UNITED STATES OF AMERICA, Appellee, v. CALVIN WEAVER, Defendant-Appellant,
No. 18-1697-cr
United States Court of Appeals for the Second Circuit
AUGUST 16, 2021
AUGUST TERM 2020
ARGUED EN BANC: APRIL 20, 2021
On Appeal from the United States District Court for the Northern District of New York
Before: LIVINGSTON, Chief Judge, CALABRESI, CABRANES, POOLER, CHIN, LOHIER, CARNEY, SULLIVAN, BIANCO, PARK, NARDINI, MENASHI, Circuit Judges.*
NARDINI, Circuit Judge, filed the majority opinion, in which LIVINGSTON, Chief Judge, CABRANES, SULLIVAN, BIANCO, PARK, and MENASHI, Circuit Judges, joined in full.
LOHIER, Circuit Judge, filed an opinion concurring in the result, joined by CARNEY, Circuit Judge, except as to Part III.B.
POOLER, Circuit Judge, joined by CALABRESI and CHIN, Circuit Judges, filed a dissenting opinion.
CALABRESI, Circuit Judge, joined by POOLER and CHIN, Circuit Judges, filed a dissenting opinion.
CHIN, Circuit Judge, joined by CALABRESI and POOLER, Circuit Judges, filed
This case presents what is, in some respects, a familiar question: whether a police officer‘s pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. Based on the facts presented, we conclude that it was. We write en banc to confirm several fundamental, and well-settled, principles of Fourth Amendment jurisprudence. First, a police officer‘s verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring. Second, a police officer‘s subjective intent bears no weight in determining when that officer‘s interaction with the suspect constitutes a search. Third, in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene. When the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect‘s behavior before deciding to conduct a pat-down for his safety.
We VACATE the panel decision and AFFIRM the judgment of the district court.
CARINA H. SCHOENBERGER, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.
JAMES P. EGAN, Assistant Federal Public Defender, Syracuse, NY, for Defendant-Appellant.
Alexandra A.E. Shapiro, Erin M. James, Shapiro Arato Bach LLP, New York, NY; Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, NY; Timothy P. Murphy, New York State Association of Criminal Defense Lawyers, Buffalo, NY, for National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and New York Council of Defense Lawyers, Amici Curiae in support of Defendant-Appellant.
Jenn Rolnick Borchetta, The Bronx Defenders, Bronx, NY; Jin Hee Lee, Ashok Chandran, Mahogane Reed, NAACP Legal Defense and Educational Fund, Inc., New
WILLIAM J. NARDINI, Circuit Judge:
This case presents what is, in some respects, a familiar question: whether a police officer‘s pat-down search of a suspect for weapons was reasonable under the Fourth Amendment. In concluding that the search here was reasonable, we break no new legal ground but rather reiterate well-settled constitutional principles and reject novel arguments to the contrary.
The defendant, Calvin Weaver, was frisked during a traffic stop in a neighborhood known for gun violence. The officer who frisked him, Officer Jason Tom, had just seen Weaver staring at the officers’ unmarked police car and then visibly hitching up his pants as he got into a sedan. Later, officers encountered the sedan and pulled it over for a traffic violation. As Officer Tom approached the sedan, he saw Weaver slouched down in his seat, shifting and squirming, and using both hands to push down on his pelvic area, as if to conceal something. When ordered to stand outside the sedan with his hands on the trunk, Weaver pressed his pelvis toward the car. During a pat-down, officers discovered that Weaver had a loaded semi-automatic pistol and baggies of cocaine hidden in his pants.
Weaver appealed his conviction for being a felon in possession of a firearm, entered in the United States District Court for the Northern District of New York (Glenn T. Suddaby, C.J.), on the grounds that the district court erroneously denied his motion to suppress the gun and drugs found during the search. In support, Weaver advanced several legally novel contentions. Specifically, he argued that in assessing whether reasonable suspicion existed, we are limited to analyzing his conduct before Officer Tom ordered him out of the car. He claimed that the order marked the moment the search began, both because Weaver would have reasonably thought he was being searched at that point, and because Officer Tom subjectively intended to search him when he gave
Having agreed to rehear Weaver‘s appeal en banc, we now vacate the panel opinion, reject Weaver‘s novel legal contentions, as adopted by the panel majority, and write to confirm several fundamental principles of Fourth Amendment jurisprudence. First, a police officer‘s verbal directives to a suspect do not transform a stop into a search when they do not amount to a physical trespass or intrusion into an area subject to a reasonable expectation of privacy, irrespective of any reasonable belief by a suspect as to whether a search is occurring. Second, a police officer‘s subjective intent bears no weight in determining when that officer‘s interaction with the suspect constitutes a search. Third, in evaluating whether an officer has reasonable suspicion that a suspect is armed, courts must look to the totality of the circumstances confronting the officer, as viewed objectively by a reasonable and cautious officer on the scene. When the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect‘s behavior before deciding to conduct a pat-down for his safety.
We therefore VACATE the panel decision and AFFIRM the judgment of the district court.
I. BACKGROUND
This case concerns the constitutionality of a February 15, 2016, pat-down of the defendant, Calvin Weaver, through which officers of the Syracuse Police Department (“SPD“) found a loaded pistol and cocaine. A federal grand jury in the Northern District of New York returned an indictment charging Weaver with one count of being a felon in possession of a firearm,
A. Evidence at the Suppression Hearing
At the suppression hearing, the district court heard testimony from SPD Officer Jason Tom, as well as a second officer on the scene, Detective Gordon Quonce.1 Neither Weaver nor the third officer involved in the traffic stop, Detective Greg Staub, testified. The court received five exhibits into evidence, including a map and photographs of the intersection where the search occurred, a photograph of the gun recovered from Weaver‘s pants, and a portion of the SPD‘s general rules and procedures manual.
Officer Tom testified that near dusk, around 5:00 p.m., the officers noticed a man, later identified as Weaver, walking alone “along the curb line” of Merriman Avenue. App‘x at 150. The officers watched Weaver stare into the officers’ car as they drove toward him, as they passed him, and as they drove away. Detective Quonce similarly testified that Weaver first came to the officers’ attention because “as [they] were driving, he appeared to be staring at [their] vehicle. . . . longer than typically one would look at a vehicle,” and he continued to stare as he stood at the passenger side of a gray sedan. App‘x at 94–95. From the officers’ sideview mirror, Officer Tom saw Weaver give an “upward tug” to his waistband before getting in the sedan. App‘x at 152. The gray car drove off with Weaver.
Later, Detective Quonce saw the gray sedan again—this time, failing to timely signal before making a turn—and decided to pull the car over.2 Three men were in the car: the driver, a back-seat passenger, and a front-seat passenger—Weaver. When the sedan came to a stop, the rear driver‘s side door quickly swung open into traffic, causing Detective Quonce to fear that “the rear passenger was about to flee from the vehicle.” App‘x at 103. Officer Tom ordered the man to stay in the vehicle, and the man complied, closing the door behind him. The officers walked toward the car, with Detective Quonce on the driver‘s side and Officer Tom on the passenger‘s side.
During the traffic stop, Officer Tom recognized Weaver as the man who had previously watched the officers’ car on Merriman Avenue. Officer Tom testified that he quickly grew suspicious of Weaver‘s unusual movements: “As I‘m approaching the vehicle, from my vantage point I can see into the cabin of the vehicle clearly, I see the front passenger with both hands kind of pushing down on his pelvic area and squirming kinda in the seat left and right, shifting his hips.” App‘x at 158. Officer Tom thought Weaver was “trying to push something down” and was “concerned because it‘s abnormal that he‘s making these movements. . . . these pushing movements,” and so he gave him a series of commands. App‘x at 159. First, Officer Tom ordered Weaver to show his hands. Weaver complied and responded, “I don‘t got nothin‘.” App‘x at 159. Next, Officer Tom had Weaver place his hands on his head, and Weaver complied. Officer Tom then asked for identification, and Weaver said it was in his right pants pocket. After
While Detectives Quonce and Staub talked to the driver and back-seat passenger, Officer Tom directed Weaver to stand at the rear quarter panel of the car with his hands on the trunk and his feet spread apart. Weaver stood very close to the car, pressing his pelvic area only “a few inches” from the quarter panel. App‘x at 163. From the other side of the car, Detective Quonce also noted that Weaver kept “moving his torso against the vehicle.” App‘x at 107. Officer Tom asked Weaver to step back, and Weaver resisted, claiming that the ground was too slippery. Officer Tom saw nothing on the ground to make it slippery or otherwise to prevent Weaver from standing with his feet spread apart and his hands on the trunk of the car.
Once Weaver shuffled backward, Officer Tom began to physically pat down Weaver‘s clothes. With each touch, Weaver stepped forward, pressing his pelvis closer to the car. Officer Tom placed Weaver in handcuffs, pulled him away from the vehicle, and pat-frisked his waist and pockets. Officer Tom retrieved baggies of cocaine from Weaver‘s pocket, and felt the barrel of a firearm hidden in Weaver‘s groin area. Detective Quonce then came over and completed the pat-down, recovering a loaded semi-automatic handgun with a detachable magazine.
B. The District Court‘s Decision
On December 20, 2017, the district court denied Weaver‘s motion to suppress in a detailed twenty-page opinion. After summarizing the parties’ arguments and concluding that the officers had a reasonable suspicion of a traffic violation, the court turned its attention to the lawfulness of the frisk. Based on the entire record before it, including the officers’ testimony at the suppression hearing, the court made the following factual findings: (1) The stop occurred in what was known to the officers to be a high-crime neighborhood. (2) The officers observed Weaver surveying their vehicle in a manner they found unusual. (3) Officer Tom saw Weaver pull up his waistband while walking. (4) When the officers stopped Weaver‘s car, the rear passenger opened his door in a manner that caused the officers to believe he might attempt to flee. (5) While approaching the vehicle, Officer Tom saw Weaver slouching in his seat and pushing down on his pelvic area with both hands while shifting his hips left to right, “as if he was attempting to conceal something in his pants.” App‘x at 218 (internal quotation marks omitted). (6)
The district court was careful to make its decision based on the totality of the circumstances facing Officer Tom at the time of the pat-down. It reasoned that some of the facts were insufficient, on their own, to create reasonable suspicion for a frisk. For example, the court explained that Weaver‘s “mere presence in a location known for criminal activity [was] insufficient” by itself to justify a frisk. App‘x at 217. The court also rejected Weaver‘s argument that his “conduct after [he] exited the car must be ignored,” finding “no legal authority” for the argument. App‘x at 221. The court found that all the facts, when considered together, established that Officer Tom had a reasonable suspicion to believe that Weaver might be armed and dangerous, therefore justifying a pat-down.4
C. The Appeal
On appeal, a divided panel of this Court reversed the district court‘s decision, concluding that the frisk violated the Fourth Amendment and that the firearm and cocaine should have been suppressed.5 In reviewing the record, the panel majority concluded that Officer Tom did not have a reason to believe that Weaver was armed and dangerous.6 “At most,” the majority explained, “the officers had reason to believe that Weaver possessed something illicit.”7 The panel majority acknowledged that Supreme Court precedent “instructs us to turn a blind eye to an officer‘s subjective intentions in stopping, searching, or seizing” an individual, but adopted the novel position that “[i]t does not preclude [the Court] from looking at intent in determining when the action was initiated.”8
The panel‘s dissenting member expressed concern that the panel majority‘s decision would send police officers and judges “into a new thicket of Fourth
something dangerous” was inconsistent with long-standing principles of Fourth Amendment law.10 The dissent further took issue with the majority‘s consideration of Officer Tom‘s subjective intent, finding that “Fourth Amendment precedent disfavor[ed]” any examination of an officer‘s subjective motivations.11
Pursuant to
II. DISCUSSION
Weaver argues that Officer Tom lacked reasonable suspicion to believe that he was armed and dangerous. We disagree. Based on the totality of the circumstances confronting Officer Tom before he frisked Weaver, Officer Tom‘s frisk was supported by objective and particularized facts sufficient to give rise to a reasonable suspicion that Weaver was armed and dangerous. We write to elucidate the circumstances confronting Officer Tom before he began to search Weaver and how those circumstances, taken together, demonstrate the reasonableness of the frisk under the Fourth Amendment.
