United States v. Tremayne Drakeford (4th Cir. March 2021)

The Federal Docket

Fourth Amendment – For the purposes of showing reasonable suspicion warranting a stop and frisk, it is insufficient for officers to rely on generalized information from an informant, surveillance of interactions of the defendant with others where officers do not see or find drugs or money, and two handshakes between the defendant and another where there are other circumstances dispelling suspicion such as the handshakes occurring in broad daylight, in front of a store, and under a surveillance camera.

Tremayne Drakeford was arrested and charged with drug offenses after he was apprehended at a car stereo warehouse by police, who searched him and discovered drugs on him. The officers had relied on information given to them by a confidential informant, they had witnessed the defendant in two interactions that they allegedly believed reflected drug activity, and the officers believed they witnessed a drug transaction based on seeing the defendant and another man shake hands, although no one saw anything exchanged between the two. Drakeford filed a motion to suppress, which was denied, and he appealed after pleading guilty.

On appeal, the Fourth Circuit agreed with Drakeford that the officers lacked a reasonable suspicion to stop and frisk him. Starting with the information from the CI, the Court noted that the CI had only provided a physical description and vehicle tags, no name or address, and he had done that several months before law enforcement started investigating based on the information, and law enforcement did not witness any drug transactions after visiting the defendant’s house over 30 times.

Regarding the two interactions the officers witnessed the defendant in, which they contended reflected drug activity, the Court recounted the officers’ surveillance of the defendant meeting with a person in his car at a gas station for 30 to 45 seconds before the person drove away. Officers pulled him over suspecting he had used drugs sold to him by the defendant, but no drugs were found, only syringes. The Court also described another surveillance episode where officers had used the informant to contact the defendant about drugs and witnessed the defendant go to another residence, emerge with bags, and then contact the informant that he had drugs to sell. However, officers did not witness any actual drugs.

Regarding the stop and frisk at the car stereo warehouse, the Court noted that it was not a high crime area, was directly in front of a security camera during daylight, and was described by one officer as a “busy area in a public parking lot.” One officer testified that he witnessed the defendant and another individual exchange two handshakes, which he believed was a “hand-to-hand narcotics transactions,” though he did not see any drugs or money change hands.

The Court reversed the district court’s denial of the defendant’s motion to suppress. It noted that the officers’ testimony on the reliability of the confidential informant was “scant,” the information provided by the CI was generalized, there was no controlled buy featuring the CI, and thus the information provided little to no value in creating reasonable suspicion.

Regarding the “notorious second handshake,” the Court held that the officer who witnessed it had only provided “conclusory testimony.” No money or drugs were seen during the interaction, and there was nothing particularly suspicious about the second handshake, which was otherwise a “benign and common gesture.” In fact, the defendant and the other man entered the store together after interacting, which was not consistent with how the officers expected a drug deal to occur. Even looking at the wider context and totality of the circumstances, the Court recounted that officers had not previously found any drugs on or involving the defendant, just a “single suspected drug exchange in which officers found no drugs.”

The Court stated that the Fourth Amendment “does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.” Judge Wynn issued a concurring opinion stating that “the success or failure of a suppression motion cannot hinge on an officer saying, in essence, ‘I know it when I see it.'” He was also critical of the practice of affording such “strong deference” to an officer’s “training and experience,” and he called on judges to “curb these ill effects by dialing down the deference.”

Appeal from the Western District of North Carolina
Opinion by Thacker, joined by Gregory and Wynn
Concurrence by Wynn

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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