Defendant’s stop and frisk was unjustified by reasonable suspicion; no real crime was afoot

W.D.N.Y. suppresses a stop and patdown of a man on the street who vaguely matched a description of somebody “looking to break into cars.” United States v. McCloud, 2007 U.S. Dist. LEXIS 85542 (W.D. N.Y. August 16, 2007):

On this record, I find that the interaction between Jones and McCloud began as a consensual encounter which required no legal justification. Jones’s simple request that McCloud speak with him would not have suggested to a reasonable person that he or she was not free to leave. See Florida v. Bostick, 501 U.S. at 439. As the government concedes, however, the encounter quickly evolved into a Terry stop upon Jones’s direction that McCloud put his hands behind his back and submit to a pat search for weapons. (Tr.A 12). Like the government, I believe that a reasonable person in McCloud’s position would not have felt free to disregard Jones’s instruction. See California v. Hodari D., 499 U.S. 621, 627 (1991) (“since the addressee [of a police order to stop] has no ready means of identifying the deficient [orders] it almost invariably is the responsible course to comply”). In fact, Jones himself testified that at that point during the encounter McCloud was not free to leave. (Tr.A 16).

The question whether the Terry stop of McCloud was justified by reasonable suspicion is, in my view, a close one. Indeed, had McCloud complied with Jones’s initial direction, I likely would find that the seizure was unsupported by reasonable suspicion. At the time of that direction, Jones’s suspicion was based upon (1) his belief that McCloud matched the description of the suspect; (2) McCloud’s presence near the location of the alleged suspicious activity at a time close to the time of the 911 report; (3) the virtual absence of any other individuals present near the scene; (4) the fact that it was one o’clock in the morning in an area of the city known to have a high incidence of crime; (5) McCloud’s failure to turn his head toward the patrol car when Jones first passed him; and (6) McCloud’s unprompted production of his identification when Jones asked to speak to him. It seems unlikely to me that these facts — taken alone or together — provided reasonable suspicion to justify a Terry stop of McCloud.

The most that can be said about McCloud’s physical description is that it was not inconsistent with the information provided in the 911 call. I cannot say, however, that McCloud matched a description of the suspect because identification of race, even accompanied by a vague characterization of clothing, does not describe a suspect with sufficient detail or identifying characteristics to meaningfully set him apart from other members of the community. See United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) (“race when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop”). Moreover, it is open to question whether McCloud’s medium-colored blue jeans and hooded sweatshirt fit the description of dark pants and a jacket.

Comment: The U.S.M.J. was more solicitous of the government’s position than he needed to be: “may I speak to you” from a cop on the street is not realistically a request subject to consent when a cop asks it on the street because refusal has consequences. The comment that this Terry question is a “close one” is just wrong–it is not close at all–but it is an open invitation to the District Judge to reverse it. There was no real crime “afoot,” as required by Terry. The 911 call was about a potential breaking into a car, and the defendant had nothing in his hands and was not even acting suspicious when he was stopped. He was just in the wrong place at the wrong time, and the patdown produced evidence unrelated to the factual basis of the stop.

Plaintiffs’ car was blown up because it was parked near a multi-national meeting demonstration site, and the police were concerned that it might have a bomb in it. It didn’t. If the police reasonably believed it contained a bomb, they would have acted reasonably, but fact questions remained, so summary judgment was denied. Vogel v. City of Miami, 2007 U.S. Dist. LEXIS 85438 (S.D. Fla. November 8, 2007).*

A mere assertion that an informant did not exist was so conclusory that it was insufficient to state a claim for a civil Franks violation. White v. Wilder, 2007 U.S. Dist. LEXIS 85506 (S.D. Miss. November 7, 2007).*