On September 5, 2019, the Fourth Circuit Court of Appeals decided the United States v. Curry[i], in which the court examined whether a stop of a person near the scene of a shooting, but without reasonable suspicion, violated the Fourth Amendment or fell within the “special needs” exception to the reasonable suspicion requirement. The relevant facts of Curry, taken directly from the case, are as follows:
On the night of September 8, 2017, four uniformed officers from the Richmond Police Department’s Focus Mission Team—a division dedicated to violent crime and drug suppression—were patrolling the Creighton Court neighborhood in Richmond, Virginia.1 The officers were assigned to patrol Creighton Court because it had been the site of frequent gun violence, with six shootings and two homicides in the previous three months. The most recent homicide in the neighborhood had occurred just ten days earlier. At around 9:00 PM, the officers heard around a half dozen gunshots coming from the direction of a street called Walcott Place. Two of the officers activated their body cameras, which provide a clear record of what happened. The below satellite image, taken from a Government exhibit, shows the officers’ initial location marked as “A.” J.A. 124.
Upon hearing the gunfire, the officers made a U-turn and drove northeast across a field toward Walcott Place. The district court estimated that “the patrol car travelled two to three blocks, taking only thirty-five seconds to arrive behind Walcott Place” at the location marked “B” on the map. J.A. 256-57. In that short time, the officers’ radios announced that at least two 911 calls “had come in for random gunfire, one of which was on Walcott Place.” J.A. 257. Before stopping, the officers observed a man in a red shirt who “appeared to be maybe favoring one of his arms.” Id.
As the officers arrived at what they believed to be the site of the shooting (it was likely within 50 yards), they spotted several individuals, including Curry, “walking away from a cut-through from Walcott Place, away from where the gunshots originated.” J.A. 258. The officers met Curry at the location marked “C.”
Using their flashlights, the officers “fanned out and began approaching different individuals,” “illuminating the individuals . . . , their waistbands and hands, looking for any handguns or firearms.” Id. In doing so, the officers stopped the first men encountered leaving the scene, including Curry. The other individuals complied with the officers’ directives to lift their shirts and submit to a visual inspection of their waistbands for concealed firearms. Curry refused to fully comply. When officers sought to pat Curry down, a brief scuffle ensued. After Curry was taken to the ground and handcuffed, the officers then recovered a silver revolver from the ground near Curry.[ii]
Curry was indicted under federal law for being a felon in possession of a firearm. He filed a motion to suppress and argued that the officer’s lacked individualized reasonable suspicion that he was involved in criminal activity, and therefore, the stop violated the Fourth Amendment. The government argued that there was reasonable suspicion to stop Curry and, in the alternative, that the special needs exception applied. The district court held that there was insufficient reasonable suspicion to justify the stop and that the special needs exception did not apply. The prosecution appealed to the Fourth Circuit Court of Appeals.
The court of appeals began by identifying the legal principles that govern this case. First, the court of appeals first noted that the Fourth Amendment controls searches and seizures, to include stops of persons. The requirement under the Fourth Amendment is that searches and seizures be supported by probable cause and warrant. However, over the years, various exceptions have been recognized by the Supreme Court. They also noted that searches and seizures must be “reasonable” to comply with the Fourth Amendment. The court of appeals explained the concept of “reasonableness” and stated
This touchstone inquiry of reasonableness requires determining whether the government’s interest in undertaking a search or seizure “outweigh[s] the degree to which the search [or seizure] invades an individual’s legitimate expectations of privacy.” Maryland v. King, 569 U.S. 435, 461 (2013); see also Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967) (evaluating a warrantless governmental intrusion for reasonableness requires “balancing the need to search against the invasion which the search entails”). And this balance “depends on the context within which a search takes place.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).[iii]
The court then examined the legal principles related to the “special needs” seizures. The court explained that in certain circumstances, a seizure of a person may be reasonable under the Fourth Amendment, even absent reasonable suspicion or probable cause. Specifically, the court stated
Even without suspicion of criminal activity, a search or seizure may still be reasonable when “special governmental needs, beyond the normal need for law enforcement” justify the intrusion. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989)… Not just any governmental interest will do. Only “limited circumstances” can justify a search or seizure without reasonable suspicion. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 624 (1989)… The interest at issue must go beyond “ordinary crime control” to qualify as a special need—as do, for instance, the government’s interests in “thwart[ing] an imminent terrorist attack” and “catch[ing] a dangerous criminal.” City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).[iv]
The court then gave examples of searches and seizures that have been permitted without probable cause under the special needs exception. The court noted that drug and alcohol tests of train operators have been permitted, and searches of probationers and parolees are also allowed absent probable cause. The court acknowledged that these searches are still considered “reasonable” even though the interest that allows the “special need” may overlap with crime control and law enforcement. The court stated
When faced with often-overlapping interests, we must ask whether the primary objective of the search or seizure was to generate evidence for law enforcement purposes or to serve a need beyond the normal need for law enforcement. See Ferguson v. City of Charleston, 532 U.S. 67, 81-85 (2001). That inquiry focuses on the “immediate” purpose when the search or seizure was undertaken and not some “ultimate” purpose. Id. at 82-83. Thus in Ferguson, the Court distinguished between an immediate purpose of gathering evidence to prosecute addicted mothers and an ultimate purpose of protecting the health of children and mothers by getting mothers to stop using drugs through the threat of prosecution. Id. at 83-84 (“The threat of law enforcement may ultimately have been intended as a means to an end [i.e., health of children and mothers], but the direct and primary purpose of [the hospital’s] policy was to ensure the use of those means. In our opinion, this distinction is critical.”). To identify this primary purpose, courts must consider all the circumstances surrounding the search or seizure. Id. at 81; cf. Michigan v. Bryant, 562 U.S. 344 (2011).[v]
After laying the groundwork for the legal principles that control Curry’s case, the court set out to examine the issues.
