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                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                               ________________________

                                     No. 11-15558
                               ________________________

                       D.C. Docket No. 3:11-cr-00124-RBD-MCR

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellant,

                                             versus

KAREEN RASUL GRIFFIN,

                                                                    Defendant-Appellee.

                             ___________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                         ____________________________

                                      (October 2, 2012)

Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.

JORDAN, Circuit Judge:


       *
         Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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       Does a constitutionally valid stop and frisk become unreasonable under the

Fourth Amendment when the officer asks some brief questions unrelated to the reason

for the stop and the purpose of the frisk? The district court thought so, and suppressed

the answers to those questions and ammunition found after the answers were

provided. We reverse, concluding that the questions posed did not convert a

permissible encounter into an unconstitutional one.

                                             I

       Fourth Amendment cases are inherently fact-intensive, so we begin with the

district court’s factual findings, which are not challenged on appeal.

       On February 22, 2011, Officer Jay Edwards, a patrol officer with the

Jacksonville Sheriff’s Office, responded to an unverified 911 call from Rainbow

Kids, a children’s clothing store in Jacksonville, Florida.1 Officer Edwards was

familiar with the strip mall where the store was located. He knew that there was drug

activity in the surrounding area and that there had been several burglaries in the mall.

       Officer Edwards arrived at approximately 8:57 p.m. The store’s security guard

came running out and informed him that a man had attempted to steal some clothing.

The guard pointed to and identified a male walking quickly away from the store as



       1
        An unverified 911 call, Officer Edwards testified, is one in which someone places an
emergency call but does not say anything to the operator.

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the person who committed the attempted theft. There were six to eight people in the

direction where the guard pointed, but Mr. Griffin was the only one who fit the

guard’s description of “the black man in the green jacket and jeans.”

      Returning to his vehicle, Officer Edwards followed Mr. Griffin, who continued

to look over his shoulder and walk away briskly. Officer Edwards got out of his car

and told Mr. Griffin to stop. When Mr. Griffin disobeyed his command and continued

to walk away—in what the district court described as evasive behavior—Officer

Edwards approached Mr. Griffin, put both hands on one of his wrists, and informed

him that he was investigating a petit theft. Mr. Griffin said that he had not stolen

anything. Officer Edwards nevertheless frisked Mr. Griffin to ensure his own safety.

      During the frisk, Officer Edwards felt what he “believed to be” C-cell batteries

in Mr. Griffin’s back left pocket. Officer Edwards did not, however, reach into the

pocket. Instead, because he “wasn’t exactly sure what [the items] were,” and because

“it was odd that someone was carrying around . . . C-cell batteries,” he asked Mr.

Griffin, “Hey, what’s in your pocket? Why do you have batteries?” See R2:10, 30, 33.

Mr. Griffin responded that the items were shotgun shells and not batteries. Officer

Edwards then asked Mr. Griffin if he had ever been to prison, and Mr. Griffin

answered “yes.” See R2:11. After Officer Edwards informed him that it was illegal

for felons to possess weapons or ammunition, Mr. Griffin began to flee. Officer

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Edwards eventually arrested Mr. Griffin, who was charged with being a felon in

possession of ammunition. See 18 U.S.C. § 922(g)(1).

      Mr. Griffin moved to suppress the ammunition and the statements he made to

Officer Edwards. Following an evidentiary hearing, the district court granted the

motion to suppress. The district court found that the initial stop by Officer Edwards

was proper, but even assuming that the ensuing frisk was permissible, Officer

Edwards’ questions to Mr. Griffin were unrelated to the attempted theft or the frisk

for weapons. As a result, the questions became an unreasonable search when Officer

Edwards continued to “probe and investigate” about the items he felt in Mr. Griffin’s

pocket. And because the shotgun shells were not themselves contraband or evidence

of a crime, Office Edwards’ further investigation—e.g., asking Mr. Griffin if he had

ever been to prison—“was constitutionally invalid.” The district court recognized that

the simple act of police questioning does not constitute a seizure, but concluded that

Officer Edwards’ actions “went beyond the scope necessary to ensure his safety or

the safety of those around him,” and suppressed Mr. Griffin’s statements and the

shotgun shells as “fruits of the poisonous tree.” See Wong Sun v. United States, 371

U.S. 471, 487-88 (1963).

