State v. Spears, decided February 12, 2020: Police can Stop and Question You without Probable Cause in SC
According to the SC Supreme Court, police can stop and question you without probable cause in SC, as long as you are “free to leave.”
What does free to leave mean? It’s a legal fiction that doesn’t really mean, “free to leave.” For example, if three armed police officers follow you down the road, stop you, and start interrogating you about drug crimes, would you feel free to leave?
Our SC Supreme Court justices would, apparently.
If you are stopped by armed police officers, you can just ignore their questions and say, “Am I free to go?” If the officer says yes, then you must walk away from them. Because, according to the SC Supreme Court, that would be perfectly reasonable, and the officers will probably just let you walk away…
Police can Stop and Question You Without Probable Cause in SC
If you thought the Bill of Rights protected you from being stopped and questioned without probable cause, you were wrong. According to the SC Supreme Court, if you are walking down the street in SC, police do not need probable cause to stop you and question you.
Police Cannot Stop and Question You Without Probable Cause if You are Driving
What if you are driving down the road?
Police can stop your vehicle if they have probable cause that you are committing a traffic violation or other crime. Then, they can hold you on the side of the road, but only long enough to check for warrants and write your ticket.
If, while the officer is running a license check and writing your ticket, the police develop a reasonable, articulable suspicion that there is another crime happening (the smell of marijuana, drugs or weapons in plain view, for example), then they can further detain you to investigate the new crime.
The Fourth Amendment protects us from unreasonable search and seizure – this is why police cannot just stop any car they like and search without probable cause or a reasonable, articulable suspicion that a crime is being committed.
Doesn’t that also apply if you are walking down the street?
Police Can Stop and Question You Without Probable Cause if You are Walking
In State v. Spears, three plain-clothed agents, wearing visible firearms, were investigating a tip that two black males (they had their names and descriptions) were bringing drugs into the state on a bus line.
They didn’t see their targets, so, instead, they followed Spears and his girlfriend as they left the bus station with their luggage until they were in an isolated section of the road, then stopped them and began questioning them.
What was the probable cause to stop them?
- They weren’t being greeted by relatives or friends;
- They weren’t being picked up by a cab;
- They weren’t talking on the phone;
- They had suitcases;
- They paid “an excess amount of attention to the plain-clothed agents” who were staring at them; and
- They walked down the road away from the agents.
As the passengers were exiting the bus, most of the passengers were being greeted by relatives or friends, being picked up by cabs, or talking on the phone (presumably making arrangements to be picked up). However, the agents observed a man and a woman with four large suitcases who “stuck out” because “they were paying an excess amount of attention” to the plain-clothed agents. A few minutes later, the man and woman began walking down the road away from the agents.
While Spears and his girlfriend were walking down the road, with the agents “walking briskly” behind them, “the agents observed the woman remove an unknown object from her purse and pass it to the man.” A pack of cigarettes? A lighter? A tissue to blow his nose? A cell phone?
After the three armed agents stopped Spears and his girlfriend, an agent searched Spears and found crack cocaine in his waistband.
Why was it okay for the agents to follow Spears and his girlfriend down the road, stop them, interrogate them, and search them without probable cause that any crime was being committed?
Because, according to the SC Supreme Court, they were free to leave…
Free to Leave: A Legal Fiction that Allows Police to Detain You Without Probable Cause
Under the Supreme Court’s reasoning in this case, police can stop anyone and interrogate them while looking for evidence of a crime, as long as the person is “free to leave.”
What does “free to leave” mean? It’s unclear where the Supreme Court would draw the line. If you are in handcuffs? If the agent is pointing a gun at your head? The only lesson I can convey from this Supreme Court opinion, other than “the Fourth Amendment does not protect you from seizure except in the most extreme circumstances,” is “immediately ask if you are free to go anytime you come into contact with a police officer.
If they say no, then there is no question you are being detained and the Fourth Amendment applies. If they say yes, walk away.
