||UPDATE: FOURTH CIRCUIT REVERSES ITS PREVIOUS DECISION AND HOLDS STOP OF PERSON NEAR SHOOTING WITHOUT REASONABLE SUSPICION DOES NOT MEET SPECIAL NEEDS EXCEPTION TO THE FOURTH AMENDMENT

UPDATE: FOURTH CIRCUIT REVERSES ITS PREVIOUS DECISION AND HOLDS STOP OF PERSON NEAR SHOOTING WITHOUT REASONABLE SUSPICION DOES NOT MEET SPECIAL NEEDS EXCEPTION TO THE FOURTH AMENDMENT

On July 15, 2020, the Fourth Circuit Court of Appeals reheard the United States v. Curry[i], in which the court examined whether a stop of a person near the scene of a “shots fired” call, was reasonable under the “special needs” exception to the Fourth Amendment, even if there was no reasonable suspicion present to support the stop.  On September 05, 2019, a panel of three judges of the Fourth Circuit Court of Appeals voted 2-1 that the special needs exception to the Fourth Amendment, particularly “exigent circumstances,” supported the pedestrian stop of Curry, who was walking away from the location of a “shots fired” call, even though the officers did not have reasonable suspicion to believe that Curry was involved in that incident.  After the rehearing en banc (the full panel of judges), the Fourth Circuit reversed the decision of the panel of three which was decided on September 05, 2019 and held as follows:  The “special needs” exception, particularly, “exigent circumstances,” did not justify the stop of Curry absent reasonable suspicion, as he was walking in an area near the location of a “shots fired” call. 

The relevant facts of Curry 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.  On appeal, the government did not argue that reasonable suspicion was present; rather, they focused their argument on the “special needs” exception to the Fourth Amendment.

On September 05, 2019, the panel of three voted 2-1 that the stop was reasonable under the “special needs” exception.  Particularly, the court held that the “exigent circumstances” exception, to the Fourth Amendment applied.  This is the same exception that allows warrantless home entry to protect a life and roadblocks to prevent terrorist attacks or capture a very dangerous criminal who is attempting to escape the scene of a crime.

Curry petitioned for a rehearing by the full panel of the Fourth Circuit (known as a rehearing en banc), which the court granted.  For the reasons discussed below, the full panel reversed the panel’s decision from September 05, 2019 and held that the stop of Curry was not reasonable under the Fourth Amendment.

On rehearing, the court identified the issue as follows:

Whether the suspicionless seizure of Curry—which was not a legal Terry stop—was nevertheless lawful due to exigent circumstances.[iii]

If the initial seizure of Curry was not reasonable under the Fourth Amendment, any facts or evidence obtained after that initial seizure would not be admissible due to the exclusionary rule.  The court noted that, on appeal, the government did not argue that Curry’s initial seizure was justified by reasonable suspicion that he was involved in criminal activity, such as is allowed under Terry v. Ohio.  Rather, the government argued that Curry’s stop was justified without reasonable suspicion under the “exigent circumstance” exception to the Fourth Amendment.

The court of appeals then examined the rationale used by the original panel of the court.  The court first examined the legal principles that were applied and stated

But like all exceptions to the warrant requirement, the exigent circumstances exception is a “narrow” one that must be “well-delineated in order to retain [its] constitutional character.” Yengel, 711 F.3d at 396 (citing Flippo, 528 U.S. at 13); see also Mincey, 437 U.S. at 390 Thus, while application of the exigency doctrine often depends on the “totality of the circumstances,” see Mitchell v. Wisconsin, 139 S. Ct. 2525, 2535 n.3 (2019) (plurality opinion) (quoting McNeely, 569 U.S. at 150), the Supreme Court, to date, has identified only “a few . . . emergency conditions” that rise to the level of exigent circumstances, Welsh, 466 U.S. at 749-50. They include: (1) the need to “pursue a fleeing suspect”; (2) the need to “protect individuals who are threatened with imminent harm”; and (3) the need to “prevent the imminent destruction of evidence.” Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (citing Kentucky v. King, 563 U.S. 452, 460 & n.3 (2011)); accord Birchfield, 136 S. Ct. at 2173; see Welsh, 466 U.S. at 750.[iv]

The court then noted that the original panel that decided this case relied upon the second exception listed above, particularly, “the need to protect individuals who are threatened with imminent harm.”  The court then examined precedent where this exception has previously been held to be reasonable under the Fourth Amendment.

