Ten Seconds Of Doing Nothing Is Reasonably Suspicious, Says The Fifth Circuit Appeals Court
from the can't-make-crime-fighting-omelettes-without-breaking-a-few-Constitutional-eg dept
How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.
This recent decision, highlighted by defense lawyer/"Constitutional cultist" Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.
Here's the setup, as presented by the Fifth Circuit [PDF]:
Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were “seized” when five or six patrol cars parked behind and around Mayo’s Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a “Terry stop.”
Some cops were doing some cop stuff in the area. According to the facts on record, the officers were "looking for suspicious behavior," a supposedly "proactive" effort in an allegedly high-crime area that is meant to deter criminal acts by, apparently, rolling up en masse on anyone viewed as suspicious by these Direct Action Response Team (yes, that spells DART) officers.
Flowers and Mayo were sitting in the parking lot of a convenience store. The officers were in the area because their supervisor had directed them to patrol near there because of "recent violent crimes and burglaries." This sounds suspiciously like "predictive policing," which sends cops to where crimes have been committed under the assumption that lightning strikes twice/people are less white. The Jackson, Mississippi panopticon works, I guess. But only on the assumption that people living, working, or temporarily idling a vehicle in a high-crime area have fewer rights than those fortunate enough to be elsewhere.
So, what were these two "suspects" doing that raised enough suspicion a stop involving five police cars and six officers was warranted? Failing to do anything other than sit in a car for less time than it takes to read the previous two paragraphs:
As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the driver’s seat and one in the passenger’s seat. Officer Stanton observed the vehicle “for approximately 10 to 15 seconds” and noticed the occupants “didn’t appear to be exiting the vehicle, [and] didn’t appear to be patronizing the establishment.” Therefore, he decided to conduct what he characterized as a “field interview.”
Apparently, even non-movements can be furtive. The response to this momentarily-observed lack of activity was a literal swarm of police officers.
Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.
Behold the majestic absurdity of the following assertion:
Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them.
Who amongst us with five or six police cars surrounding our car would feel "free to leave," whether or not that option was communicated to us by one of the six surrounding the car? No one. Not a goddamn person would feel this encounter was still voluntary.
At least the Fifth Circuit Appeals Court said it was a seizure under the Fourth Amendment. Pretending it was still consensual was a step too far for even this notoriously law enforcement-friendly circuit. But the very least a court should do when presented with this kind of assertion is to apprise officers that literally no one -- not even the officer making this sworn statement -- actually believes this kind of "interaction" is consensual.
The end result was the discovery of some marijuana, a gun, and an outstanding warrant. This led to felony charges. And the Fifth Circuit is fine with this outcome because, hey, don't sit in a car in a high crime area, I guess.
It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowers’s person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.
That's the takeaway from this decision. Cops can wander over Constitutional lines as long as a court is willing to grant their "high crime area" assertions credibility. There's no legal definition of "high crime," so it can be whatever cops want it to be. And when they assert this in front of judges prone to grant every benefit of a doubt to fellow government employees, it will work nearly every time.
Flow our proxy tears, the court advocating on behalf of the policeman said:
Officers in such areas may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.
If the cops can't roll over rights to fight crime, how can they possibly fight crime? That's the question the Fifth Circuit is asking. And it should have an answer that says cops can't disregard rights just because they're patrolling areas where criminal activity is claimed to be "higher" than theoretical areas where it's apparently lower. But instead, the Appeals Court gives us this:
Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.
And that is that. The court has basically written a permission slip for stops based on nothing more than a few seconds of observation backed by officers' assertions that criminal activity has occurred nearby at some point in the past. Looking past the legalese, the Appeals Court is telling people their rights mean less if they happen to be in the wrong place at the wrong time, with the "wrong time" being a few seconds of non-movement while observed by officers trained to view literally anything as suspicious.
If there's any saving grace to this published decision, it's the dissent, which casts a whole lot of shade on the majority's conclusions while taking a shot at the overreacting cops.
As for the “dawdling” of approximately ten to fifteen seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officer’s reasonable suspicion.
That should have been the majority's conclusion. Instead, it chose once again to elevate police officers over the policed, and ensured the poorest of the police can be treated the worst without officers feeling they might be held accountable in a court of law for the rights violations they've committed.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, 5th circuit, high crime areas, jeremy mayo, otha ray flowers, police, predictive policing, searches, suspicion
Reader Comments
Subscribe: RSS
View by: Time | Thread
'We must violate their rights to protect their rights.'