Issue One: Did a “special need” exist that justified the stop of Curry, absent reasonable suspicion?
The court then discussed the “exigent circumstances” exception as a “special need” in certain situations. The court stated
One governmental special need is the interest in responding to “exigent circumstances.” See United States v. Taylor, 624 F.3d 626, 631 (4th Cir. 2010). The exigent-circumstances doctrine recognizes that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'” Mincey, 437 U.S. at 392-93 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963).[vi]
For example, in City of Indianapolis v. Edmunds[vii], the Supreme Court, while holding that general crime control roadblocks were unconstitutional, suggested that a checkpoint to prevent an “imminent terrorist attack” or a dangerous criminal likely to flee on a particular route would be reasonable.
The court further explained exigent circumstances as a special need and stated
What constitutes “exigent circumstances” to justify warrantless or suspicionless seizures is highly fact-specific. Exigent circumstances exist where the objective circumstances would lead a reasonable, experienced officer to believe an urgent need existed to act, particularly where the safety of the public or police are threatened. See Minnesota v. Olson, 495 U.S. 91, 100 (1990). As the Supreme Court has explained, these exigencies include “the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.” Carpenter, 138 S. Ct. at 2222-23. And “[i]n addition to these well-established exigencies, the Supreme Court and this Circuit have held that more general ’emergencies,’ if enveloped by a sufficient level of urgency, may also constitute an exigency.” United States v. Yengel, 711 F.3d 392, 397 (4th Cir. 2013); see also Taylor, 624 F.3d at 631-33 (finding abandoned child on street constituted an exigent circumstance given “the self-evident danger that the abandoned child posed to herself and the inference of danger to her caretaker”).[viii]
Applying the rules discussed to the facts of Curry’s case, the court of appeals noted that officers heard the gunfire. They arrived at or within fifty yards of the scene within seconds, and saw a group of males leaving the area, in a populated, residential neighborhood. The court stated that these facts provided the officers with a reasonable belief that the shooter could continue to shoot and threaten people in the area, as well as pose a danger to the police. Additionally, there was a possibility of a retaliatory shooting. Therefore, the court of appeals held that
The immediate purpose of the stop and flashlight search was the need to protect the public and the officers from these dangers. Even though one purpose of the officer’s actions that night may have included ordinary law enforcement, the immediate objective of their stopping these individuals puts this case squarely within the special-needs doctrine.[ix]
After having decided that the special needs doctrine applied to Curry, the court set out to decide the second issue in this case.
Issue Two: Was stop of Curry and flashlight search reasonable when balancing the special needs of the government with the intrusion into Curry’s freedom?
The court of appeals began by discussing the factors they needed to consider when undertaking the balancing test in this issue. The court stated
Identifying a special government need, such as exigent circumstances, is only one aspect of evaluating a search or seizure conducted without individualized suspicion. That intrusion must still be evaluated for reasonableness under the balancing test of Brown v. Texas, 443 U.S. 47 (1979). See Sitz, 496 U.S. at 455; McWade, 460 F.3d at 268-69; Hartwell, 436 F.3d at 179. Under Brown, we balance (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advanced those concerns, and (3) the severity of the interference with the individual’s liberty. 443 U.S. at 50-51.[x]
The court of appeals then discussed the three factors from the balancing test above. Regarding the first factor, the gravity of the public concerns served by the seizure, the court noted that the shooting that they heard seconds before Curry’s stop in the area where Curry was stopped, in a residential neighborhood posed a grave public safety concern, as leaving a potentially active shooter on the loose was dangerous to the community and the police.
Regarding the second factor, the degree to which the seizure advanced those concerns, the court held that the seizure advanced the grave public safety concerns posed by the shooter. The court stated that it would not have met the “needs of law enforcement or demands of public safety” to require the officers to simply walk away from this incident.
Regarding the third factor, the severity of the interference with Curry’s liberty, the court stated that the intrusion was minimal, at least to the men that complied with the officers. They were told to stop, raise their shirts revealing the waist area and the police used flashlight to help them look for weapons. These men were detained less than a minute. Curry had a different experience due to his lack of compliance, however the court noted that none of the men were subjected to any type of search or questioning that checked for anything other than a weapon; as such, it was not a general crime type of search. Thus, the interference to Curry was determined to be reasonable under the circumstances.
The court of appeals then held
In sum, given the important public interests of citizen and police safety at issue and the limited stop and search that was narrowly circumscribed by the exigencies present, we find the officers’ initial stop and flashlight search of Curry and the other men to be reasonable, and thus lawful under the Fourth Amendment.[xi]
Therefore, the court of appeals reversed the decision of the district court and remanded the case back to the district court to determine if the totality of the circumstances supported reasonable suspicion that Curry may be armed so to support the frisk of his person.
[i] No. 18-4233 (4th Cir. Decided September 5, 2019)
[ii] Id. at 4-6
[iii] Id. at 9 (emphasis added)
[iv] Id. at 10 (emphasis added)
[v] Id. at 11-12 (emphasis added)
[vi] Id. at 13 (emphasis added)
[vii] 531 U.S. 32 (2000)
[viii] Curry at 15 (emphasis added)
[ix] Id. at 16
[x] Id. at 16-17 (emphasis added)
[xi] Id. at 23 (emphasis added)