Thursday, March 03, 2011

Vitalizing the exclusionary rule

US v. Foster: Foster pled guilty to one count of possession with intent to deliver cocaine after police officers discovered drugs and some paraphernalia during an investigative stop. Foster reserved the right to appeal the denial of a suppression motion in which he argued that the officers lacked a reasonable suspicion to make the stop.

In a felicitous turn for Foster, the Fourth Circuit on appeal expresses its dismay at what it characterizes as "Government attempts to spin these largely mundane acts into a web of deception," finding a lack of articulable facts to support the district court's finding of reasonable suspicion sufficient to support the investigative stop, and vacates Foster's conviction.

Remarking on the similarity of this case to the factual scenario of US v. Sprinkle, in which the court held officers had unlawfully seized a driver with a known criminal record and his passenger while the two were huddled together in a car parked in a high crime area, the Fourth Circuit here chides the Government for making sinister the actions of Foster in a parked SUV: Foster sat up swiftly from a crouched position in the front passenger seat as a detective walked towards the vehicle; and Foster's "frenzied" arm movements directed towards the floor of the car. In its evaluation of the totality of the circumstances, the Fourth Circuit decided that the defendant's behavior, observed at some distance by the off-duty detective, in the middle of the day, in a parking lot near a restaurant where the detective had just lunched with his wife, could not have supplied the requisite reasonable suspicion necessary for a Terry stop. The Fourth Circuit concludes by advising the Government against a reliance upon "ad hoc rationalizations to validate those seizures that happen to turn up contraband."

Please use this case for the colorful judicial invective in such quotes as "we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous," and "we note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Bookmark this case for your next motion to suppress, folks.

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