United States v. Billy Curry Jr. (4th Cir. July 2020), EN BANC

The Federal Docket

July 21, 2020

Fourth Amendment/Terry Stop – The exigent circumstances doctrine does not support s suspicion-less seizure and frisk of an individual under the emergency aid exception based solely on recent gunshots in the area and where there is no evidence indicating that the person being detained presents a specific danger to officers or others in the immediate vicinity.

On rehearing, the Court considered whether the Fourth Amendment’s doctrine of exigent circumstances justified the suspicion-less seizure of Billy Curry Jr., who was arrested and charged with possession of a firearm by convicted felon after officers stopped him (and several others) upon arriving at a scene where gunshots were fired.

The officers did not testify at the suppression hearing that they suspected Curry of participating in a shooting, and described how they deployed to a residential block where many individuals where standing or walking around and stopped several of them to question them. The officers had arrested Curry after detaining him and he resisted listing his shirt up for the officers.

Sitting en banc, the Fourth Circuit held that the officers’ stop of Curry was unconstitutional since it was not based on reasonable suspicion, since Curry and the other men near him were “calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated.”

Moreover, the stop was not justified by the exigent circumstances doctrine, which allows officers to conduct warrantless searches in emergency circumstances. There was simply no evidence that stopping Curry was necessary “to protect individuals who are threatened with imminent harm.” Curry had been stopped in an open field, officers did not know what the suspect was wearing and therefore could not identify Curry as the suspect, and the officers otherwise had no specific reason to think Curry was involved with the gunshots they heard. The “limited and vague information regarding a possible crime that the officers possessed” was insufficient to justify stopping and searching Curry and was insufficient to apply the “emergency aid” exception to the Fourth Amendment’s warrant requirement.

The Court reasoned that allowing the exigent circumstances doctrine to allow stop and frisks would “create a sweeping exception to Terry v. Ohio” and that the doctrine was not appropriately applied in situations involving an “investigatory stop of a person.” The Court distinguished the few cases where the exigent circumstances applied to warrantless search and seizures of a person where the government had isolated the person in a discrete area, immediately after a crime, and the suspicion-less search was “minimally intrusive.” Here, an application of the exigent circumstances exception would “swallow Terry whole.”

Judge Gregory concurred, writing separately to criticize Judge Wilkinson’s dissent as “bereft of any jurisprudential reasoning” and engaging in a lengthy analysis of race and policing.

Judge Wynn concurred as well, also addressing Judge Wilkinson’s dissent, namely his criticism that the majority opinion would make “predictive policing” more difficult. Judge Wynn also criticized Judge Richardson’s assertions that the recent history of gun shots in the area created exigent circumstances.

Judge Diaz concurred, writing that there were some situations in which exigent circumstances may justify a suspicion-less stop. Judge Diaz discussed the criteria allowing a suspicion-less stop under the special needs doctrine but concluded those criteria were not satisfied here given the lack of a roadblock, perimeter, or “other discretion-less and systematic method of carrying out the stops.”

Judge Thacker concurred in response to Judge Wilkinson’s dissent, observing that Judge Wilkinson “writes today with a smooth pen and a tin ear.” Judge Thacker wrote critically of Judge Wilkinson’s characterization that the majority opinion was “dismantling the rule of law” and of the practice of “predictive policing” which, to Judge Thacker, constitutes “little more than racial profiling writ large.”

Judge Wilkinson dissented but thanked Judge Gregory for his concurring opinion. Judge Wilkinson essentially argued that there were exigent circumstances based on the practice of predictive policing creating the need for police to conduct suspicion-less stop and frisks in the area after the shooting. The officers in this case, the judge wrote “deserve appreciation, not a rebuke,” and the judge emphasized the short amount of time (35 seconds) between the shots being fired and the officers arriving, and noted that the stops were limited to stop and weapons frisks. The judge engaged in a long description of predictive policing.

Judge Richardson dissented, joined by the rest of the judges who did not join or concur in the majority’s opinion, emphasizing the urgency of the situation and the immediacy of the officers’ response. The dissent also emphasized that Curry was the only man to refuse the officers’ instructions to allow them to pat him down. Under the facts here, the judge wrote that the search was part of a reasonable “response to this evolving exigency” and that was enough to justify the stop. The majority opinion, the dissent warned, would lead to situations where officers would not even be able to require individuals to put their hands up during mass shootings.

Appeal from the Eastern District of Virginia

Opinion by Floyd, joined by Gregory, Motz, King, Keenan, Wynn, Diaz, Thacker, and Harris joined

Concurring opinion by Gregory

Concurring opinion by Wynn

Concurring opinion by Diaz, joined by Harris

Concurring opinion by Thacker, joined by Keenan

Dissenting opinion by Wilkinson

Dissenting opinion by Richardson, joined by Wilkinson, Niemeyer, Agee, Quattlebaum and Rusing joined

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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