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  • Jim Chapman

Wearing skinny jeans does not give reasonable suspicion

Author: Jim Chapman

 

On February 3, 2019, at approximately 5:30 p.m., Officer Stephen Butler—an eight-year veteran of the Richmond (Virginia) Police Department—was patrolling an area owned by the Richmond Redevelopment and Housing Authority (“RRHA”), along with Officer Mitchell Cooper, a trainee officer with a few days of experience (collectively “the officers”). The RRHA owns numerous properties in Richmond, including the Creighton Court apartment complex (“Creighton Court”). A Memorandum of Understanding (“MOU”) between the RRHA and the Richmond Police Department (“RPD”) authorizes police officers to enforce state trespass laws on RRHA’s properties and to issue notice to any non-resident who is not: (1) a resident’s guest; (2) a RRHA employee; or (3) on the property for “a legitimate business or social purpose.”


During their patrol on that day, the officers were uniformed, with their service weapons holstered, and in a patrol car. The officers saw Defendant Anthony Eugene Peters and a second individual, Gary Garrison, walking along the sidewalk in the 2000 block of Creighton Road. Officer Butler recognized Garrison as an individual prohibited from being in Creighton Court, which was owned by the RRHA. Officer Butler also recognized Peters and knew that he had been arrested for trespassing in 2011. While Officer Butler later testified at the suppression hearing before the United States District Court for the Eastern District of Virginia that he had learned that this trespass had occurred in Creighton Court from the RPD Records Management System (“police records”), a screenshot of the police records shows that the trespass location was not specified. The police records were also silent as to the arrest’s final disposition.

One month prior, Officer Butler had received an uncorroborated tip from a confidential informant that a male known as “Amp” had sold crack cocaine at a specific address in Creighton Court. The informant described “Amp” as “a black male in his mid-20s . . . with a longer face” and “a slight goatee.” Upon seeing a photo, the informant identified Peters as “Amp,” prompting Officer Butler to review Peters’ record. The police records listed Peters’ home residence as being on Mosby Street—outside Creighton Court—but made no reference as to when this information was collected or last updated. A section of the police records titled “Name Alerts” showed three separate alerts indicating that Peters was believed to be: (1) a “gang member,” as alerted in 2011; (2) a “narcotics seller/user,” as alerted in 2009; and (3) “probably armed,” as alerted in 2009.


Having gathered this information, the officers activated their body cameras, exited their patrol car, and walked toward Peters and Garrison. The District Court admitted Officer Cooper’s body camera footage into evidence, and both of the officers testified that the video accurately depicted the encounter. Without directing them to stop, Officer Butler immediately stated that they were “not supposed to be out here.” The officers testified that they spoke in “stern” and “authoritative” tones of voice.


Nevertheless, Peters and Garrison continued walking when one of the officers asked if they “had any guns.” As they walked, they both answered no, and the officers requested that they lift their shirts. In response, Garrison lifted his shirt and continued walking along the sidewalk. Peters, on the other hand, who was dressed in formfitting “skinny jeans” and a hooded sweatshirt, only partially lifted his shirt and stopped walking when the officers repeated their request.


At this point, the officers were standing about three to five feet from Peters. The video footage showed that the officers were positioned at a diagonal on both sides of Peters and an apartment building was behind him. Officer Butler then alternated between asking Peters to lift his shirt and stating that he was barred from the area. Officer Butler addressed Peters as “Amp” and asked if he had an official form of identification. Peters responded that he did not and asked that Officer Butler search his name in the police records to verify that he was not barred. Peters also asked a bystander to call his mother.


Less than a minute after the encounter began, Officer Butler asked Peters if he could pat Peters down. Peters refused. As a result of this refusal, Officer Butler asked Peter if he wanted to go to jail for trespassing. Officer Butler, then, commented that Peters should consent to a “pat down,” and the officers repeatedly asked Peters to lift his shirt while insisting that he was barred from the property. In response, Peters repeatedly informed the officers that he was not barred from the property and asked that they verify their records. He also stated that he was in Creighton Court visiting his family.


About three minutes into the encounter, Officer Butler made a sudden forward motion—“like a buck,” as he later described it—toward Peters, “[j]ust to see how he would respond.” Just under four minutes into the encounter, Peters lifted his shirt above his belt buckle. At this moment, Officer Butler testified at the suppression hearing that he “observed an object to the right side of [Peters’] fly” resembling “the muzzle of a pistol.” As a result, the officers both moved to secure Peters and ultimately recovered a firearm from his front waistband.

