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.

Filed Under: 4th amendment, 5th circuit, high crime areas, jeremy mayo, otha ray flowers, police, predictive policing, searches, suspicion