Wake Forest Law Review
22Oct

Fourth Circuit Found that Police Did Not Have a Reasonable Suspicion Justifying Detention of an Individual

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By Whitney Pakalka

On October 22, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Slocumb. The Fourth Circuit reversed the District Court for the Western District of Virginia’s denial of a motion to suppress evidence. Because there was no particular and objective basis that created a reasonable suspicion for officers to detain Slocumb, the Fourth Circuit reversed the denial of Slocumb’s motion.

Slocumb’s Arrest and Conviction 

On March 18, 2013, Andre Slocumb, his girlfriend, Sierra Lewis, and an infant were in the parking lot of a salvage yard around midnight, transferring a child car seat from one vehicle to another. This same parking lot was chosen by the Culpeper, Virginia Police Department as a staging area prior to executing a search warrant on a nearby home. Approximately ten officers arrived at the parking lot, including Lieutenant Timothy Chilton. Chilton approached Slocumb and Lewis to inquire about their presence because the parking lot was known for criminal activity. Slocumb informed Chilton that he was there to pick up Lewis, whose car had broken down. Officer Chilton though Slocumb began hurrying Lewis, acted evasively, did not make eye contact, and gave mumbled responses to his questions.

When another officer asked Slocumb for identification, Slocumb provided a false name. The name given came back as valid for someone that matched Slocumb’s appearance. One of the officers then asked Lewis for Slocumb’s name, and she identified him as Hakeem Jones, a different name than Slocumb had given. Slocumb was placed under arrest for providing a false name, and officers discovered close to $6,000 on his person. Lewis gave consent for the officers to search the car that Slocumb had arrived in to pick her up. The officers found methamphetamine, cocaine powder, cocaine base, and a small amount of marijuana in the car.

Slocumb was indicted by a federal grand jury on three counts, and filed a motion to suppress the physical evidence seized by officers and incriminating statements he made after his arrest. The District Court denied Slocumb’s motion, finding that the officers had reasonable suspicion to justify Slocumb’s initial detention and had probable cause to arrest him. Slocumb pleaded guilty and was sentenced to ninety-four months on all three counts, to run concurrently. He appealed the denial of his motion to suppress, arguing that his Fourth Amendment right had been violated because he was detained by the police without a reasonable suspicion he had violated the law.

Fourth Amendment Right to be Free from Unreasonable Search and Seizure 

The Fourth Amendment provides the right to be free from unreasonable search and seizure. In considering when a police stop constitutes an unreasonable seizure, The Supreme Court has held that an officer may detain a person to conduct a brief investigation if he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In order for the police to have a reasonable basis for stopping an individual, “the officer ‘must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion.’” Id. at 21.

The Fourth Circuit applies a totality of the circumstances test in considering whether an officer had a reasonable suspicion of criminal activity justifying a stop. The Court cautioned that the government “must do more than simply label a behavior as ‘suspicious’ to make it so,” but must “articulate why a particular behavior is suspicious . . . given the surrounding circumstances.” United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

The Officers in this Case Did Not Have a Reasonable Basis for Detaining Slocumb

 The Fourth Circuit concluded that the factors considered by the District Court did not satisfy the totality of the circumstances test. The District Court considered, among other things, the lateness of the hour that Slocumb was in the parking lot, the fact that the parking lot belonged to a business that had been closed for several hours, and that it was a high crime area. The Fourth Circuit found that all of these considerations could contribute to a finding of a reasonable suspicion, however these “objective factors ‘do[] little to support the claimed particularized suspicion as to [Slocumb].’” Id. at 488.

The District Court had also considered Slocumb’s particular behavior in hurrying Lewis, avoiding eye contact, and giving mumbled answers. The Fourth Circuit found this behavior to be insufficient to support reasonable suspicion. The Court noted that behavior that has supported a reasonable suspicion included attempts to flee or “more ‘extreme’ or unusual nervousness or acts of evasion.” United States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004). Heavy breathing, sweating, and trembling hands were suggested by the Court as behaviors that may demonstrate an unusual nervousness, and thus support a reasonable suspicion. The Court found that Slocumb did not attempt to evade officers, but instead acknowledged them and answered their questions in a way that was consistent with his behavior. The Court found that the police had “no more reason to suspect that Slocumb was engaged in criminal activity than [they did] to believe his stated purpose and corresponding actions.”

The Fourth Circuit Reversed the District Court’s Denial of Slocumb’s Motion to Suppress

Because the police could not provide a sufficient objective and particular basis to create a reasonable doubt that would justify detaining Slocumb, the Fourth Circuit reversed the District Court’s ruling, vacated Slocumb’s conviction and sentence, and remanded for further proceedings.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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27Mar

Even If Photo Lineup is Improper, Evidence is Allowed if There is Alternative Reliable Identification

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By: Michael Klotz

Today, in the unpublished opinion of Unites States v. Pedro Rodriguez Garcia, the Fourth Circuit affirmed the decision of District Judge William D. Quarles, Jr., of the District Court of Maryland. The key issue on appeal was whether the District Court properly denied the Defendant’s motion to suppress photographic and in-court identifications made by a co-conspirator.