A. Standard of Review
When considering a ruling on a motion to suppress evidence, we review a district court‘s legal conclusions de novo, its findings of fact for clear error, and its decisions on mixed questions of law and fact, including whether there was reasonable suspicion to justify a frisk, de novo.12 Because the resolution of a motion to suppress is necessarily fact-specific, we must “take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”13
B. Reasonable Suspicion to Conduct a Pat-Frisk
The Fourth Amendment protects “against unreasonable searches and seizures.”14 Warrantless searches and seizures are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”15 The Terry investigative stop and frisk is one such exception.16 In Terry v. Ohio, a plainclothes police officer noticed two men “hover about a street corner for an extended period of time,” repeatedly walking past and staring into the same nearby storefront.17 Worried that the men might be casing the store for a robbery, the officer approached them, “identified himself as a police officer[,] and asked for
The Supreme Court upheld the stop and subsequent frisk, premising its decision on the realities of street-level law enforcement. As to the stop, the Court reasoned that the government‘s “general interest” in “effective crime prevention and detection” can outweigh the minor intrusion imposed by a police stop for questioning.21 Accordingly, Terry gives us the rule that police officers may stop a person for investigative purposes when they have a “reasonable suspicion” that “a person they encounter was involved in or is wanted in connection with a completed felony,” even if that suspicion does not rise to the level required for probable cause.22 Under the circumstances presented in Terry, the Court reasoned that “[i]t would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in th[e] same neighborhood to have failed to investigate [the petitioner‘s] behavior further.”23
As for the Terry frisk, the Court required the same degree of certainty as it had used to evaluate the stop, though applied to a different question: A police officer must have a reasonable suspicion not only that criminal activity is afoot, but also that the person suspected is “armed and dangerous.”24 This further line of inquiry recognizes that a frisk is a more intrusive invasion of a person‘s security than a stop.25 Nevertheless, the Court concluded that a frisk was a “minor inconvenience and petty indignity” in light of “the need for law enforcement officers to protect themselves and other prospective victims of violence.”26 The Court reasoned:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.27
In sum, the Court recognized that adherence to the probable cause standard for pat-downs could leave on-the-beat police officers without the tools they need to do
Since Terry, both the Supreme Court and our Court have reaffirmed the utility and necessity of the Terry stop and frisk. The Supreme Court has emphasized that the goal of the frisk is not “to discover evidence of crime,” but to help law enforcement ascertain whether a suspect has a weapon “which might be used to harm the officer or others nearby.”29 In brief, a constitutional frisk based on reasonable suspicion “allow[s an] officer to pursue his investigation without fear of violence.”30
The reasonable suspicion standard is “not high.”31 It merely requires that a police officer “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion [on the citizen‘s liberty interest].”32 “Reasonable suspicion requires less than the ‘fair probability’ of wrongdoing needed to support probable cause, and it can ‘arise from information that is less reliable.‘”33 In determining whether an officer has an “objective” basis for his conduct,34 the Court must “view the totality of the circumstances through the eyes of a reasonable and cautious officer on the scene, whose insights are necessarily guided by the officer‘s experience and training[,]”35 as well as “commonsense judgments and inferences about human behavior.”36 A “mosaic” of factors can contribute to a basis for reasonable suspicion, including, among other things, the suspect‘s behavior, the context of the stop, and the crime rate in the area.37 The Supreme Court has “consistently recognized that reasonable suspicion ‘need not rule out the possibility of innocent conduct.‘”38
An “officer‘s action must be justified at its inception.”39 Thus, when reviewing the constitutionality of a frisk for weapons, the Court must examine the facts that preceded the frisk. As with many police encounters, “officers are often forced to make split-second judgments—in circumstances that are tense, uncertain,
1. The Search‘s Inception
In order to determine whether the facts preceding the search provided reasonable suspicion to conclude that Weaver was armed, we must first consider when the search began. Weaver argues that we must ignore his conduct outside the car because, in his view, the search began when Officer Tom ordered him to stand with his hands on the car trunk and his feet spread apart. For the reasons explained below, however, we hold that Officer Tom did not begin to search Weaver until he physically patted him down. While Weaver‘s repeated pressing of his body against the car after Officer Tom laid his hands on Weaver thus does not factor into the calculus of whether Officer Tom had reasonable suspicion to conduct a search, Weaver‘s initial unusual behavior outside the car quite properly factors into our analysis.43
The Supreme Court has articulated two tests for determining whether a police officer‘s conduct constitutes a “search” for purposes of the Fourth Amendment: whether the police officer “physically intrud[es] on a constitutionally protected area” and, if not, whether the officer violates a person‘s “reasonable expectation of privacy.”44 The latter test focuses not on “the presence or absence of a physical intrusion,”45 but instead on whether “the government violates a subjective expectation of privacy that society recognizes as reasonable.”46 In both cases, however, the police officer must objectively violate a person‘s privacy interests for his conduct to qualify as a “search.”
It is beyond dispute that Weaver has a right to the security of his person,47 and that under the “physical intrusion” standard, a search occurred when Officer Tom‘s hands physically came into contact
a. The Command
Weaver largely ignores the privacy inquiry in Fourth Amendment search analysis, arguing that “a search of a person always begins when, viewed objectively, an officer pursues a course of action . . . such that a reasonable person would believe he is being subjected to a search.” Appellant‘s En Banc Br. at 33. According to Weaver, the only possible reason an officer might order a person to position himself at the back of a car is to search him.49 The command (so says Weaver) thus marks the moment a search begins.
Weaver‘s novel theory wrongly conflates the doctrines of search and seizure. To be sure, under Fourth Amendment seizure law, “a person has been ‘seized’ . . . if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”50 But the search context is different, and this is a case about searches, not seizures.51 The question is not whether a reasonable person would have believed that he was being searched. The inquiry focuses instead on whether the police committed a physical trespass into a protected area, or whether they otherwise violated the person‘s reasonable expectation of privacy. Here, Officer Tom‘s order constituted neither a trespass nor such an intrusion. Thus, it did not constitute a search.52
In short, we hold that a police officer‘s verbal directives to a suspect do not transform a “stop” into a “search” unless the officer committed a physical trespass into a constitutionally protected area or otherwise violated the person‘s reasonable expectation of privacy; and that it is irrelevant whether the suspect reasonably believed that he was being searched. Officer Tom directed Weaver to get out of the car and stand with his hands on the trunk. In doing so, Weaver suffered no physical intrusion into a protected area, and he was not forced to reveal anything that was not already exposed to the public.59 Only once Officer Tom started physically
b. Officer Intent
Weaver also argues that the search began upon Officer Tom‘s order because the only possible reason an officer might order a person to position himself at the back of a car is to search him. He claims that “when an officer takes affirmative actions—ordering a passenger to assume an ‘in search’ position—[the officer] objectively signal[s] the beginning of an investigation for weapons.” Appellant‘s En Banc Br. at 40. This is incorrect for the reasons we stated earlier: What objectively demonstrates a search is an officer‘s physical trespass on a protected area or violation of a reasonable expectation of privacy. Since Officer Tom‘s actions did not produce any invasion of a private and constitutionally protected area, whether based on physical trespass or a reasonable expectation of privacy, they did not constitute a search.
Despite his claims to the contrary, we also interpret Weaver‘s argument as an inappropriate attempt to slip an officer‘s subjective intent into our
The Supreme Court has long rejected any attempt to inject subjectivity into the
officer].”62
As for understanding when a search began, an officer‘s subjective intent is likewise of no moment. Not only are there a host of reasons why an officer might order a person to get out of a car and to stand in a particular place or in a particular position—a number of safety-related reasons come to mind—Weaver identifies no precedent suggesting that an officer‘s intent is relevant to the question of when a search begins, and he fails to explain how an officer‘s intent to search a suspect actually effectuates a search. Without an actual physical trespass or violation of a person‘s reasonable expectation of privacy, no search can have occurred. At best, Officer Tom‘s order was only a prelude to a frisk.
Consider the logical implications of Weaver‘s position that a search begins upon directing a person to position himself against a car. If Officer Tom had ordered Weaver into position and intended to search him but then never laid a hand on him, he was (in Weaver‘s view) still searched. If Officer Tom had ordered all three occupants of the car into that position, but frisked only one of them, Weaver‘s position dictates the conclusion that Officer Tom searched them all. If an officer were to order three people to position themselves alongside a car, but one immediately fled the scene never to be found again, the officer still frisked the runaway. The illogic of this last proposition is particularly glaring because the Supreme Court has held that when a suspect flees instead of complying with a police order to stop, he has not been seized.64 Thus, Weaver‘s position would yield the incoherent conclusion that the runaway was never subjected to a Terry stop but was subjected to a Terry frisk. We therefore reject any attempt to consider an officer‘s intentions when determining when a search commences under the
2. The Search‘s Reasonableness
Having determined that Officer Tom began to search Weaver when he physically touched him, we turn to the facts known to the officers, and the reasonable inferences that could be drawn from those facts, at that point in time. Based on
We begin with the most powerful evidence: by the time Officer Tom frisked Weaver, he had thrice witnessed Weaver make suspicious movements concentrated around his waist and pelvis, where a firearm might easily be concealed. First, while walking along Merriman Avenue, Weaver gave a noticeable “upward tug” to his waistband. App‘x at 152.66 Next, during the traffic stop, Weaver “slouched down” and “shift[ed] his hips” in his seat when Officer Tom approached the car, using two hands to “push[] down his pelvic area” as though he was trying to conceal something. App‘x at 158. Later, after Officer Tom ordered Weaver to get out of the car and stand with his hands on the trunk and his feet spread apart, Weaver stood unusually close to the vehicle, pressing his pelvis only “a few inches” from the quarter panel. App‘x at 163.67 These actions, viewed in relatively quick succession by Officer Tom, formed the primary basis for his reasonable
suspicion that Weaver was hiding something dangerous on his person, in particular around his waistline.
