CA2: Being in a high-crime area doesn’t add to RS; stop here lacked RS

Reasonable suspicion was lacking. Being in a high-crime area doesn’t add much of anything. United States v. Weaver, 2020 U.S. App. LEXIS 29187 (2d Cir. Sept. 15, 2020)*:

In sum, we do not believe that any of the facts the Government raises can support an objectively reasonable suspicion that Weaver was armed and dangerous. Whether assessed independently or collectively, at most the SPD had a reasonable suspicion that Weaver was hiding something. But the Fourth Amendment requires more.

The dissent disagrees. Despite agreeing that a Terry frisk involves a “more specific analysis, requiring the officer to hold a reasonable suspicion that the subject is ‘armed and dangerous’ as opposed to being generally suspicious,” Williams, 731 F.3d at 686 (citation omitted), the dissent would have us hold that Weaver’s ambiguous conduct gave rise to reasonable suspicion that he was armed and dangerous. According to the dissent, the presence of alternative explanations does not negate reasonable suspicion. But what we must look at is “the degree of suspicion that attaches to particular types of noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10 (1989). We agree that officers are not required to rule out every innocent explanation, but that does not mean, as the dissent would have us believe, that any conduct consistent with, or possibly suggestive of, weapon possession satisfies the reasonable-suspicion standard. That proposition is belied by our decision in Hussain, 835 F.3d at 316. And while we give “due weight” to officers’ reasonable inferences, Ornelas v. United States, 517 U.S. 690, 699 (1996), due weight is not determinative weight.

The importance of Fourth Amendment rights demands careful scrutiny of those facts offered by the police to support reasonable suspicion. This need is perhaps even greater when searches or seizures do result in criminal evidence. “When a search uncovered criminal evidence, enterprising cops soon learned what was expected of them: an additional fact besides the violation of some traffic law. Articulating something out of the ordinary—a nervous glance, shaking hands, a revealing smell—when asked for one in a court of law was especially easy when they caught someone red-handed.” Sarah A. Seo, Policing the Open Road 237 (2019). But as Seo explains, “Requiring an ‘unusual’ fact did little to eliminate pretextual stops.” Id. “In practice, more often than not, ‘all the facts and circumstances’ rationalized discretionary”—and often discriminatory, we might add—”policing of people who were, in fact, guilty.” See id.

Because the officers lacked an objectively reasonable belief that Weaver was armed and dangerous, the frisk was unconstitutional, and the firearm seized must be suppressed as the fruit of an unconstitutional search.

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