The Federal Criminal Appeals Blog

Last year came to be known as the year that the Fourth Amendment rose again in Richmond, Virginia.

The Fourth Circuit held that police conduct violated the Fourth Amendment here, here, here, here, and here.

Last week, the Fourth Circuit did it again.

Frederick Jones was driving three of his friends through Richmond Virginia. They were in a car with New York license plates. They were all African-American.

Two police officers spotted them and started to follow their car. Because the area was known as a place where people sell drugs, and because the men were in a car with out of state plates, and because, as one officer put it "the people in the vehicle didn't belong there" they were followed.

In the light of the late afternoon, the police followed the men in a marked police car.

The men pulled onto a one-way private road that ran along an apartment building. They parked their car.

The police car pulled past them on the road and stopped, blocking anyone from driving past. If the men wanted to leave in their car, they would have had to back up the one-way street the wrong way.

The men in the car got out. Mr. Jones stayed with the car by the driver's side door. Everyone else went into the apartment building.

The police got out of their car and walked up to Mr. Jones. They instructed him that they needed to talk to him. They asked him to lift his shirt and to let them pat him down. He did.

They asked for his driver's license. He didn't have one.

They told him he was then under arrest for driving without a license. When they searched him again as a part of the arrest, they found a gun in his pants, and some marijuana. He was charged with possessing a firearm as a drug user. (though, what about this Fourth Circuit case?)

He filed a motion to suppress the evidence, which was denied. On appeal, the Fourth Circuit reversed, in United States v. Jones, finding that he was seized by the officers when they approached him for Fourth Amendment purposes, so that the evidence was obtained illegally.

The court of appeals was moved by the way the officer parked.

We agree that when an officer blocks a defendant's car from leaving the scene, particularly when, as here, the officer has followed the car, the officer demonstrates a greater show of authority than does an officer who just happens to be on the scene and engages a citizen in conversation.

The court of appeals also thought the way the officers approached Mr. Jones also made it plain to him that he couldn't leave. Some times, officers approach and ask permission to talk to a person. That isn't what happened here.

Rather, in speaking to Jones, the officers clearly continued their show of authority. According to [the officer] himself, 'right when' he 'made contact' with Jones, he asked Jones to "lift [his] shirt" to see whether Jones possessed a weapon. Not satisfied with the shirt lift, [the officer] then asked Jones to consent to a pat down search, further implying that the officer suspected that Jones--a person the police had followed onto private property--might be armed. Thus, their immediate verbal exchange with Jones did nothing to lessen a reasonable person's suspicion that he was the target of a criminal investigation, and, in light of the totality of the circumstances, only enhanced it.

For those reasons, the Fourth Circuit concluded that

Thus, the totality of the facts in this case requires us to conclude that the officers detained Jones before they had any justification for doing so. For two police officers in uniform in a marked police patrol car conspicuously followed Jones from a public street onto private property and blocked Jones's car from leaving the scene. The officers then quickly approached Jones by the driver's side of his car -- letting two other vehicle occupants walk away--and nearly immediately asked first that he lift his shirt and then that he consent to a pat down search for weapons. Although the uniformed officers did not draw their holstered weapons or use a threatening tone, these circumstances would suggest to a reasonable person that the officers were not "treating the encounter as 'routine' in nature," but rather that the officers were targeting him because he was engaged in "illegal activity." See Gray, 883 F.2d at 322-23. Any one of these facts on its own might very well be insufficient to transform a consensual encounter into a detention or seizure, but all of these facts viewed together crystallize into a Fourth Amendment violation.

The Confederacy may never rise again, but it's nice to see the Fourth Amendment is coming back in Richmond.

It must be hard for the police to be hot on a chase, then have to slow down to get a warrant.

But, even though the police are excited from being on the trail of a suspected drug mule, the Eighth Circuit held, in United States v. Ramirez, that just because the police are hurrying to get their man, they still have to get a warrant to search his room.

The Great Omaha Goose Chase

A Greyhound bus traveling across the country stopped in Omaha for a rest break. We don't know how, but the police arrested two men from the bus for having heroin in their shoes. The men flipped quick, and told the police that they were traveling with at least one more man who also had heroin in his shoes.

The police went looking for the third man.

They found some luggage from the bus that no passenger claimed - in one of the bags was a photo ID of a man named Hector Cruz.

The bus driver said he was missing five passengers - the two men who had been arrested and three other men.

The bus company said that the five who were missing all purchased their tickets in cash within a few minutes of each other. And all of them purchased one-way tickets from San Diego to Newark.

The officers set out looking for the other three men.

They called cab companies to see who had picked someone up from the bus station. A cab company led them to a nearby Best Western.

At the Best Western, the police learned that three men - one of whom matched the photo of Hector Cruz - had arrived earlier, but didn't check in. The cops learned the men took a cab to a Comfort Inn.

