How should a TSO respond to an individual’s bizarre state of dishabille?

In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey’s] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.

 

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County or supervisory official liability under § 1983 for Axel’s shooting death?

I wrote last week about the shooting death of Axel, an 18-month-old Yellow labrador, in Charles City County, Virginia.

One response to my suggestion of the possibility of civil liability for the shooter under the federal civil rights law (§ 1983) in combination with the Fourth Amendment has been for some to ask: Why has nothing been done before? And one response to that question has been that there is a “good ol’ boy” network in Charles City County that is protecting an errant animal control officer. That suggestion, in turn, raises another question about civil liability. Is it possible to hold the county or some other officials liable for the alleged Fourth Amendment violation involved in killing Axel (and possibly other animals)?

The short answer is that it is possible to hold supervisory officials and a local governmental body liable, but it is very difficult to do because the legal standard is very stringent. I’ve included below a summary of relevant law from a recent Supreme Court decision. I recognize that it can make for tough reading for one not accustomed to legalese. The important point to note is that liability under § 1983 depends on one’s own actions.

Here are some relevant questions for the legal analysis, questions that show the kind of facts that would need to be developed to support a claim of county liability: Was Axel’s shooting pursuant to official policy? Much depends on the facts, but presumably other potential defendants would try to portray the shooter as a rogue officer. Was the county deliberately indifferent to a pattern of constitutional violations? A similar question is relevant when considering the potential liability of supervisory officials: Was there continued inaction in the face of documented widespread abuses?

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Dogs are Fourth Amendment “effects,” so the government can’t just shoot them without expecting to pay

According to a recent story on CBS6, an animal control officer in Charles City County, Virginia killed an 18-month-old yellow labrador, Axel, while investigating a neighbor’s complaint. Officer Franklin Bates arrived at Sharon McGein’s home with her neighbor’s 17-year old son, whom Axel had reportedly chased and tried to bite. The teenage neighbor identified Axel as the dog that chased him. Accounts differ as to what happened next. Maybe the dog charged the officer; maybe the officer provoked the dog to bark menacingly. But there is no maybe about what reportedly happened next. Officer Bates shot Axel three times in the face. The dog died.

The County Administrator and the State Police are reportedly investigating whether to file charges.

This incident may also give rise to civil liability. In Altman v. City of High Point, N.C., 330 F.3d 194 (4th Cir. 2003), the Fourth Circuit held that dogs are “effects” protected by the Fourth Amendment against unreasonable seizure. Because shooting and killing a dog is a “seizure” of the dog, the dog’s owner can sue the shooter (and other government defendants as well) under § 1983.

Whether such a suit would succeed depends heavily on the facts of the shooting. In Altman, for example, the panel majority held that the animal control officers were protected by qualified immunity. But that was largely because the dogs “were running at large, uncontrolled and with no owner looking on.” That does not appear to be the case here. And the Altman decision will be treated as having put the government on notice of the potential for liability. Should the case be litigated, the key question will be this: Did Axel pose an imminent danger that justified the officer’s use of deadly force?

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Fourth Circuit widens prior 2-1 split over Georgia v. Randolph applicability when objecting co-tenant is not physically present, upholds federal stalking statute against vagueness challenge

The Fourth Circuit today joined the Seventh and Eighth Circuits in their split from the Ninth Circuit over the correct application of Georgia v. Randolph, 547 U.S. 103 (2006), in a situation in which consent to search a shared home was given by one person with authority to consent in the absence of another individual who had previously refused consent. Compare United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (requiring physical presence of objecting co-tenant), and United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (same), with United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (allowing prior co-tenant’s refusal to operate even in the absence of continuing physical presence).  The court also upheld the federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), against a vagueness challenge. Judge Wilkinson wrote the opinion for the court in United States v. Shrader, which was joined in by Judge Motz and Judge Shedd.

With respect to the circuit split over Georgia v. Randolph, the opinion states that the Ninth Circuit’s approach of allowing refusal to operate even in the absence of the objecting co-tenant raises practical problems:

How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

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The last of the Fourth Circuit’s unpublished opinions after argument in 2011

In the last two weeks of 2011, the Fourth Circuit issued five unpublished opinions after argument, two in criminal cases and three in civil cases, all unanimous. The court affirmed in three cases, reversed in one, and affirmed in part and vacated in part in the fifth case.