Of course, you may get beaten up, arrested, or even killed when you walk away from the police. But that is what the Supreme Court says you must do – I am sure that if any Supreme Court justice said, “Am I free to go?” and then walked away from a police encounter, they would be fine.
So, the rest of us can do it too, right?
Why No One Would Have Felt Free to Leave
No one (excepting possibly a Supreme Court justice) would have felt “free to leave” under the circumstances in this case.
As the Court of Appeals and the dissent point out:
- Spears, a black man, was being followed down the street by three police officers;
- They had visible firearms as they followed him;
- They followed him to an isolated area;
- They “quickened their pace” to catch up with him;
- When they stopped Spears, they asked him if he possessed any illegal items;
- They told him there had been problems on the bus lines with drugs and counterfeit merchandise
Under the totality of the circumstances, a reasonable person in Spears’s shoes would not feel free to terminate the encounter with law enforcement…
In my view, under these circumstances, a reasonable person would feel like he or she was suspected of wrongdoing and thus obligated to comply with the agent’s requests. Indeed, this is the only logical conclusion a person in Spears’s situation could draw. This was not a situation in which the officers questioned passengers at random as they disembarked—Spears was singled out, followed, and questioned. Therefore, under the totality of the circumstances, I do not believe a reasonable person in this situation would feel at liberty to terminate the encounter with law enforcement. Accordingly, I would find Spears was seized under the Fourth Amendment.
Why Spears was not Free to Leave
Although no one would have felt free to leave under the circumstances, Spears was a black man being followed by three armed police officers…
Does his race matter? The dissent thinks so, and both objective research and the subjective reality experienced by many African Americans in the United States support it:
Spears is an African-American male. Scholars have examined ad nauseam the dynamics between marginalized groups—particularly African-Americans—and law enforcement. African-Americans generally experience police misconduct and brutality at higher levels than other demographics. Consequently, it is no surprise that scholars have also found African-Americans often perceive their interactions with law enforcement differently than other demographics. “For many members of minority communities, however, the sight of an officer in uniform evokes a sense of fear and trepidation, rather than security.” Robert V. Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person”, 36 How. L.J. 239, 247 (1993). Moreover, “[g]iven the mistrust by certain racial, ethnic, and socioeconomic groups, an individual who has observed or experienced police brutality and disrespect will react differently to inquiries from law enforcement officers . . . .”). Id. at 253. Unfortunately, under our existing framework, this can result in the evisceration of Fourth Amendment protections for many people of color.
Have the courts recognized the existence of racial disparities in policing? Yes:
Courts have also noted the existence of racial disparities in policing.
[O]ur court addressed at length “the burden of aggressive and intrusive police action that falls disproportionately on African-American, and sometimes Latino, males” and observed that “as a practical matter neither society nor our enforcement of the laws is yet colorblind.” There is little doubt that uneven policing may reasonably affect the reaction of certain individuals—including those who are innocent—to law enforcement.
United States v. Brown, 925 F.3d 1150, 1156 (9th Cir. 2019) (quoting Washington v. Lambert, 98 F.3d 1181, 1187–88 (9th Cir. 1996)). United States Supreme Court Justice Sonia Sotomayor has intimated:
But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal citations omitted); see Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (finding the City of New York liable for the New York Police Department’s stop-and-frisk policy, which violated plaintiffs’ constitutional rights, and noting the racial disparities in the policy’s implementation).
Was the search justified?
If there had been a valid reason to stop and detain Spears, the “Terry frisk” was probably justified – the agents testified the girlfriend handed something to Spears as they walked down the road, and the Court cites the agent’s testimony that Spears kept putting his hands into his pockets after he was asked not to.
Maybe this is enough to create a “reasonable, articulable suspicion” that there was a weapon and a pat-down was needed for the agent’s safety.
It does not justify following Spears and his girlfriend and stopping them in the first place, however. If they had not detained Spears without probable cause, there would have been no need for a Terry frisk…
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