Another Strong Affirmation of the Fourth Amendment's Vitality

US v. Black: Two officers in Charlotte saw a car parked at a gas pump in a convenience store parking lot and thought it suspicious, as the driver sat inside for several minutes before driving off.  They followed the car, which parked in a parking lot between two apartment complexes.  A computer check on the car returned nothing suspicious.  The driver, Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot.  After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests.  When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip.  An officer seized the gun (even though open carry is legal in North Carolina - the officer "had never seen anyone do it") and then, based on the theory that when one gun is present another is also, officers began frisking the other men.

When another officer began talking to the men Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information."  It showed that he living in another part of Charlotte.  He told the officer he was visiting friends.  The officer kept Black's ID and "pinned it to his uniform" while questioning the others.  Another officer described Black as "extremely cooperative."  While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route.  Black got up and started to leave, but was told he wasn't free to go.  He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt").  A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black.  He was charged with being a felon in possession of a firearm.  His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.

On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress.  The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID.  Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene.  The court also noted that, although it did not resolve the issue, it "doubted that this encounter was consensual at its inception."  The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure.  The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."  In conclusion, the court said:

The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that 'we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,' that our individual freedom is inextricably bound to the freedom of others. Thus, we must ensure that the Fourth Amendment rights of all individuals are protected.

Congrats to the Western District of NC defender office on the win!