At the Comfort Inn, the police saw video showing that three men - one of whom matched the photo of Hector Cruz - arrived in a cab, but didn't enter the motel.

Instead, they went to McDonald's. Looking at the video, the police thought the men were walking as though they had heroin in their shoes.

At the McDonald's the police learned that the men asked for a phone book. They called a cab, and took it to an Econo Lodge.

At the Econo Lodge, the desk clerk confirmed that three men checked in and that one of them looked like the man in Hector Cruz's photo ID. They were given room 220.

The Econo Lodge clerk, who I imagine to be a kindly Nebraskan grandmother, embroidering an inspirational saying onto a doily as she talked to the police (perhaps "Everyday is a gift, that's why they call it the present", attributed to Kung Fu Panda 2), gave the police a key card to access room 220.

At Room 220

At Room 220, six police immediately set up to go into the room. It was perhaps two and a half hours since they had been at the bus station. The police established perimeter surveillance. One officer listened at the door and heard nothing.

He inserted the keycard.

It didn't work.

The police officer went to Plan B. He knocked at the door, covered the keyhole, and said (I like to think, in a faux female voice) "housekeeping".

A man came to the door, opened it, saw the police, and tried to close the door.

The police stopped him and forced their way inside.

Once inside, they saw shoes like the ones that the two other men from the bus station were wearing. The kind of shoes that, before, had contained heroin.

The shoes in room 220 also contained heroin.

The Motion To Suppress

One of the men, Ramirez, was arrested. (I assume the others were too, but there's nothing in the opinion about that). His lawyer filed a motion to suppress, because there was no warrant.

The district court in Omaha denied the motion. The court found that exigent circumstances justified the warrantless search.

The police generally do not need a warrant if stopping to get a warrant would give the people they're chasing more time to destroy evidence - like heroin - or hurt someone. So, here, the district court said that the police reasonably though that the drugs were likely to be destroyed if they went to get one.

The district court determined that the police could reasonably fear that the men in the room would destroy evidence because:

1) one of the investigators reasonably believed the men were attempting to elude the officers after they witnessed the officers arrest the two men at the bus stop; 2) the men in room 220 had purchased one-way tickets to Newark, New Jersey, with cash, and were not from Omaha; and 3) after the officers announced their presence, Cruz attempted to shut the door to prevent the officers from entering the room.

The Eighth Circuit

The Eighth Circuit disagreed. First it considered the third point that justified exigency - that the man who came to the door would not let the police in - and rejected it.

Basically, a citizen gets to slam the door on the police (as long as you don't hit the police with the door). Just because a person refuses to let the police into his house does not mean that the police can go in without a warrant. There wouldn't be much of a warrant requirement in the constitution if the rule were different.

when the police knock on a door but the occupants choose not to respond or speak, or maybe even choose to open the door and then close it, or when no one does anything incriminating, the officers must bear the consequences of the method of investigation they've chosen. At that point, if their method fails, "the investigation will have reached a conspicuously low point,' and the occupants 'will have the kind of warning that even the most elaborate security system cannot provide." . . . Accordingly, crediting these officers with conducting a run-of-the-mill attempt to simply knock and gain entry, [the man who opened the door] was under no obligation to allow the officers to enter the premises at that point and was likewise within his bounds in his attempt to close the door. That he did so, without more, does not bolster the claim that it was reasonable to conclude that the destruction of evidence was imminent.

As to the first point justifying exigency - the court of appeals found that there was no reason to think the men knew the police were after them. They'd been in the hotel room for half an hour when the cops showed up. If they were going to flush the heroin because the police were chasing, they probably would have already done it.

On the last point, the court of appeals gave it little discussion, but basically no weight. It's probably too obvious to say that it's unlikely that someone would travel to Omaha with heroin just to flush it in a Nebraska toilet.

And, with that, the heroin was suppressed. Good luck in the future, to Mr. Carlos Ramirez.

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I've long thought the punishment for failing to turn off your high beams when you drive past another car at night should be much more draconian. Part of me is encouraged to see that the police of Massillon, Ohio apparently agree.

Excessive Use of High Beams

Two men were driving in Massillon, Ohio after midnight on the Fourth of July. The driver declined to dim his high beams as he drove past a car coming toward him. As it happened, the other car was a police car.

The police officer did a U turn to follow the high-beam enthusiast. He didn't pull the car over right away. Instead he just followed them.

As the officer followed the car, he thought he saw the driver and the passenger reach under their seats. The officer said that made him think they were hiding something.

In his experience, looking under the seat of a car when a person has reached under it leads to the discovery of something illegal "95 to 100" percent of the time.

Never the less, the Massillon police officer did not pull the car over. Instead, after a few blocks, the car pulled over and gestured to the officer.

The Scene In the Parking Lot of the Massillon Moose Lodge

In response, the police officer pulled into the parking lot for the Massillon Moose Lodge. The high-beam user followed into the parking lot. The driver jumped out and asked the police officer for directions to Interstate 77.