                                          II

      “Because rulings on motions to suppress involve mixed questions of fact and

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law, we review the district court’s factual findings for clear error, and its application

of the law to the facts de novo.” United States v. Lewis, 674 F.3d 1298, 1302-03 (11th

Cir. 2012) (internal quotation marks omitted). As noted earlier, the facts here are not

in dispute.

                                           A

      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[.]” U.S. Const. amend. IV. The Supreme Court has held that “police can stop

and briefly detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if

the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(quoting Terry v. Ohio, 392 U.S. 1 (1968)). To determine the legality of an

investigatory stop under the Fourth Amendment, we first ascertain whether the stop

was justified at its inception. See United States v. Street, 472 F.3d 1298, 1306 (11th

Cir. 2006). We then ask whether the officer’s actions were reasonably related in scope

to the circumstances that justified the stop in the first place. See id. In making these

assessments, we look at “the totality of the circumstances—the whole picture[.]”

United States v. Cortez, 449 U.S. 411, 417 (1981).

      It is undisputed that the initial stop of Mr. Griffin was constitutionally

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permissible, as Officer Edwards reasonably suspected that Mr. Griffin had tried to

steal some items of clothing. Not only did the security guard describe Mr. Griffin as

the perpetrator, see, e.g., Morelli v. Webster, 552 F.3d 12, 19-20 (1st Cir. 2009)

(reasonable suspicion of theft provided basis for Terry stop), Mr. Griffin behaved

evasively and refused to obey Officer Edwards’ command to stop, see, e.g., Illinois

v. Wardlow, 528 U.S. 119, 124 (2000) (nervous and evasive behavior is a relevant

factor in determining reasonable suspicion, and flight, the consummate act of evasion,

is suggestive of wrongdoing). We therefore move on to what transpired during the

stop.

                                            B

        The district court assumed, without deciding, that Officer Edwards’ pat-down

was valid at its inception. Mr. Griffin questions this assumption, asserting that the

frisk was unconstitutional because Officer Edwards did not have the required

reasonable suspicion that he was armed and dangerous. The government, for its part,

contends that Officer Edwards’ frisk of Mr. Griffin was justified. The government,

we think, has the better of the argument.

        Once an officer has stopped an individual, he may conduct a pat-down or frisk

for weapons if he reasonably believes that his safety, or the safety of others, is

threatened. See, e.g., United States v. White, 593 F.3d 1199, 1202 (11th Cir. 2010).

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Mr. Griffin relies on the district court’s findings that “there [was] no evidence that

would suggest [Mr. Griffin] ‘[was] armed and presently dangerous,’” and no evidence

that Mr. Griffin “threatened to use a weapon or used a weapon in the alleged

execution of the petit theft.” But Terry does not demand definitive evidence of a

weapon or absolute certainty that an individual is armed. The process of evaluating

whether reasonable suspicion exists under Terry “does not deal with hard certainties,

but with probabilities.” Cortez, 449 U.S. at 418. “‘[T]he issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or

that of others was in danger.’” White, 593 F.3d at 1202-03 (quoting Terry, 392 U.S.

at 27).

          When evaluating the totality of the circumstances, we do not consider each fact

in isolation, see United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002), and

here we conclude that the facts known by Officer Edwards at the time permitted him

to frisk Mr. Griffin consistent with the Fourth Amendment. First, Officer Edwards

was alone at night in a high crime area, and had not been told anything specific about

Mr. Griffin, other than that he had tried to steal some items of clothing. Second, Mr.