In United States v. Davis, the court affirmed denial of a motion to suppress notwithstanding the appellant’s argument that the officers extended the scope and duration of a traffic stop beyond the circumstances justifying it. A panel consisting of Judge Niemeyer, Judge Duncan, and Judge Floyd issued  a per curiam opinion.

In United States v. Buczkowski, a panel consisting of Chief Judge Traxler, Judge Agee, and Judge Diaz reduced twenty-seven counts of transporting child pornography down to one. The unpublished per curiam opinion begins as follows:

Daniel Buczkowski was convicted of one count of possessing  child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-seven counts of transportation of child pornography in  interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1).  Buczkowski appeals, challenging the convictions and sentences imposed on the transportation counts only. While we find the  government’s evidence sufficient to establish that Buczkowski transported child pornography, that evidence established only a  single act of transportation. Accordingly, we affirm the  conviction and sentence on the first transportation count,  vacate the remaining transportation convictions and sentences, and remand for resentencing.

In Miller v. Montgomery County, the Fourth Circuit affirmed a dismissal for lack of standing. Miller sought to challenge the denial of an application for an exemption from Montgomery County’s Conservation Law relating to certain trees that Miller intended to harvest, but the landowner rather than Miller signed the application. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Gregory joined.

In Young Again Products, Inc. v. Acord, the Fourth Circuit affirmed the imposition of sanctions and a civil contempt order. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Motz concurred.

In Trice, Geary & Myers, LLC v. CAMICO Mutual Insurance Company, a Fourth Circuit panel unanimously reversed a grant of summary judgment in favor of an insurance company, holding that claims brought against a policyholder triggered a duty to defend. Judge Wynn wrote the opinion, in which Judge Gregory and Judge Diaz joined.

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How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part?

Fourth Amendment cases sometimes raise questions that (one hopes) would otherwise never need to be asked or answered. A Fourth Circuit panel’s split decision in United States v. Edwards appears to turn on the answer to just such a question.

In the course of (what the Fourth Circuit appears to treat as) a permissible search, a Baltimore City police officer located a plastic sandwich baggie containing several packets of cocaine tied around a man’s penis. The officer proceeded to cut the baggie off with a knife. According to a Fourth Circuit panel majority consisting of Judge Keenan and Judge Motz, this action violated the Fourth Amendment and required suppression. According to Judge Keenan’s majority opinion, “in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.”

As Judge Diaz points out in dissent, however, the record evidence does not support the majority’s assertion about the nature of the risk posed by the police’s actions. The majority suggests that the police could have requested and used blunt-edged scissors, but the knife may have been no riskier: “the record of the suppression hearing offers little information about the knife, the manner in which it was used to remove the contraband, or how long it took to accomplish the task. The district court, moreover, made no mention of the knife in its ruling. This omission was not an oversight, but rather reflected the fact that the knife was not the focus of the parties’ evidentiary presentations.”

At points, Judge Keenan’s opinion hints at another possible rationale for the majority’s ruling–that the use of a knife in this circumstance “could only cause fear and humiliation.” But the majority does not rest on this rationale, and never undertakes a comparative assessment of the fear and humiliation involved in alternative methods of removing a baggie from this sensitive location. As Judge Diaz points out, the alternatives of untying, removing, or tearing the baggie, “would require that officers physically touch Edwards’ penis. . . . [And] a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife.”

Judge Diaz argues not only that the police did not violate the Fourth Amendment, but also that, if they did so, suppression was not the appropriate remedy.In responding to this point, the majority contends that suppression here serves the goal of deterrence. According to Judge Keenan, “Baltimore City police officers conduct searches inside the underwear of about 50 percent of arrestees, in the same general manner as the strip search performed on Edwards.” But the majority does not seek to deter such searches, only the use of a knife to remove what some of those searches reveal. And this poses a more significant problem: If the behavior to be deterred is routine, and if it poses a significant and unnecessary risk of harm, then wouldn’t the police have made a stray cut before now?

This question, and others, are raised by the panel opinion. It will be interesting to see whether, and if so, how, the case is revisited in en banc proceedings.

For those who track such things, all three judges on the panel were appointed by Democrats. Two were appointed by President Obama (Judge Keenan and Judge Diaz) and one by President Clinton (Judge Motz). Two judges are female (Judge Keenan and Judge Motz) and one judge is male (Judge Diaz).

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Put that knife away, Baltimore Police, and call for the blunt-edged scissors?

