CA2: Lack of any justification for a stop distinguishes Strieff and finding arrest warrant wasn’t attenuated

The police lacked reasonable suspicion to stop defendant because about all they had was he was the same race as their suspect. Finding an outstanding arrest warrant didn’t attenuate the unreasonable stop. The lack of any justification for the stop distinguishes Strieff. The subsequent search incident to his arrest was invalid. United States v. Walker, 2020 U.S. App. LEXIS 21711 (2d Cir. July 14, 2020):

As discussed above, there are numerous reasons why the officers lacked any objectively reasonable suspicion to stop Walker. Most glaring is the fact that the email and photograph Montanino cited in justifying the stop contains no indication that the photographed individual had committed any crime, rendering Montanino’s explanation for stopping Walker so obviously deficient that it constitutes “deliberate, reckless, or grossly negligent conduct.” Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). Similarly, any reliance on the fact that Walker, like the photographed individual, was a black male with medium-to-dark skin tone, glasses, facial hair, and long hair is such an unsound basis that we cannot characterize it as mere negligence, especially when considering the significant costs of such conduct: “specificity in articulating the basis for a stop is necessary in part because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and severely exacerbate police-community tensions,” Dancy, 843 F.3d at 111 (internal quotation marks and citation omitted), in addition to subjecting individuals to the “humiliations of [] unconstitutional searches” based on race, Strieff, 136 S. Ct. at 2070 (Sotomayor, J., dissenting). With “discretionary policing” comes “opportunities for racial profiling.” Sarah A. Seo, Policing the Open Road 264 (2019).

The Government correctly points out that lack of reasonable suspicion alone is not enough to find conduct to be purposeful or flagrant in light of Strieff. But it is not simply the lack of reasonable suspicion that supports a finding of purposefulness or flagrancy here—rather, it is the extreme lack of reasonable suspicion. See Herring, 555 U.S. at 143-44 (observing that the exclusionary rule may apply when an officer’s search was “patently unconstitutional,” was “so lacking in sworn and particularized information that not even an order of court would have justified such procedure,” or was conducted “without a shadow of authority” (internal quotation marks and citations omitted)). In other cases in which the evidence and unconstitutional stops were sufficiently attenuated, the officers’ mistakes were less egregious. In Strieff, for instance, the officer had seen defendant Strieff exit a house believed to be a drug house based on a tip and the officer’s own surveillance. 136 S. Ct. at 2059-60. The officer’s central mistake was in failing to ascertain the length of time Strieff had spent at the house, thereby calling into question whether Strieff had been at the house for an illegal drug transaction. Id. at 2063. But unlike in Strieff, in which the suspicion of criminal activity was based on two independent sources suggesting drug activity in the house Strieff had exited, absolutely nothing in the record supports Montanino’s belief that the individual in the emailed photograph had committed a crime. And while the officer in Strieff had based his suspicions of Strieff’s criminality on observing Strieff exit the suspected drug house, Montanino’s suspicions were largely based on Walker’s skin color.

Similarly, in United States v. Mendez, 885 F.3d 899, 905 (5th Cir. 2018), although the officers lacked reasonable suspicion in stopping and searching defendant Mendez’s car, they only did so to detain Mendez while other officers executed a search warrant at Mendez’s home. Mendez was known to be “armed, dangerous, and unstable,” he was a suspect in a drive-by shooting, and “there were bullet-riddled vehicles sitting in his front yard.” Id. at 912. Accordingly, the Fifth Circuit concluded that the officers “were motivated by genuine, serious, and objectively reasonable safety concerns.” Id. By contrast, Montanino had no indication that any crime had been committed, let alone a violent crime. Nor was there any other allegation that Walker was considered armed or dangerous.

Even if Montanino’s justification for the stop were not woefully anemic, the officers’ conduct is purposeful or flagrant for yet another reason. Any suspicion that Walker was the individual in the photograph was dispelled when Montanino approached Walker and could confirm that he was not the photographed suspect. Nonetheless, pursuant to the Troy Police Department’s stop-out practice, the officers ran a search for outstanding warrants against Walker and Hopkins. But after the dissipation of any reasonable suspicion, there was simply no cause to run Walker and Hopkins’s identifications for warrants—beyond, that is, a mere fishing expedition “in the hope that something would turn up.” Strieff, 136 S. Ct. at 2064 (internal quotation marks and citation omitted). Given that the officers’ conduct continued after the elimination of any reasonable suspicion that may have existed, suppression is warranted. See, e.g., United States v. Lowry, 935 F.3d 638, 644 (8th Cir. 2019) (emphasizing the absence of evidence “that Officer Hand knew that he lacked reasonable suspicion and flagrantly disregarded that fact” in concluding that the conduct was not purposeful or flagrant).