Griffin—who was in the vicinity of six to eight other persons—acted evasively and

refused to obey Officer Edwards’ command that he stop. Third, Officer Edwards had

not finished investigating the alleged attempted theft. See United States v. Moore, 817

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F.2d 1105, 1108 (4th Cir. 1987) (“The circumstances surrounding the stop support

the officer’s belief that a further frisk for weapons was warranted. The hour was late,

the street was dark, the officer was alone, and the suspected crime was burglary, a

felony that often involves the use of weapons.”). See also Hunter, 291 F.3d at 1306-

07 (officer could conduct frisk under Terry where encounter took place in a high

crime area, individual who was seen observing illegal gambling walked away quickly

when the police approached, and officer saw bulge in individual’s waistband); United

States v. Aldridge, 719 F.2d 368, 372 (11th Cir. 1983) (“Having made a valid

investigative stop of a vehicle containing three men in a poorly lit area in the middle

of the night pursuant to a radio report that the suspects may have been involved in

criminal activity [i.e., tampering with a vehicle], [the officer] was entitled to take

reasonable measures to neutralize the threat of physical harm.”). The Eighth Circuit

has noted, in upholding a frisk for weapons of a person suspected of stealing a

bicycle, that “it is not inconceivable” for a police officer to believe that a “thief

possessed a weapon,” United States v. Banks, 553 F.3d 1101, 1106 (8th Cir. 2009),

and other circuits have held that individuals reasonably suspected of burglary and

theft can be frisked for weapons under Terry because of the nature of those offenses.

See United States v. Snow, 656 F.3d 498, 501 (7th Cir. 2011) (“Because burglary is

the type of offense ‘normally and reasonably expected to involve a weapon,’ . . .

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police do not require additional information suggesting that a suspect might be armed

before they may conduct a protective frisk of someone they reasonably suspect of

being a burglar.”) (quoting United States v. Barnett, 505 F.3d 637, 640-41 (7th Cir.

2007)); United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007) (“Like burglary,

car theft is a crime that often involves the use of weapons and other instruments of

assault that could jeopardize police officer safety, and thus justifies a protective frisk

under Terry to ensure officer safety.”).

      We need not decide today whether to adopt such a categorical Terry rule. It is

sufficient to hold that the suspected offense, together with the attendant

circumstances, provided a sufficient basis for Officer Edwards to frisk Mr. Griffin.

“Great deference is given to the judgment of trained law enforcement officers ‘on the

scene[,]’” United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003), and

Officer Edwards testified that he conducted the frisk to ensure his own safety because

he believed Mr. Griffin “had just committed a criminal act” and “was the individual

[he] needed to make contact with.” See R2:10. In our view, Officer Edwards’ frisk

was consistent with Terry and its progeny. Cf. Terry, 392 U.S. at 23 (“American

criminals have a long tradition of armed violence, and every year in this country many

law enforcement officers are killed in the line of duty, and thousands more are

wounded.”).

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                                           C

      The district court noted that the simple act of police questioning does not

generally constitute a seizure. But it concluded that the encounter turned into an

unreasonable search at the point when Officer Edwards “probe[d] and investigate[d]”

about the non-contraband items he felt in Mr. Griffin’s back pocket. As the district

court saw it, Officer Edwards’ questions were not reasonably related in scope to the

circumstances that justified the stop in the first place. Officer Edwards did not believe

that the objects in the pocket were weapons, and even if he had believed that the

objects were shotgun shells, the shells were not, in and of themselves, weapons,

contraband, or evidence of a crime. The questions, moreover, were “completely

unrelated to the only suspicions” that Officer Edwards had concerning Mr. Griffin at

the time (i.e., that Mr. Griffin had tried to steal some items of clothing and/or was

armed). “The issue presented,” said the district court, was “not the scope of the

detention, but rather the scope of the search.”