Facts

Mr. Garcia was convicted of conspiracy to commit Hobbs Act Robbery and of Hobbs Act Robbery, both pursuant to 18 U.S.C. § 1951(a), and of using and carrying a firearm during and in relation to a crime of violence, pursuant to 18 U.S.C. § 924(c). These charges followed as a result of his involvement in several commercial and home invasion robberies in the Baltimore area between July and September 2009. Mr. Garcia received concurrent sentences of 240 months on the two Hobbs Act convictions and a consecutive mandatory minimum sentence of eighty-four months on the firearm conviction.

Legal Standard for Reviewing a Motion to Suppress Ruling Regarding an Identification

The appellate review of the denial of a motion to suppress with regard to an identification is analyzed through a two-part test. First, the defendant must show that the photo identification procedure was “impermissibly suggestive.” Second, if the identification was impermissibly suggestive, the question for the court is whether the identification is “nevertheless reliable in the context of all the circumstances.” Relevant factors include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Application of this Legal Standard to the Underlying Facts

The Fourth Circuit concluded that the identification of Mr. Garcia was reliable in the context of the circumstances, and thus it need not reach the issue of whether the photo lineup used was impermissibly suggestive. Mr. Garcia was identified by a co-conspirator to the a crime that he was convicted of committing. This co-conspirator had a very good opportunity to become familiar with Mr. Garcia’s appearance. Indeed, Mr. Garcia and the co-conspirator spent five days casing a robbery target before they committed a robbery together. This co-conspirator also testified that he was certain that Mr. Garcia was the man with whom he carried out the robbery. For this reason, there was no error in denying the Defendant’s motion to suppress the identification evidence.

 

 

 

 

 

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27Feb

The “Totality of the Circumstances” Includes Conduct By Defendant Between The Time Police Officer Turns On Siren And When Vehicle Stops

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By: Michael Klotz

Today, in the unpublished opinion of Unites States v. Skyler Jovelle Holley, the Fourth Circuit reversed the decision of Senior District Judge W. Earl Britt of the District Court for the Eastern District of North Carolina. The court held that the district court erred in failing to consider conduct by the Defendant between the time that the police officer turned on his siren and when the Defendant was actually stopped in assessing “reasonable suspicion” under the Fourth Amendment.

Facts

Deputy John McArthur, who was on duty in Edenton, North Carolina, received a call from a confidential informant to be on the lookout for Mr. Holley, who had just pulled a gun on someone near the Crown Mart on Oakum Street and driven away in a white Cadillac. Deputy McArthur did not know Mr. Holley, but he had previously seen his headshot and knew that he was a black man. Shortly after receiving this call, Deputy McArthur saw a white Cadillac with two black male passengers on the other side of town. Deputy McArthur judged that enough time had passed that this could be the same vehicle referenced by the informant. Deputy McArthur turned on his lights and attempted to stop the vehicle. The driver of the white Cadillac, who was leaned back in his seat, did not pull over, but instead made a right turn and drove slowly and erratically. The vehicle eventually pulled into a driveway and stopped. When Duty McArthur searched the vehicle he discovered that Mr. Holley was one of the occupants. Mr. Holley had a .38 caliber pistol in his pocket, and another .38 caliber gun was discovered on the floor of the vehicle. Mr. Holley was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924.

District Court Grants Defendant’s Motion To Suppress

Mr. Holley filed a motion to the suppress the evidence discovered at the scene, including the guns, on the theory that Deputy McArthur did not have “reasonable suspicion” to stop his vehicle merely on the basis of a tip to be on the lookout for a black male driving a white Cadillac. Reasonable suspicion by a police officer is necessary to justify a stop under the Fourth Amendment of the U.S. Constitution.

The district court granted Defendant’s Motion to Suppress, holding that there was no “reasonable, articulable” grounds for the officer to believe that the vehicle stopped was the same vehicle referenced by the confidential informant. The court noted that Deputy McArthur did not recognize the driver as being Mr. Holley, and the fact that the driver was slumped in his seat—along with the fact that it was a white Cadillac with black occupants—was insufficient to justify the stop. The district court noted that Cadillacs are common in the black community in rural eastern North Carolina, and thus the vehicle stopped might have been uninvolved in the alleged incident. In rendering its decision, the district court did not consider Mr. Holley’s conduct between the time that Deputy McArthur initiated his siren and when the vehicle eventually pulled over. The government filed a motion for an evidentiary hearing or to reconsider the motion to suppress on the existing record, which was denied. The government timely appealed.

