937 F.3d 363 (4th Cir. 2019), 18-4233, United States v. Curry

Docket Nº:18-4233
Citation:937 F.3d 363
Opinion Judge:RICHARDSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Billy CURRY, Jr., Defendant-Appellee.
Attorney:Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant. Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellee. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Holli R. Wood, Special Assistant Un...
Judge Panel:Before NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges. FLOYD, Circuit Judge, dissenting:
Case Date:September 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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937 F.3d 363 (4th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellant,


Billy CURRY, Jr., Defendant-Appellee.

No. 18-4233

United States Court of Appeals, Fourth Circuit

September 5, 2019

Argued: December 12, 2018

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Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:17-cr-00130-MHL)


Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant.

Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellee.


G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Holli R. Wood, Special Assistant United States Attorney, Michael A. Jagels, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant.

Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public Defender, Laura J. Koenig, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellee.

Before NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges.


Reversed and remanded by published opinion.

Judge Richardson wrote the majority opinion, in which Judge Niemeyer joined. Judge Floyd wrote a dissenting opinion.

RICHARDSON, Circuit Judge:

While patrolling a residential neighborhood after dark, police officers heard several gunshots close by. They rushed to the scene to find the Defendant, Billy Curry, Jr., and a half dozen other men, walking away from where the shots were fired. The officers shined flashlights on the men and instructed them to stop, raise their hands, and then lift their shirts to expose their waistbands for any concealed weapons. Only Curry failed to comply, leading to a pat down that revealed a silver revolver.

After he was indicted for being a felon in possession of a firearm, Curry moved to suppress the revolver. The district court granted Curry’s motion, reasoning that the initial stop and flashlight illumination of the men leaving the site of the shooting violated the Fourth Amendment, which rendered the later pat down illegal. The Government appeals.

The officers here reacted to a perilous active-shooter situation, arriving on scene within 35 seconds of hearing multiple gunshots in a densely populated area. These exigent circumstances implicated vital governmental interests— citizen and police safety— beyond the ordinary need for law enforcement. The officers’ initial response was tailored to address these needs with minimal intrusion and thus reasonable. We therefore reverse the district court’s conclusion that the brief stop and flashlight search violated the Fourth Amendment. We leave for the district court to consider whether the officers had reasonable suspicion to search Curry after he disregarded their orders.


A. The stop and search

On the night of September 8, 2017, four uniformed officers from the Richmond Police

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Department’s Focus Mission Team— a division dedicated to violent crime and drug suppression— were patrolling the Creighton Court neighborhood in Richmond, Virginia.1 The officers were assigned to patrol Creighton Court because it had been the site of frequent gun violence, with six shootings and two homicides in the previous three months. The most recent homicide in the neighborhood had occurred just ten days earlier. At around 9:00 PM, the officers heard around a half dozen gunshots coming from the direction of a street called Walcott Place. Two of the officers activated their body cameras, which provide a clear record of what happened. The below satellite image, taken from a Government exhibit, shows the officers’ initial location marked as "A." J.A. 124.

(Image Omitted)

Upon hearing the gunfire, the officers made a U-turn and drove northeast across a field toward Walcott Place. The district court estimated that "the patrol car travelled two to three blocks, taking only thirty-five seconds to arrive behind Walcott Place" at the location marked "B" on the map. J.A. 256-57. In that short time, the officers’ radios announced that at least two 911 calls "had come in for random gunfire, one of which was on Walcott Place." J.A. 257. Before stopping, the officers observed a man in a red shirt who "appeared to be maybe favoring one of his arms." Id.

As the officers arrived at what they believed to be the site of the shooting (it was likely within 50 yards), they spotted several individuals, including Curry, "walking away from a cut-through from Walcott Place, away from where the gunshots originated." J.A. 258. The officers met Curry at the location marked "C."

Using their flashlights, the officers "fanned out and began approaching different individuals," "illuminating the individuals ..., their waistbands and hands, looking for any handguns or firearms." Id . In doing so, the officers stopped the first men encountered leaving the scene, including

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Curry. The other individuals complied with the officers’ directives to lift their shirts and submit to a visual inspection of their waistbands for concealed firearms. Curry refused to fully comply. When officers sought to pat Curry down, a brief scuffle ensued. After Curry was taken to the ground and handcuffed, the officers then recovered a silver revolver from the ground near Curry.

B. The district court’s suppression order

Curry was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He then moved to suppress the revolver, arguing that the officers violated the Fourth Amendment by stopping and searching him without reasonable suspicion that he was engaged in criminal activity. In response, the Government argued first that the officers did have reasonable suspicion, and, alternatively, that the exigent circumstances at the time of the stop rendered it reasonable without reasonable suspicion.

Following an evidentiary hearing, the district court suppressed the recovered revolver. Applying Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the court determined that the officers lacked reasonable suspicion to justify the brief investigatory stop. The court reasoned that because the officers "ha[d] no particularized suspicion as to Curry" and were "not attempting to detain only Curry," Terry could not support the initial stop. J.A. 274.2

In suppressing the revolver, the court also found the surrounding "exigencies" of the situation could not excuse the prerequisite of individualized reasonable suspicion. See J.A. 281 ("Despite Officer Gaines’s legitimate concern for his own safety and the safety of his partners, the exigencies in this situation cannot undermine the Fourth Circuit’s clear holding that ‘the Constitution requires a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ " (quoting United States v. Massenburg, 654 F.3d 480, 485 (4th Cir. 2011))); J.A. 276 ("Even in these circumstances, with the attendant emergency and safety concerns, the Fourth Amendment allowed the officers only to initiate a consensual encounter, not the Terry stop they undertook."). The district court thus held that the initial stop was unlawful and granted Curry’s motion without considering whether the officers were later justified in frisking Curry. The Government timely appealed and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3731.


We must decide whether the officers’ initial stop of the men leaving Walcott Place was constitutional. See United States v. Robinson, 846 F.3d 694, 700 (4th Cir. 2017) (en banc). If not, then the revolver was properly suppressed, and the case is over. If, however, the initial stop was lawful, then we will remand to the district court to determine whether the later search of Curry was also lawful. See id.

To determine whether the initial stop was lawful, we review the district court’s legal conclusions de novo and its findings of fact for clear error. United States v. Kehoe, 893 F.3d 232, 237 (4th Cir. 2018); United States v. Day, 591 F.3d 679, 682 (4th Cir. 2010). Here, we have both. The district court found that the officers were responding to an emergency and that

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legitimate safety concerns existed when they encountered the men leaving the shooting, and we review that factual finding for clear error. United States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008). Whether those legitimate concerns constituted exigent circumstances that excused the requirement for individualized suspicion calls for a legal conclusion, which we review de...

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