A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click to download Opinion104209.P

The United States Court of Appeals for the Fourth Circuit has decided the case of UNITED STATES of America v. Tyerail D. MASSENBURG, Appellant, No. 10–4209, 2011 WL 3559897 (Aug. 15, 2011). The Defendant was convicted by a conditional guilty plea in the United States District Court for the Eastern District of Virginia of possession of a firearm by a drug user and possession of marijuana.

Responding one night to an anonymous tip that shots were fired in a high-crime neighborhood, Richmond police encountered four young men, including appellant Tyerail Massenburg, four blocks from the reported gunfire. When an officer approached them in a marked police car, the men were not evasive; they continued walking forward, toward the car, and voluntarily paused to speak with the officer upon the officer’s request. In fact, they were cooperative: one of the men reported that he had heard shots fired from a passing car two blocks away and handed over his identification when asked; and at least two of the men consented to voluntary pat-downs. Appellant Massenburg stopped with his friends, but he refused to consent to a frisk. As the officer interacting with Massenburg testified, he first thought Massenburg nervous when he began asking him to consent to a pat-down and Massenburg was “real reluctant to give consent.” Based on the fact that appellant stood a foot or two away from the other men, who were shoulder-to-shoulder, and did not make eye contact as the officer renewed his requests for a consensual search, the officer undertook a nonconsensual search. The search produced a firearm and some marijuana, which were the subjects of the defendant’s suppression motion, which was denied by the District Court.

The Panel first ruled that refusing to consent to a search cannot itself justify a nonconsensual search. As to the tip about gunshots in the area, the Court stated the following: “Allowing officers to stop and frisk any individuals in the neighborhood after even the most generic of anonymous tips would be tantamount to permitting a regime of general searches of virtually any individual residing in or found in high-crime neighborhoods, where complaints of random gunfire in the night are all too usual. James Otis famously decried general searches as “instruments of slavery … and villainy,” which “place the liberty of every man in the hands of every petty officer,” warning against abuses by “every man prompted by revenge, ill humor, or wantonness.” … The Fourth Amendment, and the courts’ Fourth Amendment jurisprudence, is aimed at this evil. Without reasonable particularized suspicion of wrongdoing, such searches and seizures offend the Constitution.”

Therefore, the district court’s order denying the motion to suppress was reversed.

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