The Fourth Circuit continues in its celebration of the Fourth Amendment. In the past few months, the Fourth Circuit has been kind to criminal defendants who have been searched by law enforcement without a warrant.
As the Fourth Circuit itself noted in yesterday's case of United States v Powell,
Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we noted "our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion.
A Buick Is Pulled Over
Obie Powell was riding in a Buick - and eating a fish sandwich - in Seat Pleasant, Maryland. The Buick was pulled over. The driver of the Buick did not have a valid driver's license. While the drivers' license of the driver was being checked by one officer, another officer made conversation with Mr. Powell in the Buick. As the court of appeals noted,
The topics of this conversation included their mutual appreciation of fish sandwiches (which Powell was eating) and music (which was audible in the Buick).
When the driver's drivers' license came back as suspended, an officer asked if anyone in the car had a valid drivers' license.* Mr. Powell volunteered his.
Mr. Powell's Drivers' License
When Mr. Powell's license was being run, it was determined that both his license was suspended and that he had some prior criminal history. The police database flagged him as having "caution data" as a result.
As the officer explained in the district court,
"It's just a prior. It doesn't mean that they [sic] up to the same activity, but at which time you still have to take that into consideration, that they may still be armed or may still be conducting the same business." [Moreover] he "had no way of knowing whether that was yesterday's news or 15 years ago news," and "[n]o way of knowing whether that was a conviction or an exoneration."
Mr. Powell Is Frisked
Based on Mr. Powell's "false statement" (the offering of the driver's license that was suspended in response to a request for a valid driver's license) and the caution data, Mr. Powell was taken from the car and frisked.
During the patdown, he became nervous and tried to run. The police then searched his backpack, which was still in the car. In the backpack, they found a gun and some crack.
The District Court Is Unkind To Mr. Powell
Mr. Powell filed a motion to suppress, then, after losing it, went to trial. At trial, as they say, he came in second.
The Fourth Circuit's Decision
The Fourth Circuit found that there was not a sufficient basis for the police to think that Mr. Powell was dangerous to justify their patdown of him. The only two factors they had were his false statement and the deeply ambiguous caution data.
As the court of appeals explained,
Combining these factors and viewing them objectively in light of the other circumstances of this case does not aid the Government's position. We have already detailed the overall context of the traffic stop, which strongly militates against a finding of reasonable suspicion that Powell was armed and dangerous. Given the glaring weakness of the factors articulated by the Government, we are convinced that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the night of the traffic stop. Accordingly, the patdown was not permissible under the Fourth Amendment, and the district court should have suppressed the evidence that was seized during the traffic stop.
The case, accordingly, was vacated and remanded.
Three things about this strike out to me.
First, Obie Powell was released from the Bureau of Prisons custody last summer after having completed his sentence. I suppose he's happy to avoid part of his term of supervised release, but it's a pretty visceral case of justice delayed being justice denied.
Perhaps he'll be happy, at least, to be able to tell potential employers that he shouldn't have been in prison during that time?
Second, the Fourth Circuit is really unkind to the government in this case. Check out footnotes 3, 4, and 9 in the opinion. That's the kind of heat you expect this court to send to a defense lawyer.
Finally, the case was argued and briefed by the Federal Defender for Wisconsin. What magnanimity that Wisconsin is willing to export federal criminal defense lawyers to the Fourth Circuit to handle cases!
* Or so found the district court. Mr. Powell argued that this finding was not supported by the evidence - instead the officer asked only for a drivers' license. It matters for the argument - if handing over the drivers license was a false statement (because it was tantamount to saying "this drivers' license is valid") then that can add to the totality of the circumstances as to whether Mr. Powell was dangerous. Because, of course, people with suspended licenses, who willingly offer them up to the police, are known to have weapons on their person.