      The district court relied on cases holding that the scope of a Terry stop must

be reasonably related to the reasons justifying the detention. See, e.g., Hiibel v. Sixth

Judicial Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177, 185 (2004) (“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

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to the circumstances which justified the interference in the first place.”) (internal

quotation marks and ellipsis omitted). We do not take issue with this general

principle, but it does not control here.

       The Supreme Court has “‘held repeatedly that mere police questioning does not

constitute a seizure.’” Muehler v. Mena, 544 U.S. 93, 101 (2005) (citation omitted).

For example, in Mena the Supreme Court did not find any constitutional infirmity in

an INS officer questioning a person about her immigration status while she was

detained during the execution of a search warrant—by other law enforcement

officers—for deadly weapons and evidence of gang membership. The Court

explained that the questioning did not “constitute[ ] a discrete Fourth Amendment

event,” and as long as the queries did not prolong the detention, “the officers did not

need reasonable suspicion to ask [the person] for her . . . immigration status.” See id.

Four years after Mena, the Court held, in a case involving a traffic stop, that “[a]n

officer’s inquiries into matters unrelated to the justification for the . . . stop . . . do not

convert the encounter into something other than a lawful seizure, so long as those

inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555

U.S. 323, 333 (2009).

       So how do cases like Mena and Johnson affect, if at all, the “reasonably related




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in scope” prong of Terry? This is a matter of first impression for us,2 but a number of

our sister circuits have directly confronted the question, and they have all answered

it the same way. See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011)

(“Both Mena and Johnson make clear that unrelated questioning during an

investigative stop . . . does not run afoul of the scope component of Terry’s second

prong.”); United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) (“[Mena]



       2
           In United States v. Purcell, 236 F.3d 1274, 1279-80 (11th Cir. 2001), decided before Mena
and Johnson, we noted that under then-existing Fifth Circuit precedent “the issue regarding
‘unrelated’ questions concerns not the content of the questions, but their impact on the duration of
the stop[.]” We also acknowledged that the Tenth Circuit had taken a more restrictive approach,
holding that unrelated questions could be asked during a traffic stop only if there was independent
reasonable suspicion for them. See id. at 1279. We concluded that the questions asked by the officer
during the traffic stop at issue were appropriate under either approach, without ever expressly
adopting one over the other. See id. at 1280 (“We have concluded that, under either of these tests,
Deputy Warren’s question about guns or drugs was permissible.”).
         In a 2005 case involving a traffic stop for speeding and questions by the officer about the
purpose of the trip, we cited Mena for the proposition that, where an officer asks questions unrelated
to the reason for the stop or officer safety, “we are to look only at the duration of the seizure given
all the circumstances[.]” United States v. Hernandez, 418 F.3d 1206, 1209 n.3 (11th Cir. 2005). But
that statement was dicta because we concluded that the officer, from the outset of the stop, had
independent reasonable suspicion to ask the driver and passenger unrelated questions about the
purpose of their trip. See id. at 1210 (“From the first minute of the stop, the driver and Defendant
demonstrated suspicion that could warrant an objectively reasonable policeman to believe that
Defendant might be involved in other criminal activity.”).
         Two years later, in yet another traffic stop case, we cited Hernandez for the proposition that
“we do not inquire as to the substantive reasonableness of the questions that are asked by a police
officer in the context of a traffic stop, but only whether the duration of the detention was prolonged
for an unreasonable time.” United States v. Ramirez, 476 F.3d 1231, 1237 n.11 (11th Cir. 2007)
(internal quotation marks omitted). But this statement too was dicta, as we found no need to address
the stated principle. See id. (“Here, because we conclude that Ramirez was not ‘detained’ at all for
purposes of the Fourth Amendment at the time Corporal Martin asked further questions of him, we
need not address whether the alleged extension of the duration of the traffic stop was reasonable or
unreasonable under Hernandez.”).