Peters was subsequently charged in a one-count indictment for possession of a firearm by a person previously convicted of a felony, in violation of federal law. Peters filed a motion to suppress all evidence and statements made, arguing that they were the result of an unlawful seizure. Officers Butler and Cooper both testified at the suppression hearing. At the conclusion of the hearing, the District Court denied Peters’ suppression motion, concluding that Officer Butler had “articulable suspicion” upon encountering Peters because of the information included in the police records, Peters’ refusal to raise his shirt and to prove that he was unarmed, and Officer Butler’s observation of the outline of a firearm on Peters’ person. Peters timely filed an appeal to the United States Court of Appeals for the Fourth Circuit challenging the denial of his motion to suppress.

The Fourth Circuit began its analysis of Peters’ appeal by repeating familiar law. The Fourth Amendment safeguards the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Consensual encounters between a police officer and an individual require no objective justification. Investigatory stops, however, must be supported by reasonable, articulable suspicion that the individual is engaged in criminal activity. Accordingly, in deciding whether the District court erred by denying Peters’ motion to suppress, the Fourth Circuit needed to first establish when Peters was seized and, then, determine if reasonable suspicion justified the seizure.

As for the first inquiry, the Fourth Circuit noted that a seizure for purposes of the Fourth Amendment occurs only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. A seizure is measured by whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Courts consider several factors in making this determination: (i) the number of police officers present; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they touched the defendant or made any attempt to physically block his departure or restrain his movement; (v) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled; (vi) whether the officers informed the defendant that they suspected him of illegal activity rather than treating the encounter as routine in nature; and (vii) whether, if the officer requested from the defendant some form of official identification, the officer promptly returned it.

Here, the Fourth Circuit held that Peters was seized for purposes of the Fourth Amendment approximately one minute into the encounter when Officer Butler threatened to exercise his authority to take Peters to jail for trespassing and suggested that Peters should consent to a pat down. Both of the officers were in uniform, with their service weapons holstered, and exited their patrol car upon seeing Peters and Garrison. They spoke in “stern” and “authoritative” tones of voice while asking Peters and Garrison if they were armed and to lift their shirts. Garrison complied by lifting his shirt, and the officers allowed him to walk away. Peters, however, did not comply—only partially lifting his shirt—which led the officers to repeat their request, and Peters stopped and turned around. Under these circumstances, the Fourth Circuit found that the officers’ interaction with Peters was not consensual because a reasonable person would not feel free to leave if an officer says that he can take the person to jail for a specific crime, or threatens that he will do so.

As for the second relevant inquiry, the Fourth Circuit explained that courts measure reasonable suspicion by the totality of the circumstances. Reasonable suspicion to initiate a brief investigative traffic stop requires a particularized and objective basis for suspecting the particular person stopped of criminal activity. In short, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Although seemingly innocent factors may demonstrate reasonable suspicion when viewed together, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.

In this case, the Fourth Circuit determined that Officer Butler did not have a reasonable suspicion that would justify stopping Peters. The Fourth Circuit highlighted the fact that it is the officer who must have the reasonable suspicion, not a prosecutor, and Officer Butler testified at the suppression hearing that he stopped Peters to investigate trespass and that his suspicion of trespass was based solely upon Peters’ 2011 arrest for trespass. However, Peters’ criminal history, as outlined in the police records, did not justify Officer Butler’s suspicion that he was trespassing in Creighton Court. Although he had received an anonymous tip about “Amp,” Officer Butler testified that he stopped Peters for trespassing, not based on the tip.

Finally, the Fourth Circuit rejected the idea that Peters’ wearing skinny jeans constituted a reasonable suspicion for Officer Butler to stop Peters. In rejecting the Government’s argument as to why the Fourth Circuit should affirm the District Court’s denial of Peters’ motion to suppress, the Fourth Circuit stated that, before seeing the outline of a firearm, Officer Butler based his suspicion that Peters was armed on two factors: (1) Peters’ skinny jeans and (2) Peters’ refusal to fully lift his shirt. According to the Fourth Circuit, a general tip “that men specifically were wearing skinny jean” to “wedge a firearm in their waistband” does not justify the seizure here because it is not at all particular to Peters. The argument that this rises to the level of reasonable suspicion is premised, at least in part, on the belief that individuals like Peters—present in public housing communities like Creighton Court—must lift their shirts upon request to prove that they are unarmed. The Fourth Circuit rejected that argument, holding that such a belief cannot provide reasonable suspicion because “a refusal to cooperate” alone does not justify a seizure.


Accordingly, the Fourth Circuit found that the officers did not act with reasonable suspicion when they seized Peters and that the District Court erred in denying Peters’ motion to suppress. The Fourth Circuit, then, reversed the District Court’s ruling, vacate Peters’ conviction, and remanded the case for further proceedings.

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