[Supp. 11]*Supp. 11Opinion
COLVIN, P. J.
The People appeal from the order of the court below granting respondent’s motion to suppress made pursuant to Penal Code section 1538.5.1
I. Statement of Facts
The facts as adduced at the hearing on the suppression motion are as follows.
The Democratic National Convention was held in San Francisco during July 1984. On July 19, presidential candidate Senator Gary Hart was staying in the St. Francis Hotel in San Francisco. Special Agent Poggi of the United States Secret Service was assigned as the “lead advance agent” for the detail assigned to protect Hart. Hart planned to walk from his hotel to the Meridien Hotel to meet Vice President Mondale. This event was public, but the fact that Hart was going to walk, and shake hands along the way, was not.
The chief witness at the suppression hearing was Special Agent Poggi, who was assigned to guard presidential candidate Senator Gary Hart on July 19, 1984, in San Francisco. Agent Poggi had nine years experience in the Secret Service at the time of this incident. He had a standard operating procedure he was trained to use when assigned to protect a public figure who would be shaking hands on a “rope line.”2 This procedure involved conducting searches of persons in the crowd.
The search was a light patdown search, and the persons to be searched were chosen in two ways. A general search was done on all persons two or [Supp. 12]*Supp. 12three people deep into the crowd. A target search was done on persons anywhere in the crowd who seemed “suspicious” to the agent.
The General Search
Poggi testified that when his protectee was about to shake hands on a rope line, Poggi would go behind the barricade, or line, and search the first two or three people-deep in the crowd for weapons around the waist. He has done thousands of these types of searches. “[Ujsually it’s just a general frisk wherein the people don’t even actually know they are being searched for weapons.” “The public would be between myself and the protectee. I would be behind the public, moving up. And just basically moving them by putting my hands on their waist and saying ‘Excuse me’ and as I move them I would sweep around their waist and go on to the next person.”
At the request of respondent’s counsel, this search was demonstrated to the court by Poggi. The court gave the following description of the search: “It appears that the agent walked up behind [respondent’s attorney], put both hands one on each side at approximately around the waist area, and moved her to the side when he was saying ‘Excuse me’ ... I think he said ‘Excuse me, step aside,’ words to that effect. And at the same time it appears that—and she was moved to his left. And at the same time the agent apparently, from my observation, put your left hand behind the back.” Counsel for respondent noted, in addition, that the left hand continued a sweeping movement around the entire waist which moved her jacket aside slightly as it happened. The agent’s body made contact with her right shoulder as he passed by.
Poggi testified that he has had reactions to this search, but not violent ones; in his opinion the search was not offensive to most people.
The Target Search
The target search was the identical waistband search, again usually done without the subject’s awareness of the search, but performed on a person targeted by the Secret Service agent as a suspicious person in the crowd.
At 10:30 a.m. on July 19, Agent Poggi left the St. Francis Hotel by the Post Street exit. Post Street was blocked off to the public, but 50 to 75 people were gathered behind metal police barricades on Powell. Senator Hart was five minutes behind Poggi.
As Poggi looked toward the crowd of people on Powell Street, he saw respondent, who was about 50 to 75 feet away. Poggi’s attention was at first [Supp. 13]*Supp. 13drawn to respondent because of a physical similarity between respondent and Arthur Bremmer, a man Poggi knew was in jail as a result of his conviction of shooting Governor Wallace in 1972. Respondent’s hair was extremely short, almost shaved.
Poggi approached the crowd on Powell Street with another agent right behind him. He was able to communicate with other agents via an earphone radio system.
As he came closer to where respondent was standing, Poggi noticed that respondent was dressed much more casually than the rest of the crowd, who were wearing slacks or sport coats. Respondent was fidgeting and seemed nervous. He was playing with his hands. Poggi was obviously a Secret Service agent, and in a secured area, but respondent avoided all eye contact with Poggi.
At this point, Agent Poggi made the decision to do a targeted search of respondent for weapons.
