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Fourth Circuit: Evidence Suppressed Where Officers Seized Defendant Without Reasonable Suspicion and Forced Him to Prove He Was Not Armed

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit held a district court erred in denying a defendant’s suppression motion regarding an unreasonable seizure and search, finding he was not required to prove he was unarmed.

Anthony Eugene Peters and Gary Garrison were walking in the Creighton Court complex on February 3, 2019, around 5:30 p.m. when they were spotted by officers Steven Butler and Mitchell Cooper of the Richmond Police Department in Virginia. The Richmond Redevelopment and Housing Authority (“RRHA”), which owns the complex, had a memorandum of understanding which allowed the police to enforce trespassing laws and issue a misdemeanor for “any non-resident who is not: (1) a residence guest; (2) a RRHA employee; or (3) on the property for ‘a legitimate business or social purpose.’”

Butler recognized Garrison as “an individual known to be prohibited from Creighton Court.” He also “recognized Peters and knew that he had been arrested for trespassing in 2011.” The police database also contained uncorroborated information about Peters as being (1) a gang member (reported in 2011); (2) a narcotics seller/user (reported in 2009); and (3) probably armed (reported in 2009).

The officers decided to investigate Peters and Garrison ostensibly for trespassing, so they exited their marked patrol cruiser, wearing their police uniforms, which included their sidearms, and approached the pair.

Butler immediately informed them that they were “not supposed to be out here” and commanded them to “lift their shirts” to prove they were not armed. Garrison complied, but Peters did not. Instead, he kept walking with Garrison and informed the officers he was authorized to be present – he was visiting his mother, a resident. During the exchange that ensued, the officers repeatedly ordered Peters to lift his shirt to fully expose his waistband, and they threatened to take him to jail multiple times during the exchange, allegedly for trespassing.

According to the Court, “[i]t was only after requesting that Peters lift his shirt at least fifteen times, inferring that Peters should submit to a pat down two times, and mentioning that Peters could be taken to jail for trespass two times that officer Butler observed ‘what appeared to be like the bulge or the outline of a muzzle of a pistol’ below Peters’ belt buckle.”

The officers then restrained Peters, confirmed he had a previous felony conviction, and arrested him for being in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Before trial, Peters filed a suppression motion, arguing that he was illegally seized. The U.S. District Court for the Eastern District of Virginia denied the motion. He then entered into a conditional plea, preserving his right to appeal the denial of his suppression motion. The District Court sentenced him to 120 months in prison and three years of supervised released. Peters timely appealed.

The Court noted the Fourth Amendment protects persons against “unreasonable searches and seizures.” Consensual interactions between police and members of the public don’t require objective justification because it’s based upon consent. Florida v. Bostick, 501 U.S. 429 (1991). However, brief, investigatory stops are allowed only when they are “supported by reasonable, articulable suspicion that the individual is engaged in criminal activity.” Terry v. Ohio, 392 U.S. 1 (1968). A Fourth Amendment seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. This is assessed whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544 (1980) (plurality opinion).

In evaluating whether a reasonable person would feel free to leave, courts consider the following non-exhaustive factors: “(i) the number of police officers present; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they touched the defendant or made any attempt to physically block his departure or restrain his movement; (v) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled; (vi) whether the officers informed the defendant that they suspected him of illegal activity rather than treating the encounter as routine in nature; and (vii) whether, if the officer requested from the defendant . . . some form of official identification, the officer promptly returned it.” United States v. Black, 707 F.3d 531 (4th Cir. 2013).

Importantly, simply refusing “to cooperate, without more,” doesn’t provide the minimum objective justification required for a seizure. Bostick. The U.S. Supreme Court has instructed that individuals have the “right to ignore the police and go about their business” if approached without reasonable suspicion or probable cause. Illinois v. Wardlow, 528 U.S. 199 (2000).

Turning to the present case, the Court wrote, “[l]ooking into the totality of the circumstances, we find that Peters was seized approximately one minute into the encounter when officer Butler threatened to exercise his authority to take Peters to jail for trespass and suggested Peters should consent to a pat down.” See United States v. Jones, 678 F.3 293 (4th Cir. 2012) (“defendant was seized when uniformed officers followed him from public to private property, blocked his car, and immediately asked that he lift his shirt and consent to a pat down search – noting that any one of these facts on its own might very well be sufficient to transform a consensual encounter into a detention”). The Court reasoned that a reasonable person would not feel free to leave after a police officer states that he can take the person to jail for a specific crime or threatens to do so.

As to whether the officers had reasonable, articulable suspicion to stop Peters, the Court determined they did not. It wrote that, “[d]uring cross-examination, Officer Butler confirmed that he stopped Peters to investigate trespass and that his suspicion of trespass was based solely upon Peters’ 2011 arrest for trespass.”

The Court explained that, “like past arrests and convictions, knowledge that a suspect is merely under investigation does not demonstrate reasonable suspicion without additional facts.” See United States v. Foster, 634 F.3d 243 (4th Cir. 2011).

As to the other information in the database about Peters, these were known as “caution data” and insufficient to authorize a seizure of him without recent reassessment and confirmation, according to the Court. See United States v. Powell, 666 F.3d 180 (4th Cir. 2011) (finding caution data “lacked specificity, because there was no information as to when the data was collected or if it resulted in a conviction”).

The Government argued that, in Butler’s experience, unarmed persons would fully lift their shirt above the waistband to prove they were not armed if asked to do so by a police officer, and thus, Peters’ refusal to do so provided reasonable suspicion that he was armed. The Court rejected this because “a refusal to cooperate alone does not justify a seizure.” United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011).

Thus, the Court ruled that the officers lacked probable cause to seize Peters, and so, the evidence obtained during the unlawful seizure must be suppressed. The District Court erred in denying Peters’ motion to suppress, the Court further ruled.

Accordingly, the Court vacated the conviction and remanded with instructions to grant the suppression motion. See: United States v. Peters, 60 F.4th 855 (4th Cir. 2023).  

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