Fourth Circuit Reverses Conviction Because of Illegal Seizure

United States of America v. David Foster, No. 09-5161 (4th Cir. March 2, 2011).  Available here.

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded a case involving the warrantless seizure and search of a man in North Carolina.  The facts of the case are straight-forward, as is the court’s analysis: two young black men were sitting in a parked SUV outside of a local restaurant.  A police officer walked by the men and noticed that one of them mouthed something to the other.  The man in the passenger seat sat up straight, and then began moving his arms, as though he was doing something with his hands.  The officer called his headquarters and was informed that one of the young men was “under investigation.”  After a few minutes, the officer approached the men, seized them and searched their vehicle.

Of course, in order to stop or seize a person, police must have a “reasonable and articulable suspicion that the person seized is engaged in criminal activity.”  The court of appeals any suspicion in this case to be more of a hunch (the officer himself told the young men prior to the search that he “knew they were up to something”) than an articulable suspicion.

The significance of this opinion, from a defense attorney’s perspective, is not in the underlying facts or the court’s analysis.  Rather, it is the following passage:

“We also not our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. . . . we find it particularly disingenuous of the Government to attempt to portray these arm movements as ominous. . . . Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. . . . the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”

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