Poggi went behind the barricade, alone, to be able to come up behind respondent and search him. He had to move five or six people to get to respondent from the rear. “I did a general search on those people also. Saying ‘Excuse me’ and I put my hand and actually physically moved them and searched them at the same time.”
As he approached respondent, he saw that respondent had a fanny pack on. As Poggi approached respondent, he put his hands lightly on his side and said “Excuse me” as if he was going to move him like everyone else. Poggi’s hands were on what he called respondent’s “love rolls,” and he was touching respondent “very, very lightly.”
Respondent spun right into Poggi’s face; because of the quickness of the spin, Poggi characterized it as violent, although there was no violence in the sense that respondent tried to hit Poggi or snarled. Since Poggi was right up behind respondent, respondent turned into Poggi’s face; respondent did not step forward to get closer to Poggi’s face.3
Poggi said “Police Officer. Don’t move. I am going to check you for weapons.”
Poggi at that point squeezed the fanny pack and immediately felt a hard object. After he felt the hard object, he commanded respondent not to move. [Supp. 14]*Supp. 14Respondent was not free to leave. Poggi unzipped the fanny pack and saw the handle of a gun. He threw respondent to the ground and covered him with his body. Respondent was subsequently arrested without a warrant.
Respondent subsequently filed a pretrial motion to suppress the gun pursuant to California Penal Code section 1538.5.
The court below found that Agent Poggi had subjective cause to search respondent, but did not find objectively reasonable probable cause. Accordingly, the court below granted respondent’s motion to suppress.4
II. Discussion
Scope of Review
The California Supreme Court explained in detail the scope of review on appeal from a section 1538.5 motion in People v. Leyba (1981) 29 Cal.3d 591 [174 Cal.Rptr. 867, 629 P.2d 961]:
[“In the first step the trial court must ‘find the facts’ relating to the challenged search or seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response. These are traditional questions of fact .... ‘On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’
“No less important, however, is the second step of the process. As we observed in [People v.] Lawler [(1973) 9 Cal.3d 156 (107 Cal.Rptr. 13, 507 P.2d 621)], ‘The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the [Supp. 15]*Supp. 15Constitution.’ . . . Because ‘that issue is a question of law,’ the appellate court is not bound by the substantial evidence standard in reviewing the trial court’s decision thereon. . . . On that issue, in short, the appellate court exercises its independent judgment.
“This general rule governs the particular instance of evidence obtained as a result of an investigative stop. It is now settled that ‘in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so; the facts must be such as would cause any reasonable police officer in a like position drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. [Citations.]
“Applying the Lawler rule to the foregoing analysis, we observe that the first issue to be decided, i.e., whether the officer subjectively entertained a suspicion that there was criminal activity afoot and the person he intended to stop was involved in it, is a question of fact: the officer either did or did not have that suspicion at the time he acted. Under Lawler, therefore, review of a trial court’s finding on that issue is limited by the substantial evidence test. But the next step in the inquiry, i.e., whether it was objectively reasonable for the officer to entertain that suspicion, is a question of law: it implicates the constitutional standard of reasonableness—a standard, as Lawler recognizes, that the appellate courts have the ‘ultimate responsibility’ to administer. It follows that the substantial evidence test does not limit review of this issue, and the appellate court must make an independent determination whether the officer’s suspicion was constitutionally reasonable in the circumstances of the case.”] {Id. at pp. 596-597 [fns. omitted].)
The facts bearing on the legality of the search in this case are undisputed. The trial judge implicitly found on the undisputed facts that Agent Poggi had subjective cause to search respondent. Accordingly, there is no factual issue entitled to a substantial evidence standard of review. This court need only determine whether the facts fit within constitutional restrictions on searches.
The issue to be determined by this court is whether there was in fact an intrusion upon a reasonable expectation of privacy which would trigger a [Supp. 16]*Supp. 16Fourth Amendment analysis, and, if there was such an intrusion, whether Agent Poggi had objectively reasonable constitutionally required cause.
Is a Fourth Amendment Analysis Appropriate?
The threshold question for this court is whether respondent had a Fourth Amendment right which was violated when the agent initially touched his waist area with the intent to conduct an around the waist pat search. If that question is answered in the negative, the problem becomes whether the subsequent continuation of that search, which included touching the fanny pack, was in violation of respondent’s rights.
