Subject has no reasonable expectation of privacy when he reveals what is in his pockets



In 2011, two black males wearing white t – shirts robbed a convenience store. One shot into the ceiling before they took money and a pack of cigarettes and departed. Store security cameras revealed the correct clothing of both men but the original BOLO was incorrect on clothing description. Officer Tabari Thomas spotted Brandon Gales running roughly five blocks from the store.

Gales was running but attempted to make it seem like he was walking upon noticing the police presence. Thomas stopped Gales and asked him why he was out of breath. Gales responded that he had just left a gambling house. Thomas then conducted a Terry patdown of Gales. While Thomas did not find a weapon on Gales, he felt a bulge in Gales’s back pocket.

Thomas either asked Gales to let him see what was in his pocket or Gales voluntarily emptied his pockets, showing him money that Gales said he had won gambling. Thomas then got an updated clothing description from dispatch and Gales’ jeans and shoes matched. Gales seemed suspicious, as he was out of breath and wearing light clothes for a December night.

Thomas handcuffed and detained Gales for further investigation and soon after drove him to the store. There was a distinctive five dollar bill with a red stamp on it in Gales’ possession that Abdulhakim Weber, the store owner, was able to identify. Also, a hoodie and gun used in the robbery was eventually found near where Gales had been detained.

Gales was convicted of armed robbery and sentenced to life. On appeal, he argued the search of his pockets for money was illegal and his statement should have been suppressed. MSC affirmed.


A. Initial stop of Gales

Gales was in the immediate vicinity of the crime scene soon after the robbery, partially matched the description of one of the robbers, and appeared nervous. Thomas’s suspicions were further piqued when Gales, who was wearing casual shoes, stopped running when he noticed Thomas’s presence. Based on the above facts, Thomas’s actions were grounded in a reasonable suspicion that Gales was connected with the armed robbery.

B. Terry frisk

The rationale underlying the Terry frisk is the protection of the officer. Thomas was pursuing an armed robbery suspect who was last seen brandishing a pistol. Thomas had reason to believe that Gales might have been armed, necessitating a frisk of his person. While Thomas did not feel anything that was immediately recognizable as a weapon, he felt an unknown bulge in Gales’s pocket, prompting concern for his safety.

Despite his concern, Thomas did not search Gales’s pocket but merely asked what was in it. Gales voluntarily emptied his pockets, showed the money to Thomas, and claimed that he had won it gambling. Because Gales voluntarily showed Thomas the money, Gales no longer had a reasonable expectation of privacy as to the money under the Fourth Amendment.

C. Gales handcuff and movement to store

Officer Jeremy Arendale testified that he did not arrest Gales until after Weber identified the stamped bill. However, when Thomas handcuffed Gales, placed him in his cruiser, and transported him to another location, Gales was effectively seized (arrested) for the purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that a reasonable person would have believed he was not free to leave. See U.S. Supreme Court case Florida v. Royer, 460 U.S. 491 (1983).

However, based upon the facts noted above, MSC believed there was sufficient probable cause for an arrest before Gales was transported to the store.

D. Money found on Gales

MSC advised there were two legal ways the money was taken from Gales:

  1. As mentioned above, when Gales voluntarily took out his money and demonstrated it to Thomas, Gales extinguished his reasonable expectation of privacy as to the money. They analogized this to an officer seeing contraband in plain view.
  2. Under the search incident to arrest scenario, police may search the arrestee’s person and the area within his immediate control – construing that phrase to mean the area within which he might gain possession of a weapon or destructible evidence. However, the search must be substantially contemporaneous with the arrest.


The Federal Fifth Circuit in U.S. v Maslanka, 501 F.2d 208 (5th Cir. 1974) held that the search incident to an arrest must be reasonably contemporaneous to that arrest, but it is a test of reasonableness in light of the particular circumstances that must be applied. In this case MSC felt the time between arrest and search was reasonable.

E. Gales statement

The officers were mistaken as to when Gales was arrested; however, nothing in the record suggests Gales said anything after being arrested, much less that he was interrogated, which is required for Miranda to apply. Gales statement that money was from gambling was during the terry stop.