Second Circuit Criminal Law Blog

Second Circuit Nixes Conviction Based on Racially-Motivated Stop

In United States v. Walker, the Second Circuit (Calabresi, Pooler, Carney) considered a challenge to the conviction of Jaquan Walker on drug charges.  Police officers found drugs on Walker after they stopped and questioned him.  The justification for the stop was that Walker resembles an image of a black man believed to have been involved in a shooting, and because Walker happened to be walking about five blocks from the site of that shooting.  In a remarkably pointed decision, the Circuit threw out the conviction.


On September 1, 2017, Sergeant Peter Montanino of the City of Troy Police Department received an email from another officer stating: “trying to ID suspect #2 in this photo.”  Attached to the email was an image of a black man of thin build and medium height labeled “suspect #2.”  Montanino would later testify that he believed the email related to a recent shooting.  The email itself, however, did not identify suspect #2 as the suspected shooter, or mention a shooting at all.

The following day, Montanino was on patrol in the central business district, near the scene of the shooting, when he came across Walker and his friend Javone Hopkins.  Remembering the email from the prior day, Montanino suspected that Walker or Hopkins could be suspect #2 because both were, as Montanino described, “medium to dark skin toned black males” with a “thin build” and “goatees.”

Montanino called over two of his subordinates, officers Owen Conway and Martin Furciniti, asking whether they recognized either Walker or Hopkins.  The other officers were unable to identify Walker or Hopkins after observing them from their patrol car, so Montanino decided to conduct what was called a “stop out.”  In the Troy Police Department, a “stop out” refers to a standard practice whereby officers get out of their vehicle, approach a pedestrian and request identification, and then check for any outstanding warrants. 

Proceeding with the “stop out,” Conway and Furciniti pulled their vehicle up ahead of Walker and Hopkins, while Montanino pulled his up behind them.  The officers got out of their vehicles, converged on Walker and Hopkins, and instructed them to stop.  At this point, the officers discerned that neither Walker nor Hopkins was suspect #2.  Nonetheless, the officers asked Walker and Hopkins for identification, and the two complied.  Hopkins had no warrants and was permitted to leave.  Walker, however, had an outstanding felony warrant.  The officers placed Walker in handcuffs.  A search incident to the arrest uncovered marijuana and fifty grams of crack cocaine. 

Walker was charged with possession with intent to distribute a controlled substance.  In pretrial proceedings, Walker moved to suppress the drug evidence on the ground that the officers lacked reasonable suspicion of a crime when they stopped him and Hopkins.  The District Court denied the motion, finding the stop proper because Walker (1) resembles the image of suspect #2 in that they both are medium-to-dark skinned males with a thin build and facial hair, and (2) was walking about five blocks from the scene of a previous shooting.  It held that the initial stop was lawful and that the arrest and incidental search were lawful on account of the arrest warrant. 

Having lost the suppression motion, Walker agreed to enter a conditional guilty plea that preserved his right to appeal the denial of his motion. 

The Circuit’s Decision

On appeal, Walker again argued that the officers improperly stopped him because they did not have reasonable suspicion of a crime.  The panel reversed the denial of Walker’s suppression motion; this was not a close case.

By way of background, a law enforcement officer may, in some circumstances, stop an individual for questioning, even if the officer does not have probable cause to arrest the individual.  To conduct such a stop—often referred to as a Terry stop—the officer must have a reasonable suspicion that the individual is committing or has committed a crime.  Terry v. Ohio, 392 U.S. 1, 22 (1968).  If an officer stops someone without such reasonable suspicion, the stop is unlawful, and any evidence obtained pursuant to that stop is generally inadmissible.  Terry was a late-Warren Court decision, a setback for defendants and a ruling rendered after numerous decisions that affirmed the right of the accused, and at a time when crime rates were beginning to rise.  Over time, Terry stops have become contentious because of racial disparity in who police decide to stop in many major cities, including cities in New York State.

Here, the panel had “little trouble” concluding that Montanino, Conway, and Furciniti lacked a sufficient basis to stop Walker.  The panel identified several reasons why stopping Walker was unlawful. 

First, the email and accompanying photograph depicting suspect #2 did not set forth specific and articulable facts showing that a crime had occurred.  The email did not mention a crime, much less a shooting, much less that suspect #2 was the suspected shooter.  Given that the picture did not provide reasonable suspicion that suspect #2 has committed a crime, it would have been unlawful to stop suspect #2 even if officers were certain of his identity.

