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Wed, Mar 16th 2022 08:19pm - Tim Cushing

It rarely seems obvious, but you can just walk away from (some) unwanted interactions with law enforcement. People with badges and guns often make this option seem untenable, what with their badges and guns and often profane shouting. But law enforcement officers need a certain amount of reasonable suspicion to detain people. But the less people know, the more often officers are able to engage in suspicionless searches and detentions.

We’ve formed a whole cottage industry around this uncertainty. Stop and frisk, the cops call it, before having their suspicionless search programs relegated to the history books by federal judges and agreements with the US Department of Justice.

Every so often, gambling on someone else’s rights doesn’t pay off for law enforcement. In most cases, nothing happens because the arrested person does not have the means to hire a lawyer willing to fight bullshit arrests. In other cases, everything comes together and results in an admonishment from a federal court that reminds officers about the rights of citizens. When it all comes together — as it does in this Appeals Court decision [PDF] — it also results in the elimination of all the wrongfully obtained evidence. Months after the fact, the plaintiff is finally free to go.

The Fourth Circuit Appeals Court decision notes that cops were out doing the sort of thing cops should be doing.

At 11:18 p.m. on September 22, 2019, two officers in a patrol car approached Anthony Buster as he walked along Fairfield Avenue in Richmond, Virginia. About 30 minutes earlier, the officers had responded to a report of “a domestic assault where a firearm discharged in the air” and had been looking for the assailant ever since.

All well and good until they happened to come across Anthony Buster, who was just minding his own business. They felt he matched the description of the assailant, and that he was the same person they had earlier seen outside of the victim’s apartment. They were wrong, but that was hardly an impediment.

They went after Anthony Buster. And Buster — fully within his rights — let them know he wasn’t receptive to their increasingly-aggressive advances.

After getting out of the patrol car, one officer said “Yo! Let me talk to you real quick” and motioned for Buster to come over. Buster said “Nah,” and continued walking. The same officer said “Yo! Hey!” and continued toward Buster.

Despite the compelling “yo, hey” arguments from the investigating officers, it was completely constitutional and acceptable for Buster to say “Nah” and expect to be left alone. The beliefs the officers harbored weren’t developed enough to justify what came next.

At that point, Buster took off running but tripped and fell almost immediately. The officers caught up with Buster while he was still on the ground and tackled him. Buster was wearing “a single-strap bag that goes across your body” whose pouch had “ended up in front of ” Buster when he fell.

Oh no. A pouch! In lieu of a convenient fainting couch, officers went for the bag that had “ended up in front of” the person they were pursuing for legally-inarticulate reasons. “Muh safety,” the cops managed to mentally articulate before taking the bag from Buster and searching it.

Perceiving that Buster was clutching or reaching for the bag, the officers pulled Buster’s arm away from the bag, pulled the bag to the rear of Buster’s body, and handcuffed him.

Buster noted the bag’s sudden position change had forced it across his neck and he was now choking. What may seem like an act of kindness was actually just the officers’ interest in the bag. They cut the bag’s strap off and went rooting through it — even though they had no reason to do so. One officer noted it was “hard to the touch.” (Also the bag, apparently.) Opening it, officers found a gun and a box of ammunition. Buster was arrested and charged with being a felon in possession of a firearm. This followed two interrogations by officers without Buster being advised of his Miranda rights.

The federal government, wisely, decided it would not attempt to submit statements made by Buster when he was interrogated without being apprised of his rights. But it still wanted the gun and ammo. It argued the cops had every right to pursue, tackle, strip of personal property, and engage in a search of said stripped property. The lower court found the government’s arguments persuasive and suppressed only the interview statements the government had already agreed it would not use as evidence. That faux suppression resulted in a sentence of 51 months in prison for Buster.

The Appeals Court does not agree with the lower court’s almost nonexistent effort.

We hold that the district court erred in denying Buster’s motion to suppress the firearm because the sole theory the government has pressed in support of that result does not apply here.

More specifically:

Here, however, the district court identified only one basis for denying Buster’s motion to suppress the firearm found during the search of his bag, and the government has never offered any other. Specifically, the district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine associated with Terry v. Ohio, 392 U.S. 1 (1968). JA 240. On the facts of this case, we respectfully disagree.

Officer safety? Protective search? None of that applies to the facts here. Buster was down on the ground, restrained, and cuffed. The officers had removed the bag from Buster’s possession before they searched it, cutting off the strap when Buster said the bag was choking him after the officers had tackled him to the ground. The government’s argument is hot garbage, says the Appeals Court.

Although the parties dispute many things about the events of the evening, there is no disagreement about one critical fact: When the officer opened Buster’s bag (thus beginning a “search” of the bag), Buster was handcuffed on the ground and had no access to it. Indeed, the record is clear that the officers opened the bag and examined its contents after they had tackled Buster, handcuffed him, cut the bag off his body, and “move[d] it away from his person.” The government offers no explanation for how the contents of the bag presented any credible threat to the officers’ safety at the time they searched it

The officers had minimal justification for the initial pursuit. And they had no justification at all for the warrantless search of Buster’s sole possession without a warrant. No evidence for you, says the Appeals Court.

Because the government has never so argued, we do not consider whether at some point the officers might have acquired probable cause to arrest Buster for assault or some other offense and, if they did, whether the district court’s decision not to suppress the firearm could have been justified on some other ground. We hold only — but importantly — that a doctrine authorizing a limited warrantless search to protect officer safety cannot be stretched to cover situations where there is no realistic danger to officer safety. Accordingly, we reverse the district court’s denial of Buster’s motion to suppress the firearm.

And that’s the only thing keeping Buster behind bars, considering the criminal charge was “felon in possession of a firearm.” Without the firearm, it’s a felon in possession of nothing but a bag the cops should have known better than to search without something more than some airy statements about officer safety.

Buster was well within his rights to walk away. The cops made it an issue by pursuing and tackling him. The ensuing search was quite possibly predicated on the officers’ need to do something — anything! — to justify this suspicionless stop. That Buster only ended up being charged with felon in possession charges makes it clear the officers never pursued their stated theory — that Buster was involved in the domestic violence call that triggered this chain of events — and instead decided to move forward with the evidence they had obtained illegally. Presumably the actual perpetrator is still out there, unmolested by the long arm of the law. This was a crime of opportunity, but one perpetrated by opportunistic police officers looking for an easy bust rather than seeking to solve a crime.

Filed Under: 4th amendment, 4th circuit, anthony buster, search, warrantless searches