In United States v. Walker (No. 18-3729), __ F.3d __, 2020 WL 3966958 (2d Cir. July 14, 2020), the Second Circuit, in a decision by Judge Pooler (joined by Judges Calabresi and Carney), reversed the district court’s denial of Jaquan Walker’s suppression motion, holding that the police lacked reasonable suspicion to stop Walker based on his purported match to a photograph because the police lacked “little meaningful identifying information” besides the race of the suspect, and even the additional details of “medium-to-dark skin tone, glasses, facial hair, and long hair,” did not suffice to constitute specific, articulable facts upon which to base the stop. In addition, the court held that the search of Walker, which yielded drugs and incriminating statements, was insufficiently attenuated from the unconstitutional stop, despite the subsequent police discovery of an unrelated arrest warrant for Walker. Given that the justification for the stop fell “woefully short of what the Fourth Amendment requires,” and “involved impermissible and manifest stereotyping, which cannot be characterized as merely negligent conduct,” the court rejected a finding of attenuation and granted the suppression motion.
The stop of Walker and a friend occurred after Sergeant Peter Montanino of the City of Troy Police Department drove past and observed them walking down the street. Montanino recalled that he had received an email the day before that sought the identification of a suspect in a shooting, and he retrieved the email, which contained a photograph, along with a message that the sender was “was trying to ID suspect #2 in this photo.” But the email did not mention a shooting or indicate why the sender wanted to identify “suspect #2.” Montanino said that he decided to stop Walker and his friend because they reminded him of the suspect, in that they were “medium to dark skin toned black males,” of a “thin build,” and both had glasses and facial hair, and one had longer hair and one had shorter hair. Montanino called two other officers to the scene, and the officers blocked the two men in with their cars before approaching and asking for identification, which Walker provided. All three officers viewed the photograph at the scene, which was later confirmed not to be Walker. The police ran a check for warrants and discovered an outstanding arrest warrant for Walker. They handcuffed Walker, and in a search incident to arrest, discovered marijuana and questioned Walker about a bulge in his groin area, which he admitted was fifty grams of crack cocaine. Walker ultimately made a conditional guilty plea to possession of a controlled substance with intent to distribute.
The Second Circuit first held that the officers lacked reasonable suspicion based on the photograph and noted that it has repeatedly said that “race, when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop.” In rejecting the district court’s finding that the additional factors of skin tone, glasses, facial hair, and long hair supported a particularized basis for the stop, the Second Circuit held that “[e]ven with the combination of these characteristics, we are simply not convinced that the description fits a narrow enough subset of individuals to constitute a specific, articulable fact upon which reasonable suspicion may be based.” Moreover, although Montanino had testified that the email related to a shooting, the email itself did not mention any crime or the suspect’s alleged role, and absent any indication that the photographed individual had been involved in the shooting, Montanino lacked reasonable suspicion to stop Walker based on any claimed resemblance to the person depicted.
Judge Pooler emphasized that because the description of “black male” and “medium-to-dark” skin tone “captures a wide swath of individuals,” and the additional listed traits were not any more particularized, the description was not specific enough to justify a stop. Moreover, the court held that this general description, combined with the lack of evidence that the depicted person had committed a crime, was “such an unsound basis [on which to justify the stop] that we cannot characterize it as mere negligence, especially when considering the significant costs of such conduct,” including potential police overreach and harassment of minority groups. The court noted that the exercise of unfettered police discretion to stop people on the streets serves to “exacerbate” police-community tensions.
The court also held that the seized evidence could not be saved from suppression based on the attenuation of its seizure from the illegal conduct. Judge Pooler explained that the attenuation doctrine requires consideration of three factors: 1) temporal proximity between the illegality and the discovery of evidence, 2) the presence of intervening circumstances, and 3) the purpose or flagrancy of the official misconduct. The court held that the temporal-proximity factor cut against a finding of attenuation because only 10 minutes had elapsed between the illegal stop and the search of Walker. But the intervening-circumstances factor favored attenuation because Walker was arrested pursuant to a valid, unrelated warrant that predated the stop. However, the court held that the third factor, the flagrancy of the official misconduct at issue, was dispositive.
The court concluded that the officers’ actions in this case were flagrant and the kind “most in need of deterrence” because the explanation for stopping Walker fell far short of Fourth Amendment standards. Moreover, the purposeful or flagrant nature of the conduct was also demonstrated by the fact that any suspicion that Walker was the individual in the photograph was dispelled when Montanino approached Walker and could confirm that he was not the photographed suspect. After “the dissipation of any reasonable suspicion, there was simply no cause to run Walker and [his friend’s] identifications for warrants—beyond, that is, a mere fishing expedition ‘in the hope that something would turn up.’” Therefore, the court held that attenuation did not apply and the evidence must be suppressed.