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and Johnson . . . stand for the proposition that mere questioning—on any

subject—cannot violate the scope prong of Terry[,]” and “[t]herefore, where Terry’s

duration prong is not at issue . . . the subject of the questioning” is irrelevant); United

States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Mena overruled cases holding

that unrelated questions during a Terry stop must be supported by independent

reasonable suspicion); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th

Cir. 2006) (Mena “limited” the “reasonably related in scope” prong of Terry so that,

as long as the unrelated questioning does not extend the length of the detention,

“there is no Fourth Amendment issue with respect to the content of the questions”).

See also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc)

(“questions that do not increase the length of detention (or that extend it by only a

brief time) do not make the custody itself unreasonable or require suppression of

evidence found as a result of the answers”). We concur with the Fourth, Sixth,

Seventh, Ninth, and Tenth Circuits, and hold—consistent with Mena and

Johnson—that unrelated questions posed during a valid Terry stop do not create a

Fourth Amendment problem unless they “measurably extend the duration of the

stop.” Johnson, 555 U.S. at 333. This is because such questions, absent a prolonged

detention, do not constitute a “discrete Fourth Amendment event.” Mena, 544 U.S.

at 101.

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      Like our sister circuits, we do not think it is appropriate—given the language

in Mena and Johnson—“to adopt a bright-line ‘no prolongation’ rule.” See Everett,

601 F.3d at 492 (citing cases in accord from the First, Second, Eighth, Ninth, and

Tenth Circuits). The issue, therefore, is whether the time it took Officer Edwards to

ask the two questions, and for Mr. Griffin to answer them, “measurably” extended or

prolonged the duration of the stop so as to make it unreasonable under the Fourth

Amendment. To address this issue, we do not simply look at the “interval of

prolongation in isolation,” but rather assess the length of the stop as a whole,

including any extension of the encounter, by undertaking a fact-bound, context-

dependent analysis of all of the circumstances concerning the stop and the unrelated

questions. See Digiovanni, 650 F.3d at 509; Everett, 601 F.3d at 493-94.

      The district court did not make any specific findings about whether Officer

Edwards’ questioning prolonged the stop, measurably or not, probably because it did

not think the critical issue was the scope of the detention. But given the district

court’s description of the encounter, the brevity of the questions and the answers, and

the fact that Mr. Griffin makes no claim of an unconstitutional temporal extension of

the stop, we cannot believe that the exchange lasted more than 30 seconds. Because

Officer Edwards had not yet completed his investigation into the alleged attempted

theft, and because he acted diligently, his brief questions did not transform the stop

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into an unconstitutionally prolonged seizure. See United States v. Mason, 628 F.3d

123, 131 (4th Cir. 2010) (questions about travel plans, which were unrelated to reason

for traffic stop, and which took an additional one to two minutes, did not

unreasonably lengthen stop and therefore did not violate the Fourth Amendment);

Everett, 601 F.3d at 495-96 (officer’s single unrelated question during traffic stop

about weapons and narcotics, which took up several seconds, “did not render the

traffic stop an unreasonable seizure under the Fourth Amendment”—case “not

remotely close”).

                                           D

      To the extent that it believed that Officer Edwards’ questions constituted a

search under the Fourth Amendment, the district court was mistaken. Whatever else

they might be, questions posed by a police officer to a suspect about what he has in

his pocket and whether he has been to prison are not, in the Fourth Amendment sense,

a search. “In context, these sorts of questions are not the verbal equivalent of reaching

into a suspect’s pockets to remove the contents, or the same as ordering a suspect to

‘empty his pockets’ in the midst of a protective frisk.” United States v. Street, 614

F.3d 228, 234 (6th Cir. 2010) (internal citations omitted). See also Childs, 277 F.3d

at 954 (“Nor do the questions forcibly invade any privacy interest or extract

information without the suspect’s consent.”). “Sometimes a question is just a

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question—and an eminently reasonable question at that. That is all that happened

here.” Street, 614 F.3d at 234.



