U.S. v. Massenburg, No. 10–4209.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: ARGUED:
• Citation: 654 F.3d 480
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Tyerail D. MASSENBURG, Defendant–Appellant.
• Docket Number: No. 10–4209.
• Decision Date: 15 August 2011

654 F.3d 480

UNITED STATES of America, Plaintiff–Appellee,
v.
Tyerail D. MASSENBURG, Defendant–Appellant.

No. 10–4209.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2011.Decided: Aug. 15, 2011.

[654 F.3d 481]

ARGUED: Caroline Swift Platt, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Michael Arlen Jagels, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Carolyn V. Grady, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.Before MOTZ, DAVIS, and KEENAN, Circuit Judges.

[654 F.3d 482]

Vacated, reversed, and remanded by published opinion. Judge DAVIS wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.OPINION DAVIS, Circuit Judge:

In this appeal from a judgment of sentence, we are once again called on to determine whether evidence seized during a street encounter between law enforcement and citizens was properly admitted into evidence during a subsequent criminal prosecution. We conclude that the seizure of the evidence did not comport with settled Fourth Amendment principles, and we therefore reverse the district court's denial of appellant's motion to suppress and remand for further proceedings.

Responding one night to an anonymous tip that shots were fired in a high-crime neighborhood, Richmond police encountered four young men, including appellant Tyerail Massenburg, four blocks from the reported gunfire. When an officer approached them in a marked police car, the men were not evasive; they continued walking forward, toward the car, and voluntarily paused to speak with the officer upon the officer's request. In fact, they were cooperative: one of the men reported that he had heard shots fired from a passing car two blocks away and handed over his identification when asked; and at least two of the men consented to voluntary pat-downs. Appellant Massenburg stopped with his friends, but he refused to consent to a frisk. As the officer interacting with Massenburg testified, he first thought Massenburg nervous when he began asking him to consent to a pat-down and Massenburg was “real reluctant to give consent.” J.A. 48. Based on the fact that appellant stood a foot or two away from the other men, who were shoulder-to-shoulder, and did not make eye contact as the officer renewed his requests for a consensual search, the officer undertook a nonconsensual search. The search produced a firearm and some marijuana, the subjects of the suppression motion at issue here.

Charged with one count of possession of a firearm by a drug user under 18 U.S.C. § 922(g)(3) and one count of possession of marijuana under 21 U.S.C. § 844, Massenburg moved to suppress the gun and drugs on the ground that the officer's frisk was unlawful. The district court denied that motion, and Massenburg entered a conditional guilty plea, reserving his right to appeal the suppression ruling.

Before an officer can stop and frisk a citizen, she must have “reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). We recently warned against the Government's proffering “whatever facts are present, no matter how innocent, as indicia of suspicious activity” and noted that we were “deeply troubled by the way in which the Government attempts to spin ... mundane acts into a web of deception.” United States v. Foster, 634 F.3d 243, 248 (4th Cir.2011). This concern is only heightened when the “mundane acts” emerge from the refusal to consent to a voluntary search. If the important limitations on the “stop and frisk” regime crafted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), are not to become dead letters, refusing to consent to a search cannot itself justify a nonconsensual search.

I. A.

On the night of March 28, 2009, at 10:33 p.m., Richmond City Police received an anonymous tip that shots had just been

[654 F.3d 483]

fired. The caller reported eight shots fired “possibly” two blocks south of 14th and Hull Streets, a high-crime area in which “drug activity as well as random gunfire” were “usual[ ].” J.A. 46, 77. The caller said nothing more; in particular, he or she included no description of a suspect.

Officers Stephen Gaines and Eric Fries responded to the call and arrived at 14th and Hull at 10:48 p.m. They split up and patrolled the area in marked police cars. Fries soon saw four young black men, including appellant Massenburg, walking north at the corner of East 17th Street and Stockton Street, four blocks west and two south of the intersection of 14th and Hull and thus four blocks from the alleged origin of the shots. They were walking in the direction of Fries's marked car and did not stop or change course when they saw it.