The officer asked for, and received, the driver's Ohio state ID (he didn't have a license) and told the driver to get back into the car.

As it happened, the driver didn't have a valid license. Neither did the passenger who owned the car. The passenger, Mr. McCraney, was allowed to call his aunt, who said she'd come to pick them up.

When she arrived 25 minutes later, the parking lot was empty.

Massillon's Finest

The officer had, of course, called for backup. Wikipedia says that Massillon is a town of 32,149. When Mr. McCraney called his aunt, four police cars and five officers were gathered in the parking lot of the Massillon Moose Lodge.

It probably would have been a good time to commit a crime anywhere else in Massillon.

Idle hands are the devil's playthings. Rather than stand around waiting for the aunt, the Massillon, Ohio police force decided to pull the two men out of the car.

The men stood at the back of the car, surrounded by three officers. For no clear reason, two other officers decided to search the car.

They found a gun under the passenger seat. Mr. McCraney was prosecuted in federal court in the Northern District of Ohio for being a felon in possession of a firearm.

The Search For No Real Reason

Mr. McCraney filed a motion to suppress, saying that the search violated his rights to be free of searches done for no reason other than that the cops had 25 minutes to kill until a guy's aunt shows up.

The district court agreed, and suppressed the evidence. The government, however, appealed.

In United States v. McCraney, the Sixth Circuit affirmed.

Search Incident to Arrest

The government argued that, really, these guys were under arrest, even though they hadn't been placed under arrest and the officer let Mr. McCraney call his aunt to pick him up.

The court of appeals held that, even if they were under arrest, searching the inside of a car after the people had been taken out of it is not a search incident to arrest.

A "search incident to arrest" is a search, basically for officer safety, of the body and immediately surrounding area, to make sure a person doesn't grab a weapon and hurt someone.

It used to be that if a person was taken out of a car, the police could search inside the car "incident to arrest" on the theory that anyone could be that guy from the X-men with Gumby arms who could reach back into the car.

In Arizona v. Gant, the Supreme Court severely narrowed this rule - now the search has to be of an area where a person can actually reasonably reach, without consideration of the possibility that the person being arrested has appeared in a Marvel Comic Book.

Reasonable Suspicion Because of the Reaching

The government also argued that there was reasonable suspicion to search the underside of the passenger seat of the car, because the officer saw reaching under there.

The court of appeals looked at all the circumstances - that the folks were trying to get directions, that they were cooperative and otherwise unsuspicious, and concluded that there was not reasonable articulable suspicion to search in the car.

It's now almost unremarkable that the Fourth Circuit had a defense-friendly published opinion. Yet, on that fact, I will now remark, since the Fourth Circuit recently decided United States v. Gaines.

Driving in Baltimore

Travis Gaines was sitting in the back of a white Crown Victoria, traveling down the streets of Baltimore City. The Crown Vic drove past a police car, with three cops inside.

The police car followed the Crown Vic. The police turned on their car's lights and pulled over the car.

Mr. Gaines, in the back seat, started shuffling around. The police said they could see him moving in the back of the car.

When the Crown Vic stopped, they pulled Mr. Gaines out of it. One of the officers did a pat down, found a gun, and yelled "gun" to the other officers. Mr. Gaines hit the cop and tried to run away. (for what it's worth, he was convicted of assault in Maryland state court for this)

To Federal District Court We Go

Mr. Gaines was caught, and charged in federal court with being a felon in possession of a firearm.

His attorney filed a motion to suppress the gun. He argued that the car was not pulled over for a good reason and that the search of Mr. Gaines, as a result, violated his rights.

The government countered that the Crown Vic was pulled over for a good reason - that there was reasonable articulable suspicion to pull the car over.

Why was the car pulled over?

The police testified at a motions hearing that the Crown Vic was pulled over because there was a crack in the windshield.

One of the police officers, sitting in the back of the police car, testified that when he saw the Crown Vic, he noticed a small crack in the Crown Vic's windshield from the other side of the intersection.

To put this in context, the federal district judge who decided the motion to suppress described the crack as very small and "in the lower right portion of the Crown Victoria's windshield."

The police said that once the first cop saw the crack, they started following the Crown Vic. Through the entire car - including the seats in the car - the other officers said that they, too, saw the crack.

The police testified that they only pulled the car over when they had all three confirmed that they saw the crack.

The district court said, in a word, hogwash. The judge refused to credit this testimony and found that there was simply no credible way to determine that the police would have been able to see that crack in the windshield. In essence, the district court decided that the cops lied. [FN1]

It appears that the police pulled the Crown Vic over, then looked for a reason why they did. Happily, the federal court rejected that approach to law enforcement.

Intervening Acts

The government, presumably wanting to stand behind police tactics even when they are based on a lie, did not stop there.

The government argued that Mr. Gaines' assault and resisting arrest were an intervening act that were an independent basis to find the gun.