Unusual, evasive, or furtive behavior, especially in the presence of law enforcement, is often a critical factor in the reasonable suspicion analysis.68 We use the
his body, Officer Tom now had even stronger indications that Weaver was trying to hide a weapon in his pants. In the eyes of a “trained police officer who has witnessed similar scenarios numerous times before,” and indeed even to the untrained eye, Weaver‘s actions were unquestionably cause for alarm.69
Acknowledging that his conduct was suspicious, Weaver nevertheless argues that even if “it may have been reasonable for Officer Tom to suspect [him of] trying to hide something, there was no reason to believe he was hiding something dangerous.” Appellant‘s En Banc Br. at 52. But as the Supreme Court has held, the reasonable suspicion standard does not require officers to “rule out the possibility of innocent conduct” before responding to the circumstances confronting them.70 In United States v. Arvizu, for example, a defendant challenged the existence of reasonable suspicion for an investigatory stop of his vehicle, claiming that his conduct (driving a minivan with children in the backseat through a remote area of Arizona) was just as consistent with innocent conduct (a family “holiday outing“) as it was with criminal activity (transporting over 100 pounds of marijuana).71 The Court reasoned that while some of the facts were “susceptible of innocent explanation,” others were not,72
While “each of [a] series of acts” can be “innocent in itself,” they may together “warrant[] further investigation.”74
If officers need not rule out the possibility of innocent conduct to have reasonable suspicion, they certainly do not need to rule out the possibility of other nefarious conduct. Just so here. Weaver‘s focused movements around his waist and pelvis might conceivably have involved illegal activity that was not hazardous to Officer Tom‘s safety; Weaver could have been trying to hide illegal narcotics, for example. But given the situation, there was good reason to believe that his movements suggested that he was hiding something dangerous. A police officer, placed into an uncertain and developing situation, is not tasked with sorting through multiple possible scenarios and conducting a frisk for weapons only if that is the sole, or even the most likely, possibility. The Supreme Court has told us that an “officer need not be absolutely certain that the individual is armed.”75 The purpose of a protective search is to allow an officer to do his job safely,76 and so the only question for
For one, the circumstances of the traffic stop suggested that the vehicle‘s occupants might be dangerous. Once the sedan reached the side of the road, the backseat passenger “quickly” opened his door, “into traffic.” App‘x at 103. The officers thought the man was trying to flee upon being stopped by the police, and Officer Tom grew alarmed, finding the man‘s actions unusual in his experience with traffic stops. He quickly and forcefully ordered the man not to move and tried to take control of the scene. It did not require a leap of logic for the police to surmise that the rear passenger had initially planned to flee—an intention that could surely give rise to suspicion that the passenger was interested in separating himself from someone, or something, in the car. Walking toward the sedan, Officer Tom noticed that it was occupied by three men. The “danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car.”77 We need not wholly impute the rear passenger‘s conduct to Weaver to find that it was reasonable for Officer Tom
Officer Tom‘s suspicions reasonably heightened when he recognized the front-seat passenger: Weaver was the man who had given a drawn-out look at the officers’ car when they passed by moments earlier. Weaver caught Detective Quonce‘s attention because he stared at their police car “longer than typically one would look at a vehicle,” App‘x at 95, and Officer Tom testified that Weaver watched them “as [they] approached, as [they] passed, and . . . as [they] proceeded past him,” App‘x at 151. Now, the same man sat in front of him, shifting in his seat and pushing down on his pants. Weaver says that these facts are unhelpful because the police car was unmarked, and nothing in the record indicates that Weaver knew that the car was occupied by police officers. But counter-surveillance of covert police activity is relevant to assessing reasonable suspicion for both a stop and a frisk.78 We evaluate the reasonableness of an officer‘s
suspicion as of the time of the challenged search. Weaver‘s earlier staring at the passing car—now juxtaposed with his effort to push something down his pants when the police approached—was consistent with the inference that he was on the lookout for police precisely because he was engaged in criminal activity that might include possession of a weapon.79 In general, a suspect‘s nervous and unusual behavior may appropriately pique an officer‘s suspicions80—especially when the officers, as here, are patrolling as members of a gang violence task force.
Adding further context, the stop occurred in a high-crime neighborhood. App‘x at 93, 150. Again, we do not use that term loosely or as a “substitute for analysis” of the record.81 Rather, the Supreme Court has made clear that “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”82 Officer Tom and Detective Quonce did not testify about generic “crime” in Syracuse, or even in the Near West Side. In their respective six and eight years in the SPD, they knew the Near West Side specifically for gun violence.83 Detective Quonce
characterized
acts, or a greater risk of unseen dangers.84 But there is no suggestion in the record that the shootings, homicides, or other illegal gun activity in this particular neighborhood were somehow limited to hours of darkness; and even if they were, there is no reason to infer that the guns involved in such violence somehow evaporated during the daytime, only to re-materialize at nightfall. Further, in this case, dusk was falling when Weaver‘s car was stopped. While an “individualized” inquiry is always required in a reasonable suspicion analysis,85 it is objectively reasonable for an officer to be especially attuned to the possibility of guns in a neighborhood known for gun crime.86
First, as our discussion makes clear, the fact that police stopped Weaver in a high-crime area—specifically, one characterized by a high rate of violence, including gun violence—is a significant factor that meaningfully contributed to the reasonable suspicion that he was armed. A description of this factor as of only “limited relevance” materially understates our holding.
Second, the concurrence argues that “officers may reasonably believe that an area has a high crime rate only if supported by data.” Id. at 8. The issue at hand—that is, whether an area is actually characterized by a rate of crime that reasonably warrants a heightened fear that a suspect is armed—is a question of fact for the district court. First-hand knowledge of police officers who regularly patrol the relevant area is one logical source of evidence. See Ornelas, 517 U.S. at 700 (“[O]ur cases have recognized that a police officer may draw inferences based on his own experience . . . .“). Statistical data may likewise be offered—by the prosecution or the defense—but it is certainly not required.
Finally, the concurrence suggests that “police officers and courts should focus on recent and relevant criminal activity.” Concurring Op. at 10. Wholly outdated
Viewing the circumstances in their totality, Officer Tom had a particularized and objective87 basis for believing that Weaver might be armed and dangerous at the time he commenced his search.88 We thus
go hand in hand“). Conversely, the absence of any logical link between crimes that are prevalent in a particular neighborhood and a suspect‘s possible weapon possession may reduce the degree to which location is relevant. conclude that the pat-frisk was justified under the
III. CONCLUSION
We conclude with two final observations.
First, the district court—whose decision we affirm in full—did not rely in any way on Weaver‘s race in determining that the officers had reasonable suspicion to search him for weapons. In fact, the district court‘s decision did not even mention Weaver‘s race. Nor, of course, do we.
Second, the concurrence argues, in part, that courts should be able to look at an officer‘s subjective intentions for a traffic stop in “clear cases of racial bias,” and provides as an example an officer who “pull[s] over a car for driving one mile-per-hour faster than the speed limit and then explicitly announce[s] that he had stopped the driver because the driver was African American.”90 Notably, the concurrence does not assert that any evidence of racial bias exists in this case, nor did Weaver raise such an argument in the court below, on initial appeal, or before our en banc Court. Thus, even if this exception to Whren‘s “important and correct general rule” were to exist,91 there is simply no grounds for believing that it would have any bearing on the outcome of this case. Nor does the concurrence assert otherwise.
* * *
To summarize, we hold that:
- A police officer‘s verbal directives do not transform a stop into a search where they do not constitute a physical trespass on a constitutionally protected area or an intrusion into an area subject to a reasonable expectation of privacy. Officer Tom‘s order for Weaver to stand against the car was neither. Here, the frisk did not begin until Officer Tom began physically patting down Weaver‘s clothing, irrespective of any reasonable belief by Weaver as to when the search began;
- A police officer‘s subjective intent bears no weight in determining when a search occurs. Whether Officer Tom intended to search Weaver when he ordered him out of the car is irrelevant to when the frisk began and whether he had an objective basis for the frisk; and
- In evaluating whether an officer has reasonable suspicion that a lawfully detained suspect is armed and dangerous, courts must look to the totality of the circumstances confronting the police officer, as viewed objectively by a reasonable and cautious officer on the scene. When the circumstances give rise to reasonable suspicion that a suspect has a weapon, an officer need not rule out alternative explanations—whether innocent or otherwise—for a suspect‘s behavior before deciding to conduct a pat-down for his safety. Based on the totality of the circumstances here, Officer Tom‘s frisk of Weaver was supported by objective and particularized facts sufficient to give rise to
a reasonable suspicion that Weaver was armed and dangerous.
For the foregoing reasons, we VACATE the panel decision and AFFIRM the judgment of the district court.
RAYMOND J. LOHIER, JR., Circuit Judge, concurring in the result, joined by SUSAN L. CARNEY, Circuit Judge, except as to Part III.B:
I disagree with much of the majority‘s needlessly broad opinion and decline to join it, even though precedent compels me to concur in the ultimate result. In my view, the police officer reasonably suspected that Weaver was armed and dangerous only after, as the District Court found, Weaver behaved abnormally and without explanation while seated in and standing next to the stopped car, appeared to go to great lengths to conceal something large around his pelvic area, and then lied to explain why he was unable to step away from the car when instructed to do so. And although in some limited circumstances an officer can effectuate a search merely by making a verbal command, that is not what happened here. In this case, the search began when the police officer physically touched Weaver, not when he told him to spread-eagle. No other facts, factors, or law are necessary to the result in this case.
I also write separately to address three central issues of grave concern.
First, nothing in today‘s majority opinion calls into question the vitality of our decision in United States v. Hussain, 835 F.3d 307 (2d Cir. 2016). Second, a defendant‘s presence in a so-called “high-crime area” has limited relevance in determining the reasonableness of a search; indeed, the whole concept of a “high-crime area” is now so ill-defined as to be virtually meaningless. Third, it is time for the Supreme Court to veer away from existing law and to revisit decisions that have provided unjustifiable cover for racial bias in policing; and regardless, legislatures and administrative bodies should consider adopting regulations that increase police accountability beyond the bare constitutional minimum provided by the
I.
First, Hussain. In that case, the defendant ran a stop sign and was pulled over by the police. Officers observed the defendant‘s right arm move toward the middle console area of the car, but as the officers approached the vehicle, they quickly determined that the defendant had reached into the console to retrieve a smartphone. The officers also testified that the front passenger sat in an “unnatural” position—too close to the middle console—“as if covering something up.” Further, the defendant did not immediately comply with the officer‘s instruction to put down his phone. Of note, that defendant was an African-American man driving through a so-called “high-crime area” in the Bronx. Id. at 310–11, 315–16. The defendant was ordered out of the car, prompting his disclosure that he (legally) possessed a pocket-knife. Id. at 311.
Reversing the district court, we held that the officers’ subsequent search of the defendant‘s car and discovery of a loaded gun under the front passenger seat was unconstitutional because the officers did not have a reasonable suspicion that the defendant posed an immediate danger. Id. at 311, 314, 317.
Several facts distinguish this case from Hussain, but let me focus on two. First, in Hussain the officers became aware that the defendant‘s purportedly suspicious arm movements merely involved the retrieval of a smartphone. But here Weaver‘s “suspicious movements concentrated around his waist and pelvis,” Majority Op. at 46, remained entirely unexplained through the inception of the search. See Hussain, 835 F.3d at 315 (distinguishing a case in which the officers were unable to see what the obscured object was). And second, the District Court here credited Officer Tom‘s testimony that Weaver falsely claimed he could not step back from the car because the ground was “slippery.” App‘x 163.1 Without these two facts, this appeal would resemble Hussain, and I would conclude that the officers did not have reasonable suspicion to justify the frisk at issue here.2
There is no question after today‘s decision that Hussain remains the law of this Circuit. In Hussain we explained:
Part of our trouble is that stops fitting the same fact pattern (but, say, different passengers of another race, gender, or ethnicity) would, we think, rarely if ever lead the police to suspect the passengers posed an immediate danger and justify a protective search of the passenger compartment. Put another way, allowing a protective search on these bare facts would sweep too broadly. Whatever extra fact prompted [the officers] to harbor a suspicion of dangerousness . . . was left unsaid on the record before us.
835 F.3d at 315. Hussain thus suggests a simple but important analysis that district courts should undertake when faced with similar
II.
