The court of appeals recently decided a case about when a pedestrian’s efforts to avoid an officer provide reasonable suspicion for an investigative stop. The type of encounter involved is reasonably common and the case features a dissent, so it’s worth exploring.
The facts. The case is State v. Jackson, and it arose at 9:00 one evening when a Greensboro officer saw the defendant and another man talking outside a convenience store. The store was a frequent site of drug transactions, and the officer was familiar with both men from prior investigations. When the pedestrians saw the officer, they split and began walking away in opposite directions. The officer continued driving past the store, made a U-turn, and came back. The same two men were talking again outside the store. As the officer began pulling into the store’s parking lot, the men separated and began walking in opposite directions. The officer detained the defendant, obtained consent to search, and found a gun.
The case. The officer charged the defendant with being a felon in possession of a firearm. The defendant moved to suppress, arguing that the officer lacked reasonable suspicion for the stop. A superior court judge denied the motion and the defendant pled guilty, reserving the right to appeal the motion.
The appeal. The court of appeals reversed. It acknowledged that presence at a location known for drug activity, combined with evasive action, can provide reasonable suspicion. But it held that “merely walking away from one’s companion in the presence of law enforcement officers” does not amount to evasive action.
The opinion discusses the facts of a number of similar cases, and so is a nice repository of case law. Its ruling fits well with some of the precedents and less comfortably with others. The most difficult case for the court to harmonize is State v. Butler, 331 N.C. 227 (1992). In Butler, the North Carolina Supreme Court found reasonable suspicion when the defendant was among a group of people congregating on a corner known for drug activity, and “upon making eye contact with the uniformed officers, [the] defendant immediately moved away, behavior that is evidence of flight.” The court of appeals distinguished Butler by describing the defendant in Jackson as “simply observing [a] law enforcement officer[] before walking away,” rather than making eye contact with the officer. I’m not sure how robust that distinction is, but the Jackson court summed things up by saying that the defendant did nothing evasive or suspicious, and the officer “simply saw two young men standing in front of a convenience store move away from each other twice.”
The dissent. Judge Dillon dissented, arguing that the defendant engaged in a “sequence of suspicious behaviors,” i.e., separating from his companion upon seeing the officer; reuniting with him when the officer departed; and separating from him again when the officer returned. Although any one of those steps alone might be of little import, together, Judge Dillon reasoned, they amount to evasion.
Supreme court to weigh in. The State has appealed to the state supreme court based on the dissent, and that court has granted a temporary stay. Briefing isn’t complete so it will be some time before the next, and likely final, chapter in this story is written.
The seizure of the defendant, who walked away and consented to the search, would have to be justified by reasonable articulable suspicion he is engaged in criminal activity. No idea how “sequence of suspicious behaviors” is equated to that, but I think many courts would disagree that is a proper statement of 4th Amendment law. This case should not have been a close call. I agree, though, that this looking in the eye vs. simply observing the police business has got to go.
U.S. v. Black 707 F.3d 531, 4th circuit from February last year is worth the read.
DefenderPerson- The standard isn’t “[RAS that] he is engaged in criminal activity,” but instead, under Terry, one of RAS that “criminal activity is afoot.” (“connected with” — the Language of Terry, US Sup Ct– and “engaged in” –the language of Black, US Ct Apls 4th– are materially different in my opinion)
While I would have prefered that Judge Dillon’s opinion had read “a sequence of activities which, when considered as a whole, were collectively suspicious” rather than intimating that each action was by itself suspicious (though somehow insufficiently so to rise to the level of RAS)
I’m much more comfortable living in J. Dillon’s world where an officer may apply his training, common sense, and both life and professional experiences to a series of observed events to develop the requisite suspicion, than in the Butler Court’s world where an officer need only reference a furtive glance in the officer’s direction as sufficient for that same purpose.
Very well. I would point out that the suspicious”ness” has to be of actual criminal activity, not just suspicious behavior. The Fourth Amendment is not about comfortability, in my opinion. There are always going to be many situations where officers’ suspicions based on experience will leave them wanting to make a seizure or detain someone for further investigation. Some of those times the seizure would be legal and some it would not, but the purpose of the 4th Am analysis is not to make sure the officer can stop everyone she sees as acting suspiciously. Even when the stop would yield evidence of a crime.
Agreed, the suspicion must be of criminal activity (I omit the word “actual” as I believe that could be read to mean that the officer must have been correct in his/her suspicion (not that you necessarily intended that meaning.) I believe a reasonable articulable suspicion that criminal activity A was afoot can justify a seizure leading to arrest for criminal activity B even if A was not actually occurring.
As to an officer’s suspicion (of criminal activity) not being sufficient for a permissible seizure, that can only be true if a) the suspicion is not reasonable, b) the officer isn’t able to articulate the suspicion, or both. I think more in terms of “hunch” than suspicion in those circumstances.
Editorially, I believe that the 4th Amendment is exactly about comfort… what level of freedom are we as a society comfortable ceding to the government’s police power so that we may live in a safe and orderly society. Personally, I’m pretty far over to the “not much” side of the line (I presume with you) but the law currently takes a more government favored approach (See Butler).
As a lay person, and non-professional; I see this as a continued erosion of our fourth amendment rights. “Making eye contact, then walking away” is RAS? All the Police have to do is lie about that, and the judge always believes the Police.
If this continues, we’re looking at another Concord Bridge
While I don’t disagree conceptually with what you say, it is worth noting that Butler (the eye contact and departure case) is from 1992 and supported the seizure.
The most recent case from the Court of Appeals (Jackson) where the officer observed a condition and three separate behaviors (suspects being together, separating, re-congregating, and again separating-each state change coinciding with the appearance/departure of law enforcement) which did NOT, in the majority’s view, support a stop. While DefenderPerson above believes that this shouldn’t have even been a close call, I would not be surprised to see the state supreme court reverse based on Butler (the ’92 case) while perhaps narrowing that decision somewhat.
Being made uncomfortable by the presence of police, especialy in areas where the most abusive and intrusive police tactics are used, is not in any way a reason to assume criminal conduct. If two or more people are standing and conversing and they do not move away, the cop says they are ” loitering ” and deserve attention, while if they move away, they are ” evading ” the police. Police hunches account for almost all ” contacts ” with pedestrians , and cops will swear that it is consensual, despite the show of force and authority used to imply citizens cannot break off the encounter when they choose to do so.
Consent tp search should not even be allowed absent an articulable and definite reasonable suspicion..not for oficer safety, another catch all..or for any other reason.