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Fourth Circuit: Walking Past Unoccupied Home With Bulging Pocket and Attempting to Evade Neighborhood Tipster Insufficient for Reasonable Suspicion to Seize and Search

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit overruled the U.S. District Court for the Northern District of West Virginia’s denial of a defendant’s suppression motion, ruling that police lacked reasonable suspicion to detain him based on the tip that he was acting suspiciously and carrying something heavy in his sweatshirt.

Around 8:00 a.m. on the morning of February 25, 2016, U.S. Postal Inspector Gerhart exited his home in Bridgeport, West Virginia, in preparation to go to work. He saw Daniel Porter Critchfield exit a nearby alley adjacent to a house he believed to be unoccupied. He also noticed the front pocket of Critchfield’s sweatshirt “had what appeared to be something very heavy in it, so heavy that it was falling down below his crotch.” Gerhart also described an “oh, no, I’m caught” look on Critchfield’s face when he was seen by Gerhart.

Based on these details alone, Gerhart attempted to follow Critchfield in a vehicle while notifying Deputy Chief Randy Hartley of the Bridgeport P.D. about the “suspect.” While following him, Gerhart saw him “double-back” in an apparent attempt to evade Gerhart.

Notably, though Gerhart was in law enforcement and worked closely with local police, he was not in uniform, and his car was not marked as a law enforcement vehicle.

Based on this so-called “credible tip,” Hartley and Lieutenant Mike Lemley located Critchfield walking “along airport road just off Route 50 near Glotfelty Tire Center,” activated their vehicle’s rear emergency lights, and motioned to Critchfield to stop. They proceeded to search his pockets and located “a holstered pistol, a flashlight, and a small silver container holding six buprenorphine pills, one hydrocodone pill, one Xanax, and one dextroamphetamine pill.” Further, Critchfield was found to have had “benzodiazepines, THC, and amphetamines in his system at the time.”

Critchfield was indicted for unlawful possession of a firearm by an unlawful user of a controlled substance. 18 U.S.C. § 922(g)(3). He moved to suppress the evidence obtained as a result of the search, but his motion was denied. He entered a conditional plea, and proceeded to timely appeal.

On review by the Fourth Circuit, the Court noted that a “brief investigatory stop” may be lawfully conducted by police if the “action is supported by a reasonable and articulable suspicion … that criminal activity may be afoot.” United States v. Foster, 824 F.3d 84 (4th Cir. 2016); see Terry v. Ohio, 392 U.S. 1 (1968).

To meet the “reasonable suspicion” standard, an “officer must be able to articulate objective reasons for his suspicions.” Illinois v. Wardlow, 528 U.S. 119 (2000). Importantly, the Court observed that the suspicion must be “articulable,” meaning police are required to articulate “objective reasons for” their suspicion. Wardlow. A “hunch” or “inchoate and unparticularized suspicion” is not enough to meet even this relatively low standard. Terry; see United States v. Gist-Davis, 41 F.4th 259 (4th Cir. 2022). Furthermore, the suspicion must also be “particularized,” meaning “the particular person stopped is, or is about to be, engaged in a particular crime.” Kansas v. Glover, 140 S. Ct. 1183 (2020).

In making the determination of whether police had reasonable suspicion, the Court explained that it considers “the totality of the circumstances” in assessing if the “facts known to the officers at the time of the stop objectively gave rise to reasonable suspicion.” See id.; Walker v. Donahoe, 3 F.4th 676 (4th Cir. 2021). The government bears the burden of proving that the warrantless seizure is supported by reasonable suspicion. United States v. Kehoe, 893 F.3d 232 (4th Cir. 2018).

Turning to the present case, the Government asserted that Critchfield was suspected of theft, not the firearm offense for which he was ultimately indicted. Consequently, the Court had to consider whether, at the time Hartley and Lemley stopped Critchfield on the side of the road, they had reasonable suspicion to seize him for the suspected crime of theft.

The Government cited three factors to support its contention that the Court summarized as follows: “When the officers stopped Critchfield in a commercial area, they knew he previously had walked through an adjacent residential neighborhood passed an occasionally unoccupied home around 8:30 a.m., carried something heavy in his sweatshirt pocket, and behaved evasively when a neighborhood resident watched and followed him.”

Notably, all these circumstances were relayed by Gerhart, and acted on by Hartley and Lemley, so at the time of their stopping Critchfield, they had no “firsthand knowledge that contributed to their suspicion,” according to the Court. Though Gerhart was also in law enforcement, “he did not make the stop or instruct these officers to do so.” He merely reported behavior he thought was suspicious, so at most, he was a “credible tipster,” the Court stated.

The Government relied on cases where defendants had attempted to evade police or had acted suspiciously in their presence in support of its position. However, the Court found these cases distinguishable from the present circumstances since Gerhart was not in uniform or in any way communicated that he was anything more than a resident who attempted to follow another resident.

Nor did Gerhart or the other officers testify that the shape of the object in Critchfield’s pocket led them to suspect criminality. See United States v. Black, 525 F.3d 359 (4th Cir. 2008) (officer described bulge as firearm-shaped). Nor did any officer testify that Critchfield’s presence in an area known for higher crime, combined with a specific behavior, amounted to a signal of criminality in their experience.

The Court recapped the “totality of the circumstances known to Hartley and Lemley when they stopped Critchfield” as follows: “when the officers stopped Critchfield, they knew he was a man with a weigheddown sweatshirt pocket who had walked through a residential neighborhood past an occasionally unoccupied home next to a commercial area in broad daylight and who had behaved evasively when a neighborhood resident watched and followed him.” Thus, the Court held that these circumstances, without more, “do not give rise to reasonable suspicion of theft.”

Accordingly, the Court vacated Critchfield’s conviction and remanded the case with orders to grant his suppression motion. See: United States v. Critchfield, 81 F.4th 390 (4th Cir. 2023).  

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Related legal case

United States v. Critchfield

 

 

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