That brings me to my second point. Police officers and the Government routinely assert that the challenged search was reasonable because it occurred in a high-crime area. But what is a “high-crime area“? It has been more than twenty years since the Supreme Court explained that presence in a “high crime area” is “relevant” when determining whether the defendant was constitutionally stopped. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quotation marks omitted). But because basic questions remain unresolved, I doubt that
Rather than address these questions, courts often defer to the experience of testifying police officers. See Ben Grunwald & Jeffrey Fagan, The End of Intuition-Based High-Crime Areas, 107 Calif. L. Rev. 345, 347–48 (2019); Andrew G. Ferguson & Damien Bernache, The “High Crime Area” Question: Requiring Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587, 1607 (2008). In this case, for example, the majority concludes that the entire Near Westside of Syracuse is a “high-crime neighborhood” based only on the arresting officers’ vague and anecdotal testimony. Majority Op. at 57–58; see, e.g., App‘x 93 (the neighborhood is “dangerous” and has a “high volume” of gun-related crimes); App‘x 150 (Officer Tom processed “multiple” homicides in the neighborhood during his six years in the department). Blind acceptance of police testimony on this issue creates an unjustified risk of arbitrary and discriminatory policing. See United States v. Caruthers, 458 F.3d 459, 467–68 (6th Cir. 2006); United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000).
This risk is real. Consider data collected by the New York City Police Department (NYPD), perhaps the most data-driven police department in the country. In the aftermath of extensive litigation, the NYPD required its officers to record their justifications for every stop. See Grunwald & Fagan, The End of Intuition-Based High-Crime Areas, supra, at 350 & n.12. An analysis of data collected between 2007 and 2012 yielded startling results: Actual crime rates were almost unrelated to whether an officer characterized the area as “high-crime,” regardless of the geographic scope, timeframe, and types of crime considered. See id. at 384. The race, gender, and age of the suspect had a slightly greater impact on how officers perceived the area, see id. at 387, but the biggest contributors were the neighborhood‘s racial composition, see id. at 389–90,3 and the officer who made the stop, see id. at 393 (“Taken together, these empirical results provide evidence of wide inter-officer disparities in the assessment of whether an area qualifies as high crime.“).
Embracing a few basic principles would improve matters and avoid this intolerable result.
First, officers may reasonably believe that an area has a high crime rate only if supported by data. Courts should neither rely on officers’ “war stories,” Montero-Camargo, 208 F.3d at 1143 (Kozinski, J., concurring), nor take their views at face value, see United States v. Freeman, 735 F.3d 92, 101–02 (2d Cir. 2013) (“[T]he general label ‘high crime area’ is not a substitute for analysis of the underlying testimony.“). In suggesting that it is “logical” for courts to rely on that kind of evidence, Majority Op. at 60 n.86, today‘s majority ignores important data and decades of judicial experience showing that police officers do not reliably identify crime rates. See Grunwald & Fagan, The End of Intuition-Based High-Crime Areas, supra, at 350–51 (only “one percent of the variation in officers’ assessments of whether areas are high crime” is explained by “actual crime rates“).4 Relying on demonstrably weak, possibly biased, and arbitrary evidence is, put simply, indefensible and unnecessary: Law enforcement agencies are now fully capable of logging and mapping the locations of actual criminal conduct. See Ferguson & Bernache, The “High Crime Area” Question, supra, at 1627–28 & nn.251–52 (collecting jurisdictions that make “high-quality mapping technologies” publicly available); see also City of Syracuse, Police Reform and Reinvention Plan 19 (Mar. 2021) (the Syracuse Police Department “utilizes spatial density hot spot statistics to map priority street segments, creating a perimeter around the most severe hot spots, creating [Problem-Oriented Policing] areas based on its measured data“).
Second, courts should give little if any weight to the suspect‘s presence in a “high-crime area” unless the area‘s boundaries are narrowly circumscribed. As often as not, it is far-fetched and unfair to paint an entire neighborhood as crime-ridden. Even the most dangerous neighborhoods are also home to law-abiding citizens, see People v. Bower, 597 P.2d 115, 119 (Cal. 1979) (“The spectrum of legitimate human behavior occurs every day in so-called high crime areas.“), and crime is unlikely to be distributed evenly within a neighborhood. The very nature and boundaries of a “neighborhood” are often hard to define, arbitrary, and in any event prone to variations in crime rates from one part to the next. Reserving the “high-crime” label for very specific locations, like an intersection where illegal deals are made, would more accurately identify suspicious behavior and better respect the liberty of people “go[ing] about their daily business.” Montero-Camargo, 208 F.3d at 1138; see also United States v. Wright, 485 F.3d 45, 54 (1st Cir. 2007); Caruthers, 458 F.3d at 468.
Third, police officers and courts should focus on recent and relevant criminal activity. See Wright, 485 F.3d at 53–54. Because crime patterns can change quickly, the crime rate in the last few weeks matters far more than the rate in the last few years. And “unless there is some identity between the prevalent crime and the crime suspected,” an individual‘s presence in a high-crime area does not make their conduct more suspicious. Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 222 n.42 (1983); see also Caruthers, 458 F.3d at 468 (noting that “the crimes that frequently occur in the area are specific and related to the reason for which [the defendant] was stopped“); United States v. Edmonds, 240 F.3d 55, 60 (D.C. Cir. 2001) (similar). When an officer sees someone carrying a can of spray paint in a high-crime area, it matters whether the crime prevalent in the area is vandalism or pickpocketing.
The three principles described above derive from the
III.
Hussain and these narrow and well-defined parameters of a “high-crime area” are necessary baby steps that fall well within the confines of existing law and at the same time substantially reduce the possibility of racial and other impermissible biases seeping into federal criminal proceedings. Even more needs to be done, however, to reestablish trust between law enforcement officers and the communities they police. I highlight two proposed changes here: reconsidering the Supreme Court‘s decision in Whren v. United States, 517 U.S. 806 (1996), and regulating police departments and police officers.
A.
I am bound by precedent and for that reason alone concur in the result of the majority‘s decision. But I agree with my dissenting colleagues that Whren should be revisited. In Whren, the Court held that the “actual motivations” and “[s]ubjective intentions” of individual officers “play no role” in assessing the “constitutional reasonableness of traffic stops.” Even the “intentionally discriminatory application of laws“—e.g., selective enforcement of traffic laws “based on considerations such as race“—would not amount to an unreasonable search or seizure in violation of the
As a practical matter, Whren and later cases5 have unfortunately given police officers
As the majority notes, “this is a case about searches, not seizures.” Majority Op. at 35. Even if Weaver had challenged the officers’ initial decision to pull over his car, his challenge in the criminal proceeding before us would have been foreclosed by Whren. But why, exactly, did this particular turn-signal violation catch the attention of the Syracuse Police Department? See generally Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997).
In today‘s world, “[t]he apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with
probable cause, blinks at reality.” 1 W. LaFave, Search and Seizure § 1.4(f), at 195 (6th ed. 2020). Say a police officer pulled over a car for driving one mile-per-hour faster than the speed limit and then explicitly announced that he had stopped the driver because the driver was African American. And say that this particular racially motivated stop happened to lead to evidence of a federal drug crime. If criminal charges were later filed against the driver based on evidence obtained during the stop, Whren would prevent the driver from raising the officer‘s explicit racial bias in any attempt to suppress the evidence. Whren instructs that the driver has no recourse as far as his liberty is concerned, but that later on he may be able to sue for damages.
That cannot be the correct constitutional outcome in a multiracial democracy. Criminal defendants must be able to raise the issue of selective enforcement where the presence of racial bias is unmistakable, and they should not have to do so in a separate civil proceeding. A separate
While Whren states an important and correct general rule that removes an officer‘s subjective intentions from
Judge Carney and I therefore join the chorus of voices who say that Whren “sets the balance too heavily in favor of police unaccountability to the detriment of
It bears emphasizing that the
Police encounters are among the most common forms of interaction between private citizens and the government. Police officers tackle a wide range of problems, from the mundane to the life-altering, from directing traffic when a stoplight malfunctions to responding when the victim of a serious crime calls 911. They also wield real power—to search homes, throw citizens in jail, and even kill. Despite their power and the frequency of their interactions with citizens, however, officers and the departments that employ them are not highly regulated by democratic institutions. Most policing agencies are broadly authorized by statute “to enforce the substantive criminal law,” without significant restrictions or guidance on how to do so. Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1844 (2015). As a result, most places have little more than a “latticework” of legislation governing only “particular aspects of policing,” such as wiretaps. Id. Meanwhile, the internal policies of many police agencies are hidden from public view and are rarely if ever binding. See id. at 1848-49; see also Syracuse Police Department, http://www.syracusepolice.org (last visited July 16, 2021) (disclosing only the policies governing body cameras, interactions with transgender individuals, and use of force). The
It is time to regulate police departments and the officers they employ. Substantive regulation of the police has several advantages and benefits beyond giving full effect to the
IV.
Current
ROSEMARY S. POOLER, Circuit Judge, dissenting, joined by GUIDO CALABRESI and DENNY CHIN, Circuit Judges:
On February 15, 2016, Calvin Weaver, a black man in a hooded sweatshirt, walked along a street, peacefully minding his business, when three police officers in an unmarked car set their sights on him. The officers, Detective Gordon Quonce, Detective Greg Staub, and Officer Jason Tom, were patrolling the neighborhood as members of the Syracuse Police Department‘s Gang Violence Task Force. They drove past Weaver, who looked at their car for “a few seconds” until they drove away. App‘x at 174. The officers saw Weaver use one hand to tug his pants up because “his pants were lower than waist level” and get in a car. App‘x at 152. Shortly after, they pulled the car over at a corner that only permits right turns because its driver failed to signal a right turn 100 feet before turning, in violation of
When the car stopped, the rear passenger, a black male, opened his door. Tom immediately got out of the unmarked car and “gave forceful commands” that the passenger stay in the car. App‘x at 156. Quonce asked the rear passenger to shut the door, and the rear passenger did as he was told. As Tom approached the car, he saw Weaver seated in the front passenger seat with “both hands kind of pushing down on his pelvic area and squirming kinda in the seat left and right, shifting his hips.” App‘x at 158. He ordered Weaver to show his hands and Weaver complied, telling Tom “I don‘t got nothin‘.” App‘x at 159. Tom opened the door and ordered Weaver to put his hands on his head. Weaver complied. Tom asked Weaver if he had identification. Weaver responded that his identification was in his right pocket. Because Tom did not notice “any bulges or anything,” he ordered Weaver to retrieve the identification. App‘x at 160. Weaver complied. Tom then placed Weaver‘s identification in his own pocket. Despite Weaver‘s consistent compliance, the situation escalated.
With one hand on his holstered firearm, Tom ordered Weaver to exit the car, move to the back of the car, “place his hands on the trunk” of the car, and “spread” his legs. App‘x at 161. Weaver complied. Tom ordered Weaver to take a step back, and Weaver again complied. At this point, Tom “began to pat [Weaver‘s] waistband area.” App‘x at 162. Weaver‘s walk in the neighborhood ultimately ended with officers handcuffing him, reaching their hands into his pocket, unzipping his pants, unbuttoning his underwear, reaching inside his underwear, and pulling out a gun.
Weaver was initially charged with criminal possession of a weapon in the second degree in violation of
On appeal, the principal issues are whether Tom began a search when he ordered Weaver to put his hands against the car and spread his legs and whether Tom had reasonable suspicion to believe that Weaver was armed and dangerous either at that time or when he first touched Weaver. The original panel correctly concluded that the search began the
In a practice becoming all too familiar in this Court, the en banc Court reaches a panoply of legally unsupportable holdings that unnecessarily expand protections for officers at the expense of the people‘s
The majority‘s decision is contrary to the
I. Tom Lacked Reasonable Suspicion to Frisk Weaver.
The majority holds that the facts and reasonable inferences to be drawn from those facts establish that Tom‘s frisk was supported by objective and particularized facts giving rise to reasonable suspicion that Weaver was armed and dangerous. That is incorrect. Even if the search only began when Tom physically touched Weaver, a conclusion I disagree with and address in Section II—Tom lacked reasonable suspicion that Weaver was armed and dangerous at that time. Weaver‘s innocuous behaviors did not provide reasonable suspicion justifying Tom‘s actions.