It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana.
Yes, I'm sure anyone would be perfectly calm and collected and not at all feel pressured when they get surrounded by half a dozen bloody cop cars with their lights on for the heinous crime of not getting out of their car quick enough.
As always it's both disgusting and sadly not at all surprising how much some judges/courts will bend over backwards to provide cover for cops, even if it means trampling all over the rights of the public and turning sitting in your car for a few seconds into justification to detain someone and everything that follows.
[ link to this | view in thread ]
Re: 'We must violate their rights to protect their rights.'
But then, getting out too quickly would have been suspicious as well, wouldn't it? And also getting out at an appropriate time, because how did they know to get out at just the right time...
[ link to this | view in thread ]
Not a goddamn person would feel this encounter was still volunta
"Am I being detained or am I free to leave?"
That's all you need to say.
[ link to this | view in thread ]
We keep treating everyone in the community like shit to the point the law abiding citizens hate us just as much as any criminal. What can we do to better police these communities? I know, let's care even less about their rights, roll in with more cops and bigger guns, and through this everyone will be safer. We can say the cops are dumb but that's to be expected. When the judges are either dumber or more malicious than the cops this is what we get.
[ link to this | view in thread ]
Why even study the law?
That sentence fscking does not belong in a verdict. It is not the task of the Ninth Circuit to guess what the Constitution might or might not permit based on what they think they want police to be doing. They aren't lawmakers, and they don't get to write the Constitution and they don't get to make up interpretations conflicting with Supreme Court precedent.
At least not until the insane radical "conservative" Supreme Court creates some new precedent differing from the previous one.
[ link to this | view in thread ]
Just another affirmation that cops can detain you to "just ask questions" on any whim.
[ link to this | view in thread ]
Bad take
Look I believe ACAB as much as the next guy but it's dumb to try and assert that it should be illegal for the cops to talk to someone unless they are in the middle of a crime.
[ link to this | view in thread ]
Re: Bad take
Your point is valid, but they weren't "just talking." From the decision:
This is pretextual, and sitting in your car isn't probable cause.
If you're surrounded by cops and can't leave, that sounds like seizure, and it certainly isn't "benign."
[ link to this | view in thread ]
"or they will be sued for alleged violations of rights."
Really?
Unless you've ruled on a case to make it really really truly clear that beating the fsck out of a cuffed suspect then ramming a baton into his anus actually is a violation of rights and its been long enough that they could have heard about the ruling the only thing alleged in this is our rights you fsckpuppets.
Maybe just maybe flip the situation on its head, if someone had done what these cops did to you, your honor, would you even for a second not think about suing the fsck out of them?
Or would you just fall back on when they run your plate it warns them you have enough power to fuck their lives up really well if they bother you?
Courts allow our alleged rights to be violated by cops over and over & the only way to try to stop them is to keep suing them so these rights are spelled out so clearly you can no longer give them a pass (yet somehow even after they are spelled out you still give them a pass).
[ link to this | view in thread ]
Damned if yu do, damned if you don't...
He wasn't doing anything, very suspicious. He was doing something, very suspicious! Typical policing.
[ link to this | view in thread ]
Re: Not a goddamn person would feel this encounter was still vol
Surrounded by half a dozen cop cars arrayed in a manner that even the bloody cop admits would have prevented the person from leaving and with just as many cops I'm sure that 'they'll let me leave if I just ask' would be the first thing to come to mind I'm sure.
[ link to this | view in thread ]
Re: Bad take
Cops can walk up and ask questions, but not like that. And they should have a reason. And people are free to not answer anything, and leave if they aren't being legally detained. (Doesn't work so well in practice though, which is part of the problem.)
But yeah, cops shouldn't be bothing people unless they are, as you say, in the middle of committing a crime, or are reasonably suspected as beig someone who already has committed a crime.
[ link to this | view in thread ]
DART?
Weird that you said Direct Action Response Team (yes, that spells DART) officers, when I'm pretty sure you meant to say RAF (Racist As Fuck) officers.
[ link to this | view in thread ]
Re: Re: Not a goddamn person would feel this encounter was still
And if the one you ask says yes and you try to leave, you get taken down by another who decides you are trying to run away.