First, the court observed that the exigent circumstance exception is used to “typically only justify “the warrantless entry and search of private property, usually a home.”[v]  For example, in Brigham City v. Stuart[vi], the Supreme Court allowed the exigent warrantless entry into a residence when the officers observed a physical fight in progress where person had gotten punched and was bleeding.  The court noted, in contrast, that typically

Warrantless seizures of persons, by contrast, are governed by the law of arrests as well as the Terry line of cases, which itself is an exception to the Fourth Amendment’s warrant requirement. See Terry, 392 U.S. at 20; see also Mora, 519 F.3d at 222.[vii]

Second, the court observed that a few cases have allowed the exigent circumstance exception to justify a stop of a person, but those have been limited to situations of a known crime where there was a specific group of potential suspects in a limited geographical area.  The court stated that the factors that allowed such suspicionless stops were not present in Curry’s case.  Specifically, the court stated

One line of cases purporting to apply the exigent circumstances exception to suspicionless seizures involves law enforcement officers establishing vehicular checkpoints along routes that they reasonably expect will be used by suspects leaving the scene of a known crime. For example, in United States v. Harper, after officers observed a docked boat holding illicit drugs, an agent stationed his car close to the “only paved road with access to the [landing area].” 617 F.2d 35, 40 (4th Cir. 1980). In holding that a suspicionless stop resulting from the checkpoint was constitutional, we noted that “[t]he purpose of these stops was to arrest suspects for a known crime, not to discover evidence of undetected crimes by happenstance of visual searches.” Id. Officers’ observation of the crime, the suspects, and the likely escape route allowed them to narrowly target individuals “known to be fleeing the scene along a route reasonably expected to be used for their escape.” Id. at 40-41; see also United States v. Paetsch, 782 F.3d 1162, 1170-71 (10th Cir. 2015) (holding that a police barricade at an intersection and the search of twenty cars without individualized suspicion was “appropriately tailored” because a GPS tracker showed that “the stolen money (and likely the armed criminal who stole it) sat in a car idling at that very intersection“).[viii]

While the above cases concerned vehicle stops, the court noted that the exception has previously also been applied to persons, for example, blocking the exits to a nightclub where the officers knew that stabbing suspects had just entered.  The court stated

[C]ourts have similarly required that officers have specific information about the crime and suspect before engaging in suspicionless seizures. In Palacios v. Burge, the Second Circuit considered whether the exigent circumstances exception applied to the detention of a group of people in a nightclub without particularized suspicion as to any one of the individuals. 589 F.3d 556, 563 (2d Cir. 2009). Officers surveilling the club had encountered a man who told them that his brother had been stabbed and that the assailants had run into the club. Id. at 559. Moments earlier, the officers had seen a group of men matching the description of the assailants enter the club. Id. The officers sealed the exits to the club, detained all the individuals inside, and lined up approximately 170 men who matched the description of the suspect. Id. The Second Circuit held that this detention and show-up was not unreasonable because “police knew that the perpetrators were within the finite group of men . . . inside or lined up outside of the . . . [c]lub.” Id. at 563. Moreover, police feared that witnesses on the scene who could identify the suspect would not be available at a later time. Id.[ix]

The court contrasted Curry’s case with those above.  In Curry’s case, there was no verification that a person had been shot.  Additionally, there was no specific crime scene location; rather there was general area where shot had been heard.  Further, officers did not stop everyone in the area, but rather seemed to single out Curry and a few other men near him, while bypassing other persons in the area.

The full panel, then stated

In sum, the exigent circumstances exception may permit suspicionless seizures when officers can narrowly target the seizures based on specific information of a known crime and a controlled geographic area. This reading of the exception does not transform it into individualized suspicion by another name. After all, the officers in Harper and Palacios had no particularized suspicion as to any individual they seized. Nor does it require that officers be virtually certain that one of the individuals they stop is the suspect. But officers must support their “objectively reasonable belief” that there is an emergency with “specific articulable facts and reasonable inferences.” See Yengel, 711 F.3d at 397. Allowing officers to bypass the individualized suspicion requirement based on the information they had here—the sound of gunfire and the general location where it may have originated—would completely cripple a fundamental Fourth Amendment protection and create a dangerous precedent.[x]

Thus, in this case officers were required to comply with the reasonable suspicion requirement of Terry, and the government conceded that the officers lacked such reasonable suspicion.  Therefore, the case was remanded to the court and the evidence must be suppressed.

[i] No. 18-4233 (4th Cir. Decided July 15, 2020)

[ii] Id. at 4-6

[iii] Id. at 10

[iv] Id. at 14-15 (emphasis added)

[v] Id. at 17

[vi] 547 U.S. 398 (2006)

[vii] Curry at 18

[viii] Id. at 19 (emphasis added)

[ix] Id. at 20 (emphasis added)

[x] Id. at 22-23 (emphasis added)

By |2020-07-23T14:59:19+00:00July 23rd, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.