Law enforcement authority to search for weapons absent probable cause is not limitless. That authority is “narrowly drawn” and must be based on an “articulable and objectively reasonable belief” that a person is “armed and presently dangerous to the officers or others.” Terry v. Ohio, 392 U.S. 1, 27 (1968); Michigan v. Long, 463 U.S. 1032, 1047, 1051 (1983) (internal quotation marks omitted). A stop and frisk is only “constitutionally permissible” if “the investigatory stop [is] lawful” and the officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).
The “concept of reasonable suspicion is somewhat abstract.” United States v. Arvizu, 534 U.S. 266, 274 (2002). Reasonable suspicion must be supported by “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. at 1049 (internal quotation marks omitted). An officer‘s “mere hunch does not create reasonable suspicion,” but the standard requires “considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (internal quotation marks omitted). To adequately draw the
The majority starts its reasonable suspicion analysis by emphasizing that Tom saw Weaver make movements near his waist three times before Tom touched Weaver. In its reasoning, the majority draws unreasonable inferences from the facts.
The first movement occurred when Tom, standing roughly two car lengths away from Weaver, observed Weaver tug his pants up with one hand prior to getting into a car. Tom testified that Weaver‘s “pants were lower than waist level and it was kind of a tugging upward, like adjusting” motion. App‘x at 152. The majority states that it takes no specialized expertise to reasonably infer that an “‘upward tug’ may be needed to counteract the downward pull of something else” such as a “firearm,” Maj. Op. at 49, but that is not a reasonable inference that can be drawn from the facts. Tom did not testify to making this inference, and for good reason. Weaver tugged his pants up with one hand, not two. Importantly, cases relying on suspicious inferences concerning the waistline also involve officer observations of a bulge or adjustment of an object near the waistline, and not the relatively commonplace act of pulling pants up because they are “lower than waist level.” App‘x at 152. Our decision in United States v. Padilla, 548 F.3d 179 (2d Cir. 2008), succinctly illustrates the issues with the majority‘s inference drawing.
In Padilla, an officer testified that during a traffic stop, he “observed Padilla reach underneath his jacket and shirt, adjust something in the center of his waistband, and continue walking.” Id. at 183. The officer testified that he “knew that firearms commonly are concealed in the waistband and that, when they are, they require readjustment because they shift and become uncomfortable.” Id. We affirmed the district court‘s denial of Padilla‘s motion to suppress a handgun recovered after a stop and frisk. Our Court noted that though the officer “realized at the time that Padilla could have been adjusting something other than a firearm, he did not recognize the gesture as being consistent with any innocent explanation” and testified that the movement “was not consistent with” Padilla “pulling up [his] pants.” Id. at 183 & n.2. We reasoned that “[e]ven if the gesture were consistent with conceivable innocuous adjustments, its ‘distinctive’ consistency with the adjustment of a firearm provided the detective with a reasonable basis to suspect that Padilla was armed.” Id. at 189.
Unlike in Padilla, Tom‘s own testimony establishes that he realized that Weaver‘s tugging upward of his pants was consistent with an innocent explanation. Tom testified that Weaver‘s “pants were lower than waist level and it was kind of a tugging upward, like adjusting.” App‘x at 152. There is simply no evidence in the record that Tom witnessed Weaver adjust his pants in a “distinctive” manner that would indicate that Weaver possessed a weapon.
Nothing but Tom‘s and the majority‘s “inchoate and unparticularized suspicion[s] or hunch[es],” Padilla, 548 F.3d at 187 (internal quotation marks omitted), support the inference that Weaver had a weapon simply because he pulled up his sagging pants with one hand.
The second movement occurred during the traffic stop. When Tom was “approaching the vehicle,” he observed Weaver “slouched down pushing down his pelvic
Simply put, there are no specific and articulable facts supporting Tom‘s belief that any object that Weaver was moving was dangerous. Tom did not observe any bulges or outline of a weapon on Weaver‘s person at any point throughout the encounter. And Weaver did not reach underneath his clothing, as Padilla did, to adjust anything. See Padilla, 548 F.3d at 189. The difference between adjusting a firearm and adjusting any other object matters because the officer must have reasonable suspicion that the object is dangerous. See United States v. Hussain, 835 F.3d 307, 313 (2d Cir. 2016) (stressing Long‘s requirement of present dangerousness, reasoning that the dangerousness requirement “is based on the premise set forth in Terry that [a] search must be genuinely protective” and not have a “purely evidentiary” purpose).
After observing these movements, Tom gave multiple commands to Weaver, and Weaver complied with them all. Tom asked Weaver to show his hands. Weaver complied. He put his hands up and volunteered, “I don‘t got nothin‘.” App‘x at 159. Tom asked Weaver to put his hands on his head. Weaver complied. Tom asked Weaver for identification. Weaver complied, responding that his identification was in his right pocket. Tom noticed no “bulges or anything” and ordered Weaver to “slowly use his right hand to remove his ID from his pocket.” App‘x at 160. Weaver complied. Tom placed Weaver‘s ID in his own pocket. Tom then ordered Weaver to exit the vehicle. Weaver complied. Tom ordered Weaver to move towards “the rear quarter panel trunk area” of the car. App‘x at 161. Weaver complied. At this point, Tom had one hand on his holstered firearm. Tom ordered Weaver to “place his hands on the trunk” of the car and “spread” his legs open. App‘x at 161. Weaver complied. Tom ordered Weaver to take a step back from the car because Weaver “was very close to the rear quarter panel.” App‘x at 162.1 Again, Weaver complied, telling Tom that the floor was slippery. App‘x at 163.2 Tom then began to pat Weaver‘s waistband area.
By the time Tom patted Weaver, Weaver had complied with all of Tom‘s commands without incident. Weaver‘s repeated compliance with Tom‘s orders and the fact that his hands were visible throughout the entire encounter demonstrate that “a reasonably prudent man in the circumstances would [not] be warranted in the belief that
identification in his own pocket, which necessarily required Tom to momentarily shift his attention away from Weaver. All of this occurred before Tom first touched Weaver. A reasonably prudent man in these circumstances would not be warranted in the belief that his or others’ safety is in danger.
The majority rejects the notion that even if it may have been reasonable for Tom to suspect that Weaver was trying to hide something, it was not reasonable for him to suspect that that something was dangerous. Its rationale is that the reasonable suspicion standard does not require officers to “rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2004). The majority unnecessarily extends Arvizu by holding that an officer “is not tasked with sorting through multiple possible scenarios and conducting a frisk for weapons only if that is the sole, or even the most likely, possibility.” Maj. Op. at 52-53. The majority notes that the Court in Arvizu “reasoned that while some of the facts were ‘susceptible of innocent explanation,’ others were not, and taken together, the facts ‘sufficed to form a particularized and objective basis for [the stop].‘” Maj. Op. at 51 (quoting Arvizu, 534 U.S. at 277). But here, every fact, alone and in combination, is susceptible to an innocent explanation. The majority ignores the reality that officers sort through multiple scenarios on a constant basis and consideration of consistent alternative explanations for conduct that is not in and of itself dangerous is necessarily required by the reasonable suspicion test. The Supreme Court has never held that officers have no obligation to consider alternative explanations for a person‘s conduct. This holding dilutes Terry‘s reasonableness requirement and allows a court to rely solely on an officer‘s good faith belief that a person is armed and dangerous.3
The majority then discusses the circumstances of the traffic stop, namely, the fact that the backseat passenger opened his door into traffic and that there were three occupants in the car. The rear passenger‘s conduct has nothing to do
with whether Tom had reasonable suspicion that Weaver was armed and dangerous. The reasonable suspicion inquiry is an individualized inquiry. Further, the majority ignores that the rear passenger complied with police requests
The majority then discusses how Weaver looked at the officers’ unmarked car prior to the traffic stop. In an attempt to bolster the reasonableness of the officers’ suspicions, the majority characterizes Weaver’s look as a “drawn-out look” though no officer described it as such. Maj. Op. at 55. Instead, the officers testified that Weaver looked for “probably a few seconds but it seemed longer than typically one would look at a vehicle.” App’x at 95. Spending a few seconds looking at a passing car with tinted windows driving slowly by you can hardly be described as suspicious, indeed, to ignore this sight might be a more unusual choice. However, the majority concludes that looking at an unmarked car with tinted windows is “consistent with the inference” of being “on the lookout for police precisely because [one] [i]s engaged in criminal activity that might include possession of a weapon.” Maj. Op. at 56. The notion that looking at an unmarked car allows a reasonable inference that the person looking is engaged in criminal activity—let alone criminal activity involving a weapon—is absurd. The absurdity is all the more obvious when you consider that officers have cited both looking and not looking at them as a basis for a stop or a search. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (looking straight ahead instead of at police officer); Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003) (looking back at police officers).
The majority fails to provide any support for its conclusion that looking at an unmarked car constitutes counter-surveillance of covert police activity. Instead, it cites to United States v. Garcia in a footnote. See Maj. Op. at 55, n.78 (citing 339 F.3d 116 (2d Cir. 2003)). Garcia involved a defendant “repeatedly engaging in what appeared to be counter-surveillance.” Id. at 119. While Garcia itself provides no context for what the counter-surveillance consisted of, the district court described that after receiving a reliable tip from an informant regarding a planned distribution of cocaine, at about 9 p.m., a Special Agent observed two men “emerge[] from [a] car, looking up and down the block although there was no street traffic,” which was conduct that the Special Agent “interpreted” as “‘counter-surveillance,’ typical of people engaged in drug transactions” and the defendant conceded “was . . . a check for police activity.” United States v. Garcia, No. 01 Cr. 35 (LTS), 2001 WL 1297791, at *1-2 (S.D.N.Y. Oct. 25, 2001). None of the three officers here testified that looking at an unmarked car for a few seconds constitutes “counter-surveillance” of police activity. Garcia does not support the majority’s absurd inference.
Finally, the majority emphasizes that the traffic stop resulting in Tom’s frisk of Weaver occurred in a neighborhood known for gun violence, dedicating an entire section of its opinion to the neighborhood’s characteristics. The majority fails to address that there is nothing in the record indicating that the specific locations where Weaver was first seen walking or where the car was stopped had any connection to crimes. Further, the majority ignores research establishing that “[t]he racial composition
Even if the officers’ early observations made them suspicious—i.e., their observation of Weaver staring at the unmarked car, the passenger opening and then closing the car door, and Weaver’s movements in the front seat when Tom approached the car—any suspicion should have dissipated by the time Weaver had exited the car and been entirely compliant with all of Tom’s orders, especially considering that Tom had seen no visual or auditory indication that Weaver was armed and Weaver had done nothing to suggest he was dangerous. See Florida v. Royer, 460 U.S. 491, 500 (1983) (“[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”); Terry, 392 U.S. at 30 (frisk appropriate only “where nothing in the initial stages of the encounter serves to dispel [an officer’s] reasonable fear for his own or others’ safety”); United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993) (“The Fourth Amendment requires that a search not continue longer than necessary to effectuate the purposes of an investigative stop.”).