When the police find a plastic baggie full of suspected drugs attached to a man’s penis, does it violate the Fourth Amendment for the police to cut it off with a knife? “Yes,” according to a 2-1 vote of the Fourth Circuit. Judge Keenan wrote the majority opinion in United States v. Edwards, in which Judge Motz joined. Judge Diaz authored a dissent.

Some snippets from the majority opinion:

As they were looking inside Edwards’ underwear, the officers saw that there was a plastic sandwich baggie tied in a knot around Edwards’ penis. From Bailey’s vantage point and with the assistance of the flashlight beam, Bailey could also see that the sandwich baggie contained smaller blue ziplock baggies, which contained “a white rock-like substance.” Based on his training and experience, Bailey concluded that the baggie and its contents were consistent with the packaging or distribution of a controlled substance.

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife. After Bailey cut the baggie,  he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

* * *

We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety.

* * *

Manifestly, in the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene  to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

A cut from Judge Diaz’s dissent:

The majority does not suggest that the officers should have allowed Edwards to remove the contraband himself. But while it posits certain alternatives for seizing it, I fail to see  how the majority’s suggestions are any more reasonable than the method chosen by the officers. The first three suggestions—untying, removing, or tearing the baggie—would require that officers physically touch Edwards’ penis. In my view, however, a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife. The majority next suggests that officers should have arranged for blunt scissors to be brought to the scene to remove the baggie. But this assumes that the knife actually used was not blunt, whereas the record offers no evidence as to its characteristics. Finally, the majority’s catch-all suggestion that officers should have used “other non-dangerous means in any private, well-lit area,” Maj. Op. at 14, does not specify a method of removal, but instead relies on the location of the search—a Bell factor that the majority explicitly declines to adopt as a basis for its decision. Thus, while criticizing the officers’ use of the knife as unreasonable, the majority has failed to articulate a method of removal that is any more reasonable. On that issue, the majority is in good company, for even Edwards’ counsel conceded at oral argument that there was “no good option” for removal.

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Can judicial inquiry into “good faith” under Leon rely on uncontroverted facts outside the affidavit? Fourth Circuit says yes, notes 4-2 circuit split.

The Fourth Circuit issued an opinion today unanimously affirming the district court in United States v. McKenzie-Gude. Judge Motz wrote the opinion, which was joined in by Judge King and Judge Duncan. The appeal focused on the legality of a search of a residence where the defendant, 18 years old at the time, allegedly possessed an AK-47 and explosive chemicals. The police obtained a warrant and ultimately seized from the defendant’s bedroom “several weapons, assorted gun parts, two bullet-proof vests, hundreds of rounds of ammunition, chemicals and other materials that could be used to make explosive devices, and instructions for making such devices.”

The problem with the search is that the affidavit in support of the warrant never linked the address of the residence to be searched (which was in the affidavit) with the defendant (who was linked in the affidavit with past possession of an AK-47 and explosive chemicals). The residence to be searched was the defendant’s residence, but the affidavit never said so. At the same time, uncontroverted information known to the police indicated that the defendant resided at the address to be searched.

The government conceded that the affidavit lacked the necessary connection between the defendant and the residence to be searched, but argued under Leon that the officers executing the warrant “harbored an objectively reasonable belief in the existence” of the link between the defendant’s alleged criminal activity and the residence to be searched. If the officers were entitled to rely not only on the affidavit but also additional evidence known to them, the answer to that question is obviously yes. According to the Fourth Circuit, then, “the question before us is whether, in determining an officer’s good faith, a court may properly look beyond the facts stated in the affidavit and consider uncontroverted facts known to the officers but inadvertently not disclosed to the magistrate.” The court answered that question in the affirmative, stating that “[w]e have consistently rejected the notion that reviewing courts may not look outside the four corners of a deficient affidavit when determining, in light of all the circumstances, whether an officer’s reliance on the issuing warrant was objectively reasonable.”

The court notes in a footnote that the Sixth Circuit and Ninth Circuit have held that Leon good faith reliance can be measured only by what is in an officer’s affidavit. By contrast, the Seventh, Eighth, and Eleventh Circuits have adopted the rule followed by the Fourth Circuit.

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Fourth Circuit affirms denial of suppression motion, recognizing limits to recent suppression holdings

The federal government has had difficulty beating back suppression motions in the Fourth Circuit this past year. Last week, however, a panel unanimously affirmed the denial of a suppression motion. Judge Wilkinson wrote the opinion in United States v. Glover, which was joined in by Judge King and Judge Diaz. (Attentive readers may also have noted that Judge Wilkinson authored the majority opinion in United States v. Braxton a couple of weeks ago, also affirming denial of a suppression motion–that time, over the dissent of Judge Wynn.)

