CA4: Officers watching def on a CI’s tip saw a handshake which they surmised was a drug sale; no RS from a handshake

“In order to sustain reasonable suspicion, officers must consider the totality of the circumstances and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. Here, officers relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a handshake between Appellant and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged. Moreover, the officers concluded this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Appellant went into a store, rather than immediately leaving the scene. On these facts, we agree with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Appellant.” United States v. Drakeford, 2021 U.S. App. LEXIS 8889 (4th Cir. Mar. 26, 2021):

In addition to the tip from the informant, the Government relies heavily on the second handshake that occurred between Appellant and one of the men he met at the Car Stereo Warehouse. But, before we address the second handshake, we pause to highlight the fact that although Appellant purportedly received a re-supply of drugs on either Feb. 2, 3, or 4, it was not until nearly a week later, on February 9 that law enforcement determined to stop Appellant. And, at no point did the officers attempt to set up a controlled purchase with the informant whom they directed to ask Appellant about his drug supply.

As to the notorious second handshake, the Government contends this second handshake provided the officers with reasonable suspicion because Detective Murphy testified that the second handshake was a “hand-to-hand” transaction. However, Detective Murphy never provided more than this conclusory testimony. In fact, Detective Murphy never witnessed drugs or money change hands, and his testimony did not provide any details about the handshake that allows us to view this second handshake as suspicious. See United States v. Foster, 634 F.3d 243, 247-48 (4th Cir. 2011) (finding that officers did not have reasonable suspicion in part because officers never saw the defendant “in the possession of any drugs, money, weapons or paraphernalia”). The Government encourages us to look at this handshake within the totality of the circumstances. Even doing so, we cannot hold that officers’ bare suspicion of drug trafficking — without more — can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs. This cannot amount to reasonable, particularized suspicion. The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.

3.

Further, when considered within the panoply of the totality of the circumstances in this case, both the informant’s information and the second handshake become even less convincing. While the Government attempts to rely on officers’ suspicions about Appellant’s activities allegedly involving narcotics, the officers’ surveillance provided them with nothing more than a single suspected drug exchange in which officers found no drugs, even after searching the white pickup truck that was suspected to be involved, and another incident in which Appellant simply drove to a gas station, parked, and left. We cannot see how these events elevate the officers’ hunch that Appellant was engaged in drug trafficking to reasonable suspicion. Additionally, despite surveilling Appellant over the course of several months — ten times at the address associated with him and more than 30 times at the female’s address — officers never observed suspicious behavior or drug transactions at those locations. Not once.

Shaking hands while Black.

See Techdirt: Fourth Circuit Appeals Court Takes Aim At Police Officers’ ‘Training And Expertise’ Assertions by Tim Cushing;

Forbes: Federal Court Slams Cops Who Claimed Black Men Shaking Hands Was A Drug Deal by Nick Sibilla