Generally, if the police pull you over when they don't have a reason to, and you then give them a reason, you don't get to complain about the first traffic stop.

So, to make this more concrete, assume that you get pulled over for driving the speed limit. Let's say the police just find that suspicious. While they're pulling you over, the passenger in your car starts shooting off fireworks out the window of the car at people walking by. You can no longer complain (successfully) about being pulled over for driving the speed limit, because your passenger gave them a good reason to pull you over.

Here, the government argued basically the same thing happened. The government argued that because Mr. Gaines assaulted the officer, they could arrest him for that and search him for the gun. If that works, then the lie-based windshield-crack search doesn't matter.

The trouble is, Mr. Gaines hit the cop after they found the gun. So, the gun was found not as a result of Mr. Gaines' assault, but only of the bad search.

A Side Note

It's worth noting that this is the second Fourth Circuit opinion that's come out this year where (a) a defendant won; (b) the case involved a Fourth Amendment issue; (c) based on police tactics by Baltimore City Police; and (d) the case was argued for the government by Maryland's United States Attorney, Rod Rosenstein. Here's my commentary on the other opinion.

[FN1] - I wonder how that perjury prosecution is going. Oh, right.

Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.

His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.

The police officers asked Mr. Edwards to approach them. He did, calmly. He "looked like he was just walking down the street" according to the officers. He didn't act like a man with a gun - he wasn't fussing with his waistline. He also didn't look like he was involved in drug dealing; the officers didn't see him doing any hand-to-hand transactions before they called out to him.

The officers were worried that Mr. Edwards might be armed though, because of his ex-girlfriend's statement. They put handcuffs on him and patted him down. They seated him on a curb.

The police soon heard that the arrest warrant had been issued. Mr. Edwards was put under arrest, and a police van came to where Mr. Edwards was. Right before being placed in the police van, Mr. Edwards was searched again.

Mr. Edwards, at that point, was on a city sidewalk, illuminated by a streetlight. The police officers loosened Mr. Edwards belt, and pulled his pants and underwear away from his body. The officers shined a flashlight down the back and front of his pants. When they shined the light down the front of his pants - with his underwear pulled back as well - the officers saw the crack cocaine tied to Mr. Edwards penis.

The officer who saw the drugs put on a glove. While another officer held Mr. Edwards' pants and underwear open, and while Mr. Edwards was cuffed from behind, the first officer reached into Mr. Edwards pants with a knife, and cut the drugs off of his penis.

The Fourth Circuit's opinion notes that "[n]othing in the record suggests that Edwards suffered any physical injury as a result of this action."

Mr. Edwards is Charged and Convicted

Mr. Edwards was charged with possession of crack cocaine with intent to distribute. He challenged this search and seizure as not consistent with the Fourth Amendment. The district court denied his motion. Mr. Edwards entered a conditional guilty plea - preserving his right to appeal the motion to suppress the evidence cut off of his penis.

The Fourth Circuit reversed the district court in United States v. Edwards - the Fifth Fourth Amendment opinion in favor of a person charged with a crime in the year 2011 (see here and here).

Is Looking Down Someone's Pants A Strip Search?

The key legal question in Mr. Edwards's case is whether the search of Mr. Edwards was a strip search, or, as strip searches have been otherwise characterized, as a "sexually invasive search."

The government argued that because the only part visible to the public was Mr. Edwards "dip" or waistband area, this wasn't a strip search. The district court appears to have accepted this argument.

The Fourth Circuit disagreed. It held that a strip search is a search where clothing is moved to permit visible inspection of the naked body - the person doesn't have to be completely naked.

It was also persuaded by the facts of the most recent Supreme Court strip search case, Safford United School District v. Redding. The court of appeals noted that there,

The Court held that a school official's order that a student "remove her clothes down to her underwear, and then 'pull out' her bra and the elastic band on her underpants. . . . in the presence of the two officials who were able to see her necessarily exposed breasts and pelvic area to some degree," constituted a search that could be fairly called a "strip search." Id. at 2641

Can The Police Cut Things Off A Person's Penis On A City Street?

Because the search of Mr. Edwards was a sexually invasive search, its reasonableness under the Fourth Amendment gets a particular kind of scrutiny.

The Fourth Circuit held that this search simply does not survive the heightened scrutiny. The Fourth Circuit notes that the officer,

cut the sandwich baggie off Edwards' penis with a knife while Edwards was restrained in handcuffs, an act that could only cause fear and humiliation.

Moreover, the court of appeals was disturbed by how dangerous taking a knife to the penis of a handcuffed man on a city street is.

When [the officer] discovered the sandwich baggie containing suspected contraband tied to Edwards' penis, [the officer] dropped his flashlight, obtained a knife, and put on gloves, while another officer continued to hold open Edwards' pants and underwear. Without the aid of the flashlight, [the officer] took the knife and cut the sandwich baggie off Edwards' penis. We conclude that [the officer]'s use of a knife in cutting the sandwich baggie off Edwards' penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness

The conviction was reversed and the evidence was suppressed.

