En banc court upholds police search, producing passionate dissenting opinions

In a rare en banc ruling, the Second Circuit has held that a police officer legally searched a car passenger because he had reasonable suspicion that he was carrying contraband. The en banc ruling produced passionate dissenting opinions from three Circuit judges, one of whom suggested the search was actually motivated by race.

The case is United States v. Weaver, issued on August 17. It started when the police in their unmarked vehicle drove by a pedestrian who peered into the car window for a few seconds, "longer than one would typically look at a vehicle," one officer testified. The officers then saw the pedestrian, Weaver, tug his pants up as he approached another vehicle and got inside the car. Moments later, that vehicle activated the turn-signal too close to the intersection, and the officers pulled the car over. At that point, the officers grew suspicious of Weaver, who was pushing down on his pelvic area and squirming in the seat left and right. The officer thought Weaver was trying to push something down. They ordered Weaver out of the vehicle and made him stand spread-eagle against it; when Weaver did so, he seemed to be pressing his pelvic area toward the car. The officers conducted the search, finding guns and drugs.

The trial court denied the suppression motion, but the three-judge Court of Appeals panel overturned the trial court and said the search violated the Fourth Amendment because the officers acted on a hunch and lacked reasonable suspicion. Hearing the case en banc, the Court of Appeals rules, 9-3, that the search was legal.

Writing for the majority, Judge Nardini rules that the search was justified and that the suspicious behavior outside the vehicle (after Weaver was ordered to exit the car following the vehicle stop) factors into the determination of whether the officer had reasonable suspicion. This holding is a flash-point for the majority and dissenting judges. While the officer ordered Weaver to stand spread-eagle against the car, that order did not have any Fourth Amendment significance because it did not constitute a physical trespass or invade his privacy. While Weaver argues that a search begins when an officer pursues a course of action that would cause a reasonable person to believe he was being subjected to a search, that is incorrect, the majority says, and the real focus is whether the police committed a physical trespass into a protected area, or whether they violated a reasonable expectation of privacy. That order was not a search.

The search was otherwise reasonable, the majority holds, because by the time the officer searched Weaver, he had three times witnessed him make suspicious movements concentrated around his waist and pelvis: the pants tug on the street, the hip-shifting in the car, and the pelvic movements outside the vehicle. This evasive and furtive behavior is enough to support a Terry-stop.

In dissent, Judge Calabresi writes that search and seizure law has slowly creeped away from legitimate police practices because most published decisions on this issue are close-calls in favor of the police, prompting courts to push the line a little further each time in the officers' favor with each case. In part also because of qualified immunity, and that fact that an unlawful search may not create a financially viable lawsuit to start with, this means that few published cases favor the innocent people who are searched without producing any contraband. So the cases in this area mostly favor the police. An interesting dissent that notes that judges cannot relate to criminal defendants and will naturally identify with the police, figuring that police misconduct happens to other people, but not judges or their family and friends. He is especially critical of Supreme Court doctrine that precludes any consideration of an officer's subjective intent to searching and seizing motorists and other civilians, thereby permitting pretextual stops. Judge Chin notes in dissent that race may have been a factor in the decision to search and seize Weaver, noting that statistics show that Blacks are far more likely to be searched, arrested, and incarcerated, than Whites.