In a published opinion authored by Judge Davis in United States v. Massenburg, the Fourth Circuit says no. Judge Motz and Judge Wynn joined the opinion.The decision orders suppression of evidence seized during a non-consensual patdown in Richmond, Virginia.
The facts, as summarized at the beginning of the opinion:
Responding one night to an anonymous tip that shots were fired in a high-crime neighborhood, Richmond police encountered four young men, including appellant Tyerail Massenburg, four blocks from the reported gunfire. When an officer approached them in a marked police car, the men were not evasive; they continued walking forward, toward the car, and voluntarily paused to speak with the officer upon the officer’s request. In fact, they were cooperative: one of the men reported that he had heard shots fired from a passing car two blocks away and handed over his identification when asked; and at least two of the men consented to voluntary pat-downs. Appellant Massenburg stopped with his friends, but he refused to consent to a frisk. As the officer interacting with Massenburg testified, he first thought Massenburg nervous when he began asking him to consent to a pat-down and Massenburg was “real reluctant to give consent.” J.A. 48. Based on the fact that appellant stood a foot or two away from the other men, who were shoulder-to-shoulder, and did not make eye contact as the officer renewed his requests for aconsensual search, the officer undertook a nonconsensual search. The search produced a firearm and some marijuana,the subjects of the suppression motion at issue here.
The introductory portion of the opinion concludes:
We recently warned against the Government’s proffering “whatever facts are present, no matter how innocent, as indicia of suspicious activity” and noted that we were”deeply troubled by the way in which the Government attempts to spin . . . mundane acts into a web of deception.” United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011) [Gregory, J., joined by Motz, J., and Wynn, J.].This concern is only heightened when the “mundane acts”emerge from the refusal to consent to a voluntary search. If the important limitations on the “stop and frisk” regime crafted by Terry v. Ohio, 392 U.S. 1 (1968), are not to become dead letters, refusing to consent to a search cannot itself justify a nonconsensual search.
The opinion also contains an extensive discussion of the collective knowledge doctrine, rejecting the Government’s attempt to defend the patdown on the basis of another officer’s uncommunicated pre-patdown observation of a “bulge” under Massenburg’s clothing.