The cornerstone of Fourth Amendment rights is a reasonable expectation of privacy, since the Fourth Amendment protects only those expectations of privacy that society finds legitimate. See Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], holding that the Fourth Amendment does not protect the merely subjective expectation of privacy, but only “one that society is prepared to recognize as ‘reasonable.’” (Id. at p. 361 [19 L.Ed.2d at p. 588].)
Is the expectation of privacy asserted by respondent in the area around his waist one that society recognizes as reasonable? “No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant.” (Oliver v. United States (1984) 466 U.S. 170, 177-178 [80 L.Ed.2d 214, 223, 104 S.Ct. 1735, 1741].)
It could be argued that respondent did not have a reasonable expectation of privacy since he chose to place himself in close proximity to a presidential candidate under tight security, and he should have known that he would be subject to strict scrutiny by Secret Service agents. The strong governmental and individual interest in a voting public that has access to its representatives, however, weighs against accepting this argument. Respondent has a right to gather with other members of the public to see and hear his representatives or political candidates.
This court believes that the fact that respondent was in a public place close to Gary Hart is not relevant under the circumstances of this case to the issue of whether respondent had a legitimate expectation of privacy. “An individual who enters a place defined to be ‘public’ for Fourth Amendment analysis does not lose all claims to privacy or personal security. [Citations.] For example, the Fourth Amendment’s protections against. . . unreasonable seizure of effects upon the person remain[s] fully applicable.” (Id. at p. 179 [80 L.Ed.2d at p. 225].) “[T]he Fourth Amendment protects [Supp. 17]*Supp. 17people—and not simply ‘areas’—against unreasonable searches and seizures.” (Katz v. United States, supra, 389 U.S. at p. 353 [19 L.Ed.2d at p. 583].) “Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland.” (Terry v. Ohio (1968) 392 U.S. 1, 9 [20 L.Ed.2d 889, 899, 88 S.Ct. 1868, 1873].)
And accordingly, this court finds that respondent had a reasonable expectation of privacy which was intruded upon when Agent Poggi touched his waist area. This initial “very light” touch was sufficient to trigger respondent’s Fourth Amendment rights.5
The Balancing Test: Given the Government’s Interests and the Amount of Intrusion, What “Cause” is Constitutionally Required?
Where a reasonable expectation of privacy exists, the Fourth Amendment prohibits unreasonable searches and seizures by federal law enforcement officers.6 This restriction is applicable not only to police officers, but [Supp. 18]*Supp. 18also to governmental activity in general. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335 [83 L.Ed.2d 720, 730, 105 S.Ct. 733, 740].) “The basic purpose of this Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” (Camara v. Municipal Court (1967) 387 U.S. 523, 528 [18 L.Ed.2d 930, 935, 87 S.Ct. 1727, 1732].)
If a legitimate privacy interest is intruded upon by the government, then the Fourth Amendment requires a balancing of interests: given the totality of the circumstances, was the search justified? “Justification” is not a constant, but rather is a variable; depending on the weight of the government’s interests, the weight of the individual’s privacy interests, and the extent, or nature and scope, of the intrusion, varying amounts of justification are necessary. This balancing test has been set out many times by the U.S. Supreme Court. “[I]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one—whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (Terry v. Ohio, supra, 392 U.S. at pp. 19-20 [20 L.Ed.2d at p. 905].) There is “no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” (Camara v. Municipal Court, supra, 387 U.S. at p. 523, 536-537 [18 L.Ed.2d 930, 940].) Whether a search is reasonable “depends on the context within which a search takes place. The determination of the standard of reasonableness . . . requires ‘balancing the need to search against the invasion which the search entails.’” (New Jersey v. T.L.O., supra, 469 U.S. at p. 337 [83 L.Ed.2d at p. 731], citing Camara v. Municipal Court, supra, 387 U.S. 523.) Frequently, the result of this balancing analysis has been the finding that a suspicion meeting the level of probable cause is required in order to justify the search or seizure. In certain instances, probable cause is not required, and a reasonable suspicion will suffice. (New Jersey v. T.L.O., supra, 469 U.S. at p. 340 [83 L.Ed.2d at p. 734], citing Terry v. Ohio, supra, 392 U.S. 1 and other federal cases.) “Where a careful balancing of governmental and private interests suggests that the public interest is best [Supp. 19]*Supp. 19served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.” (Ibid.7 See also Florida v. Royer (1983) 460 U.S. 491 [75 L.Ed.2d 229, 103 S.Ct. 1319].) “The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. [Citations.] It is the State’s burden to demonstrate that the seizure it seeks to justify was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” (Florida v. Royer, supra, 460 U.S. at p. 500 [75 L.Ed.2d at p. 238].)
