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The Fourth Circuit and the Fourth Amendment: If You Search Like a Redcoat, You Can’t Use What You Find in Court

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.

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