United States v. Beauchamp, No. 10-5102 (6th Cir. Oct. 25, 2011) (to be published). Panel of Judges Moore, Kethledge, and Marbley (S.D. Ohio).
Fourth Amendment issues.
Facts:
Cops were patrolling a housing project because "they were receiving a 'ton' of narcotics complaints." One officer noticed an African-American man with another individual. This man walked away when he saw the police, not making eye contact with the authorities. One officer told the other to stop the "suspicious" subject. No reasoning for the stop was given. The man was simply out at 2:30 a.m.
An officer followed the man in the patrol car, parked near the man, and got out and instructed the man to stop. The man stopped. The officer claimed later that the man appeared very nervous and was shaking. The officer asked the man where he was coming from and the man answered vaguely: "down there."
An officer frisked the man for weapons. No weapons found. The officers sought consent to search and the man consented. An officer found $1,300 cash and a cell phone. Sticking out from the man's boxers was a plastic bag the officers assumed contained drugs.
During or after the search, another officer who recognized the man arrived at the scene. The officers pulled back the boxers and found something. The man tried to run, but the officers restrained him. The plastic package contained 18 rocks of crack.
Procedural History:
The man was charged with controlled-substance offenses. He moved to suppress the evidence. The defendant pleaded guilty, but preserved his right to appeal the district court's denial of his motion to suppress. Defendant received a within-guidelines sentence of 84 months.
Analysis:
A reasonable person would not have felt free to leave in these circumstances. The defendant had walked away from the officers twice and the officers then targeted him by driving up to him, telling him to stop, and instructing him to turn around and walk to the officers. It was reasonable to assume that the two encounters with different officers were connected.
A reasonable person would have perceived the officer's instructions as compelling him to obey. One would not feel free to disregard the instructions. The defendant had indicated, by walking away, that he did not want to talk to the officers. But a reasonable person would not have felt free to disregard the instructions.
The defendant was seized when he complied with the officer's orders. A "high-drug-complaint" location and late/very early hour do not give rise to reasonable suspicion. Nor do talking with someone else and walking away from the police. Nothing here transformed "a permissible walk away from a police officer into a suspicious act."
Interesting note: "An inquiry into reasonable suspicion looks for the exact opposite of ambiguity: objective and particularized indicia of criminal activity."
Other factors only became known after the seizure. So these factors cannot justify the seizure.
Next questions are: 1) was the consent to search voluntary, and 2) did that consent dissipate the taint of the seizure? Court finds that police coercion vitiated any consent given here. Consent was not voluntary. And even if the consent had been voluntary, it was tainted by the illegal stop. The evidence was discovered before the defendant struggled to flee, so the struggle is not an intervening circumstance.
The Court notes that "the purpose and flagrancy of the officer's conduct do not tend to dissipate the taint." The officers' conduct was investigatory. The officers did not stop until they found contraband on the defendant. This conduct is exactly the type of conduct the law seeks to deter.
Conclusion:
The Court reversed the district court's denial of the motion to suppress, and remanded.
J. Kethledge's Dissent:
Focused on standard of review. The dissent concludes that the majority is not deferring to the district court's findings as it should. The dissent also finds that the consent was voluntary, that a police frisk does not render consent involuntary. The dissent suggests that the majority is creating a circuit split "by holding . . . that a police officer's protective frisk renders coercive the rest of his encounter with the person who was frisked."
Footnote 3 of the majority opinion discusses the dissent's position, appellate factfinding, and de novo review. It's worth a read. The Court explains that it is not weird to see a rhinoceros in Central Park if there is a zoo there. . . .