Accordingly, even if the search in question is an exception to the rule that probable cause and a warrant are required, then in addition to at least reasonable suspicion, the scope of the search must be strictly limited in scope “to that which is justified by the particular purposes served by the exception.” (Florida v. Royer, supra, 460 U.S. at p. 500 [75 L.Ed.2d at p. 238].)
The Government Interest
“Applying these principles to this case, we consider first the nature and extent of the governmental interests involved.” (Terry v. Ohio, supra, 392 U.S. at p. 22 [20 L.Ed.2d at p. 906].) In Terry, the governmental interests were those of crime prevention and detection and the “more 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.” (Id. at p. 23 [20 L.Ed.2d at p. 907].)
The government’s interest in the present case likewise was a safety interest. Agent Poggi’s job was to protect Senator Hart. Senator Hart, as a presidential candidate, was in a position of special risk. This country has [Supp. 20]*Supp. 20witnessed, particularly in recent years, many assassinations and attempted assassinations both of presidential candidates and Presidents.
Prior to the Civil War, none of 15 Presidents was assassinated.8 Since that time, 4 of 24 presidents have been assassinated. If successful and unsuccessful attempts made on the lives of presidential candidates and presidents are included, the pattern becomes more alarming.9
In 1963, John F. Kennedy was shot and killed with a rifle in Dallas, Texas, by Lee Harvey Oswald. On June 5, 1968, Robert F. Kennedy was shot and killed with a pistol in Los Angeles, California, by Sirhan Sirhan. On May 15,1972, George Wallace, giving a campaign speech in a shopping center in Laurel, Maryland, was shot and paralyzed from the waist down by Arthur Bremmer. On September 5, 1975, there was an assassination attempt on President Gerald Ford in Sacramento by Lynette “Squeaky” Fromme. On September 22, 1975, another attempt on President Ford’s life was made by Sara Jane Moore in San Francisco. On March 30, 1981, an attempt was made on President Reagan’s life by John Hinckley in Washington.
In light of this history we cannot blind ourselves, any more than the Terry court could, to the need of law enforcement officers to protect office seekers from violence in situations where they lack probable cause to arrest.10
[Supp. 21]*Supp. 21“The wide attention the President receives makes him a logical target— if anything about an assassination act can be said to be logical—for those wishing to punish a nation, to strike out at a symbolically powerful figure whom they project as the source of their grievances, to drastically alter governmental policy, or to draw attention to themselves as the author of a memorable event. In addition, the current methods [personal appearances on the campaign trail] by which presidential candidates seek nomination and election provide many opportunities for assassins.”11 The presidency is the focus of public attention, and those who seek that high office symbolize that office.
The election process, and every adult citizen’s right to vote for one’s representatives must be preserved and protected. The free election process is protected when its participants are kept safe.
Here, not only was there a general government interest in crime prevention and detection, but there was also a more immediate interest in preserving the election process and in the safety of Senator Hart and the general public in the crowd. This constitutes a substantial government interest.
The Private Interest
Since there exists a substantial governmental interest which justified the initiation of some kind of search, this court must ask whether the least intrusive means available was used to safeguard this interest. “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” (Terry v. Ohio, supra, 392 U.S. at p. 19 [20 L.Ed.2d at p. 904] citing Warden v. Hayden (1967) 387 U.S. 294, 310 [18 L.Ed.2d 782,794, 87 S.Ct. 1642, 1652].) Thus, an individual’s interest is directly proportional to the scope and intrusiveness of the search. The smaller the intrusion, the less weight the individual’s interest is given in Fourth Amendment balancing.