Fries approached in his vehicle and asked, “hey guys, can you stop for a second?” J.A. 31. The men stopped to talk with him. Fries asked if they had heard gunfire, and one man reported hearing shots fired from a vehicle on Maury Street, two blocks south of their present location. Gaines arrived, the two officers exited their vehicles, and they began taking the men's names. Fries then asked if they had weapons on them and if they would consent to a pat-down. The four men were now “all basically lined up in a row on the sidewalk,” with the man who reported hearing gunfire on Maury Street on the left end of the line and Massenburg on the right. J.A. 32. According to Gaines, the three left-most men were “pretty much shoulder-to-shoulder, and [Massenburg] was kind of offset from the group” by a “foot or two,” “give or take.” J.A. 57.

The man on the left consented to Fries's request for a pat-down, as did the man nearest him. Gaines began at the other end of the line, asking Massenburg if he would consent to a frisk. Gaines testified that Massenburg, in reply to the request, “was kind of hesitant and stand-offish, and kind of real reluctant to give consent to a pat down or a search of his person.” J.A. 48. Instead, “[h]e stated he did not have anything. You don't need to check me. Stood back and kind of air-patted himself down, stating, trying to show he didn't have anything.” J.A. 48. At this point Gaines insisted and patted Massenburg down without his consent.

Officer Fries testified that he had seen “a small bulge in the left jacket pocket of Mr. Massenburg” prior to Officer Gaines's frisk, but he “didn't alert” Gaines to it. J.A. 32, 42. Officer Gaines, asked multiple times about the basis for his suspicion of Massenburg, never indicated in his testimony that he saw a sign or signal from Fries.

During the frisk of Massenburg, Gaines felt the handle of a firearm on Massenburg's waist band (not in the jacket), and Massenburg fled before Gaines could grab it. Gaines pursued and directed him to drop the firearm, which Massenburg did, dropping it on the grass. Massenburg ran another 250 feet before Gaines caught up and arrested him. In addition to the firearm, police recovered a small amount of marijuana on Massenburg's person.

B.

Massenburg was charged with one count of possession of a firearm by a drug user, in violation of 18 U.S.C. § 922(g)(3), and one count of possession of marijuana, in violation of 21 U.S.C. § 844. He filed a motion to suppress the firearm and marijuana, arguing that Gaines lacked the reasonable, particularized suspicion that he was engaged in criminal activity necessary to authorize a nonconsensual frisk under the Fourth and Fourteenth Amendments.

[654 F.3d 484]

At the suppression hearing, the Government presented few objective bases for particularized suspicion of Massenburg. It was only able to point to the following: (1) Massenburg and his three friends were walking four blocks from the location of the shots reported by the tipster, the only people the responding officers encountered in the vicinity; and (2) several observations made by Gaines of Massenburg's allegedly “nervous behavior.” In particular: (a) Massenburg was standing a foot or two from the other three men, who were “shoulder-to-shoulder,” J.A. 57; (b) he did not make eye contact with Gaines as Gaines asked him to consent to a frisk; and (c) he did not consent. Gaines's testimony on these points is instructive.

Officer Gaines testified that “it wasn't until actually I made contact with him that I noticed nervous behavior from him.” J.A. 48. He elaborated:

A: ... We questioned if anybody had any weapons on them. The individuals besides Massenburg stated, we don't have anything, you can check us. And Tyerail [Massenburg] was kind of hesitant and stand-offish, and kind of real reluctant to give consent to a pat down or a search of his person.

...

Q: You indicated that Mr. Massenburg, you said, was acting nervously. What gave you that impression?

A: Like, I said, he was standing off from the three in the group from being questioned. He was reluctant, didn't show any eye contact. Looked down. Once he stood back and stated, “I don't need to get a pat-down.” That kind of raised my suspicion a little further. And we were more persistent to find out whether he had weapons on his person.

J.A. 48–50. On cross-examination, Massenburg's attorney attempted to clarify Gaines's ostensible particularized suspicion concerning Massenburg.

Q: And during your conversation with him, he wouldn't look you in the eye?

A: Correct.

Q: And he just kept on saying, I don't need to be patted down?

A: Yes.

Q: That made you more persistent?

A: It did.

Q: Because he didn't want to be patted down?

A: Correct. As I said, the others made statements when asked if they had weapons. Said, you can check me. And he was the only one to be reluctant.

Q: You had no new information to know he was armed and dangerous but for the fact he didn't want to be patted...