In United States v. Weaver, No.18-1697, 2020 WL 5523210 (2d Cir. Sept. 15, 2020) , the Second Circuit holds that police officers didn’t have reasonable suspicion that Weaver was armed and dangerous when, after ordering him out of the car, they made him place his hands on the car’s trunk, with his legs spread apart. At best, they had reason to believe Weaver had something illicit. And the search began when Weaver was made to “spread-eagle” on the car trunk — before any officer actually put hands on him.
Judge Pooler wrote the majority opinion; Judge Calabresi concurs in a separate opinion; and Chief Judge Livingston dissents.
At about 5 p.m. in February 2016, when it was still “‘daylight,’” police officers in Syracuse, New York, driving an unmarked car with tinted windows, stopped the car in which Weaver was a passenger, ostensibly for a traffic violation. See Opinion (“Op.”) at 3, 24-25 & n.9. Weaver’s car had stopped at a stop sign, and “the driver turned on his right indicator light to signal a turn” and then turned right. Op. at 4. That’s a traffic infraction??? Yes, because “New York Vehicle and Traffic Law requires that all vehicles signal 100 feet prior to a turn.” Op. at 4 (emphasis in original) (citing New York Veh. & Traf. Law § 1163(b)). (And Weaver was a “black man” in a hooded sweatshirt). See 2018 WL 4863453 at *5, *12 (Appellant’s brief).
Shortly before the stop, the officers had seen Weaver walking on the street (before he got into the car), and Weaver had briefly “‘stared’” at the unmarked-tinted-windowed car of the officers. Also, Weaver, whose “‘pants were lower than waist level’,” made “‘a subtle tug of his waistband, like an upward tug motion,’” as he entered the passenger side of the car. Op. at 4.
On stopping the car, the officers ordered Weaver to get out “and place his hands on the trunk with his legs spread apart.” Op. at 6. After Weaver was made to “spread-eagle” on the car trunk, the officers conducted three pat-down frisks and eventually found a quantity of cocaine in his pants pocket and a handgun in the groin area of his pants underneath his long john underwear. Op. at 6-7, 16.
In the state prosecution (for criminal possession of a weapon), the New York court suppressed the firearm because the police “lacked reasonable suspicion to conduct a pat-down search of Weaver’s person, and therefore, the search violated the Fourth Amendment.” Op. at 8, n. 1.
Weaver was subsequently charged in federal court with being a felon in possession (18 U.S.C. § 922(g)(1)), possessing a firearm with a removed serial number (18 U.S.C. § 922(k)), and simple possession of a controlled substance in (21 U.S.C. § 844(a)). Op. at 8.
The district court denied the suppression motion, finding sufficient reasonable suspicion because of Weaver’s “(1) watching the police vehicle as it drove past him; (2) pulling up on the waistband of his pants while walking; (3) slouching down in his seat, pushing in a downward motion on his pelvic area with both hands, and squirming or shifting his hips left to right; (4) telling [the officers] that he ‘don’t got nothin’; and (5) trying to prevent the officers from frisking his waist area, though it held that reasonable suspicion was present even absent this last fact.” Op at 8-9. The district court also considered that “the search occurred in a high-crime area and another passenger in the [back seat of the] car had swung his door open immediately when the police stopped the car.” Op. at 9.
II. The search began when the police ordered Weaver to “spread-eagle” on the car trunk.
The Majority concluded that the Syracuse police officer “effectively initiated a search of Weaver when he instructed him to place his hands on the trunk with legs spread apart (what may be referred to as an ‘in search’ position), because there is no other reason in our view to ask Weaver to assume this position.” Op. at 14.
Even though this occurred before any officer actually put a hand on Weaver, it was a search because “a search, like a seizure, may begin before there is any physical contact, at the time when a reasonable person would have believed that the search was being initiated.” Op. at 14 (citations and internal quotation marks omitted).
Objectively, therefore, the search was initiated after the officer ordered Weaver out of the car, “but no later than the moment when [the officer] directed Weaver to assume this ‘in search’ position.” Op. at 15. It was at this point — when the officer ordered Weaver to assume a position “with his hands on the trunk and feet spread apart” — that “marks the point at which reasonable suspicion that Weaver was armed and dangerous was required.” Op. at 16-17.
By the time the police officer began patting down Weaver’s body, the officer “had already instructed Weaver to exit the car and assume a position that any reasonable person could only have interpreted to mean that the search had begun.” Op. at 15. “[W]hile asking a passenger to exit a vehicle might be a de minimis intrusion on the passenger’s liberty, ordering someone to spread-eagle on a car is manifestly not.” Op. at 16.
The Majority, reviewing the facts presented here, concluded that the officers “at most … had a reasonable suspicion that Weaver was hiding something.” Op. at 27 (emphasis in original). But the evidence didn’t support an objectively reasonable suspicion that Weaver was armed and dangerous when they ordered him to spread-eagle on the trunk. Op. at 27; id. at 19-30.