When the United States Supreme Court decided Terry .v. Ohio, supra, 392 U.S. 1, it rejected the idea that the Terry-type stop and frisk was a minimal intrusion: “[I]t is simply fantastic to urge that [a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons] 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, [Supp. 22]*Supp. 22which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” {Id. at pp. 16-17 [20 L.Ed.2d at p. 903],)1 **********12
In the present case, the intrusion amounted to a very light touch around the waist, similar to a touch any person in the crowd might have inflicted on respondent. While this is irrelevant to the issue of whether respondent had a reasonable expectation of privacy, it is crucial to the question of intrusiveness. The touch was minimal. The agent testified that he had never had adverse responses to the around-the-waist search he used, and that it was especially planned so that it would not bother the people who received it.
The Standard for Constitutionally Required Cause
This court’s conclusion, and evaluation of the proper balance, is that in these circumstances the governmental interest is of sufficient magnitude, and the intrusion on respondent’s privacy is sufficiently minimal, so that only a reasonable belief, not rising to the level of probable cause, would justify the initial pat-search.
Did Agent Poggi Articulate Sufficient Factors to Support an Objectively Reasonable Belief That Respondent Was Armed?
Courts have long wrestled with the amorphous concept of constitutional cause, whether it takes the form of probable cause or reasonable belief. Out of a constantly evolving line of cases have arisen a few standards which guide us today.
To begin with, it is the totality of the circumstances which must be considered. (Illinois v. Gates (1983) 462 U.S. 213, 230-231 [76 L.Ed.2d 527, 543-544, 103 S.Ct. 2317, 2328].)13
[Supp. 23]*Supp. 23The agent listed several factors which produced his decision to do this target search: the agent’s nine years of experience in this type of situation, respondent’s refusal to make eye contact, casual dress and extremely short haircut, and fidgeting and nervousness. Agent Poggi also testified that he knew Senator Hart was approximately five minutes behind him.
Experience of the officer is an appropriate consideration in many cases. “Circumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience.” (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827 [91 Cal.Rptr. 729, 742, 478 P.2d 449]. See also In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 372, 582 P.2d 957]; People v. Brown, supra, 169 Cal.App.3d at p. 165.)
Agent Poggi worked for the Secret Service, a federal agency whose clearly enumerated, specific duties have included the protection of United States Presidents since 1901. In 1968, the agency’s duties were expanded to include protection of presidential candidates. Agent Poggi also testified that he had worked over 16,000 hours in the role of an agent protecting designated protectees, and that his formal training included 16 weeks in Secret Service schools in addition to on-the-job training. He testified that in Secret Service school most of the training was for protection, and that in-service training included assassination-prevention training. Agent Poggi had reviewed this assassination-prevention training immediately prior to the 1984 campaign.
Given Agent Poggi’s extensive training for this type of situation, were the factors he enumerated as the basis for his suspicion sufficient to render the suspicion reasonable?
[Supp. 24]*Supp. 24In many cases, refusal to make eye contact, has been expressly rejected as a “probable cause” factor. For example, in People v. Loewen, supra, the court said: “Another factor Deputy Cozart relied on to justify the detention was that the occupants of the truck looked away when they approached. Cozart testified that their failure to continue looking at him was suspicious because ‘[mjost people have a habit of looking at a patrol car when they pass it.’ However, he admitted that neither man attempted to hide his face or otherwise conceal his identity as the truck passed.” (35 Cal.3d 117, 126.) The facts of the case at bar are distinguishable, however. Here, Special Agent Poggi was not merely in a car on the freeway; he looked directly at respondent, got as close as two feet from respondent, and was obviously a Secret Service agent. In People v. Brown, supra, 169 Cal.App.3d 159 [215 Cal.Rptr. 101], refusal to look the officer in the eye was, in combination with other criteria, a valid consideration in the formation of objectively reasonable probable cause to arrest.