The opinion begins as follows:

Paul Glover entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the denial of his motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the wee hours of the morning. For the reasons that follow, we affirm the district court’s denial of Glover’s suppression motion.

The stop-and-frisk here occurred after officers observed the defendant lurking outside of the range of the closed circuit cameras at a 24-hour service station at around 4:40 a.m. Judge Wilkinson writes that the circumstances facing the officers were far different than those in United States v. Foster, 634 F.3d 243 (4th Cir. 2011), which “concerned the stop of  a driver believed to be involved in drug activity in the middle of the day in a low-crime area.”

With respect to police reliance on nervous behavior, which the Fourth Circuit criticized in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), Judge Wilkinson wrote:

While it is important not to overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset, see United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011), Glover was furtively watching the attendant from a location outside the range of surveillance cameras, glancing around the corner, and pulling his head back well before Officers Skipper and Archer stopped the patrol car. Such conduct is far more like the casing of the store in Terry than the case of nerves a citizen might ordinarily exhibit in interactions with police.

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Fourth Circuit affirms child pornography convictions and sentence over Fourth Amendment, statutory, and Eighth Amendment challenges

The Fourth Circuit yesterday issued a published opinion in United States v. Wellman affirming convictions on three offenses related to child pornography possession along with a ten-year sentence on one of the counts. Judge Keenan wrote the opinion, which was joined in by Judge Wynn and Senior Judge Hamilton.

In disposing of the defendant’s Fourth Amendment claim, Judge Keenan assumed without deciding that the content of the warrant application was insufficient to find probable cause, but held that the evidence was not subject to suppression because the West Virginia State Police relied in good faith on the issued search warrant. Although the structure of this reasoning does not yield clear guidance about what must be included in a warrant application, the panel did “decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography.”

The opinion rejects the defendant’s statutory argument as an impermissible “attempt to graft a subjective, fact-based knowledge requirement onto an objective legal standard.”

The Eighth Amendment proportionality analysis concludes easily that Congress acted “well within its authority” in providing for a ten-year sentence for recidivist possessors of child pornography. In the lead-up to the analysis, Judge Keenan quotes a First Circuit decision stating that the instances of disproportionate sentences invalid under the Eighth Amendment should be “hen’s-teeth rare.” This suburbanite does not know what that means based on any experience with hens, but I suppose the number of such sentences is not much more than a goose egg.

 

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Split Fourth Circuit panel upholds Terry-based frisk of passenger in car stopped for bad tags (and with tinted windows, in a high-crime area)

As previously discussed, the Fourth Circuit has dealt more than a few defeats to federal prosecutors this year on suppression motions arising out of Terry stops and Terry frisks. The unpublished opinions by a split panel in United States v. Braxton reveal that the Terry terrain continues to require careful navigation.

Judge Wilkinson wrote the majority opinion, in which Judge Floyd joined, affirming the district court’s denial of a suppression motion. Although the district court did not invoke the correct formula, the panel majority concluded that the facts revealed by the record justified the district court’s decision:

Here, the officers confronted a dangerous situation  presenting numerous indicia of criminal activity. They were  outnumbered by the passengers in a vehicle bearing bad tags traveling through a dangerous area with darkly tinted windows.  While “[w]e do not exclude the possibility that in some circumstances a patdown is not required[,]. . . we hesitate before criticizing [Officer Williams’s] choice of the means to protect himself in emergent circumstances on the street from the relative calm and safety of chambers.” United States v. Casado, 303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

Proper adherence to the standards of Terry does not require  us to gamble with the lives of police officers who exercise reasonable judgment in fulfilling their duty in the trying situation presented by a roadside car stop. The Supreme Court  has long noted that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing Mimms, 434 U.S. 106). Officer Williams executed a minimally intrusive frisk, justified at the time by a reasonable suspicion that he and his fellow officers were in a situation that could escalate and place both the officers and the occupants of the car at risk. Where the totality of circumstances supports a reasonable suspicion that Braxton was “armed and dangerous,” the absence of those three talismanic words, while error, is not fatal to the district court’s ruling in this case.