Second, even if the email had sufficiently articulated that suspect #2 had committed a crime, the fact that both suspect #2 and Walker are medium-to-dark skin males with thin builds and facial hair was insufficient to generate a reasonable suspicion that Walker was suspect #2.  As the panel noted, “black male” and “medium-to-dark skin” are descriptors that capture a wide swath of individuals.  So too for the other similarities between Walker and suspect #2.  Even combining these characteristics, the panel was not convinced that the similarities identified by Montanino identified a narrow enough subset of individuals to constitute a reasonable suspicion that Walker was suspect #2.  As the panel pointed out, even Terry warned that courts needed to “guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.”  392 U.S. at 15.

Finally, the fact that Walker had been walking a few blocks from the scene of a previous shooting was insufficient to raise a reasonable suspicion that he was involved in the shooting.  The area where officers stopped Walker was the central business district of Troy and it was not uncommon for pedestrians to walk there during that time of the afternoon. 

Although the panel found the initial stop unlawful, this does not end the inquiry because the government contended that the outstanding warrant permitted the arrest and search of Walker, under the so-called “attenuation doctrine.”  Under that doctrine, even if an initial stop is unlawful, evidence is admissible if “the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.”  Here, the government argued that the outstanding warrant was an intervening circumstance that permitted the officers to arrest and search Walker. 

The panel disagreed.  Courts weigh three factors in deciding whether to apply that exception to the exclusionary rule. 

The first factor is the temporal proximity between the unconstitutional conduct and the discovery of the evidence.  This factor clearly cut against attenuation because the drugs were found on Walker’s person mere minutes after the unlawful stop. 

The second factor is the presence of an intervening circumstance.  An outstanding arrest warrant for an unrelated offense has been recognized as an intervening circumstance, so that factor weighed in favor of attenuation. 

The final, and here decisive, factor is whether the officers’ conduct was purposeful or flagrant.  The panel concluded that the officers’ conduct here was indeed flagrant for two reasons.  First, there was an extreme lack of reasonable suspicion that Walker had committed a crime.  As discussed, the entire premise of the stop—the email and image of suspect #2—was flawed because nothing in the email identified a crime or identified suspect #2 as having committed a crime.  Second, the similarities between Walker and suspect #2 were far too general to justify a stop.  Indeed, there were likely many pedestrians walking in the central business district that fit Montanino’s recollection of suspect #2.  In addition, the panel found the officers’ conduct flagrant because they continued questioning Walker even after they realized he was not suspect #2.  At that time, any reasonable suspicion supported by the image of suspect #2 vanished, and the officers should have ended the stop forthwith.

Having determined that two factors weigh against attenuation, the panel held that the attenuation doctrine did not apply.  Because the stop was unlawful, the evidence obtained while searching Walker was inadmissible.  Walker’s conviction was vacated, and the case sent back to the District Court.  In all likelihood, Walker will not be retried on these charges because the drugs are no longer admissible as evidence.


Although the panel did not expressly label Montanino, Conway, and Furciniti’s conduct as “racial profiling,” the panel was clearly disturbed by the proffered justification for stopping Walker.  If the officers were justified in stopping Walker, they would essentially be justified in stopping almost any black man walking anywhere near a crime scene.  This becomes clear in view of the image of suspect #2.

The image is so non-descript that an officer could conceivably stop any black man of average height and weight based on this photograph. 

Permitting stops such as this one undermines the protections afforded by the Fourth Amendment against unreasonable search and seizure.  Equally important, the decision must also be viewed in light of the disturbing reality that black men are disproportionately stopped, questioned, and arrested by police at a higher rate than other demographics.  These racially-motivated stops undermine trust in law enforcement and exacerbate racial inequalities.  The stop in this case is particularly troubling because it appears to be part of a standard practice of the Troy Police Department to stop individuals who “are unknown to officers.”  The panel did not decide whether this policy is inherently unconstitutional (it likely is), but it is clear that such a policy increases incidents of racial profiling by giving officers carte blanche to stop and question whoever they choose.

Hopefully this decision will serve as a wakeup call that officers may not stop someone without an adequate reason to think the person is committing or has committed a crime.  One can only hope that police departments reevaluate their practices in light of this opinion.  Although Walker won his case, he is just one of many victims of overzealous policing.  Congress is considering legislation to prohibit racial profiling by police officers and police departments, which is—to say the least—long overdue.  See H.R. 7120, Title III, Subtitle A (“End Racial and Religious Profiling Act of 2020”) (engrossed in House June 25, 2020).[1]

By George B. Fleming and Harry Sandick