                                           E

      Mr. Griffin, relying on Minnesota v. Dickerson, 508 U.S. 366 (1993), also

argues the frisk went beyond what Terry permits. We disagree.

      In Dickerson, a police officer conducting a frisk for weapons felt a lump in the

person’s front pocket. Although the officer had not found any weapons during the

frisk, and knew the lump in the pocket was not a weapon, he squeezed and

manipulated the lump with his fingers from the outside of the pocket to determine

what it was. He concluded that the lump was cocaine wrapped in cellophane, and

reached inside the pocket and pulled out a small plastic bag with cocaine. See id. at

369. The Supreme Court concluded that the Minnesota Supreme Court had correctly

suppressed the cocaine because the officer went beyond what Terry allows: “Here,

the officer’s continued exploration of [the] pocket after having concluded that it

contained no weapon was unrelated to ‘[t]he sole justification of the search [under

Terry:] . . . the protection of the police office and others nearby.’ It therefore

amounted to the sort of evidentiary search that Terry expressly refused to

authorize[.]” Id. at 378 (alterations in original) (quoting Terry, 392 U.S. at 29).

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      Officer Edwards testified at the suppression hearing that, during the pat-down,

he “r[a]n [his] hand across” Mr. Griffin’s back left pocket and felt what he thought

were C-cell batteries. See R2:10, 29-31. When he was asked directly if he “kind of

kneed [sic] the pocket, trying to figure out what was inside,” Officer Edwards

answered no. See R2:33. And the district court found that Officer Edwards “did not

reach into the . . . pocket to examine the objects closer, but rather asked [Mr. Griffin]

why he was carrying batteries.”

      On the record before us, Mr. Griffin has not made out a Dickerson violation.

A frisk necessarily entails the officer’s use of his hands to feel for weapons, and

nothing that Officer Edwards did physically violated Mr. Griffin’s Fourth

Amendment rights. See Dickerson, 508 U.S. at 375 (“If a police officer lawfully pats

down a suspect’s outer clothing and feels an object whose contour or mass make its

identity immediately apparent, there has been no invasion of the suspect’s privacy

beyond that already authorized by the officer’s search for weapons[.]”).

      Mr. Griffin’s real objection, we think, is to the questions that Officer Edwards

asked during the frisk. But those questions, as explained above, did not transgress

the Fourth Amendment. Contrary to Mr. Griffin’s argument, Dickerson does not

preclude an officer from asking about objects which he knows are not weapons. See,

e.g., United States v. Rivers, 121 F.3d 1043, 1046-47 (7th Cir. 1997) (officer did not

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violate Dickerson by “linger[ing] not more than one to two seconds” on lump in

pocket, and then tapping lump “again a few times” when asking person what the lump

was). The cases Mr. Griffin cites in support of his argument, moreover, are

distinguishable or not persuasive.

      In United States v. Perez, 408 Fed. App’x 198, 200-02 (10th Cir. 2011), the

Tenth Circuit affirmed a suppression order because the officer, after completing his

frisk for weapons, continued to pat the defendant’s right rear pocket, slid his hand in

that area to try to identify an object he felt, and then asked the defendant what the

object was. That factual scenario is not present here. Officer Edwards did not conduct

a second frisk after completing the first, and he did not improperly manipulate Mr.

Griffin’s back left pocket.

      The district court in United States v. Lemons, 153 F.Supp.2d 948, 958-59 (E.D.

Wisc. 2001), did hold that a police officer “committed a Dickerson violation when he

questioned [the suspect] about the items in [his] pocket.” Lemons does not sway us,

however, because it relied on a Seventh Circuit panel opinion that was later rejected

by the Seventh Circuit sitting en banc, see Childs, 277 F.3d at 949 (rejecting view of

the panel in United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)), and because

it was decided before Mena and Johnson.

                                          III

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      The district court’s order granting Mr. Griffin’s motion to suppress is reversed,

and the case is remanded for proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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