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Second Circuit Reverses Denial of Motion to Suppress Evidence Found During Protective Search

Recently, in U.S. v. Hussain et al., No. 14-4425-cr, the Court (Calabresi, J., Lynch, J., Lohier, J.) reversed a district court’s denial of a motion to suppress a loaded gun found during a protective search of the defendant’s car.  In so doing, the Court noted its doubt that the same set of facts would have given rise to a suspicion of dangerousness had the Jamaican-American defendant been of a different race, gender, or socio-economic background.  This candid remark from the Court is in keeping with the social and political issues that have been raised more broadly about the need for fairness and the appearance of fairness in how our criminal laws are enforced.    

Defendant-appellant Damian Cunningham, a member of a Jamaican robbery gang, was stopped in his automobile by the police, allegedly on his way to commit a robbery.  The record only indicated, however, that the officers pulled Cunningham and his associate over for running a stop light.  The officers conducted a full protective search of Cunningham’s automobile and located a loaded handgun, which was later offered against Cunningham at his trial.  Cunningham moved to suppress the handgun on the basis that the police officers lacked reasonable suspicion of dangerousness sufficient to conduct a protective search of the car consistent with the Fourth Amendment.  The district court denied Cunningham’s suppression motion, holding that the following facts gave rise to reasonable suspicion of dangerousness:  (1) that the officer saw Cunningham move his arm toward the center console of the car as they approached; (2) that the officer observed Cunningham’s associate seated in an “unnatural position” that appeared intended to block the officer’s view of the inside of the car; and (3) that Cunningham was carrying a pocketknife when searched.  The record also showed that Cunningham did not immediately comply with the officer’s instruction to put his cell phone down when the officer approached the vehicle, although the district court did not expressly rely on that fact in denying the suppression motion.   

On appeal, Judge Lohier held, for the Second Circuit panel, that the factors identified by the district court did not suffice to establish a “reasonable suspicion” that the Cunningham posed a danger to the officers such that a protective search of the car was warranted.  Notably, the Court observed that it was unlikely that a stop “fitting the same fact pattern (but, say, different passengers of another race, gender, or ethnicity)” would lead the police to suspect that a protective search was necessary and justified.

Addressing the factors that the district court found to justify reasonable suspicion of dangerousness, the Court first noted that “a suburban father or mother reaching for a smartphone from the center console after a traffic stop to call a spouse or relative” would not normally justify a protective search.  The Court also rejected as sufficient to establish reasonable suspicion the fact that Cunningham did not immediately comply with requests to put down his cell phone and produce a driver’s license on the ground that these facts did not suggest dangerousness.  Finally, the Court rejected as insufficient to establish reasonable suspicion the fact that Cunningham was carrying a pocketknife, noting the fact that it was a legal pocketknife similar to those used by Eagle Scouts or marketed as Swiss army knives, and that Cunningham readily volunteered that he was carrying it.

While the panel applied established Fourth Amendment law to the facts of this case, the decision is notable for the Court’s discussion of whether the same facts at hand would have prompted suspicion of dangerousness in the context of a white, female, or suburban driver.  The panel asked the reader to imagine, on the same facts, whether police officers would have searched the passenger compartment of a car driven by two women, or two people who appeared to be businessmen.  It is unusual for the Court to explicitly suggest that these types of factors have played a role in motivating police conduct.  The Court also acknowledged the countervailing factors that might have led some judges to vote to affirm, including “[t]he urge to defer to the assessment of the district judge,” who the panel correctly described as “knowledgeable and experienced,” and the “facts implicating officer safety.”  The Court may now be taking a harder look in its Fourth Amendment jurisprudence as to whether implicit racial, gender, or socioeconomic biases, are factors in motivating police stops, searches, and seizures.

-By Patrick D. Gibson and Harry Sandick