Throughout its analysis, the majority gives short shrift to facts tending to dispel reasonable suspicion. It does not sufficiently discuss or consider Weaver’s compliance with Tom’s orders, the absence of a physical or auditory observation suggestive of weapon possession or dangerousness, that neither Weaver nor any other car occupant was suspected of having committed a crime, and that Weaver’s action of moving his hands downward should have eliminated suspicions of dangerousness because he was attempting to “mak[e] whatever he wished to keep private less – not more – readily available.” Appellant’s Reply Br. at 7-8.
The majority’s reasonable suspicion inquiry thus relies only on an officer’s subjective good faith belief that an individual is armed and presently dangerous. Under the majority’s reasoning, “the protections of the
II. An Officer’s Order To Assume a Spread Eagle Position Marks the Start of a Search.
As the original panel concluded, an officer’s order to assume a spread eagle position marks the start of a search. It requires reasonable suspicion that the person is armed and dangerous when the officer gives the order. That order constitutes a search because any reasonable
It is well-established that “to proceed from a stop to a frisk, [a] police officer must reasonably suspect that the person stopped is armed and dangerous.” Johnson, 555 U.S. at 326-27. An officer’s order that a person spread eagle marks the point where a traffic stop proceeds from a stop to a frisk. To a reasonable person, the order objectively begins the “serious intrusion upon the sanctity of the person.” Terry, 392 U.S. at 17.
In Terry, the Court explained that “[a] thorough search . . . of [a person’s] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet” that is “performed in public by a policeman while the citizen stands helpless” is a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” Id. at 16-17, 17 n.3 (internal quotation marks omitted). There is no good reason to divorce an officer’s actual touching from an officer’s immediately preceding order that allows that touching to take place. After all, it is the officer’s action that must be “justified at its inception,” id. at 20, and a command is an action. An officer acts when he commands a person to stand spread eagle. See, e.g., Doornbos v. City of Chicago, 868 F.3d 572, 581 (7th Cir. 2017) (“As with ‘seizures,’ an officer can initiate a frisk before physically touching a person.”); Thomas v. Dillard, 818 F.3d 864, 888 (9th Cir. 2016) (“Once [the officer] initiated [plaintiff’s] detention for the purpose of a weapons frisk, the constitutional violation was complete.”). There is no reason to order a person to spread eagle other than to commence a frisk. To the extent the majority thinks there are “a host of reasons why an officer might order a person” to assume an in-search position, Maj. Op. at 43, this case does not present one of those instances, as Tom’s order was given precisely so that he could frisk Weaver.
The majority disagrees. It characterizes an order to spread eagle as an “as-yet-unexecuted intention to conduct a frisk.” Maj. Op. at 33. But commanding someone to spread eagle is not an “as-yet-unexecuted intention” or internal thought, it is an act that objectively signals to any reasonable person that a frisk will commence. The command itself establishes the officer’s “attempt to find something or to obtain information.” United States v. Jones, 565 U.S. 400, 408 n.5 (2012). Further, the majority’s opinion that commanding someone to spread eagle falls short of a frisk until physical contact is made cuts against Supreme Court precedent rejecting “rigid all-or-nothing model[s] and regulation[s]” in the
The majority contends that holding that a search begins when an officer orders a person to spread eagle would wrongly conflate search and seizure law because the search doctrine is not concerned with how a reasonable person would interpret an officer’s action. There are two problems with the majority’s rationale.
First, searches and seizures share some common attributes. See Jones, 565 U.S. at 408, n.5 (“[A] seizure of property occurs, not when there is a trespass, but when there is some meaningful interference with an individual’s possessory interests in that property. Likewise with a search.”) (internal quotation marks and citation omitted); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (discussing that “[t]he scope of [a] search must be strictly tied to and justified by the circumstances which rendered its initiation permissible” and “[t]he scope of [a] detention” with respect to seizures “must be carefully tailored to its underlying justification.”) (internal quotation marks omitted). The doctrines work hand in hand.
This brings me to the second problem with the majority’s rationale. “[T]he ultimate touchstone of the
Turning to the majority’s test for when a verbal order constitutes a search, the majority’s opinion acknowledges that some verbal orders constitute searches. The government expressly acknowledges that to be true as well. However, the majority’s opinion provides no guidance whatsoever as to the types of verbal orders that would constitute a search, except to say that the order at issue here was not such an order. The government distinguishes an order that a person place their hands against a car and spread their legs open from an order that a person remove their clothes down to their underwear and pull out their bra and an order that a person empty their pockets and lift their shirt. The government ignores that each of these orders direct a person to increase exposure to an area that the person reasonably seeks to preserve as private, e.g., their body parts. See Appellant’s Br. at 34-35 (discussing exposure to “private areas that, though likely covered in clothing, are typically kept out of public view.”).
The majority ignores that this case implicates the reasonable expectation of privacy prong. A person’s “subjective expectation of privacy” can be “inherent in [their] account of [an official action] as embarrassing, frightening, and humiliating.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374-75 (2009). Amici curiae note that an order that a person spread eagle is “degrading for the person being forced to assume [that] uncomfortable and undignified position.” Bronx Defenders’ et al. Br. at 10. Here, Weaver was required to assume this spread-eagle position in public. To a casual observer, and to the person themselves, bending forward on the trunk of a car with one’s legs spread apart may seem more exposed and revealing than displaying contents of one’s pockets or the skin of one’s torso.
III. The Supreme Court’s Decision in Whren Continues to Have Unjustifiably Tragic Consequences.
The Supreme Court’s decision in Whren v. United States, which held that the
Because state traffic laws prohibit many innocuous activities, such as hanging air freshener from a rearview mirror or having a loud exhaust, “probable cause as to a minor traffic violation can be so easily come by that its existence provides no general assurance against arbitrary police action.” WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.4(f) (6th ed. 2020). Simply put, “[i]f an officer follows any motorist long enough, the motorist will eventually violate some traffic law, making any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of police.” See Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 641 (2021) (internal quotation marks and alterations omitted). The victims of police officers’ whims are disproportionately people of color.
Black drivers are more likely to be pulled over by police officers than white drivers, and police officers search stopped black and latino drivers twice as often as stopped white drivers, despite data suggesting searches of these black and latino drivers are less likely to discover guns, drugs, or other illegal contraband.4 As a distinguished black educator has noted, “there’s a moving violation that many African-Americans know as D.W.B.: Driving While Black.” Henry Louis Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker (Oct. 16, 1995).5 Research also suggests that court decisions that expand police discretion, such as Whren, contribute to racial discrimination in policing. For example, an empirical analysis of more than eight million traffic stops conducted by the Washington State Patrol from 2008 through 2015 demonstrated that the Washington Supreme Court’s easing of its restriction on pretextual traffic stops led to a statistically
significant increase in traffic stops of drivers of color relative to white drivers. See Rushin & Edwards, 73 Stan. L. Rev. at 642-43.
Traffic stops can be particularly dangerous, and even fatal, for motorists.6 On
Out of the Business of Traffic Stops, WASHINGTON POST (Apr. 16, 2021).8 Of all fatal shootings by police in 2015, about 11 percent occurred during traffic stops. Id.
The increased dangers to motorists from traffic stop encounters with police are not justified by public safety concerns. A report analyzing approximately 246,000 traffic stops in Nashville, Tennessee, in 2017 concluded that there was “little evidence of . . . a connection between traffic stops and serious crime levels in Nashville.” Chohlas-Wood, at 2. Specifically, there was no evidence that traffic stops deterred future crime or led to apprehension of persons responsible for past crimes. Id. In fact, only 1.6% of traffic stops led to a custodial arrest, and the arrests were most often for non-violent crimes, such as license violations or drug possession. An additional 5.8% of traffic stops resulted in a misdemeanor citation for offenses such as driving without a valid license. Id. Further, “despite substantial reductions in stop rates ” from 2011 through 2017, “crime levels . . . remained steady” and “week-to-week changes in area-specific stop rates were uncorrelated with changes in local crime levels.” Id.
It is time that we stop ignoring the tragic ramifications of Whren. We must not expand Whren to the point where law enforcement conduct with little public safety benefit that disproportionately impacts communities of color is beyond the reach of the
The majority’s decision does not adequately protect the
1 GUIDO CALABRESI, Circuit Judge, dissenting, joined by ROSEMARY S. POOLER and 2 DENNY CHIN, Circuit Judges:
3 The majority begins its opinion by saying that this is an ordinary case of an 4 ordinary police search. That, unfortunately, is all too true. But though ordinary, 5 and very common, the facts of this case, and the fact that a strong majority made 6 up of thoughtful judges comes out as it does, demonstrates beyond peradventure 7 why this area of the law is so disastrous.
8 I will begin my sad but respectful dissent by describing this case completely 9 apart from Supreme Court cases and precedents of our Court. That is, I will 10 describe the facts of this case as an ordinary person would see them and react to 11 them. I will then describe the law and why, under that law, this case is a close one 12 and how, given what the ordinary person would
I
2 I have no doubt that the ordinary person looking at the facts of this case 3 would conclude that the officers decided to search Weaver based on a hunch or a 4 stereotype, and then went about finding a way to search him.
5 Consider, first, what the police knew about Weaver before they stopped the 6 car in which he was a passenger. The police were “proactively” engaged in looking 7 for crime in what they described as a “high-crime” area. App’x 91. Weaver—an 8 African-American man—walked along Merriman Avenue, and he looked at an 9 unmarked police car with tinted windows for “several seconds,” id. at 150–51, or 10 “a few seconds,” id. at 95, 174. As the unmarked police car kept moving away from 11 Weaver, Officer Tom observed through the passenger sideview mirror that 12 Weaver “adjusted his waistband,” id. at 151, or, more specifically, gave his 13 waistband a “subtle tug . . . , like an upward tug motion,” pulling up his pants, 14 which “were lower than waist level,” id. at 152. The police then saw Weaver get 15 into a gray sedan.
16 The police followed that car until they had a valid reason to stop it. What 17 was that reason? The car was traveling on Davis Street and stopped when it 18 reached Delaware Avenue. Drivers can make only a right turn at that intersection 1 and the driver proceeded to signal a right turn before turning onto Delaware 2 Avenue. The driver, however, had failed to signal that turn over one hundred feet 3 before the intersection, as required by New York law. On that basis, the police 4 turned on their emergency lights and signaled the driver of the gray sedan to stop.
5 Such traffic infractions are commonplace—they have been so since cars first 6 transformed American life in the early twentieth century. See Sarah A. Seo, 7 Policing the Open Road: How Cars Transformed American Freedom, 26-27 (2019). 8 The ordinary person might muse: how often are most people stopped for failing 9 to signal, let alone for signaling too close to the corner? And our ordinary observer 10 would conclude that the failure to signal at the appropriate time was actually just 11 an excuse to stop the vehicle.
12 Once the car was stopped, the passenger in the backseat opened his door as 13 if to get out, but closed it following a police order to do so. Officer Tom approached 14 the vehicle, he looked at Weaver, and he saw Weaver “slouched down pushing 15 down his pelvic area and kind of squirming in his seat,” with his hands making a 16 “downward shifting motion.” App’x 158–59. He then ordered Weaver, “show me 17 your hands, show me your hands.” Id. at 159. Weaver complied with this order 1 and stated, “I don’t got nothin.’” Id. Officer Tom then asked Weaver to reach into 2 his pocket area and retrieve his identification, which Weaver did.