What Does This Mean For Gender-Based Judging?

I can't help but think of what this case says about gender and identity in judicial nominations. Of course, the Fourth Circuit has to look to Safford Unified School District v. Redding - it's a very recent strip search case. That case involved the strip search of a 13-year old girl.

But something else about Safford and Mr. Edwards's case deserves attention.

Justice Ginsberg, talking about Safford, criticized her colleagues for never having been that age and that sex. She is quoted as having said that "I didn't think that my colleagues, some of them, quite understood."

This came up in the midst of Justice Sotomayor's nominations fight, her "wise Latina" remarks, and a national conversation about gender and judging.

Mr. Edwards case is, perhaps, a counterpoint to the concern that if you haven't had the life experience unique to a person affected by a ruling you can't impartially judge the issue. Here, both Judges in the majority in the Fourth Circuit's ruling were female - as was the district judge for that matter. The only male judge to consider the case wrote a dissent.

Or maybe it doesn't require a penis to know that it's not a good idea to put a knife to one on a city street when its owner is handcuffed behind his back.

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.

If three new cases isn't enough to call it a revolution, maybe the fourth case is. (For prior discussion of these cases on this blog see here and here).

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.

Concluding Thoughts

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.

We may be seeing a revolution in the way Terry stops are reviewed by the courts of appeals.

The Fourth Circuit, long a bastion of conservative unpublished opinions, has recently published a series of opinions affirming a robust right under the Fourth Amendment to be free from suspicionless Terry stops. (see coverage here, for example).

Now the Sixth Circuit has joined the action in United States v. Beauchamp.

Mr. Beauchamp

Mr. Beauchamp was walking down the street, minding his own business, at 2:30 a.m. in a neighborhood where the police had received a "ton" of complaints about drug dealing.

A police officer saw him and approached. Mr. Beauchamp walked away without making eye contact. The officer radioed to another officer about Mr. Beauchamp, saying that Mr. Beauchamp looked suspicious. At a hearing later, the officer didn't explain why Mr. Beauchamp looked suspicious.

The second officer saw Mr. Beauchamp. He drove up next to him and parked his car very close to where Mr. Beauchamp was walking. Mr. Beauchamp walked around a wrought iron fence away from the officer.

The officer got out of his car wearing his uniform. He told Mr. Beauchamp to stop. Mr. Beauchamp stopped. He told Mr. Beauchamp to walk back to him. Mr. Beauchamp did.

Mr. Beauchamp was shaking. The officer said that he looked "wide-eyed" and "scared." After some inconclusive questioning, the officer searched him for weapons. He didn't find any. He asked Mr. Beauchamp if he could search him. Mr. Beauchamp, still visibly terrified, said yes.

Eighteen rocks of crack cocaine were found in a plastic bag in between Mr. Beauchamp's "butt cheeks."

Mr. Beauchamp Goes To Court

Mr. Beauchamp was charged with possession with intent to distribute. He filed a motion to suppress the search. The motion was denied. He entered a conditional guilty plea - it allowed him to appeal his suppression issue and otherwise plead guilty - and the Sixth Circuit reversed.

When Is Mr. Beauchamp Seized?

The appeals court held that Mr. Beauchamp was seized the minute the officer told him to stop. It held,

A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer.

The court noted that,

Just as officers are afforded the benefit of information or directions received from other officers when we consider whether the detaining officer had reasonable suspicion, an individual's prior encounters with other officers should be taken into consideration when determining whether an encounter was coercive or consensual.

Was The Seizure Justified?

The court of appeals then determined that the police did not have a reasonable articulable suspicion for stopping Mr. Beauchamp. It held that,

Nothing about the conduct at issue in this case suffices to transform a permissible walk away from a police officer into a suspicious act. Beauchamp also did not make eye contact with the officer. But what if he had and then looked away? His behavior may then have been described as "furtive" or "evasive." The ambiguity of Beauchamp's conduct may be susceptible to many different interpretations, but that does not render it suspicious.

I'm not sure when a few appellate opinions turns into a trend, but it feels like this is coming close.

Judges Talk About Central Park

As a closing note, there's a lovely fight between the dissent and the majority opinion about the facts in the case. The dissent accuses the majority opinion of "appellate factfinding" and includes this burn:

Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does. But there is no explanation for the majority's factfinding here.

Not to be outdone, the majority drops a footnote, and some knowledge of Central Park, back on the dissent:

The dissent mischaracterizes our analysis of whether Beauchamp's compliance with the officer's "asking" actually constituted a consensual exchange, noting: "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does." Dissent at 20. But there was no appellate factfinding here, only fidelity to the de novo standard of review. And it is noteworthy that our de novo analysis need no more explanation than the appearance of the dissent's rhinoceros in Central Park, since there is a zoo in Central Park and if one went to the Central Park Zoo one could expect to see a rhino. So too, when the court conducts a de novo review, it literally looks at the totality of the circumstances "anew."

