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The Fourth Circuit, long a bastion of conservative unpublished opinions, has recently published a series of opinions affirming a robust right under the Fourth Amendment to be free from suspicionless Terry stops.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 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.”
Though I always wondered why they don’t take this kind of exchange out of the majority and dissenting opinions.