Friday, May 24, 2013

Case on point has similarities to C.J. Grisham's

Open carry figures in reversal of N. Carolina case, United States v. Nathaniel Black

In Terry v. Ohio, Chief Justice Earl Warren recognized that police officers need discretion to perform their investigative duties. 392 U.S. 1 (1968). Since Terry, this discretion has been judicially broadened, giving police wide latitude to ful- fill their functions. In some circumstances, however, police abuse this discretion, and we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures. Because in this case, we find the police disregarded the basic tenets of the Fourth  Amendment, we reverse. (click)

On a summer night in June of 2010, two Charlotte police officers observed a group of African-American men gathered at a filling station in an area known for violent armed robberies.

The arresting officer made a snap decision based on his experience when he observed that they were standing around a vehicle that was parked at a gas pump, but not delivering fuel into the tank. In his book, the police officer testified, that indicates a drug transaction in progress.

They immediately called for backup and closed in with other four other police officers to question the men.

When they noticed that one of the men carried a pistol openly in a holster, they seized the weapon and secured it in the trunk of the patrol car until they could determine if the man had the right to carry the weapon in the open.

In court, they both testified that their training and experience told them that where there is one firearm, there is usually another. One of them called it “The Rule of Two.”

They began to question the other men, asking if they lived in the apartment complex next door. Nathaniel Black answered by handing over his identification. He began to fidget, according to their testimony.

Then he told them he was leaving, going home. One of the officers told him he was not free to leave, that he must sit down.

When they tried to search him, he ran as fast and as far as he could. They caught him, and they discovered he was holding a concealed firearm. A convicted felon, he was charged with the offense of possession of a firearm by a convicted felon after pleading guilty with the provision that he would be allowed an appeal.

He alleged that the officers violated his guarantee of freedom from unreasonable search and seizure under the Fourth Amendment. They based their reasonable suspicion on the fact that another person had a firearm, that he carried it in  the  open, in a legal manner, and that the detention of Mr. Black was therefore illegal, his seizure unreasonable. He should have been allowed to leave when he said he wanted to go.

Because his motion to suppress the evidence against him was denied, he appealed to the Fourth U.S. Circuit Court of Appeals.

The three-judge panel ruled that it is unconstitutional for police to detain a person based on a suspicion that arises because of the actions of another person.

In their ruling, they cited an interpretation of a similar case that was based on the landmark decision, Terry v. Ohio.

"The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’" I.N.S. v. Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Martinez–Fuerte, 428 U.S. 543, 554 (1976)).

In their consideration of the search and seizure that led to Mr. Black's arrest, the judges considered the nature of the suspicion that led to Mr. Black's seizure and detention by the police.

First, “Officer Zastrow’s suspicion that a lone driver at a gas pump who he did not observe drive into the gas station is engaged in drug trafficking borders on absurd.”

To base a decision to search the other men on the fact that one of them was legally carrying a firearm is equally unreasonable, according to the holding.

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

According to the decision, a person is "seized" within the meaning of the Fourth Amendment if, "‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’" United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).3 Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they "touched the defendant or made any attempt to physically block his departure or restrain his movement"; (v) "the use of language or tone of voice indicating that compliance with the officer’s request might be compelled"; (vi) whether the officers informed the defendant that they suspected him of "illegal activity rather than treating the encounter as ‘routine’ in nature"; and (vii) "whether, if the officer requested from the defendant . . . some form of official identification, the officer promptly returned it."

The judges concluded unanimously that for all practical purposes, the officers seized Mr. Black when he told him he could not leave.

The judges' reasoning is plain enough. When considering the totality of the circumstances, especially the actions of six policemen frisking the other men after seizing a weapon legally carried by an acquaintance, “Black’s decision to leave was an effort to terminate an illegal seizure.”

Judges handed down the decision reversing Mr. Black's conviction and vacating the indictment by the lower court on February 25 of this year.

Had he been sentenced under federal guidelines that apply to a previously convicted felon, he would have served 15 years in the penitentiary.

The bottom line:

The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic...Viewed in their totality, all the factors recited by the Government fail to amount to a reasonable suspicion justifying Black’s seizure, and the district court erred in denying the motion to suppress.”

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