In addition, the Majority stated: “Drawing the inferences the dissent asks us to draw and concluding that such weak facts support reasonable suspicion would be far reaching. Officers could subject individuals to the humiliations and dignitary harms incident to unwarranted frisks based on mundane acts, such as a look, a nervous response, or an adjustment of one’s clothes. This unfettered discretion in turn could lead to harassment of minority groups and severely exacerbate police community tensions.” Op. at 29 n. 11.
III. The concurrence
The Concurrence noted that the ordinary person would probably “conclude that the officers decided to search Weaver because of a hunch or a stereotype, and then went about finding a way to search him.” See Concurring opinion at 1 (footnote omitted). “After all, neither seeing a man pull up his sagging pants nor watching that same man stare at a car with tinted windows for a few seconds are plausible grounds for suspicion.” Id.
And “[o]ne might ask, how often are most people stopped and arrested for failing to signal—let alone failing to signal within a hundred feet of turning? And even if one is stopped for such a trivial traffic offense, how often would a passenger in the offending car be made to exit the vehicle, spread eagle himself against the car, and subsequently be frisked?” Id. at 1-2.
Upholding the search in this case, therefore, “would go yet further in making those whom the police suspect and dislike subject to humiliating treatment and abuse,” which Terry v. Ohio, warned against. Id. at 3 (citing 392 U.S. 1, 15 1968)..
But the Concurrence stated, the Dissent doesn’t “stretch the law all that much” in arguing that the search should be upheld. The Concurrence wrote separately to express concern “with the state of the law in this area and with how we got to where we are,” opining that this resulted from the “confluence of two unfortunate doctrines”: the exclusionary rule and qualified immunity. Id. at 1, 2, 3.
Because “the defendant seeking exclusion is almost always guilty of something” and courts don’t want to release those who’ve committed crimes, they tend to affirm searches on facts that are “just a step beyond a prior case in which police behavior” was upheld. Id. at 4 (emphasis in original). “This ‘next step’ case then becomes the precedent for the subsequent ‘close case’…. until we find ourselves reviewing actions that would, on their face, seem obviously improper but which, instead, on our precedents, on governing law, are ‘close.’” Id. at 4.
And “[w]hat about all the cases in which the hunch or the stereotype was wrong, and an honest person was humiliated, searched, and all too often maltreated?” “Why don’t the courts see those cases, and in them set down rules reinforcing the constitutional mandate? Recent events more than suggest that a multitude of such cases exist.” Id. at 5.
Cases involving innocent “searchee[s]” don’t get to court because: (1) “[p]ersons so searched may well not know that they can bring a lawsuit, or they may be too disaffected to sue”; and (2) because of “qualified immunity.” A lawyer would advise (a person wrongfully searched), “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. Sue if you want, but I can’t take your case on a contingent fee because the odds are too great that… we won’t win. And, by the way, you will most likely not even get a decision on whether the behavior was wrong, because the court is unlikely to reach that question given the presence of qualified immunity.” Id. at 5 (citation omitted).
So in the hundreds of searches that turn up nothing, “no more than a handful will get to court[,] [a]nd even these will almost always get decided against the innocent ‘searchee’ on qualified immunity.” Id. at 6.
The Concurrence further notes: “All this might not matter if courts knew, directly and emotionally, from personal experience, the stories of those unnecessarily, improperly, and humiliatingly searched. But we judges, and our families and friends, are not likely to be the ones whom the police decide to search on a hunch. We are not likely to be stopped for failing to signal. And we are most unlikely to be made to spread eagle, even if stopped.” Id. at 6.“The noxious effects of our current approach are all too obvious, and are manifested both broadly, in the current protests, and narrowly, in the instant case.” Id. at 8.
IV. The dissent
The Dissent states that “a directive to put one’s hands on the hood of a car” isn’t a search. See Dissent at 8; id. at 13 (“Officer Tom’s verbal directive did not constitute a frisk.”). The search, in its view, began only with the start of the actual hands-on frisk, which is a “search of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons[.]” Id. at 9 (citation and internal quotation marks omitted).
The Dissent finds that the police officers had sufficient reasonable suspicion by the time they began patting Weaver’s body, citing things such as “that the stop occurred in a high crime neighborhood at dusk” and other factors such as his looking at the unmarked car, “adjusting his waistband” before entering another car, his “seat movements” when the car was stopped, and his “volunteering, ‘I don’t got nothin’” when the police approached the car. Dissent at 6; id. at 7-20, 23-25.
In addition, the Dissent indicates that challenges to discrimination arising from “selective enforcement of traffic laws” should be vindicated through the Equal Protection Clause, not the Fourth Amendment. Id. at 23 (“it is not Terry and its progeny, but the Supreme Court’s decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), that limits Fourth Amendment (but importantly not equal protection) challenges to discrimination arising from the selective enforcement of traffic laws”). The Dissent, however, doesn’t discuss what, if any, practical legal mechanism could be used to challenge what it calls the “discrimination arising from the selective enforcement of traffic laws,” particularly given the qualified immunity doctrine discussed by the Concurrence.