Today’s split decision in United States v. Powell bristles with strong language on both sides. Writing for a panel majority consisting of himself and Judge Floyd, Judge Shedd upbraids the government and places this case among a trio of recent cases in which the government failed to justify a Terry stop and frisk:
In a case such as this, where law enforcement officers briefly pat down a person for safety reasons, reasonable suspicion that the person is armed and dangerous is necessary in order for the patdown to be lawful under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 (1968). 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. 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. For this reason, we vacate the judgment.
Responding in dissent, Judge King distinguishes between the justification for a Terry stop and the justification for a patdown, finding that the latter was present:
When a police officer’s life is on the line, common sense tells us that he should sooner be reasonable in his suspicion that a suspect may be armed and dangerous than in suspecting that a passerby is up to no good. The risk of dismissing a suspicion that a suspect may be armed is inherently perilous to arresting officers. As a result, the officers in this case were entitled to take reasonable steps to protect themselves and others after they received confirmation that Powell may be armed, even if that evidence might not have been sufficient for an initial Terry stop.
Judge Shedd’s placement of this case among the decisions in Foster, Massenburg, and Digiovanni effectively sends a message to government lawyers who appear before, and advise those within, the Fourth Circuit. But it’s not clear that the message will get through to the officers in the jurisdictions at issue in those cases, who range from a detective in Henderson, NC, to a state trooper in Maryland on I-95 (just north of Baltimore), to police officers in Richmond, VA.