A friend of ours once worked for a Philadelphia criminal defense attorney who joked that he was going to write a book on how to properly conceal a weapon in a car.
Every time the attorney challenged an automobile search, police officers offered the same explanation: I saw something that looked like a gun underneath the seat. In this book-writing alternate universe, the attorney wasn't trying to enable criminal activity; he was mocking the local cops' abuse of the automobile exception and plain view doctrine.
The Fourth Circuit Court of Appeals seems similarly exasperated with Terry search abuses. This week, the Fourth Circuit overturned its fourth Terry search of the year, finding that the government failed to meet its burden of proof to support a finding of reasonable suspicion.
While his partner ran the driver's license and vehicle registration for a routine traffic stop, Corporal Leroy Patterson struck up an amicable conversation with Obie Powell, a backseat passenger in the stopped car. They discussed their mutual appreciation of fish sandwiches and music. (Powell was clearly armed and dangerous. Fish sandwiches are the fuel of a criminal mind.)
After learning that the driver's license was suspended, a third officer, Christopher Shelby, asked if Powell or the other passenger had a valid driver's license. Powell indicated that he did.
While running Powell's license, Officer Shelby learned that his license was also suspended, and that Powell had "priors" for armed robbery. (This latter information, known as "caution data," comes from a computer database and is communicated to officers in Maryland anytime a person has ever been charged with a crime, no matter when the charge was made, or its disposition.)
Based on the caution data, and Powell's "deliberate misrepresentation" of the validity of his driver's license, Officer Shelby ordered Powell out of the car for a patdown. A scuffle ensued, and police handcuffed Powell.
Corporal Patterson found a handgun in the backpack near where Powell had been sitting in the car, so the officers arrested Powell. During a search incident to the arrest, the officers found the crack cocaine that forms the basis for his conviction.
Under Terry v. Ohio, law enforcement officers need reasonable suspicion that a person is armed and dangerous to justify a patdown. Here, the amicable conversation that characterized the first half of the stop - and the fact that Corporal Patterson told Powell during the stop that he was "free to leave," implied that the police did not think Powell was a threat. The "caution data," without context, was insufficient to create reasonable suspicion.
In vacating the judgment and suppressing the search, the court noted, "Today, we once again are presented with a case in which the Government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion."
Heads up, defense attorneys: The Fourth Circuit Court of Appeals will not permit police to get haphazardly handsy and simply claim reasonable suspicion for a Terry search.
- U.S. v. Powell (Fourth Circuit Court of Appeals)
- Tenth Cir. Serves Reasonable Suspicion on Dangling License Plate (FindLaw's Tenth Circuit blog)
- Mass. Police Can't Act on Smell of Burnt Marijuana in Car (FindLaw's Decided)