KBCraig
NES Member
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
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.