4th Circuit bitch-slaps warrantless searches

KBCraig

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The 4th U.S. Circuit Court of Appeals (MD, NC, SC, VA, WV) just delivered a beautiful rebuke to police and prosecutors in a case out of North Carolina. They take care to point out that they've visited the issue at least four times in 2011, and it seems they're growing tired to reminding police what the 4th Amendment means.

http://www.ca4.uscourts.gov/Opinions/Published/115084.P.pdf

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, ü
Plaintiff-Appellee,
v. ý No. 11-5084
NATHANIEL BLACK,
Defendant-Appellant. þ
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:10-cr-00206-MOC-1)
Argued: December 7, 2012
Decided: February 25, 2013

Considering the totality of the following circumstances of
this case, it is clear that when Officer Zastrow expressly told
Black he could not leave, Black was already seized for purposes
of the Fourth Amendment. First is the collective show
of authority by the uniformed police officers and their marked
police vehicles. The citizens observed a marked police vehicle
drive to the parking lot, and then drive out of view. The police
vehicle returned along with another marked police vehicle.
Four uniformed officers approached the men, a number that
quickly increased to six uniformed officers, and then seven.
At least two of the officers were performing perimeter duties,
ensuring that no other individuals interrupted the police interaction,
and preventing the men from leaving the vicinity. Second,
Officer Strayer had obtained Troupe’s gun and secured
it in his police vehicle, indicating that at the very least,
Troupe was not free to leave. See Weaver, 282 F.3d at 310
(retention of personal property is highly material). Third,
Officer Strayer had frisked Troupe and was frisking Moses;
a reliable indicator that Officer Strayer would proceed to frisk
the other men, and that the men were not free to leave until
such action was completed. Fourth, and highly material, is the
retention of Black’s ID by Officer Zastrow, while Officer
Strayer frisked other men in the group.

These factors persuade us that long before he was told not
to leave, Black was seized for purposes of the Fourth Amendment.
Specifically, we hold that in view of all these circumstances,
Black was seized at the point when Officer Zastrow
pinned Black’s ID to his uniform, while Officer Strayer
frisked the men in the group. The verbal directive from the
officers not to leave was not the initiation of the seizure, but
rather an affirmation that Black was not free to leave. Black’s
subsequent decision to leave does not negate the finding that
a reasonable person in Black’s circumstances would not feel
free to leave. Instead, Black’s decision to leave was an effort
to terminate an illegal seizure
.

At least four times in 2011, we admonished against the
Government’s misuse of innocent facts as indicia of suspicious
activity. ... Instead, we
encounter yet another situation where the Government
attempts to meet its Terry burden by patching together a set
of innocent, suspicion-free facts, which cannot rationally be
relied on to establish reasonable suspicion.

Third, it is undisputed that under the laws of North Carolina,
which permit its residents to openly carry firearms, see
generally N.C. Gen. Stat. §§ 14-415.10 to 14-415.23,
Troupe’s gun was legally possessed and displayed. The Government
contends that because other laws prevent convicted
felons from possessing guns, the officers could not know
whether Troupe was lawfully in possession of the gun until
they performed a records check. Additionally, the Government
avers it would be "foolhardy" for the officers to "go
about their business while allowing a stranger in their midst
to possess a firearm." We are not persuaded.

Being a felon in possession of a firearm is not the default
status. More importantly, where a state permits individuals to
openly carry firearms, the exercise of this right, without more,
cannot justify an investigatory detention. Permitting such a
justification would eviscerate Fourth Amendment protections
for lawfully armed individuals in those states.

If police officers can justify
unreasonable seizures on a citizen’s acquiescence, individuals
would have no Fourth Amendment protections unless they
interact with officers with the perfect amount of graceful disdain.
 
Despite their open carry law, NC does not have a particularly 2A friendly reputation. Other than SC and WV, I'd expect that this sort of behavior would be the norm in the 4th Circuit. As with arrests for filming officers in the course of this duty, this behavior will continue despite court rulings until officers, their supervisors, and the elected officials in their jurisdictions are held personally financially responsible. As with Chicago having to pay the SAF's legal costs, it means nothing if a politician can use public money to compensate people harmed by illegal acts of government agents.

It's one thing to make an arrest in good faith, but it's another to have several previous decisions on the same subject and just go on arresting people willy nilly.
 
I think this was the most important part of this decision,

The facts of this case give us cause to pause and ponder the
slow systematic erosion of Fourth Amendment protections for
a certain demographic. In the words of Dr. Martin Luther
King, Jr., we are reminded that "we are tied together in a single
garment of destiny, caught in an inescapable network of
mutuality," that our individual freedom is inextricably bound
to the freedom of others. Thus, we must ensure that the Fourth
Amendment rights of all individuals are protected.

I have no doubt that Black is a bad guy and belongs in prison. That doesn't mean that it's OK for the police to violate his rights to put him there.
 
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