Tuesday, August 16, 2011

Nervousness During Refusal to Consent to Patdown Doesn't Generate Reasonable Suspicion

US v. Massenburg: Officers in Richmond responded to an anonymous report of shots fired in a "high-crime" neighborhood. They encountered a group of four men, including Massenburg, about four blocks away. The men were generally helpful (one reported hearing shots), provided identification, and consented to patdowns. However, Massenburg refused to consent to a patdown. He was, according to one of the officers, "real reluctant to give consent." Because Massenburg distanced himself somewhat from the other three men and would not make eye contact with an officer repeatedly asking for consent to perform a patdown, an officer patted him down anyway. The patdown uncovered a gun and some marijuana, leading to Massenburg being charged with drug possession and possession of a firearm by a drug user. He moved to suppress the gun and marijuana, but the district court denied the motion. Massenburg entered a conditional guilty plea and appealed that decision.

On appeal, the Fourth Circuit reversed the district court's denial of the motion to suppress. Noting that it recently (in Foster) chided the Government for attempting to spin "mundane acts into a web of deception" in order to support a Terry intervention, the court wrote that such concern "is only heightened when the 'mundane acts' emerge from the refusal to consent to a voluntary search," concluding that, if Terry is to mean anything, "refusing to consent to a search cannot itself justify a nonconsensual search." After examining the testimony about the incident in some detail, the court concluded that "there is precious little to sustain the district court's holding" that there was reasonable suspicion to support a patdown. Massenburg's observed nervousness came only when the officer repeatedly sought his consent to pat him down, a situation that would make almost anyone nervous. The court also refused to impart to the officer who searched Massenburg the observation of another officer (not reported at the time) that he saw a bulge in Massenburg's jacket.

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