Last week, the Fourth Circuit Court of Appeals — the federal appellate court that sits in Richmond — decided a case involving search and seizure, US v. Black. The Court held that police in North Carolina had no probable cause to search. The government’s claim was based on the following facts:
1. A man pulled his car into a gas station and doesn’t get out of the car for three minutes. The officer regarded that as suspicious, and suggestive of drug activity. The officer ran his license plates, and there were no outstanding traffic violations. The man happened to be black.
2. The car then pulled off and drove to a nearby apartment complex, where the driver got out and went over to meet 5 or 6 black friends. The officer followed, and noticed no criminal activity going on.
3. The officer called for backup, and when three more officers arrived, they approached the men, who were still doing nothing illegal. As they approached, two of the officers recognized one of the men as someone that had been arrested for drugs before, though the officers didn’t know if he had ever been convicted before. The man with the arrest record lived at the apartment complex.
4. As the officers approached, the driver of the car indicated that he had a handgun, openly carried on his hip. The officer stated that although it was legal for him to do so, the officer had never seen anyone carry a handgun openly in a holster before.
5. The officer testified that he had been trained to operate on what he called the “Rule of Two,” that is, if the police find one firearm, there will “most likely” be another firearm in the immediate area. They therefore began to frisk all of the other people standing around.
6. As they approached Mr. Black, Mr. Black offered an officer his North Carolina identification card. The officer testified that it was “unusual for someone to volunteer an ID” and the “remaining individuals in the group were argumentative and did not give any information, so it stood out that one volunteered an ID immediately.” Black informed the officer that he was visiting some friends in the area. The officer described Black’s behavior during this encounter as “extremely cooperative.”
7. Black then began to leave. No criminal activity had been detected. Neither he nor anyone else was under arrest. However, he was told that he was NOT free to leave, and when he walked away, he was chased, tackled, and a gun was found on him.
The Fourth Circuit panel consisted of one African-American judge who had been Doug Wilder’s law partner, one African-American judge who grew up in East Baltimore, and one white judge.
Using words like “counterintuitive” to describe the officers’ rationalizations, the Fourth Circuit panel ended its opinion by quoting Dr. Martin Luther King:
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.
Would an all-white panel of judges have arrived at the same conclusion? Is it reasonable to think that the life experiences of two black men on the bench may have informed their decision-making? Is diversity on the bench a good thing?