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.