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Second Circuit: Nondescript Photo of Unidentified Black Male Insufficient Grounds to Conduct Investigatory Stop

On September 2, 2017, Jaquan Walker and Javone Hopkins were walking through the Central Business District of Troy, New York, around 6:50 p.m. when Sergeant Peter Montanino noticed them.

Recalling an email he received the day before of a photo of a suspect and the phrase “trying to ID suspect #2 in this photo,” Montanino compared Walker and Hopkins and found they were “medium to dark skin toned black males. They were thin build. Both were wearing glasses at the time. One had little longer length, longer than shoulder length hair. The other one had what appeared to be short hair.... Both had facial hair. Both appeared to have goatees.”

Montanino called his subordinates, officers Owen Conway and Martin Furciniti, and asked them to stop and ID the pedestrians. The pair pulled up in front of Walker and Hopkins while Montanino pulled up behind them. The officers ordered them to stop and produce identification, which was used to run a file check for warrants.

Walker had an outstanding warrant and was arrested. Furciniti conducted a pat search incident to the arrest and discovered marijuana and 50 grams of crack cocaine. Walker also offered to provide information about other drug activity in the area. Walker was later charged with possession with intent to distribute under 21 U.S.C. § 841(a)(1).

Walker filed a motion to suppress the drugs and his statements after the arrest on the grounds that the search was unconstitutional. His motion was denied, and he entered a conditional guilty plea, which allowed him to challenge the denial on appeal.

Citing Terry v. Ohio, 392 U.S. 1 (1968), the Second Circuit said, “Though officers may approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest,” such a stop must be based upon “reasonable suspicion that the person to be detained is committing or has committed a criminal offense.” Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016).

The Court concluded that the officers lacked reasonable suspicion to stop Walker for two reasons. First, the email Montanino relied on merely contained a request to ID a “suspect.” It contained no information about any particular crime that had been committed. Though, during the suppression hearing, Montanino revealed the suspect was wanted for a recent shooting, that information was not known when Walker was stopped.

Further, Montanino’s description of Walker and Hopkins as matching the photo was not sufficiently particularized. In examining his testimony, the Court, quoting Dancy, observed that the “description fit too many people to constitute sufficient articulable facts on which to justify a stop.” Again quoting Dancy, the Court noted it previously said “that the description of a suspect as thin, black, and male was too vague ... to justify a stop of anyone meeting it.”

The Government then argued for an exception to the Fourth Amendment known as the “attenuation doctrine.” “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Utah v. Strieff, 136 S. Ct. 2056 (2016). Even if the stop was unconstitutional, the Government argued, the intervening circumstance of discovering an outstanding warrant could justify the later search in which drugs were found.

The Court disagreed. The temporal proximity of the stop and the search – a mere 10 minutes – weighed for suppression, while the intervening circumstances – the discovery of the outstanding warrant – weighed against. The third factor in the attenuation analysis set forth in Strieff, “the purpose and flagrancy of the official misconduct,” weighed heavily toward suppression in this case, according to the Court.

The reasons cited for stopping Walker fell “woefully short” of what the Fourth Amendment requires, the Court admonished. Since the unknown suspect photo was not known by Montanino to be linked to any crime, his “explanation for stopping Walker was so obviously deficient that it constitutes deliberate, reckless, or grossly negligent conduct,” the Court concluded, quoting Harring v. United States, 555 U.S. 135 (2009). The Court explained: “specificity in articulating the basis for a stop is necessary in part because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and severely exacerbate police-community tensions.” Dancy.

Thus, the Court held that the stop of Walker was unconstitutional, the facts of the case do not support the application of the attenuation exception.

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