US v. Peters: Peters and a friend, Garrison, were walking through a housing complex in Richmond when two police officers approached. The officers knew that Peters had been arrested for trespassing more than a decade prior, but not where or whether the arrest led to a conviction. They also had information from an informant that Peters had been selling drugs in the complex. As the officers approached, one said that Peters and Garrison were “not supposed to be out here” and, as the men continued to walk, asked if they “had any guns.” Both said no. In response to a request to lift their shirts, Garrison did so and kept walking. Peters did so only partially, then stopped when the officers repeated the request. One officer asked if the other could pat down Peters, eventually stating that if he refused Peters would be arrested for trespassing. A few minutes later, one of the officers “made a sudden forward motion – ‘lie a buck,’ as he later described it – toward Peters, ‘just to see how he would respond’” (nothing in the opinion as to whether there was a response). About a minute later, Peters finally lifted his shirt enough for the officers to see a gun, which they recovered. Peters was charged with being a felon in possession of a firearm.
Peters moved to suppress the firearm. At the suppression hearing, the officer confirmed that the only thing they were investigating at the time was suspected trespassing and that was based on the decade-old arrest. The officer testified that he did not have sufficient information about drug activity to investigate that. The district court denied the motion to suppress, concluding that the officer had reasonable suspicion “because of the information included in the police records, Peters’s refusal to raise his shirt and prove he was unarmed, and” the “observation of the outline of a firearm on Peters’s person.” Peters entered a conditional guilty plea and was sentenced to 120 months in prison.
On appeal, a divided Fourth Circuit reversed the denial of the motion to suppress. The court concluded that seizure, for Fourth Amendment purposes, occurred just a minute into the encounter when the officer threatened to arrest Peters if he didn’t consent to a pat down. The officer made “a clear show of authority when he proposed taking Peters to jail for trespass” and no reasonable person would be free to leave at that point. The court then found that seizure was not supported by reasonable suspicion. In doing so, it rejected eight factors upon which the Government relied to demonstrate reasonable suspicion, concluding that they “reimagine the basis” for reasonable suspicion and that it “is the police officer who must be able to point to specific and articulable facts – not a party’s brief.” That said, the court also reviewed the Government’s factors and still found them wanting. Among other things, the court noted that officers knew that Garrison was barred from the complex, but allowed him to walk away.
Judge Traxler dissented. While agreeing with when the seizure took place, he argued that there was reasonable suspicion to support it and that the court “ignores the district court’s findings of fact and the standard of review, makes its own factual findings, and then declares those findings insufficient” while it “improperly converts the reasonable-suspicion inquiry into a subjective rather than objective inquiry.”
Congrats to the Defender office in Eastern VA on the win!
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