In United States v. Black, No. 11-5084 (3:10-cr-00206-MOC-1) (Feb. 25, 2013), two officers in Charlotte began to follow a car as it left a gas station. The driver, Dior Troupe, parked and joined a group of five other men, including Black, standing and talking in the parking lot. After calling for backup, in order to make "voluntary contact," the officers approached the men, one of whom an officer recognized from prior arrests. When he saw officers approaching, Troupe pointed to the openly-carried gun in a holster on his hip. An officer seized the gun and other officers began frisking the other men.
When another officer began talking to the men, Black voluntarily provided his ID, which the officer thought suspicious because the other men were "argumentative and did not give any information." It showed that he was living in another part of Charlotte. He told the officer he was visiting friends. The officer kept Black's ID and "pinned it to his uniform" while questioning the others. Another officer described Black as "extremely cooperative." While the others were being frisked, Black was seen leaning forward on the edge of his seat and looking left and right, which officers interpreted as him looking for an escape route. Black got up and started to leave, but was told he wasn't free to go. He walked away anyway, until an officer grabbed his bicep (and felt his "'extremely fast' pulse through Black's t-shirt"). A struggle ensued, during which Black was placed in handcuffs and a firearm was recovered from Black. He was charged with being a felon in possession of a firearm. His motion to suppress was denied, Black entered a conditional guilty plea, and he was sentenced to 180 months in prison.
On appeal, the Fourth Circuit reversed the district court's denial of Black's motion to suppress. The court first concluded that Black had been seized (for Fourth Amendment purposes) prior to the officer's statement that he was not free to leave, due to a combination of factors including the "collective show of authority" of the officers, the fact that Troupe's firearm had been seized and that he, at least, was not free to leave, and the retention of Black's ID. Thus Black was seized at the point his ID was pinned to an officer's uniform and another officer began frisking everyone on the scene. The court then concluded that the totality of circumstances at the time of the seizure (which didn't include Black's looking left and right or his attempt to leave the area) did not support reasonable suspicion to support a seizure. The court called this case "yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot be rationally relied on to establish reasonable suspicion."
Because the officers who stopped him lacked reasonable suspicion to believe he was engaged in a crime, the stop violated the Fourth Amendment, and the firearm should have been suppressed as fruit of the unlawful search.
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