By Karen J. Kruger, Esq., Funk & Bolton, P.A., Baltimore, Maryland; Counsel, Maryland Chiefs of Police Association; and Vice Chair, IACP Legal Officers’ Section
n recent months, the U.S. Court of Appeals for the Fourth Circuit decided a number of Fourth Amendment cases that took umbrage with the “stop and investigate” techniques of law enforcement officers, in strongly worded critiques. During this same period, the court ruled that some stops and seizures were constitutional, thus drawing lines that may not be readily apparent to police officers. These cases are worth reviewing; they illustrate how challenging it may be to maintain law enforcement competence in the face of ever-shifting judicial oversight.
In 2010, the court issued United States v. Hernandez-Mendez, in which officers were monitoring gang activity at a school when they detained and questioned the plaintiff about a group of gang members that had just dispersed.1 The police had seen Edith Hernandez-Mendez speak with one member of the group before she walked away. Officer Webster asked Hernandez-Mendez if she had identification in her purse, and he reached for the purse. As he did so, he felt a solid, heavy object that felt like a gun. It turned out to be a semiautomatic weapon, and the officer arrested Hernandez-Mendez with unlawful possession of a firearm. Hernandez-Mendez moved to suppress the evidence, arguing that the objective facts known to the officers were too tenuous to support a finding of reasonable suspicion to justify a Terry stop2 and the seizure of the weapon.
The appellate court disagreed with this argument and found that the Terry stop was legal and justified by the officer’s articulation of the objective facts, which provided information probative of a likelihood of criminal activity. This holding is typical of the jurisprudence of this court, in that its rulings are often favorable to law enforcement. But, then in March 2011, the court in United States v. Foster overturned a North Carolina cocaine conviction holding that the defendant’s unusual movements inside a car did not constitute reasonable suspicion for the officer to conduct an investigative detention, even though the officer also was aware that the defendant had been arrested for drugs before.3 In July 2011, the court considered United States v. DiGiovanni and affirmed the ruling of a trial court excluding more than 34,000 oxycodone pills found by Maryland State Troopers during a vehicle search, even though the defendant made a full confession explaining that he had been paid $10,000 to transport the pills.4 The DiGiovanni court found that although the initial stop was justified, the trooper lacked sufficient reasonable suspicion to extend the duration of that stop to conduct a criminal investigation. The court noted that “the articulated facts, in their totality, simply do not eliminate a substantial portion of innocent travelers”5 and thus were legally insufficient to constitute reasonable suspicion.
The next month, the appellate court determined that the federal trial court in Virginia should have suppressed gun and marijuana evidence obtained from a nonconsensual police search in United States v. Massenburg.6 In Massenburg, police stopped a group of young men based on an anonymous tip concerning shots that were fired in the area. Because the defendant, Massenburg, “stood a foot or two away from the other men . . . and did not make eye contact as the officer renewed his requests for a consensual search, the officer undertook a nonconsensual search,”7 finding a firearm and some marijuana. The court ruled that these facts did not constitute reasonable suspicion; could have been the actions of an innocent person; and, specifically, that “refusing to consent to a search cannot itself justify a nonconsensual search.”8
Finally, in November 2011, the court decided United States v. Powell again, finding that drug and gun evidence should have been excluded from trial because the search was improper.9 In Powell, during a routine traffic stop, local police officers removed Powell, a passenger, from the vehicle and performed an officer-safety pat-down on him. The officers contended that they had reasonable suspicion to frisk Powell because they knew that he had prior arrests for armed robberies and because he gave them false information about the status of his driver’s license.
The court ruled that this information was not sufficient to establish reasonable suspicion. In fact, in this opinion, the court referred to Foster, Massenburg, and DiGiovanni, in which the court “held that the government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion.”10 Indeed, the court stated, “We once again are presented with a case in which the government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion.”11
The court’s admonitions in Foster are enlightening and should be publicized to all law enforcement officers. While a Terry detention does not require probable cause, it must be supported by “something more than an ‘inchoate and unparticularized suspicion or hunch.’ ”12 The court criticized the government for “using whatever facts are present, no matter how innocent, as indicia of suspicious activity,” noting that “an officer . . . must do more than simply label a behavior as ‘suspicious’ to make it so. The [officer] must also be able to articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.”13
A few weeks later, the appellate court issued an opinion arising from a traffic stop that is more favorable to law enforcement. The issue in United States v. Guijon-Ortiz was whether an officer’s questioning of a motorist about his immigration status—a matter not related to the purpose of the traffic stop—was reasonable as part of a Terry stop.14 Based on this questioning, the officer made a telephone call to U.S. Immigration and Customs Enforcement to check the driver’s immigration status. The court held that the questioning unrelated to the initial stop and the telephone call were proper and did not impermissibly expand the scope of the detention. Moreover, since the officer diligently pursued the traffic stop investigation, the immigration check did not meaningfully extend the length of the traffic stop and so was reasonable.
The point of this summation of these cases is to demonstrate how rapidly and unpredictably court opinions can shape the law under which police officers operate. The challenge for law enforcement agencies and officers is to maintain their competence and knowledge of the law of criminal procedure. To enjoy the protections of qualified immunity, officers must be aware of the clearly established law that applies nationally, within the applicable federal appellate circuit and the state law. This is a daunting task: so much law, so little time. ■
1United States v. Hernandez-Mendez, 626 F.3d 203 (4th Cir. 2010).
2Terry v. Ohio, 392 U.S. 1 (1968).
3United States v. Foster, 634 F.3d 243 (4th Cir. 2011).
4United States v. DiGiovanni, 650 F.3d 498 (4th Cir. 2011).
5Id. at 513 citing United States v. Brugal, 209 F.3d 353, 361 (4th Cir. 2000).
6United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011).
7Id. at 482.
9United States v. Powell, 2011 U.S. App. LEXIS 22795 (4th Cir. 2011).
12Foster, 634 F.3d at 246, citing United States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997).
13Id. at 248.
14United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011).
Please cite as:
Karen J. Kruger, "Police and Court Opinions: So Much Law, So Little Time," Chief’s Counsel, The Police Chief 79 (March 2012): 1415.