Responding to Shooting, Stopping Without Reasonable Suspicion OK Under Fourth Amendment

US v. Curry: One night four Richmond police officers were patrolling a neighborhood that “had been the site of frequent gun violence,” including six shootings (two murders) in the past six months. They heard what sounded like a “half dozen gunshots coming from the direction of a street called Walcott Place.” They arrived at Walcott Place about 35 second later, where they spotted several people, including Curry, walking away from the scene. The officers approached these men, shining flashlights at them and demanding that they lift their shirts so the officers could check for weapons. All but Curry complied. When he didn’t, officers tried to pat him down anyway, resulting in a “brief struggle,” after which Curry was handcuffed. Officers “then recovered a silver revolver from the ground near Curry.” After being charged with being a felon in possession of a firearm, Curry successfully moved to suppress the firearm. The district court concluded that the officers lacked particularized reasonable suspicion to stop anyone, Curry included, and that the exigencies of the situation did not override that.

A divided Fourth Circuit reversed the district court. The court noted that “special governmental needs, beyond the normal need for law enforcement” can justify a search or seizure even “without suspicion of criminal activity.” Such circumstances are “limited” and have to “go beyond ordinary crime control” such as “thwart]ing] an imminent terrorist attack and catch[ing] a dangerous criminal.” That being said, the special need “can overlap with the interest in crime control, and it usually does.” What’s important is whether the primary objective is crime control or something else. In this case, the officers responding quickly to a nearby shooting provided the special need, “the prospect that a single, active shooter might continue to threaten the safety of the public.” Thus, the “immediate purpose of the stop and flashlight search was the need to protect the public and the officers from these dangers.” Therefore, the initial stop of the group was appropriate, even if officers had no idea which of them (if any) was the shooter. In addition, “the intrusion here was minimal in both time and scope.” Because the district court concluded that this initial stop was invalid, the court remanded to the district court to determine whether by the time Curry was actually patted down there was reasonable suspicion to believe he was armed.

Judge Floyd dissented, suggesting that the majority wasn’t engaging fully with the facts, which showed that the officers did not have a description of the scene of the shooting, did not have any description of the shooter, and that they “did not stop everyone close to the scene, akin to a checkpoint,” as well as “not seiz[ing] the people closest to the reported location of those shots.” He also argued that the majority conflated the special needs and exigent circumstances doctrines, which are “separate doctrines of Fourth Amendment jurisprudence animated by very different concerns and applied in different contexts.” Judge Floyd concluded that the stop here did not fall within either doctrine and would have affirmed the district court’s granting of Curry’s motion to suppress.

NOTE: On November 18, 2019, the Fourth Circuit granted Curry’s motion to rehear the case en banc. Therefore, this opinion has been withdrawn. The en banc court issued its opinion on July 15, 2020 and is discussed here.