3 Without more than this combination of actions—Weaver’s glancing at the 4 unmarked police car for “a few seconds,” his hitching his pants, and “squirming” 5 in his seat while making a “downward shifting motion” with his hands at his 6 waistband—the police ordered Weaver out of the car, “direct[ed] him towards the 7 rear quarter panel trunk area of [the] vehicle” and “ask[ed] him to place his hands 8 on the trunk of the vehicle,” and “position himself
10 To the ordinary observer, it would be obvious that Officer Tom decided to 11 search Weaver long before he ever laid hands on him. And that he did so not 12 because of any fear that Weaver might be armed and dangerous, but because he 13 had a hunch that Weaver might be hiding something criminal, probably drugs. It 14 is also obvious that this was why he ordered Weaver to assume a demeaning 15 position that would enable this search.
16 The ordinary person considering these facts would conclude that the officers 17 wanted to search Weaver when they first saw him, that they found a way to do so, 18 and that their guess turned out to be right—Weaver was a felon with a gun and
cocaine. The ordinary observer might not know that the only reason that such hunch-based searches are permitted is if there is a sound, objective reason to believe that the person searched was armed and dangerous. And so our observer might conclude, good for the police! They caught someone. Or so might such a person conclude until learning that (as amici tell us) in the overwhelming number of such hunch-searches, the person searched and demeaned was not a criminal but an ordinary innocent person!1
Our ordinary observer might then stop and wonder: wait, is that all it takes? A look and a tug, a delayed turn signal, and adjusting yourself in your seat, and now you are asked to step out and spread eagle across the trunk of a car? The ordinary observer might then ask: could this happen to me?
Because this is a discomforting thought, I think many people would go on to find ways to distinguish themselves from Weaver. Unlike Weaver, many are fortunate not to live in so-called “high-crime areas.” And many might comfort themselves with the thought that they have nothing to fear from the police. The police don‘t look for people like us! Some observers might even tell themselves that the color of their skin would preclude police officers from forming such a suspicion about them in the first place.2
I believe that drawing such lines to render acceptable actions that search and demean perhaps as many as ninety-nine innocent people to catch one dangerous crook, because those actions befall only “others,” reflects the deeply troubling state of our Fourth Amendment law. It is worth considering how we got here.
II
The trouble with the state of our Fourth Amendment jurisprudence is that it presents judges with a cognitive conundrum that leads us to defer to the police and
The exclusionary rule, as a way of controlling police behavior, has been a disaster. Do not get me wrong: some way of keeping the police from undertaking unreasonable searches and seizures is essential. And exclusion of wrongfully found evidence seemed a plausible way. But in practice it has led to a slow and steady erosion of rights to be free from unreasonable searches and seizures.
Courts are—and should be—guided by precedents. But the nature of precedents is that a case asserting an improper search and therefore seeking the exclusion of evidence is likely to be, on its facts, just a step from an earlier case in which police behavior was held to be justified and in which the evidence found was admitted. And even though we mouth the rule that any Fourth Amendment exception ought to be “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499 (1958), we can‘t avoid the fact that the defendant before us seeks to exclude evidence that virtually always demonstrates guilt, combined frequently with dangerousness.
The officers’ hunch or stereotype in the cases courts see was correct! Courts do not want to release criminals; such criminals have done and may again do harm. And so, often and understandably, courts take “the next step,” and hold the search in the case they face to have been reasonable. To do otherwise would have led to the release of a criminal.
Thus, this “next step” case becomes the precedent for the subsequent “close case.” Through a series of holdings, each one driven by the desire to avoid excluding determinative evidence, we have approved, on one ground or another, successive forms of increasingly unreasonable police actions, until we find ourselves reviewing actions that would seem—to the ordinary observer—to be obviously improper but which, instead, on our precedents—on governing law—are “close.”
This string of “next step” precedents comes at a cost that courts cannot easily assess. What about all the cases in which the police behavior turned out to be unjustified? What about all the cases in which the hunch or the stereotype was wrong, and an honest person was humiliated, seized, searched, and all too often maltreated? Why don‘t the courts see those cases—which amici in this case assert are at least ninety out of a hundred3—and in them set down rules reinforcing the constitutional mandate? Recent events more than suggest that a multitude of such cases exist, and that they feed distrust and even hatred of the police, with dire consequences. Why don‘t these cases get to court?
The reason is obvious. Persons wrongly seized or searched may well not know that they can bring a lawsuit, or they may be too disaffected to sue. But even if they go to a lawyer, the lawyer will tell them—ah yes, you have been mistreated, but you won‘t recover; the case is fairly close and so the officer would surely have qualified immunity.4
There may well be thousands of situations in which a search or seizure like the one before us today turned up nothing. But hardly any will get to court. And even these will almost always get decided against the person subjected to potential police misconduct because of qualified immunity.
This, then, is the cognitive problem our jurisprudence has created. In the relatively few cases of potentially unreasonable police behavior that come before us, the police have found something criminal, leaving us understandably predisposed to think that their suspicion was indeed reasonable. That predisposition is magnified by the exclusionary rule‘s all-or-nothing stakes—limit police behavior only by releasing a wrongdoer—and results in a body of deferential, “close case” precedents. These precedents in turn, and through qualified immunity, keep those cases—which might otherwise afford an opportunity to address potential police misconduct and vindicate Fourth Amendment rights—out of our sight.
The cognitive bias created by the exclusionary rule and qualified immunity might not be so atrocious if courts had a way of cutting through it—if, perhaps, they understood directly and emotionally, from personal experience, the perspective of those innocents who are improperly and humiliatingly searched or seized. But we judges, and our children, families, and friends, are not likely to be the ones whom the police decide to search on a hunch, or simply because we looked at an unmarked car with tinted windows and pulled up our pants. We are not likely to be stopped for failing to signal at the correct time. And we are most unlikely to be made to bend over, spread eagled against the trunk of a car, even if stopped.
Indeed, much as ordinary observers might, we judges, too, are likely to conceive of police misconduct as something that happens to others and not to us. This, in turn, makes it much easier to accept police conduct that is pretextual—in other words, not honest—simply because it also serves a useful purpose. That is one of the terrible problems with Whren v. United States, 517 U.S. 806 (1996).
Whren excuses an officer‘s stop of a car for a traffic infraction even when the traffic infraction is not the real reason for the stop. In other words, it permits pretextual stops, and—as such—it inevitably encourages stereotyping. When a pretextual stop results in the discovery of criminal activity—as it did here—we
We are not the ones who are stopped and made to spread eagle. The price for what we believe to be greater public safety will be borne disproportionately by “them,” whoever “they” may be. As a result, we are only willing to say, “stop,” in those situations in which the challenged police practices are ones that might make us the subjects of police actions. See, e.g., Transcript of Oral Argument at 9-10, United States v. Jones, 565 U.S. 400 (2012) (No. 10-1259) (“CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? . . . MR. DREEBEN: The Justices of this Court? CHIEF JUSTICE ROBERTS: Yes. (Laughter.)” (emphases added)). The Court in Jones found the police action violative of the Fourth Amendment.5
Do not misunderstand me. I am not saying the police are acting out of racist motives. Whren says that would violate the
Again, let me be clear, I am not blaming anyone for this lack of caring. It is a profoundly human attribute, to which I am as subject as anyone else. The failure to appreciate a burden because it falls only on others is so universally human that it can only be controlled structurally. And, as in so many things, the framers of our Constitution understood that. They knew that we would all vote for parks or roads if we did not have to bear their costs. Having a park is eminently desirable if I don‘t need to pay for the land it is built on. So, the framers required that property—one of their greatest concerns—could only be taken for a public purpose if the takers paid compensation. Unlike the framers, we have established structural norms that, as to the issues in the case before us and in many other similar areas, make it infinitely easier to let the burdens that accompany possibly desirable actions fall only on “them.”6 The result is injustice.7
Even given this unfortunate state of the law, this case could have and so should have come out the other way. In my view, the district court and the en banc majority commit two related errors.
A.
First, they fail to consider whether instructing Weaver to spread eagle against the hood of the car amounted to a seizure that was additional to and exceeded both (a) the permissible temporary seizure of the sedan and its passengers as part of a lawful traffic stop, see Whren, 517 U.S. at 813, and (b) the permissible order that Weaver get out of the stopped car, see Maryland v. Wilson, 519 U.S. 408, 414-15 (1997).
The majority fails to consider meaningfully whether this additional seizure—the requiring of presumably innocent persons to spread eagle—was justified by the evidence then available to the police. In a footnote, it dismisses what Weaver was ordered to do here—exit the car, place his hands against the rear of the car, bend over, and spread his legs—as a trifling intrusion, no more inconveniencing than being asked to step out of a car to the side of the road, or even to step out with one‘s hands in the air. See Maj. Op. at 38 n.57. That is simply wrong. Ordering a passenger in a car to spread eagle may not be as intrusive a seizure as putting handcuffs on such a passenger, but it is close. And accordingly, under existing cases it requires an objective justification.8
The majority devotes much of its energy to the question of when the search of Weaver began, because, it insists, “this is a case about searches, not seizures.” Maj. Op. at 35. As the majority sees it, “Weaver, the driver, and the back-seat passenger were seized from the moment the police stopped their vehicle.” Id. at 35 n.51; see also id. at 38 n.58.
And it is indeed settled that in Fourth Amendment terms, a traffic stop entails the seizure of the driver as well as any passengers. See Brendlin v. California, 551 U.S. 249, 255 (2007). It is also settled that Weaver, having been seized as part of the lawful traffic stop, was not free to “move about at will.” See Arizona v. Johnson, 555 U.S. 323, 333 (2009). Moreover, the police could also have asked him, without any suspicion, to step out of the car pending completion of the stop. Wilson, 519 U.S. at 414-15. In crafting this car-exiting rule, the Supreme Court acknowledged that in a lawful traffic stop, there is no probable cause to believe a passenger has committed
But Weaver was ordered to do much more than step out of the car following the traffic stop. His circumstances did not simply change from being inside a car to being outside it. He was ordered to move to the rear of the car, put his hands on the trunk, bend over, and spread his legs. Such an order goes far beyond the “minimal” additional intrusion of stepping out of a car permitted under Wilson, and it goes beyond the purpose of the initial traffic stop. See Terry v. Ohio, 392 U.S. 1, 20 (1968) (explaining that the unreasonableness of a seizure depends in part on “whether it was reasonably related in scope to the circumstances which justified the interference in the first place“).
Ordering Weaver to spread eagle amounts to an additional seizure. This comports with cases from several of our sister circuits, which have held that ordering a pedestrian to spread eagle is indeed a seizure. See United States v. Brodie, 742 F.3d 1058, 1061 (D.C. Cir. 2014) (“We can see no basis for classifying Brodie‘s action—putting his hands on the car when told to do so by the police—as anything other than full compliance with the officer‘s request.“); United States v. Brown, 448 F.3d 239, 246 (3d Cir. 2006) (“Brown first yielded to Santiago‘s authority by turning to face the police car and placing (or moving to place) his hands on the vehicle.“); United States v. Brown, 401 F.3d 588, 595 (4th Cir. 2005) (“Brown was seized, and his Fourth Amendment rights triggered, at least as early as when he submitted to Officer Lewis’ order by leaning toward and placing his hands on the adjacent car.“).
The additional order to spread eagle, because it is a seizure additional to and beyond the “traffic-stop seizure,” must, to be reasonable, require suspicion beyond the officers’ initial justification for the traffic stop and its completion. This follows from Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam), where the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment[],” id. at 111 n.6, because the government‘s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id. at 110-11.
