, 835, 839 (9th Cir. 1990);

UNITED STATES v. FLATTER 9163
United States v. Allen, 675 F.2d 1373, 1383 (9th Cir. 1982);

United States v. Hill, 545 F.2d 1191, 1993 (9th Cir. 1976); cf.

United States v. Thomas, 863 F.2d 622, 629 (9th Cir. 1988)

(not finding reasonable suspicion that defendant was armed in

part because officers did not see any suspicious bulges in his

clothing). We have also considered sudden movements by

defendants, or repeated attempts to reach for an object that

was not immediately visible, as actions that can give rise to

a reasonable suspicion that a defendant is armed. See, e.g.,

United States v. Flippin, 924 F.2d 163, 164-66 (9th Cir.

1991); cf. Ybarra, 444 U.S. at 93 (not finding reasonable suspicion where defendant, “whose hands were empty, gave no

indication of possessing a weapon, made no gestures or other

actions indicative of an intent to commit an assault, and acted

generally in a manner that was not threatening”). We also

consider the nature of the crime suspected; indeed, some

crimes are so frequently associated with weapons that the

mere suspicion that an individual has committed them justifies a pat down search. See, e.g., Terry, 392 U.S. at 28 (robbery); Hill, 545 F.2d at 1193 (same); United States v.

$109,179 in U.S. Currency, 228 F.3d 1080, 1086 (9th Cir.

2000) (large-scale narcotics dealing); United States v. Post,

607 F.2d 847, 851 (9th Cir. 1979) (same); cf. United States v.

Mattarolo, 209 F.3d 1153, 1158 (9th Cir. 2000) (finding reasonable suspicion, in part because nighttime burglary is a

crime frequently committed while armed); Thomas, 863 F.2d

at 629 (not finding reasonable suspicion, in part because

counterfeiting is not a crime frequently committed while

armed). 

[2] Here, however, officers had absolutely no reason to

believe that Flatter was armed. They did not observe any

bulges in his clothing. Nothing in Flatter’s demeanor aroused

the officers’ concerns for their safety, or suggested that he

might be armed; he did not act in a threatening manner at any

time, nor were the officers aware of any past violent conduct.

Mail theft by postal employees is not a crime that is frequently associated with weapons, such as robbery or large9164 UNITED STATES v. FLATTER
scale drug dealing. Nor does the record suggest that Flatter

had any idea he was under investigation; he was therefore no

more likely to have been armed that day than to have been

armed on any other work day. Because the officers had no

reason to suspect that Flatter was armed and dangerous, we

hold that the pat down violated the Fourth Amendment. 

The government suggests in its brief that officers would

have discovered the envelope even without the frisk for weapons because the parties were in close quarters and the envelope was sticking out of Flatter’s rear pants pocket. The

record does not support this contention. Flatter’s vest

obscured his waistline, so that the envelope was not visible

until Flatter either lifted his arms pursuant to the search or the

officer lifted the vest to inspect his waistband for weapons.

Indeed, Flatter had already led the officers around the postal

facility for some time and neither officer had noticed the

envelope sticking out of Flatter’s pocket. The evidence thus

cannot be admitted under the inevitable discovery doctrine. 

[3] Since the decoy envelope was found as a direct result

of the illegal weapons search, it must be suppressed as the

fruit of the poisonous tree. 

IV. CONCLUSION

We hold that the postal inspector violated the Fourth

Amendment by frisking Flatter for weapons without a reasonable belief that he was armed and dangerous. In light of our

holding, we do not consider Flatter’s other claims. Accordingly, we reverse the judgment of the district court, vacate

Flatter’s conviction, and remand for a new trial. Conviction

VACATED; REVERSED and REMANDED. 

UNITED STATES v. FLATTER 9165