The Fourth Circuit Reverses Based Upon The “Totality Of The Circumstances”

The Fourth Circuit reversed the district court, denying the Defendant’s Motion to Suppress, and finding that based upon the “totality of the circumstances” Deputy McArthur did have reasonable suspicion to stop the suspect vehicle. The district court failed to consider the conduct by the Defendant while he was being followed by the police officer. However, under clear Fourth Circuit precedent a seizure requires either 1. the application of physical force; or 2. both an assertion of authority and submission or acquiescence to that show of authority. In this case, the second form of seizure is at issue. There was an “assertion of authority” by Deputy McArthur when he turned on his police siren. However, the Defendant did not acquiesce to this “show of authority” until the vehicle actually stopped. Thus, the district court erred as a matter of law in failing to consider the Defendant’s conduct between the time that the police siren was turned on and when the vehicle came to a halt. During this time, the Defendant failed to pull over and exhibited an “unusual driving pattern.” The Fourth Circuit concluded that this conduct, considered in light of the fact that the vehicle was a white Cadillac with black occupants as referenced by the informant, was sufficient to create “reasonable suspicion” to justify a Fourth Amendment seizure. Thus, the Fourth Circuit concluded that the district court erred in granting Defendant’s Motion to Suppress, and the decision was reversed and remanded.

 

 

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12Nov

Defendant Denied on Appeal of Two Motions and an Admission

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By: Carson Smith

Today, in United States v. Mormon, an unpublished opinion, the Fourth Circuit affirmed the district court’s conviction of defendant, Kevin Mormon. The District of Maryland convicted the defendant of “conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846.” On appeal, Mormon challenged the district court’s denial of his motion to suppress, admission of statements made by a co-conspirator, and failure to grant his motion for mistrial based on improper remarks made by the Government during closing arguments.

The District Court’s Denial of Mormon’s Motion to Suppress Was Proper Because His Statements Were Voluntary.

Mormon argued that the district court erred by refusing to suppress statements made by Mormon to law enforcement officers. In assessing a motion to suppress, appellate courts review legal conclusions de novo and factual findings for clear error.

The Fourth Circuit concluded that the statements made by Mormon to the officers were voluntary. Under Miranda v. Arizona, any statement extracted from a defendant through threats of violence, direct or implied promises, or improper influence is involuntary and thus inadmissible in court. Essentially, “the proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired.” While Mormon claimed that the statements were only made after the officers promised to release him in exchange for his cooperation, the Fourth Circuit determined that the officers did not explicitly promise him anything in exchange for his cooperation. Furthermore, the Fourth Circuit found it persuasive that Mormon had refused to reveal his cocaine distributor until an attorney was present. This illustrated his ability to understand his rights and maintain willpower during the incident. Accordingly, the Fourth Circuit affirmed the district court’s denial of the motion to suppress.

The District Court Did Not Abuse Its Discretion by Admitting Statements of Co-Conspirator.

Mormon claimed that the district court incorrectly admitted statements made by a co-conspirator on a video recording. Mormon argued that the recording was not properly authenticated and the statements violated the hearsay rule and Confrontation Clause. Appellate courts review the admissibility of evidence for abuse of discretion.

The Fourth Circuit concluded that the video recording was properly authenticated and the statements properly admitted. In order to properly authenticate a piece of evidence, the government must only show on its face, prima facie, that the evidence is authentic. The Fourth Circuit determined that the Government “provided an adequate foundation to show that the recording was what the Government said it was” and thus satisfied their burden. In addition, the statements made by the co-conspirator were admissible under the co-conspirator exception to the hearsay rule. Finally, the statements did not violate the Confrontation Clause because they were not testimonial. Therefore, the court affirmed the district court’s admission of the co-conspirator statements.

Improper Statements by the Government During Closing Argument Did Not Deprive Mormon of a Fair Trial.

Mormon claimed that the district court should have granted his motion for a mistrial because of improper remarks made by the Government during closing argument.  A motion for mistrial is reviewed for abuse of discretion.

The Fourth Circuit concluded that the remarks made by the Government did not warrant a mistrial. In order for a court to grant a mistrial, the defendant must prove that the Government made improper remarks during the closing argument which “prejudicially affected [the defendant’s] substantial rights so as to deprive him of a fair trial.” Even though the Government conceded that the remarks were improper, the Fourth Circuit determined that they did not rise to the level of prejudicial. Not only were the remarks “a brief, isolated episode,” but the Government’s case was persuasive even without the remarks. Accordingly, the Fourth Circuit affirmed the district court’s denial of Mormon’s motion for a mistrial.

District Court Judgment Affirmed.

The Fourth Circuit affirmed the district court’s ruling on each of the three issues raised by Mormon on appeal.

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