Citing Terry, the Supreme Court in Mimms further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer “reasonabl[y] concluded that the person whom he had legitimately stopped might be armed and presently dangerous.” Id. at 112 (emphases added); see also Johnson, 555 U.S at 332. In other words, doing something more intrusive than ordering a person out of the car requires some quantum of suspicion independent of the officers’ initial justification for the traffic stop. Accordingly, and following the explicit language of the Fourth Circuit, I would hold that to be reasonable, such a seizure requires “a reasonable, articulable suspicion that criminal activity was afoot and that [the person
The majority, thus, seems to violate a quite ordinary Fourth Amendment principle: what may begin as a reasonable, lawful stop becomes unreasonable and therefore unlawful once police undertake greater and more invasive intrusions absent independent, individualized suspicion. See, e.g., Rodriguez v. United States, 575 U.S. 348, 355 (2015) (“An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.“); Knowles v. Iowa, 525 U.S. 113, 117 (1998) (“[W]hile the concern for officer safety in this context may justify the ‘minimal’ additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search.“); United States v. Place, 462 U.S. 696, 706, 707-10 (1983) (explaining that “brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime,” but holding that a ninety-minute detention of personal effects based only on reasonable suspicion was unreasonable).10
I also think it plain that the order to spread eagle is not so minimally intrusive as to be excusable in the interest of officer safety when that concern can be just as well addressed by ordering the passenger out of the car, perhaps even with hands in the air. Of course, if an officer does have reasonable articulable suspicion to believe the passenger in a stopped car is armed and dangerous, that officer may rightly
Failure even to consider whether there was adequate justification on the basis of the evidence available when Weaver was ordered to spread eagle is, therefore, not only wrong but contrary to Supreme Court and other circuit holdings. Accordingly, the proper course would be to hold that, since Weaver was further seized when he submitted to Officer Tom‘s order to spread eagle, we must remand for the district court to consider whether, consistent with the Fourth Amendment, this additional seizure was independently supported by adequate, individualized suspicion.
B.
Second, I believe the majority need not read Whren and its sequelae so expansively complacent with police pretexts as it does. See Maj. Op. 42 n.61. Whren says only that a court will not exclude evidence of a crime if a police officer sees such evidence during an objectively reasonable traffic stop, even if the officer‘s actual, ulterior motivation for performing the traffic stop was not the desire to enforce traffic laws. Whren, 517 U.S. at 813.
Whren does not say, however, that an officer who undertakes such a stop is a reliable witness with respect to whether the actions of the person in the stopped car objectively indicated that the person must be armed and dangerous.
It is the most common of common sense that officers who undertake a pretextual traffic stop in order to catch criminal will not, once the car is stopped, become any less moved by that desire. They decided to follow the car and ultimately stop it on the hunch or stereotype that the occupants were wrongdoers and wanted to catch them. It is only reasonable to believe that that motivation might, consciously or unconsciously, cause the officers to read the situation before them in a way that furthers that motive.
Put simply, to a man with a hammer, everything will look like a nail. That impulse is both human and understandable. And it is critically important to recognize it in these cases. Under Whren, the officer‘s subjective intent for deciding to follow a car and to make a stop is not relevant if there was a traffic violation that justified that stop. But what remains critically relevant is the accuracy of that same officer‘s testimony regarding whether certain things—a tug of the pants, for instance—suggest that the individual in the car is armed and dangerous.
As this case illustrates, these are often nebulous, ambiguous things: shifting in one‘s seat, adjusting one‘s pants, a protestation of innocence. The officers testify that in their experience the particular ambiguous acts bespeak the existence of a gun, and hence justify a search. That may perhaps be so, and the district court must decide whether that is in fact the case.11
The majority maintains that there is no reason to believe that an officer who has engaged in a pretextual stop may be inclined to exaggerate the description of a defendant‘s potentially dangerous conduct. Maj. Op. 45 n.65. I believe that the ordinary person would find that position illogical and contrary to human nature.
The majority also implies that it would be inconvenient to have a district judge make credibility findings whenever an officer has engaged in a pretextual traffic stop. I think the inconvenience is minor compared to the risk of taking for granted an inaccurate description of a defendant‘s dangerousness. But even apart from whether an explicit finding of an officer‘s credibility should be made, I think
a remand in this case is appropriate. The district courts, like many judges on this court, assume that Whren requires us to ignore wholly the fact of the pretext. It would be helpful—indeed, I believe it is necessary—to let district courts know that they are free to take the facts suggesting that a stop was pretextual into account when evaluating the reliability of the officer‘s account of a defendant‘s dangerousness. This would be helpful even if no express finding by the district court were required, because today there is no reason to believe that a district court feels free to look on what an officer says with skepticism, given the prevailing and, to my mind, incorrect and overly broad reading of Whren.
It is and must be permitted, wise, and appropriate for a district court in cases of this sort to take the facts that led to the legal stop into account. And with these facts expressly in mind evaluate an officer‘s testimony when determining whether the specific criteria identified by the officer would really cause a reasonable police officer to be concerned as to whether the person stopped was armed and dangerous.
I believe it was just such a view that led the New York court acting under state law to find the search in this very case to be unreasonable. See App‘x 20–27. I do not say that the district court should necessarily reach the same conclusion. But I do believe that the law in this area would be better served if we required district courts to consider the nature and motivation of the officers who made the traffic stop in deciding whether the testimony of these same officers constitutes objective evidence of danger to the police after that stop.
IV.
The law in this area must balance the extremely important interest in police safety with the constitutionally mandated protection of citizens from demeaning and offensive searches and seizures. That balance is what the
I recognize that where that balance has been struck in previous cases makes this case a close one. Nevertheless, I believe the district court and the en banc majority have erred in both going beyond existing law and in reading too broadly what existing law requires. There is nothing in Whren and its sequelae that keeps us from requiring the district court to consider the pretextual nature of an original traffic stop when evaluating an officer‘s subsequent testimony as to whether ambiguous acts bespeak danger. And existing law, in other circuits and suggested by the Supreme Court, requires that demeaning additional seizures, such as entailed by orders to spread eagle, be justified on the basis of evidence then available. Because the district court failed to do either examination, and because the majority of this court affirms that failure, I respectfully but sadly dissent.
I would vacate and remand the district court‘s judgment and order it to consider whether there was in fact sufficient, believable evidence, available at the time the order to spread eagle was issued, to justify ordering Weaver to so demean himself.
DENNY CHIN, Circuit Judge, dissenting, joined by GUIDO CALABRESI and ROSEMARY S. POOLER, Circuit Judges:
“[T]he ultimate touchstone of the
The police officers saw Weaver, a Black man wearing a hoodie, walking on the street in the Near Westside of Syracuse around 5 p.m. He stared at their car -- an unmarked vehicle (with tinted windows) moving slowly -- for a few seconds, and he hitched up with one hand his sagging pants. The officers were suspicious and continued to watch as Weaver approached a grey sedan and entered it on the passenger side. The officers followed in their car.1 When the grey sedan stopped at a corner where it could only make a right turn and only then activated its turn signal, the officers pulled the grey sedan over, for failing to signal at least 100 feet before the turn. The purported traffic violation was an obvious pretext for the officers to stop the vehicle.
After the officers approached the sedan, its occupants complied fully with the officers’ instructions. The officers saw Weaver squirming in his seat and making a downward motion with his hands around his pelvic area. The officers ordered Weaver out of the car. Although they did not see any bulges or outlines of a weapon or see him reach underneath his clothing, they ordered him to assume a spread-eagle position with his hands on the trunk of the car, in the middle of a four-way street in full public view. Weaver complied.
Police officers may frisk an occupant of a vehicle only when they “harbor reasonable suspicion that the person subjected to
It is apparent that from the moment they first saw him, the police officers were suspicious of Weaver, a Black man wearing a hoodie, even though he did not appear to be doing anything remotely illegal. They had a hunch that he was carrying a weapon or contraband or was otherwise up to no good, and while that hunch may have turned out to be correct, it was a hunch nevertheless. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (“The officer, of course, must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.“‘” (internal quotation marks omitted)). And far more often, these hunches turn out to be baseless. See Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013) (of 4.4 million stops made by New York Police Department officers over an approximately eight-year span, guns were seized only 0.1% of the time, while “other contraband” was seized only 1.8% of the time). The officers here identified nothing particularized to warrant the intrusion on Weaver‘s liberty that followed, including ordering him to assume a demeaning spread-eagle position in the middle of a four-way street in full public view. See City of Ontario v. Quon, 560 U.S. 746, 755-56 (2010) (“The [
Judges Calabresi and Pooler have addressed a number of troubling concerns in their dissents, including the legacy of Whren v. United States, 517 U.S. 806 (1996), and pretextual stops; the notion that looking at an unmarked car allows a reasonable inference that a person is armed and dangerous; the use of the “high-crime area” justification where reasonable suspicion is lacking; and the notion that an order to assume a spread-eagle position does not have certain
The majority makes the point that neither it nor the district court “even mention[s] Weaver‘s race.” Maj. Op. at 62. It concludes that there are “simply no grounds for believing that [Weaver‘s race or racial bias] would have any bearing on the outcome of this case.” Id. at 64. That race was not mentioned by the majority or the district court in their
Was race a factor? Would the officers have considered Weaver‘s staring at their car and hitching up his pants suspicious if he had been White? Would the officers have bothered to make a pretextual stop in the circumstances here -- stopping a car for failing to signal at least 100 feet before a corner where only a right turn could be made and the car did indeed signal once it reached the corner -- if the occupants of the vehicle had been White? Would the officers have ordered Weaver to exit the vehicle and assume a spread-eagle position with his hands against the trunk if Weaver had been White?
Of course, we do not know for sure whether racial bias, implicit or otherwise, had any bearing on the outcome of the case.3 We do know, however, that the officers repeatedly noted Weaver‘s race and appearance in their contemporaneous reports as well as in their testimony. App‘x at 33-34, 37, 59, 65, 95, 116. We also know as a general matter that Blacks are stopped by police officers far more often than Whites4 and that Blacks are arrested
I respectfully dissent.
Notes
First, the dissent argues that an order to stand “spread eagle” is a search because it is “‘degrading,‘” that is, “‘uncomfortable and undignified.‘” Id. (quoting amicus brief). In support, it quotes the Supreme Court‘s decision in Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 374-75 (2009), for the proposition that “[a] person‘s ‘subjective expectation of privacy’ can be ‘inherent in [their] account of [an official action] as embarrassing, frightening, and humiliating.‘” Pooler Dissenting Op. at 24. But this omits key language. The full quotation reads: “[The plaintiff‘s] subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating.” Safford Unified Sch. Dist. No. 1, 557 U.S. at 374-75 (emphasis added). It is clear that the Supreme Court described the plaintiff‘s reaction not to conclude that a search had actually occurred (that is, that there had been an intrusion), but instead to determine whether something they had already determined to be a search (there, a strip search of a student) had crossed into a constitutionally protected area. The Court expressly differentiated between “a search, and the degradation its subject may reasonably feel.” Id. at 377.
Second, the dissent contends that Weaver‘s stance against the trunk “may seem more exposed and revealing than displaying contents of one‘s pockets or the skin of one‘s torso.” Pooler Dissenting Op. at 24. But the dissent does not tell us what, precisely, was “exposed” or “reveal[ed].” The record before us does not suggest that anything was.
Weaver, 975 F.3d at 117 n.8 (quoting Ornelas, 517 U.S. at 699).[S]taring at an unmarked car in an attempt to discern its occupants is entirely consistent with being wary of a police encounter. And while Weaver‘s concern may have been justified by an innocent fear, Officer Tom could reasonably suspect that it was motivated by a fear of being stopped while possessing a gun and drugs—as Weaver ultimately was. The law does not require that police officers—or courts—make all inferences in favor of the suspect. Quite the opposite: we must “give due weight to inferences drawn . . . by . . . local law enforcement officers.”