Likewise, nervousness, or fidgeting, have met with skepticism on the part of courts when proposed as elements of probable cause. Taken in conjunction with other articulable factors, however, these factors can be important. “While it is true that, taken in isolation, running down the street or the manifestation of nervousness in the presence of a police officer would not constitute adequate grounds to detain a citizen on the street, the combination of circumstances here amounts to considerably more.” {People v. Brown, supra, 169 Cal.App.3d at p. 164, italics added.) In that case, manifestation of the defendant’s nervousness included staring at the officer as opposed to avoiding eye contact; his hands were shaking, and he was pale.
Under the combined circumstances of this case, respondent’s refusal to make eye contact with Agent Poggi and his fidgeting were a legitimate part of the formation of a reasonable suspicion.
Here, we find that in the circumstances of this particular case, the suspicion initially entertained by Agent Poggi was reasonable and articulable, sufficient to support the initial, minimally intrusive, waist-pat search commenced by Poggi, although it did not rise to the level of suspicion necessary for a Terry-type frisk-and-detain, or to the level of probable cause to arrest.
Was There Cause to Search the Fanny Pack and Arrest?
Since the initial search of respondent’s waistband area was justified in the opinion of this court, the issue of whether the search of the fanny pack and subsequent arrest of respondent were justified arises.
Respondent’s spinning around would not be a legitimate basis on which to ground the finding of probable cause if there was no justification [Supp. 25]*Supp. 25to initially touch respondent. In People v. Loewen, the court pointed out that there is no duty to cooperate with the police: “[A]n ‘individual, unless he or she is properly detained and so notified, is as free to avoid [an] officer as to avoid any other person.’ . . . ‘[A]n outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable. ... If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless; . . .’” (35 Cal.3d at p. 128, italics added.)
In the instant case, this court is of the opinion that the initial intrusion was, in fact, otherwise justifiable, rendering the rule enunciated in Loewen inapposite.
Once respondent violently spun around, Agent Poggi’s objectively reasonable suspicion was heightened, not dissipated. At this point, he continued his around-the-waist pat search for weapons, which had been interrupted by respondent’s spin, telling respondent not to move. Respondent was not free to leave. At this stage, Agent Poggi had reasonable cause to detain and frisk for weapons under Terry v. Ohio, supra, 392 U.S. 1: there was a safety risk, and the initial suspicion had increased.
When the agent felt the hard object in the fanny pack around respondent’s waist, he clearly had full probable cause to unzip the fanny pack. The ensuing unveiling of the gun in respondent’s fanny pack gave rise to probable cause to arrest.
III. Conclusion
The setting in which the search and arrest of respondent took place was unquestionably one of very high risk. A nationally known candidate for president of the United States was following less than five minutes behind Agent Poggi. Respondent contends that no man’s life is more precious than any other, and that the Constitution takes priority over the safety of any one person. We agree with that contention. But the magnitude of the risk to the Senator’s life is the issue here. The decision in Terry v. Ohio, supra, 392 U.S. 1, was not a declaration that policemen’s lives are any more valuable than any one else’s, but a recognition that in some circumstances, a policeman may be in a position of magnified risk. Likewise, this court believes that Senator Hart was in a position of magnified risk at the time Agent Poggi undertook the pat search of respondent.
In the absence of precedent for this particular set of circumstances, this court must return to the balancing test analysis set forth in the Fourth Amendment cases cited above. The governmental interest in preventing [Supp. 26]*Supp. 26assassinations, or attempted assassinations, was sufficient in light of all the circumstances of this case to justify the pat search of respondent. This limited intrusion is justified by a reasonable suspicion not rising to the level of probable cause, The factors articulated by Agent Poggi—respondent’s nervousness, fidgeting, refusal to make eye contact, and unusual haircut and dress—considered in conjunction with the high crime situation14 which existed—were sufficient to justify the patdown and search of the fanny pack.
The order granting respondent’s motion to suppress is reversed.
Dossee, J., and Grant, J., concurred.