Zing!

Though I always wondered why they don't take this kind of exchange out of the majority and dissenting opinions.

In many ways, riding in a car is so much worse for you than, say, walking or riding a bike. When I drive, I know I'm not exercising; I can almost feel my muscles convert to fat. Driving burns gasoline, which is bad for the environment. Cars clog roads.

Other than the massive convenience and the ability to privately listen to bad radio, cars don't have much to recommend them.

Cars are even worse when you realize that driving a car also diminishes your Fourth Amendment rights. If the police have probable cause to think you have some contraband, they normally need a warrant to go in your house. Not so for your car. Because cars can move, the courts don't require a warrant to search a vehicle - mere probable cause is enough.

If you're arrested on the street, the police can search, "incident to arrest," anything you could reasonably be thought to reach while you're being subdued and arrested. If you're arrested in a car, the police can search, incident to your arrest, anything inside the car.

Perhaps this is one reason so few drug dealers on The Wire drive minivans. Or perhaps the lack of minivans on The Wire has more to do with this video.

In any event, given the law on the Fourth Amendment and vehicle searches, United States v. Rodgers, from the Ninth Circuit, is a breath of fresh air.

Mr. Rodgers was pulled over at 3:30 in the morning on the mean streets of Lakewood, Washington. His registration information showed that his car was one color - his car was, in fact, another. He was in a neighborhood known for crime, specifically juvenile prostitution.

The police officer who pulled him over approached the car. He recognized Mr. Rodgers as someone he'd pulled over before. Many times.

The officer also saw a girl who he estimated was about fifteen years old. He asked Mr. Rodgers why he was driving the girl at 3:30 in the morning. Mr. Rodgers said that he was taking her to an apartment building as a favor.

The officer suspected that Mr. Rodger's transportation involved a different kind of favor. He asked the girl for identification. She didn't have any. He asked her name, she gave him one.

The officer ran the name and found that there was an arrest warrant out for the girl. He pulled Mr. Rodgers and the girl out of the car, separately, for questioning. He asked the girl again for identification. She had no purse, and no identification in her pockets.

The officer then decided to search the car, near where the girl was sitting, for her identification.

He searched her seat and the center console. He found crystal meth.

He arrested Mr. Rodgers, then searched the entire car. He found a handgun and other drugs. Mr. Rodgers was charged in federal court with federal gun and drug charges.

He challenged the search of his car, but the district court denied his motion.

He was convicted at a bench trial, and determined to be an armed career criminal under 18 U.S.C. § 924(e)(1).

The Ninth Circuit reversed, finding that the search violated Mr. Rodger's rights.

The court of appeals rejected the government's position that the officer could search Mr. Rodger's car for the girl's identification, saying,

[The officer] did not identify any particular facts or observations that led him to believe [the girl] had identification and that it was inside Rodgers' car. Nor can we find any such facts in the record. There is, for example, no indication that [the officer] saw [the girl] trying to hide anything in the car, that [she] was eyeing anything inside the car, that [she] made any furtive movements, or that any papers or objects appearing to be identification were in plain view. Indeed, the only relevant fact [the officer] offered--that he never saw a purse or bag that might have contained [the girl's] identification--cuts against a finding of probable cause to search the car.

Because there was no probable cause, or other lawful reason, to search the car for the girl's identification, the evidence found had to be suppressed. Everything found after that was fruit of the same illegal search.

Related articles

• CA9: Search of car for passenger's ID unreasonable (fourthamendment.com)

It was an ordinary Tuesday night. Lannerick Johnson was at home with his ex-wife, Karen. Their kids were home too. Lannerick and Karen had been through hard times before, but he'd partly moved back in - he was sleeping there frequently and had left some things in the room they shared.

Perhaps they were watching Tim Russert moderate a debate between Barack Obama, Hillary Clinton, Joe Biden, and John Edwards on NBC. Karen's mom and grandmother were home too; they all lived in the house, which was owned by Karen's mom.

Then the police came knocking.

The officers didn't have a warrant, they were just doing a "knock and talk." Karen's grandmother opened the door. Karen and Lannerick came into the front room. The police asked if they could search the house, you know, just to be neighborly.

Karen's grandmother said yes. Karen said yes, and voluntarily led the police to some marijuana in her room.* Lannerick said no.

The police had Karen and her grandmother out to the front yard to sign formal consent to search forms. They searched the house, over Lannerick's objection, and - in the room that Lannerick Johnson shared with Karen - found evidence that Mr. Johnson was unduly interested in other people's personal identifying information.

He was charged with possession of false identification documents and aggravated identity theft.

He filed a motion to suppress, because he didn't consent to have the room he was sharing with Karen searched by the police.

