Second Circuit Criminal Law Blog

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.

The decision in Weaver is fact-dependent and does not mark a major departure in Fourth Amendment jurisprudence.  What makes the decision notable (aside from the rare nature of the Circuit sitting en banc) is the spirited debate amongst the judges about the role of race in policing in America’s cities and whether the current jurisprudence is protective of the rights of all Americans.  Whether or not one agrees with the decision to vacate the panel decision and affirm the district court, it is difficult to say that the current Fourth Amendment jurisprudence is working to prevent Black Americans from being stopped by police officers for what often appear to be pretextual reasons (such as traffic stops), and many of the longstanding doctrines in this area open the door to pretextual stops based on race and a lowered standard of protection for those Americans who live in so-called “high crime” neighborhoods.  The government prevailed in Weaver, although from the spirited concurring and dissenting opinions, it is plain that this decision is not the last word on these subjects.


In 2016, Syracuse police officers were driving in an unmarked police car, with tinted windows, in the “North West Side,” an area the officers later testified had a high rate of violent crime.  They saw Weaver, who “stared” at the police car for what one of the detectives testified was “longer than typically one would look at a vehicle.”  Another officer saw him give “an upward tug” to his waistband before getting in a car.  Shortly thereafter—as the dissenting judges point out, so soon afterwards that one can reasonably assume the officers followed the car—the officers pulled the car over for a failure to signal to turn “continuously not less than the last one hundred feet” before the turn, which is an indisputable (though perhaps not well-known or consistently enforced) violation of New York traffic law.  See N.Y. Veh. & Traf. Law § 1163(b). 

When the car pulled over, the rear passenger door swung open and quickly shut.  The officers approached the vehicle, and as they later testified, became suspicious of Weaver’s “unusual movements.”  Specifically, one officer testified that he saw Weaver “push down” on his pelvic area and squirm in his seat.  Weaver complied with the officers’ demands to show his hands, show his identification, exit the car, and move to the rear of the car with his hands on the trunk and his feet spread apart (i.e. a “spread eagle” stance).  When told to step back, Weaver said the ground was slippery (the officers testified it noticeably was not).  Weaver then apparently pressed or moved his torso against the vehicle, as if an object was there. This movement continued when the officers frisked him, at which point they discovered bags of cocaine and a firearm. 

The district court denied Weaver’s motion to suppress the firearm.  But a panel for the Second Circuit reversed that holding, and the Second Circuit decided to proceed en banc

The En Banc Decision

The majority opinion, concurring opinion, and three dissents reveal the judges’ differing views on the trajectory of stop and frisk law and Fourth Amendment jurisprudence.  Particularly in light of national movements for police reform, these opinions illuminate the ongoing debate about how to address laws—and the actions of the police officers enforcing them—that disproportionately harm black Americans and perpetuate systemic racism in American society. To be sure, few people in upscale, mostly White suburban neighborhoods are stopped and frisked by police because they signaled a turn too close to the corner, or because they looked fleetingly at an unmarked police car.  Judge Chin, in his dissent, asks rhetorically whether Weaver would have been stopped if he and the occupants of the vehicle had been White. 

The majority decision is certainly right that none of the officers, nor the district court, made express reference to Weaver’s race, and nothing in the record suggests that any acted out of an expressed bias.  There is also no doubt that in this case, the officers’ hunch was correct—Weaver was engaged in serious criminal activity.  Police officers who work in our cities—which are overrun with guns—need to be able to protect themselves from those criminals who would do them harm.  At the same time, to read these decisions and not reflect on the possible impact of Weaver’s race in the underlying events that led to Weaver’s arrest seems unmoored to America’s centuries-old history of racial bias in policing, a history that continues to the present day.[1] 

Much of the analysis by the majority, concurring judges, and dissenting judges turns on the facts and whether they give rise to a reasonable suspicion that Weaver was armed and dangerous.  The majority focuses on many circumstances that courts have found in the past to justify stops: furtive movements, a possible attempt to flee, looking closely at police cars, and the crime-level of the neighborhood.  Judges Lohier and Carney, who concurred in the judgment only, write that while the majority opinion was too broad, the specific facts of this case constrain the result.  While they disagree with the majority’s reliance on Weaver’s “staring” at the unmarked police car as a fact relevant to the reasonable suspicion analysis, they conclude that his other suspicious movements, and unfounded claim that the dry ground was slippery, compelled the conclusion that the officers had reasonable suspicion to conduct a frisk.  Moreover, they point out—perhaps as a suggestion to defendants in future motions to suppress—that district court judges ought to carefully consider what a “high crime area” is, and not just take the officers’ word for it.  In particular, the concurring judges write that an officer should be credited for his or her determination that an area has a high crime rate if that statement is supported by data.  Judge Lohier is surely right that it is easy for people to slide into stereotyping: “Because officers are more likely to perceive majority-minority neighborhoods as ‘high crime areas,’ African Americans are viewed suspiciously wherever they go.  Majority-minority neighborhoods become ‘high-crime’ neighborhoods, and otherwise innocent conduct appears to some as suspicious.” 

The dissenting judges interpret and weigh the facts even more differently.  Judge Calabresi, for instance, notes that this is a close case.  But, he says, Fourth Amendment jurisprudence and judicial interpretations of the Constitution in light of the exclusionary rule have accepted as reasonable increasingly unreasonable police action.  To be sure, he does not place blame on the courts for these interpretations.  The cases that end up in front of judges of course involve situations where an officers’ unreasonable actions—such as stopping and frisking a black man based on stereotypes—lead to some evidence of guilt.  But where a person’s liberty is violated and no evidence turns up, a court will rarely have to address the issue because of qualified immunity.

