Technically Free To Leave in South Carolina

There’s a dirty little secret lurking behind the otherwise neutral rule of a Terry stop having to do with the ugliest part of the body. When stopped, surrounded by guys with shields and guns who you seriously doubt are there to be your pal and asking you questions just because they’re deeply interested in your personal welfare, what exactly is your status? Can you say, “hey, this was fun but I really have to go now. Bye,” and walk away?

The majority of the South Carolina Supreme Court held that Eric Spears had the right to do so, which would appear, on its surface, to be a positive ruling. As it turned out, this wasn’t a good thing for Spears.

However, in this encounter with police, as Spears started to answer officers’ questions, he began patting his shirt, prompting one officer to repeatedly request Spears not to move his hands. After Spears refused, the officer told him he was going to frisk him to “be sure he didn’t have any weapons on him or anything that was going to hurt me,” the majority ruling said.

It was during that frisk that Agent Dennis Tracy found under Spears’ shirt a small ball of what turned out to be less than half an ounce of crack cocaine.

Because Spears did not at first refuse to answer questions and keep on walking, he had in effect given his consent to what happened next, the majority opinion said.

This is where that ugly part of the body comes into play. What was in the agents’ minds? Had Spears exercised this right afforded him by the law, would the agents have shrugged, let him walk and, perhaps, mention to each other how much they admired this young man’s thoughtful exercise of his constitutional rights?

Then there’s the question of what was going on in Spears’ mind. If he kept walking, waved off the agents’ “request” that he submit to a colonoscopy, would he be offered a hearty  farewell in the fellowship of man or tackled, beaten, tazed or shot dead? Contrary to popular opinion, it’s highly unlikely at that moment that Spears was pondering the efficacy of his post encounter suit and the likelihood of qualified immunity being applied. He didn’t know if he would live, which is even better than his relatives getting a money judgment.

There’s a question about race to be asked here, but it wasn’t asked by the defendant, so the appeals court’s finding the stop was an unjustified seizure is overturned.

Was this an outrageous failure on the part of Spears’ lawyers, failing to argue that the expectation of a young black man that he can choose to walk away from some task force agents and cops because of their slavish adherence to the Constitution was lacking?

I concur but write separately because I share many of the dissent’s concerns regarding whether Eric Spears—an African-American male— actually felt free to walk away from the encounter with law enforcement. While I am skeptical that he did, this does not change the fact that our standard of review requires us to affirm unless there is clear error, meaning we cannot substitute our judgment for that of the trial court.

The two black justices on the court, however, didn’t feel so constrained. After pointing out the ordinary gaming of their pretextual interest in Spears, which is as commonplace as a justification as it is of anyone traveling anywhere ever, they got down to it.

Our Fourth Amendment jurisprudence does not take into account personal characteristics such as race, sex, age, disability, and so forth when making this determination. The test does, however, consider the totality of the circumstances. In my view, a true consideration of the totality of the circumstances cannot ignore how an individual’s personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.

The inquiry isn’t about whether there is, or should be, a separate Fourth Amendment rule for targets of police interest based on race. Rather, the inquiry is objective, what would a reasonable person in the position of the cops’ target believe to be the situation? And that raises the question of whether that “reasonable person” is some generic soul or a person like, you know, the actual person involved.

The United States population includes 42 million Americans of African descent. Inexplicably, these Americans are basically invisible to those of us who apply the analytical framework for reasonable behavior or beliefs. Somehow the judiciary, intentionally or not, excludes these Americans’ normal behaviors, responses, and beliefs in circumstances involving law enforcement agents.

For most, the “totality of the circumstances” does not include consideration of the reasonable behavior or response of African-Americans when confronted with certain stimuli. Thus, the regrettable and unsettling conclusion is that the question of what is “reasonable” is viewed solely from the perspective of Americans who are White. I shudder to think about the probable result had the defendant continued to walk and ignore the police.

The framing of the issue by the dissent is somewhat troubling. By making the question turn on whether the reasonableness inquiry is “viewed solely from the perspective of Americans who are White,” it appears to invite a racial dichotomy in the law, which is unfair to white, black and everyone in between. Nobody feels free to walk away when an agent tells you to freeze or else.

The difference here is that inside the head of a black guy, he doesn’t know whether his exercise of his right to be left alone is going to get him arrested and a beating or worse. Whether this is because of his skin color, his attire, his age, maybe even his tattoos, the law as it exists allows the judges to determine what a reasonable person in his situation would do. Most reasonable people would choose to live, which is all that Spears did, and for which suppression was denied.

13 thoughts on “Technically Free To Leave in South Carolina

      1. Howl

        I apologize for offending you. That was not my intention. Please let me know why this video was offensive, so that maybe I could better see and avoid doing this again.

  1. jfjoyner3

    Because SC is part of this story, and I live in SC, I wish to share an experience about SC law enforcement that might – or might not – be relevant.

    Several years ago I was traveling from my office after dark. My two young children were in my Yukon. We can’t upon a large intersection in an area of several shopping strips and malls where multiple ambulances, and fire trucks, and police vehicles were parked with bright flashing lights. Oh, how very bright they are!!!

    I waited patiently to go through the traffic light for the intersection that was clogged up. As my turn came for the green light, I advanced slowly because the surrounding emergency lights were blinding. Suddenly, a highway patrolman appeared in front of my vehicle (apparently intending to cross in front of my vehicle on a green light) and slammed his hand on the hood of my car. He waved at me to stop, then asked for my license, and told me to pull over. He was immediately rude to the point that my children were upset and crying. I complied but he never provided an explanation. He left me there for 45 minutes. I finally grew impatient, got out of the vehicle, and found him to ask what was going on. He said he had called the county sheriff’s dispatch to investigate my striking him with my vehicle. I was astounded.

    I went back to my car and grew angry, debating whether to drive off. Did I have that right?

    I went back and told the trooper I was going to file a complaint and he of course said I could go right ahead. Suddenly, the trooper’s (younger) supervisor appeared and asked me what was happening. I explained my view and he asked me to calm down. The biggest problem, I told him, was that the officer was wearing no reflective clothing on a dark night illuminated with blinding emergency lights. Eventually the sheriff’s officers arrived, wrote up a report, and I was permitted to leave for home a celebrate the New Year, still mad as hell.

    Two days later I got a call from the sheriff’s office saying that the Highway Patrol supervisor instructed them to revise the report to indicate I was not at fault and was other “involved.”

    I have to wonder how this would have played out if I were not a senior, professional-looking, white male living in SC?

    1. SHG Post author

      There’s a reason why personal anecdotes are frowned upon here. It was a good story, but does it illuminate anything other than the cops ultimately did the right thing, even if the initial cop was a typical whiner?

      1. jfjoyner3

        OK, I get the message, I didn’t read the rule against personal anecdotes. Sorry, I will comply. But, no, one cop was intractable. It took another wiser cop to intervene. And still I have no clue why he did and I suspect his type is rare among enforcers.

  2. Sacho

    I find the judges’ position that 42 million African Americans – included in them the two judges opining on the issue – all share the same kind of experiences with police to be quite racist, but racism seems to be quite woke and progressive and tolerated nowadays.

Comments are closed.