Police Search Lacked ‘Reasonable Suspicion’
Published: August 17, 2011
Tags: 4th U.S. Circuit Court of Appeals, Judge Andre M. Davis, Search & Seizure
Police officers responding to an anonymous tip about “shots fired” in a high-crime neighborhood, who saw four young men several blocks from the reported gunfire, did not have reasonable, particularized suspicion to conduct a pat-down of one of the young men who appeared nervous and refused consent to search; the 4th Circuit reverses defendant’s conviction on marijuana and firearm charges.
In this appeal we are once again called on to determine whether evidence seized during a street encounter between law enforcement and citizens was properly admitted into evidence during a criminal prosecution.
At the suppression hearing, the government presented few objective bases for particularized suspicion of defendant. It was only able to point to the following: 1) defendant and his three friends were walking four blocks from the location of the shots reported by the tipster, the only people the responding officers encountered in the vicinity; and 2) several observations made by the officer of defendant’s allegedly “nervous behavior.”
The district court denied defendant’s suppression motion, holding that the search was lawful. It found that reasonable suspicion existed on the basis of six factors: 1) “a vague report of shots fired”; 2) the four men were encountered roughly two blocks from the location of the reported shooting incident and were the only people in the area; 3) this was a “high-drug, high-crime area”; 4) defendant was “acting nervously, looked down and refused to make eye contact and stood off from the group”; 5) defendant “continued to act strangely by making a series of two furtive movements”; and 6) the officer’s actions were informed by a “year’s worth of practical experience serving as a law enforcement officer.” After denial of the suppression motion, defendant entered a conditional guilty plea.
On the facts of this case, there is precious little to sustain the district court’s holding that the officer had reasonable, particularized suspicion of defendant such that a nonconsensual frisk was lawful under the Fourth Amendment.
Allowing officers to stop and frisk iiianyiii 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.
The government suggests that under the collective-knowledge doctrine (also called the “fellow officer” rule) another officers observation of a bulge in defendant’s jacket pocket should be imputed to the officer who conducted the pat-down, though, as the government concedes, the information was not shared. Because this novel application of the doctrine would stretch it well beyond its purpose, we decline to do so.
Though we have studied our sister circuits’ cases adopting an aggregation rule, we can find no convincing defense of it. Most courts to have adopted the rule appear to have done so simply on the grounds that officers working closely together are “a team.” We must frame the question in terms of deterrence, and for the purposes of deterrence we look to each individual officer’s decision-making process as she considers executing a search or effecting a seizure. Further, if the “team” or “single organism” theory should apply when the information at issue is incriminating, should it not apply when the information is exculpatory? Yet we recently held in iiiU.S. v. Holmesiii that the collective-knowledge doctrine does not impute uncommunicated exculpatory knowledge to fellow officers in similar circumstances.
Because we believe the aggregation rule runs contrary to the Supreme Court’s Fourth Amendment jurisprudence, would seriously erode the efficacy of the exclusionary rule’s deterrent purposes, and serves none of the legitimate ends of law enforcement, we reject it.
We hold the officer who conducted the pat-down lacked the reasonable suspicion needed to conduct a lawful nonconsensual frisk. The district court erred when it failed to suppress the fruits of the unlawful search.
Vacated, reversed and remanded.
U.S. v. Massenburg (Davis) No. 10-4209, Aug. 15, 2011; USDC at Richmond, Va. (Williams) Caroline s. Platt, FPD, for appellant; Michael A. Jagels, AUSA, for appellee. VLW 011-2-139, 27 pp.
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
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