It looks like Mirriam Seddiq has worked through her  writer’s block to post about a Fourth Circuit decision. 

[T]his week, the Fourth Circuit, in case called U.S. v. Foster,  pushed back and said hey, listen, we give you a ton of leeway in violating people’s rights conducting your investigations, but you need to cut it out, Government, and actually have SOME reason to search a person’s car.

Ok, let’s step back and give you the facts in this case, they are pretty simple and straightforward.  Police officer Ragland is having lunch with his wife.  He walks back to his car and notices a black male sitting in an SUV.  As he continues to walk he sees the black male’s mouth move and then another person pops up out of the passenger side and the passenger’s arms start moving (going ‘haywire’ the cop says, although he can’t actually see the arms above the elbow).  Ragland recognizes the passenger as David Foster, see the cop used to date Mr. Foster’s cousin and so they knew each other.  Also, Ragland had arrested Mr. Foster on some traffic stuff and knew he’d been arrested for marijuana. 

Ragland walks by the SUV and says hi to Mr. Foster and asks what they are doing.  The response is something innocuous “chilling” or some such phrase.  Then, for some reason Detective Ragland goes to his car and calls in to another officer and finds out Mr. Foster is under investigation – for what is not clear.  So, cop 2 shows up and Ragland and cop 2 block the SUV and search it.  Inside they find cocaine, scales, and all sorts of other bad stuff that people are not allowed to have.

And the Circuit reverses the denial of suppression.  Don’t wet you pants, as there’s no indication it’s more than a one-off decision.  It happens.  They get us all excited, compelling us to indulge in inductive reasoning, which makes the subsequent let down all that much more painful. 

In the course of its rationale, however, the Circuit offers some language that strikes at the heart of the problem.  This doesn’t happen too often.

We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. We recognize that we must look to the totality of the circumstances when evaluating the reasonableness of a stop. Arvizu, 534 U.S. at 273. However, an officer and the Government must do more than simply label a behavior as “suspicious” to make it so.

§§§

Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. Although these matters generally only come before this Court where a police seizure uncovers some wrongdoing, we would be remiss if we did not acknowledge that the exclusionary rule is our sole means of ensuring that police refrain from engaging in the unwarranted harassment or unlawful seizure of anyone—whether he or she is one of the most affluent or most vulnerable members of our community.

§§§

We appreciate that police are often called upon to make very difficult decisions about when to conduct Terry stops, and, for that reason, we give them leeway to make these determinations. Nonetheless, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.

This is great stuff, capturing the banality of how police and prosecutors morph the most mundane conduct into the nefarious to manufacture cause out of thin air.  On television, this would all fall under that beloved “sixth sense” that police like to pretend they possess, which mysteriously fails them the 90% of the time they seize and search a nice darkish-skinned fella and come up empty.  But when they find something, whoo boy, it’s back, baby.

Certain words and phrases have become entrenched parts of the law enforcement lexicon, as required to skirt the black letter of the law.  Don’t blame cops, as courts hand them the solution to their problem on a silver platter.  Consider, for example, a long-time favorite of all criminal defense lawyers, furtive gestures.

When’s the last time you used that phrase, furtive gestures, at a cocktail party or when hanging out with friends?  Hey, Joe, seen any furtive gestures lately?  Susie, watch those gesticulating arms, as someone might think you’re making furtive gestures.  You can be reasonably assured that anyone who talks this way, except at a law student party, is not likely to get lucky that night.  Note:  The rule is different for law students, who tend to be remarkably indiscriminate and get turned on by hearing words from class repeated in social settings.

Of course, it’s possible that the police could fabricate suspicion from whole cloth, claiming a furtive gesture when there was no gesture at all.  After all, who could dispute it?  But for the purpose of this post, let’s assume that the police aren’t being totally disingenuous, but rather relying on their spidey-cop sense of seeing something and, as noted by the Fourth Circuit, bootstrapping it into a post hoc rationale because they found something.

Ever notice how nobody who ever put a gun under a car seat managed to get it all the way under?  There’s always some part of the gun sticking out from under the seat so that any cop who looks through the window into the interior can see it in plain view?

Ever notice how a bag of marijuana, triple heat sealed, placed into an air tight container in the trunk of a car, still emits a “poignant” odor when the driver of the vehicle cracks open his window?  Nonetheless, the search of the vehicle begins with the glove box and not until 15 minutes later, having found nothing, does the officer get around to opening the trunk? 

The unfortunate fact for those criminal defendants found in possession of contraband is that they are alive.  Being alive means that their bodies remain reasonably mobile.  Arms move.  Heads tilt and turn, sometimes in ways that are unpredictable to those observing from outside a vehicle.  After all, if someone is having a conversation with another person in a car, they might be inclined to turn their head toward them, maybe even nod in agreement.  Some cultures even gesticulate with their hands in order to emphasize a point during a conversation.

From outside the car, one would have no clue why the person of interest is moving about, turning to and fro, bobbing and weaving in a way that could indicate that he is concealing evidence of massive quantities of narcotics.  How could they possibly know such a thing?  And so suspicion is aroused.

These are the mundane realities that are either utterly inconsequential or transformed into sufficiently suspicious to obviate our right of privacy based upon the rhetorical skill of a cop and prosecutor to articulate suspicion.  By merely attaching magic words, like furtive gesture, to the actions, protections magically fly away and, with the blessings of court after court, judge after judge, we are searched.  And if we have something nasty, it is seized.

Enjoy this decision from the Fourth Circuit, and repeat its language often.  Still, the converse of the decision, that sometimes furtive gestures are furtive, and sometimes the smell is pungent poignant, is true.  And another court, or maybe the Fourth Circuit as well, will take the exact same mundane conduct and hold it to clearly and obviously show that criminal activity is afoot.