Rare En Banc Second Circuit Says “Spread Eagle” Order Not a Search Over Spirited Dissents Decrying State of Fourth Amendment Jurisprudence
The Second Circuit, sitting en banc, reversed a panel decision holding that officers lacked reasonable suspicion to frisk defendant Calvin Weaver after a traffic stop. The en banc majority (Judge Nardini, who authored the opinion, Chief Judge Livingston, and Judges Cabranes, Sullivan, Bianco, Park, and Menashi) concluded that the officers’ order to “spread eagle” did not transform the stop into a search because it did not amount to a physical trespass or invasion of an area to which Weaver had a reasonable expectation of privacy. Moreover, the en banc majority concluded that the circumstances prior to the frisk provided reasonable suspicion that Weaver was armed and dangerous. Two judges (Judge Lohier, along with Judge Carney) concurred in affirming the district court decision while largely rejecting the majority’s rationale, while three judges (Judges Calabresi, Pooler, and Chin) all wrote separate dissents in which each joined, leaving the Court with a 7-2-3 vote split.