United States v. McCargo, Docket No. 05-4026-cr (L) (2d Cir. Sep. 13, 2006) (Walker, Jacobs, Wallace): This is a terrible Fourth Amendment decision, even accounting for the general awfulness of the Circuit’s jurisprudence in this area. (Disclosure: Darrell Fields of this Office, on behalf of this and other FPD offices in the Second Circuit, submitted an amicus curiae brief arguing that the stop was unlawful). Essentially, the Court held that the fact that McCargo was at a street corner approximately 200 feet from the scene of a possible crime (i.e., a house in which the occupant had called 911 to report a break-in), in a “high crime” neighborhood, is sufficient to permit the police to throw him against the police car and frisk him under Terry. There is a bit more than that, but nothing that should have made a difference.
The essential facts are these. At about 1 a.m., a caller at 501 Berkshire Avenue (in Buffalo) called 911 to report that someone was attempting to break into his residence. One police car responded quickly and parked in front of the residence.
Shortly thereafter, police officers in a second police car decided to respond to the same 911 call. As they drove on Berkshire toward the scene, they saw McCargo crossing the street at an intersection about 200 feet from 501 Berkshire. The officers claimed that McCargo was looking “intently” at the first police car (parked in front of 501 Berkshire), and that the general area was considered a “high crime neighborhood” (undefined, of course).
The officers in the second police car got out, grabbed McCargo, frisked him, and found a gun. They claimed at the suppression hearing that they did so because (1) they wanted to transport him to 501 Berkshire in the back seat of the police car so that the victim can either identity or not identify him; and (2) police department policy required a frisking of anyone transported in a police car.
The Circuit, by Judge Walker, concludes that all aspects of the police’s action, from the stop of McCargo to the frisk, was lawful. Indeed, the opinion principally discusses what this Blog thinks is nearly a non-issue — whether, if the police had reasonable suspicion to stop McCargo in the first place, they were justified in (1) their decision to transport him to the crime scene, Op. 9-13; and (2) their decision to frisk him pursuant to the department’s policy, id. 13-19. From our perspective, the real question — the one the Circuit got badly wrong — is the preliminary one: Did the police have reasonable suspicion to stop McCargo in the first place?
Simply put, the Circuit relies on three “facts” to sustain the police’s decision to seize McCargo: (1) His presence at a location about 200 feet from the crime scene; (2) his “staring at” the police car parked in front of the same; and (3) the “fact” that the area is, in the officers’ opinion, a “high crime” one.
We think it self-evident that the first two are insufficent to justify a Terry stop: Presence alone, coupled with the near-reflexive act of looking at a police car (which likely had its lights on and sirens flashing), falls far short of the requirment of “specific and articulable facts” warranting a reasonable suspicion that the defendant has committed a crime. Even worse, the Circuit commits a “category mistake,” as the logicians say, in throwing in the “high crime neighorhood” rationale to support the stop.
The mistake is this: This rationale is relevant only when the question is whether a crime has been committed in the first place, and is irrelevant when the question is (as here) whether this particular person has committed the crime (which, as a result of the 911 call, the police can assume occurred). In Illinois v. Wardlow, 528 U.S. 119 (2000), cited by the Circuit, the Supreme Court held that the police were justified in stopping Wardlow when he and others, present in an area known for heavy narcotics trafficking, fled immediately upon seeing police cars drive by. There, the police had no reason to believe that any particular crime had been committed. But Wardlow’s flight gave them reason to believe that he may have done something wrong, especially given that he was present in an area with a high incidence of criminal activity.
Here, however, the undisputed assumption (in light of the 911 call) is that a crime (specifically a burglary at 511 Berkshire) has been committed. The question, therefore, is whether this particular person — McCargo — committed that crime. In this context, the general incidence of crime in the neighborhood is simply irrelevant to the Fourth Amendment question — whether there is reasonable suspicion to believe that McCargo participated in the attempted burglary of 501 Berkshire Avenue.
Regarding the remainder of the opinion, we will point to only one particularly troubling statement. As noted, the Circuit also ruled that given the lawfulness of the initial stop, the officers acted reasonably in deciding to transport McCargo to 501 Berkshire in the police car. Responding to an argument that there was a less intrusive alternative than this — i.e., the police could have simply walked the 200 feet to the scene with McCargo — the Circuit rejected the alternative with this explanation: “[W]alking McCargo to the crime scene might have meant leaving the car unattended in a high-crime area.” Op. 11-12.
This must be one helluva bad neighborhood — even the police can’t leave a locked patrol vehicle unattended for more than a few minutes! Even when the immediate area is swarming with police and police cars!
It is sad when judges are so far removed from reality. The rest of us may be familiar with the realities of life in densely populated, multi-racial, or (egads) minority-majority urban areas (also known as “high crime neighborhoods”), but apparently the Article III lords are not.
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