D.Mass.: No RS for stop; court disagrees with case it has to follow

The officer had just less than reasonable suspicion under binding authority that this judge doesn’t agree with, so the motion to suppress is reluctantly granted. United States v. Smith, 2015 U.S. Dist. LEXIS 5512 (D. Mass. January 16, 2015)*:

1. Officer Horne’s non-coercive initial encounter with Smith and his request for Smith’s name and efforts to engage him in conversation were permissible and authorized by law.

2. Smith’s initial refusal to respond to Horne’s questions and his attempts to continue on his way without stopping were permissible and authorized by law.

3. Almost none of the traditional indicia of articulable suspicion were present. …

4. In sum, while Horne, as an experienced officer, had a well-honed hunch that the object that Smith had thrust in his pocket was a gun, he did not have a sufficient articulable basis for conducting a Terry stop or undertaking a frisk of Smith’s person.

5. Horne’s physical contact with Smith and the grabbing of his pocket constituted a seizure within the meaning of the Fourth Amendment.

6. Prior to the First Circuit’s panel decision in United States v. Camacho, 661 F.3d 718 (1st Cir. 2011), Smith’s subsequent physical resistance to the frisk and his attempt to flee from an arrest would have been deemed an intervening act breaking the chain of causation, thereby dissipating any taint created by the illegal detention. See United States v. Bailey, 691 F.2d 1009, 1016-1017 (11th Cir. 1983) (en banc) (resistance to an even unlawful arrest provides sufficient and independent grounds for a second arrest for a new and distinct crime); United States v. Sprinkler, 106 F.3d 613, 619 (4th Cir. 1997) (same); United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995) (same); United States v. Garcia, 516 F.2d 318, 319-320 (9th Cir. 1975) (although stop was illegal, suspect’s subsequent flight supported probable cause for arrest); United States v. Sheppard, 901 F.2d 1230, 1234-1236 (5th Cir. 1990) (evidence not suppressed when, after an alleged Fourth Amendment violation, suspect consented to search of vehicle but then fled); Commonwealth v. King, 389 Mass. 233, 245 (1983) (driver’s intervening action of attacking officers dissipated the taint of an unlawful seizure).

7. The Camacho decision is (to my mind) wrongly decided and inconsistent with prior First Circuit precedent, as Judge Boudin pointed out in his vigorous dissent. See United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (police were shot at during an allegedly illegal search; court held that the shooting “was an independent intervening act which purged the taint of the prior illegality.”). Nonetheless, where panel decisions of the Court of Appeals conflict, my understanding is that the most recent panel decision, in this case Camacho, is binding on the district court.

8. There are no sufficient distinctions in the relevant facts that would differentiate this case from Camacho.