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.