The district court determined that he hadn't consented, but that, since it wasn't his house, it didn't matter; he couldn't refuse to let the police search the place. His consent-happy drug-possessing ex-wife's permission was all the police needed.

The Sixth Circuit reversed in United States v. Johnson.

The court of appeals held that the Supreme Court's relatively recent decision in Georgia v. Randolph clarified what happens when two people share a living space and only one consents.

Basically the Supreme Court held that for the cops to search your stuff in a space that you're living in, they need your permission; getting your roommate's permission to search is not enough.

As Justice Souter observed in the opinion for the Court,

it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, "stay out." Without some very good reason, no sensible person would go inside under those conditions

In kind of a lovely way of viewing things, Justice Souter then determined that this social convention governs the way the police should be viewed - as something akin to a dinner guest:

Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.

Thus, as the court of appeals in Johnson held, if one person staying in a room invites the police in, and another refuses to allow them entry, the police have to find another door to "knock and talk" on.

 

* Seriously, why do people do that?

We fought and won a war to get the right to keep the government from searching our stuff, and Karen's just going to give away her rights like that? Exactly what is she getting in exchange from diming herself out?

So, if you found this page because you're Googling "what super bad thing will happen if I tell the police they can search my house with drugs in it" who have come to your house and asked if they can search it" - my advice is that you should not let the police search your house for no reason, especially if you have drugs in your house.

Update: the Fourth Amendment Blog is in on the party. Check out the post here. I like the observation on that page that the district court really strained to avoid applying Randolph.

The Fourth Circuit has - for the second time in the past few weeks - given meaning to the Fourth Amendment's prohibition against unreasonable searches and seizures.

In United States v. Massenburg, Judge Andre Davis rejected a government claim that a police officer had reasonable articulable suspicion to search a citizen. This is fresh on the heels of the Fourth Circuit's holding that wanting to avoid wrinkled shirts is not an indicicator of criminality.

In Massenburg, the police were in a neighborhood where shots had been fired. A group of four young African-American men were walking by two police officers. The officers asked if they could speak with the men. The men stopped and answered a few questions. One of the men, Mr. Massenburg, stood a few feet away from the others. A police officer asked one of the men for his identification. The man complied. A police officer asked if he could pat the men down. Three said that he could.

The fourth man, Mr. Massenburg, did not make eye contact with the officer, but said that he did not give consent for a pat down.

The officer told him he was going to pat him down anyway. The cop found a gun. The man was charged with being a felon in possession of a firearm under 18 U.S.C. S 922(g).

For the police to pat you down, they have to have either reasonable articulable suspicion of a crime (plus a reasonable concern for their safety while they're stopping you to talk about the crime), or they have to have your permission.

Mr. Massenburg filed a motion to suppress the weapon. The district court denied it. Mr. Massenburg then pled guilty, on the condition that he be allowed to appeal the district court's decision that his search was legal.

Judge Davis's opinion is fascinating and worth a close read - he's an engaging writer.

Judge Davis identifies three possible justifications for the pat down. First, Mr. Massenburg refused the pat down. Second, Mr. Massenburg refused to look the police officer in the eye. Finally, Mr. Massenburg was in a neighborhood where gunfire had been heard.

As to the first consideration, the court noted that refusing to consent cannot be the basis for a search:

If the ordinary response of the innocent upon being asked to consent to a search--some mild nervousness--sufficed to create reasonable suspicion, then Terry's reasonable suspicion requirement would become meaningless: officers could ask a citizen for permission to conduct a voluntary search, and, if denied, they could use the citizen's denial as evidence of criminal activity and perform the search anyway.

As to a refusal to maintain eye contact, the court thought that this was too close to the refusal to consent to search:

Though, as an analytic matter, nervousness can be separated from the denial of consent itself, to attempt to extricate the very mildest indicators of nervousness--such as a failure to maintain eye contact during the refusal . . . --from the denial itself is too nice a matter. Virtually any denial will be accompanied by these mild reactions to the request, and thus virtually any denial would go much of the way toward authorizing a non-consensual search. This cannot be the case.

Judge Davis also noted that the atmospherics of the lack of eye contact do not necessarily indicate that Mr. Massenburg was being evasive, rather,

Given the complex reality of citizen-police relationships in many cities, a young man's keeping his eyes down during a police encounter seems just as likely to be a show of respect and an attempt to avoid confrontation.

