Sunday, December 23, 2018

Gun suppressed for lack of reasonable suspicion despite match in clothing and race between fleeing suspect and man stopped nearby

In United States v.Bey, No. 17-2945 (Dec. 21, 2018), the Court reverses the denial of a motion to suppress, holding that while officers acted within the authority conferred by Terry v. Ohio in initially ordering the defendant to stop, his continued detention became unreasonable once officers “had a good look at his face and features,” which differed significantly from the description of the suspect under pursuit.

The episode began when police stopped a vehicle occupied by three black men for not coming to a complete stop at a stop sign. In seeking to ascertain each man’s identity, police noticed evidence of marijuana possession and decided to remove the occupants from the vehicle. Shortly thereafter, a gun was spotted near where one man had been seated, and that man took flight. Police launched a pursuit and, moments later, realized that meanwhile a second of the vehicle’s occupants – a man whom they had by this time identified as one Amir Robinson – had fled in the opposite direction. They called for backup, and an ensuing radio dispatch described a black man about 6’0” to 6’1” in height weighing 160-170 pounds and wearing dark blue pants and a red hoodie.

Over the next few minutes, an Officer Powell used a cruiser’s mobile data terminal to view a file photograph of Robinson, a 21-year-old, light-skinned African American man with a small patch of hair under his chin and a tattoo on his neck. Given the direction in which Robinson fled and what patrolling officers knew of the neighborhood, police suspected he might have sought to escape detection by blending in at a local bar. As Powell and a second officer approached the bar, a man wearing a red, hooded puffer jacket and black sweatpants exited and began walking in another direction. The police drew their guns and ordered him to stop and show his hands. The man complied and turned around, whereupon police beheld defendant Muadhdhin Bey, a 32-year-old, dark-skinned African American man weighing about 200 pounds with a full beard. In short order, officers said, they discovered a gun on Bey, which led to charges of unlawful possession after prior conviction of a felony.

Bey unsuccessfully moved to suppress the gun, arguing that the broadcast description was too generalized to support reasonable suspicion and, alternatively, that reasonable suspicion dissipated once he turned to face the officers and they got a good look at him. On appeal, the Third Circuit rejects the first argument but embraces the second.

In an opinion authored by Judge McKee and joined by Judges Vanaskie and Restrepo, the Court emphasizes with regard to Terry intrusions that the government carries the burden to show reasonable suspicion justifying “each individual act constituting a search or seizure.” With regard to the initial command to stop, the Court distinguishes the facts of United States v. Brown, 448 F.3d 239 (3d Cir. 2006), which held a description of two black suspects in an attempted robbery insufficient to supply reasonable suspicion justifying the stop of the defendant and a second black man three blocks away in Philadelphia’s center city. While the defendant and the second man matched the race and height of the two suspects, they were some years older and, unlike the suspects, had full beards.

The Court now explains that the stop in Brown “was based only on a generalized description of the suspect,” whereas here Bey “was wearing clothing similar to that worn by the fleeing suspect and he was where police expected to find that suspect.” But Brown cuts in the opposite direction, the Court holds, with regard to Bey’s alternative claim that reasonable suspicion dissipated once he turned to face the officers. At that point, officers “should have noticed the clear differences in appearance and age between the two men.” That made his continued detention unlawful.

The Court is not persuaded by the district court’s conclusion that because a photograph of Amir Robinson (the man who fled the traffic stop) introduced at the suppression hearing had been taken six months after the night Bey was stopped and arrested, the differences between Robinson’s appearance in the photograph and Bey’s appearance were not controlling. This line of analysis, the Third Circuit explains, improperly shifted to the defense what was properly the government’s burden. To the extent the image actually viewed by Officer Powell may have more closely resembled Bey, “the Government’s failure to produce that image fatally undermines its attempt to prove that the police acted reasonably in detaining Bey after they had a good look at him.”

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