Judge Wynn dissented, objecting that “under the majority’s holding, any passenger in a vehicle with bad license tags could be subjected to a patdown search, even absent a finding of reasonable suspicion that particular is armed and dangerous, if the vehicle is stopped in a high-crime area.” According to Judge Wynn, this contradicts the rule that “an officer must have justification for a frisk or a ‘pat down’ beyond the mere justification for the traffic stop.”

Judge Wynn’s dissent criticizes the majority for making factual findings on a cold appellate record, exceeding the limited role of an appellate court. According to Judge Wynn, this led to at least one apparent factual error:

I can find no support in the record for the  majority opinion’s statement that, “Braxton then elbowed Officer Williams in an attempt to escape, but he was subdued after a struggle with Officer Williams and another assisting officer.” Ante p. 3. The transcript shows that Officer Williams recalled that Defendant “attempted to elbow me to get me off of him.” Transcript, at 56. Nothing in the record indicates that Officer Williams stated that Defendant made “an attempt to escape.”

To the contrary, Officer Williams testified under crossexamination that the police report was incorrect if it reflected that Defendant “attempted to push [Officer Williams] back and run” and that in fact Defendant complied with Officer Williams’s request to get out of the vehicle and put his hands up, allowing Officer Williams to pat him down. Transcript, at 61. He further agreed that “any insinuation in the police report” that Defendant did not comply was incorrect. Id. at 62.

This emphasis continues a theme sounded in Judge Wynn’s dissent from the Court’s published opinion in United States v. Foster, previously discussed here, which was issued on the same day as Braxton.

 

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4 years for an illegal liquor operation and Social Security disability fraud

The Fourth Circuit earlier this week issued an unpublished per curiam opinion in United States v. Smith affirming a conviction and 48-month sentence arising out of an illegal liquor operation in Halifax County, Virginia. In addition to providing some insight into the mechanics of running an illegal still, the opinion contains a discussion of the Fourth Amendment’s open fields doctrine, a formula for calculating the tax loss to the government from the illegal liquor operation (including $13.50/gal, with production estimated based on sugar purchases and other records), and dueling video surveillance systems. The panel consisted of Judge Agee, Judge Wynn, and Senior Judge Hamilton.

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Can refusal to consent to a patdown provide reasonable suspicion to authorize a nonconsensual patdown?

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.

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Fourth Circuit: Suppression of Drugs Seized During I-95 Traffic Stop Affirmed

The Fourth Circuit has affirmed the suppression of drugs seized during a traffic stop on I-95 in Maryland. Senior Judge Hamilton wrote the opinion in United States v. Digiovanni, which Judges Motz and Diaz joined.

A few tidbits from the opinion are after the jump below. From the non-specialist point of view, there seem to be a few take-aways for civilian motorists and law enforcement alike. For civilian motorists: (1) pack your shirts in a garment bag, or you might be suspected of being a drug trafficker; (2) don’t keep your car too clean, or you might be suspected of being a drug trafficker; (3) never off-handedly say “oh boy” while answering an officer’s question; (4) when asked if you use marijuana, don’t say “I never smoked marijuana in my life. It makes me sleepy.” Most important, don’t agree to transport over 34,000 oxycodone pills from Miami to Boston. The take-away for law enforcement is to get consent faster, running through questions after plugging in license information.

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Fourth Circuit: Qualified Immunity for Strip Searches Following Positive Ionscan

Judge Wilkinson authored an opinion for a three-judge panel of the Fourth Circuit (Wilkinson, Shedd, Norton by designation) affirming the grant of qualified immunity to Maryland prison employees in Braun v. Maynard. The court holds that strip searches following the positive alert of “a portable ion scanning machine capable of detecting minute amounts of controlled substances” do not violate clearly established federal law implementing the Fourth Amendment.

One interesting tidbit is Judge Wilkinson’s citation of the Supreme Court’s decision in City of Ontario v. Quon, which the opinion invokes as support for the proposition that “[i]t is often difficult for judges, let alone prison officials, to apply Fourth Amendment concepts to cases involving novel technology.” Justice Kennedy’s opinion for the Court in Quon does have a lengthy discussion of Fourth Amendment problems raised by new technology. This discussion drew the ire of Justice Scalia, who thought the majority’s “excursus on the complexity and consequences” of answering a question about the correct application of the Fourth Amendment to new technology not only “unnecessary” but also “exaggerated.” Justice Scalia wrote: “Applying the Fourth Amendment to new technology may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)–or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions–is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse of disregard of duty.”

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