Finally, Judge Davis addresses the idea that the police can search people who are in high-crime neighborhoods, or in neighborhoods where shots have just been heard. He determined that the government does not have this power - it comes too close to a general search of anyone in an area, unrelated to the person's particular actions. As the court notes,

To hold otherwise would be to authorize general searches of persons on the street not unlike those conducted of old by the crown against the colonists. Allowing officers to stop and frisk any individuals in the neighborhood after even the most generic of anonymous tips would be tantamount to permitting a regime of general searches of virtually any individual residing in or found in high-crime neighborhoods, where "complaints" of "random gunfire" in the night are all too "usual[ ]." James Otis famously decried general searches as "instruments of slavery . . . and villainy," which "place[ ] the liberty of every man in the hands of every petty officer," warning against abuses by "[e]very man prompted by revenge, ill humor, or wantonness." Timothy Lynch, In Defense of the Exclusionary Rule, 23 Harv. J. L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the Writs of Assistance (1761)). The Fourth Amendment, and the courts' Fourth Amendment jurisprudence, is aimed at this evil. Without reasonable particularized suspicion of wrongdoing, such searches and seizures offend the Constitution.

I don't disagree that the government's actions in high-crime neighborhoods resemble, in many ways, those of an occupying force rather than of a helpful

constabulary.

Indeed, this observation feels thematically similar to criticisms of our nation's drug policy made by David Simon - like Judge Davis, a resident of Baltimore. (though, sadly, it looks as though there will not be another season of The Wire).

Yet this opinion is striking because of how it could have gone the other way. Indeed, in the district court, it did go another way. In the district court's view of the case, the police were justified in searching Mr. Massenburg based on his refusal to consent to a search, lack of eye contact with the police, and presence in a high-crime neighborhood.

Related articles

• The Fourth Circuit Finds that the Police Can't Assume You're A Drug Trafficker Just Because You Clean Your Car, Have Toiletries, and Don't Want Your Shirts Wrinkled (thekaiserlawfirm.com)
• The Fourth Circuit rejects giving ESP Powers To Cops
• Nervousness During Refusal to Consent to Patdown Does Not Give Reasonable Articulable Suspicion
• Fourth Circuit Rules on Nonconsensual Search After Suspect Refuses Consensual Search

What good is a hunch if you can't say why you have it? If you want to stay inside the Fourth Amendment, not much.

Stephen Digiovanni was driving through Maryland. He was stopped by the Maryland State Police for following too close to another car.

The officer who pulled him over, though, was a member of a Pro-Active Criminal Enforcement Team, a task force set up to investigate drug and terrorist activities. When the officer pulled Mr. Digiovanni over, he didn't see a man in his late fifties driving from Florida to Boston. No, this officer saw a drug trafficker.*

How did the officer know Mr. Digiovanni was a drug trafficker? The officer explained it was a combination of little things. For one thing, Mr. Digiovanni's car was clean. Also, it was a rental car. And he had some shirts hanging up in the back seat. Also, he had a hygiene bag with him. So, naturally, the officer suspected Mr. Digiovanni of being a drug trafficker.

The officer asked Mr. Digiovanni to step out of the car. He asked Mr. Digiovanni what his travel plans were and whether he had drugs. Mr. Digiovanni said he was traveling back to Boston from a trip to Florida and that he didn't have any drugs with him.

The officer asked Mr. Digiovanni if he specifically had any marijuana in the car. Mr. Digiovanni said that he had never smoked marijuana because it puts him to sleep.**

The officer asked if he could search the car. Mr. Digiovanni said ok. Luckily for him, he had trouble opening the trunk, so the officer gave up after three minutes, went back to the police car, and ran his license and registration.

When the license and registration check came back negative, the officer brought Mr. Digiovanni a warning ticket, his license, and his rental car registration. The officer told him that he was free to go, but his earlier consent to search was still in effect and couldn't be withdrawn. He gave Mr. Digiovanni a written consent to search form, which Mr. Digiovanni signed.

The officer, and a backup, found just over 34,000 pills of Oxycodone. He was charged in federal court in Baltimore with possession with intent to distribute Oxycodone.

Mr. Digiovanni filed a motion to suppress the pills taken from his car. The Honorable Catherine C. Blake, widely know as a wise and fair jurist, granted the motion.

By way of background, a police officer can, of course, pull a driver over for a violation of the traffic law. But the officer can't keep a person pulled over for longer than giving them the traffic ticket would take, unless the officer has a reasonable, articulable suspicion that the person driving the car has committed a crime.

Judge Blake determined that the officer kept Mr. Digiovanni by the side of the road longer than necessary to run his license and issue a warning ticket. She found there was no reasonable suspicion of him as a drug dealer, since, as the Fourth Circuit put it, his "appearance and demeanor fit in the category of a retired person, one driving from Florida to the northeast."

Judge Blake found the officer's reliance on Mr. Digiovanni's clean car, his shirts hanging so that they wouldn't wrinkle, and his toiletry kit "suspect, because he offered no 'reasonable explanation' for relying on these factors."

Because the officer took longer than he needed to run the license and issue a warning ticket, and he had no reason he could point to for why he thought Mr. Digiovanni was suspicious, the permission that Mr. Digiovanni gave to search his care later was tainted by the officer's prior illegal detention. Thus, the evidence was suppressed.

The Fourth Circuit affirmed in United States v. Digiovanni.

* As it happens, he was right.

** Right. It doesn't really make sense.