But both the concurring judges and dissenting judges question the continued viability of the Supreme Court’s decision in Whren v. United States, 517 U.S. 806 (1996).  In that decision, the Supreme Court concluded that police officers’ actual motivation in making a traffic stop is irrelevant to the constitutionality of that stop; that is, so long as the stop is objectively reasonable, there is no violation of the Fourth Amendment.  Instead, if a stop is actually racially motivated, the usual means of recourse for a victim is to sue for a violation of the Equal Protection Clause.  Even if victorious in that civil proceeding (a difficult task in the face of qualified immunity), the evidence obtained from the racially motivated stop can nonetheless be used against him or her in a criminal case.

As Judge Lohier writes, in cases where a stop is actually racially motivated, “Whren instructs that the driver has no recourse as far as his liberty is concerned, but that later on he may be able to sue for damages.”  This, he writes, is untenable in a multiracial society.  Individual states that declined to follow Whren have found judicially administrable paths forward, and the concurring judges argue that the judiciary and legislatures—who can regulate police beyond the minimum Fourth Amendment requirements—should similarly find a better solution to avoid pretextual stops.  As Judge Chin pointed out in his dissenting opinion, the hard reality of statistics have indicated that police officers collectively have used their power in a way that disproportionately leads to the stop and frisk of people of color.  He points out that in New York between 2014 and 2017, 84% of all frisks occurred during stops of Black and Latino people whereas only 9% occurred during stops of White people.  Even if no one in the system is mentioning the defendant’s race, the statistics suggest that something troubling is happening here. [2]

Finally, and of interest to criminal defense attorneys, is the dissenters’ discussion of the officers’ order to spread eagle.  Judge Pooler, joined by Judges Chin and Calabresi, writes that the order amounted to a search in and of itself; Judge Calabresi’s opinion describes it also as an additional seizure beyond the traffic stop.  In both cases, the officers needed to have reasonable suspicion prior to that order; without Weaver’s suspicious movements leaning into the car, the frisk was unreasonable. 

The majority, to the contrary, concludes that the order was not a physical invasion or encroachment into an area where Weaver had a reasonable expectation of privacy, and therefore was not a search.  Nor was there any additional seizure, since the traffic stop was the seizure.  But the majority does leave open the possibility that in some circumstances, a directive could be a search.  The concurrence agrees with the majority’s conclusion about whether the order was a search, but avoids the issue of whether it was an additional seizure since the question was not properly before the district court.


The five opinions—and many accompanying footnotes, which respond to colleagues’ arguments and paint a picture of the Court’s deep and often passionate disagreements on these important Fourth Amendment issues—provide plenty of ammunition for criminal defendants in motions to suppress.  Particularly, criminal defense attorneys ought to consider arguing that verbal orders a defendant complies with constitute an additional seizure or a search, and that officers’ determinations of “high crime areas” are not credible.  A strong contingent of the Court appears open to pragmatic approaches in an area of the law that has become increasingly scrutinized by the general public.  And a district court faced with a close decision may benefit from litigants’ assessment of their facts in light of the five opinions in this case.  Most Fourth Amendment law is decided in the district court, as a defendant who pleads guilty typically waives his right to appeal an adverse suppression decision, and so we will no doubt see district court judges trying to assess whether the facts of a future case are similar to Weaver.

Finally, as is often the case, Justice Thurgood Marshall correctly understood the problematic nature of relying on the officer’s assessment of particular traits or behaviors in assessing whether a stop and frisk is reasonable.  In his dissent in United States v. Sokolow, 490 U.S. 1, 13 (1989), Justice Marshall reviewed the different criteria that courts have found to be relevant to assessing whether an individual was a possible drug courier:

  • whether he was the first to deplane, the last to deplane, or deplaned in the middle;
  • whether he traveled on a one-way ticket or with a round-trip ticket;
  • whether he took a non-stop flight or changed planes;
  • whether he traveled with no luggage, a gym bag, or new suitcases;
  • whether he traveled alone or with a companion; or
  • whether he acted nervously or too calmly.

Justice Marshall explained that if any of these mutually inconsistent criteria are sufficient to support a stop, then there is no meaningful constraint on the power of police officers.  We see some of this in Weaver, where a decision to look at unmarked police car for a moment becomes some form of suspicious “counter-surveillance,” or where the officer’s subjective, unsupported assessment of a neighborhood as being “high-crime” can be part of the basis for a stop and frisk.  One hopes that over time, courts will find a way to advance Fourth Amendment jurisprudence in a way that prevents the unjust or arbitrary application of police authority without jeopardizing police safety.

By Maggie O’Neil and Harry Sandick

[1] See, e.g., James Baldwin, “Fifth Avenue, Uptown,” Esquire Magazine (July 1960) (found at (“Rare, indeed, is the Harlem citizen, from the most circumspect church member to the most shiftless adolescent, who does not have a long tale to tell of police incompetence, injustice, or brutality.  I myself have witnessed and endured it more than once.”).

[2] One other way to limit the use of police stops would be to modify the traffic laws so that they conform to the actual practices and expectations of most drivers.  There is no reason, for example, for the law that authorized this stop—few drivers turn on their directional signal 100 feet before making a turn—to remain in force.  Much like the marijuana possession laws that are being repealed in some states, the traffic laws often seem to exist in large part to justify stops and even arrests that otherwise would not be authorized.