[ link to this | view in thread ]
Re: Bad take
There is a huge difference between one cop approaching you and asking to have a word, and a pack of the surrounding you so that you cannot leave, or realistically refuse their requests.
[ link to this | view in thread ]
Re: Re: Re: Not a goddamn person would feel this encounter was s
Not to mention, if you're driving anywhere near a cop, they're quite likely to claim you're trying to run them over and you get charged with assaulting a police officer or even attempted murder.
[ link to this | view in thread ]
Re: DART?
Well they did used to be known as Fast Action Response Team and Blue Light Action Response Team, after Preventing Harm Action Response Team and Stopping Harm Action Response Team was discontinued.
[ link to this | view in thread ]
Re:
I am not that familiar with us law, can you not sue the judge for aiding and abetting criminal acts by agents of the state or are they the untouchables no matter how crooked or mentally deranged they may be?
[ link to this | view in thread ]
Re: Why even study the law?
it was the fifth circuit, not the ninth. i'm fairly certain the ninth wouldn't have given these jokers a get out of jail free card...
[ link to this | view in thread ]
Re: Re: Why even study the law?
I stand corrected. But after substituting the right circuit, the argument is as good as new.
[ link to this | view in thread ]
He as doing something very bad and suspicious - he was being black without permission - The cops
[ link to this | view in thread ]
Other suspicious activity
"Driving off too quickly"
"Driving off too slowly"
"Driving off"
"Not driving off"
"Driving"
"Not driving"
[ link to this | view in thread ]
Re: Other suspicious activity
You forgot "breathing"...
[ link to this | view in thread ]
Loitering
Isn't loitering a crime anymore?
[ link to this | view in thread ]
'Every criminal breathes, they're breathing, therefore...'
Ah breathing, the most obvious tell of nefarious activity/intent as every criminal in history has engaged in that behavior.
(I wish I could say that was entirely sarcastic but given what police have claimed is 'suspicious behavior'...)
[ link to this | view in thread ]
Re: Loitering
10 to 15 seconds is hardley enough time to check who has the shopping list.
[ link to this | view in thread ]
Re: Other suspicious activity
Obligatory Groundhog day for a Black man
[ link to this | view in thread ]
Grocery Store Parking Lots
In any given largish grocery store parking lot, you will find people just sitting in their cars...waiting for a partner to return with the groceries, I think, or maybe waiting to pick up an employee who will get off work in a few minutes, or waiting for their shift to begin and they had to be on time.
Sus as snot! Every Day!
[ link to this | view in thread ]
Is it this officer's contention that people in cars are, in general, free to leave when an officer has his blue lights activated and pulls up to your car? Is he going to apply that standard at his next traffic stop?
[ link to this | view in thread ]
Sanity anyone?
See Sibject header. Ponder same. Nuff said.
[ link to this | view in thread ]
Re:
As good a point as that is(and I can't believe I missed that) it's somehow even more absurd than that.
Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.
'We had our lights on and had parked around them in a way that they literally could not leave but sure, they were free to leave at that point even if I 'forgot' to mention that point to them.'
[ link to this | view in thread ]
the solution
the french had teh right idea in 1789. maybe we need to use their solution on these judges
[ link to this | view in thread ]
Re: Loitering
Possibly, but you have to be deliberately coming up with a breathtakingly useless definition of loitering for it to apply to someone who the officers claim were stopped in a car for "approximately 10 to 15 seconds” before they started taking action.
[ link to this | view in thread ]
Yes I'm going to make you say it
Hmm, my memory for history seems to be on the fritz at the moment, how specifically was that again?
[ link to this | view in thread ]
BLUE LIES MAFIA SOP....
this will get bumped up to the supreme court. 10-15 seconds is not enough time to even form a thought. the blue lies mafia rolled in 6 deep with lights flashing. everyone knows you ether pull over or stay where you are until it is safe to move!
this was a seizure! they were not free to leave!
[ link to this | view in thread ]
Re: Re:
You could try, but what judge is going to find a guilty verdict in that instance? Turkeys don't vote for Christmas..
[ link to this | view in thread ]
Re: Re:
You cannot successfully sue for anything done in their judicial capacities. They have absolute, as opposed to qualified, immunity.
[ link to this | view in thread ]