Police responded immediately to the sound of nearby gunfire in Creighton Court the night of Sept. 8, 2017, in what might have been just another all-too-common incident.
Prosecutors say the resulting search of Billy Curry Jr. and the recovery of a handgun was fraught with danger. Curry’s lawyers say constitutional rights also were put at risk by the search, a contention that prompted the scheduling of a rare hearing Thursday before the full 4th U.S. Circuit Court of Appeals.
Curry, a felon, was indicted by a federal grand jury for possessing a firearm. His lawyers contend that police violated his right against unreasonable search and seizure under the Fourth Amendment because they did not have a reasonable suspicion that he was breaking the law when they went to frisk him.
U.S. District Judge M. Hannah Lauck agreed and granted Curry’s motion to toss out the evidence discovered in the search. The judge rejected the prosecutors’ argument that the warrantless search was allowed under the “exigent circumstances” exception when there is imminent danger to public safety.
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In her ruling in March 2018, Lauck wrote that even taking into account the training and experience of the officers and their concern for safety, they lacked a reasonable, “particularized” suspicion for stopping Curry rather than other people who were also in the area and simply walking away from the scene of the gunfire.
The government appealed Lauck’s ruling to the Richmond-based 4th U.S. Circuit Court of Appeals, and last year a panel of judges, in a 2-1 ruling, overturned Lauck. Curry’s lawyers appealed the panel’s ruling and asked the full court to consider the question.
Because so few cases are taken up by the U.S. Supreme Court, the 4th Circuit is the court of last resort for almost all matters in Virginia, Maryland, West Virginia, North Carolina and South Carolina. And almost all appeals are heard by three-judge panels of the court’s 15 judges, not the full court.
Thursday’s rehearing by all of the judges is something the court grants only 0.3% of the time it is requested.
Carl Tobias, a professor at the University of Richmond School of law, said that such “en banc” hearings are held to maintain uniformity of the court’s decisions, or when a case involves a question of exceptional importance.
“The full court often modifies the three-judge panel opinion, because judges who agree with that opinion are unlikely to vote to rehear en banc,” Tobias said.
The case began around 9 p.m. that night when officers in a patrol car near Creighton Court heard five or six shots fired nearby and rushed to the scene. There had been six shootings and two homicides in the public housing community in the prior three months.
Curry was stopped by police and searched near the shooting scene and was found in possession of a .38-caliber revolver. He was initially charged in Richmond Circuit Court but then indicted by a federal grand jury.
According to the majority in the earlier 2-1 opinion, the officers found Curry and a half-dozen others walking away in the area of the gunfire. The police told them to stop, raise their hands and lift their shirts. Curry was the only one who refused to lift his shirt and a search and struggle turned up a silver revolver.
“The officers here reacted to a perilous active-shooter situation, arriving on scene within 35 seconds of hearing multiple gunshots in a densely populated area. These exigent circumstances implicated vital government interests — citizen and police safety — beyond the ordinary need for law enforcement. The officers’ initial response was tailored to address these needs with minimal intrusion and thus reasonable,” held the majority opinion.
But Judge Henry F. Floyd of South Carolina wrote in a dissenting opinion that the majority’s position implies that gunshots in a high-crime area creates an emergency that allows police to stop and frisk anyone in the area without individualized suspicion.
Floyd complained that allowing police to bypass “the individualized suspicion requirement” based on the sound of gunfire and the general location where it may have originated, “completely cripples the fundamental Fourth Amendment protection and creates a dangerous precedent.”
In asking the full appeals court to uphold Lauck’s ruling, Curry’s lawyers wrote that, “in this case, not only did the police lack reasonable suspicion, they were also operating without an exigent circumstance. Gunfire cannot always equal an exigent circumstance. It would erase the warrant requirement.”
They add that a warrantless search is legal only if it was legal for the police to stop the person who is searched because “discretionary, suspicionless stops for the general purpose of investigating crimes are plainly impermissible.”
“They encountered him walking away from a residential building after they heard gunshots. This fact did not distinguish Mr. Curry from the other pedestrians in that public space, or from any of the residents standing nearby, in a neighborhood where hundreds of families lived,” Curry’s lawyers argue.
Permitting that scenario to fall under the exigent circumstances exception would expand that exception far beyond what other courts have allowed, Curry contends.
The U.S. attorney’s office disagrees. In a brief to the appeals court, the government notes that the shots were fired “in a location where someone had been murdered less than two weeks before. ... If police had failed to investigate, they could have left an injured person on the scene or failed to prevent a further shooting.”
“If the officers had investigated and failed to control the scene, circumstances could have spiraled, resulting in the officers defending themselves against lethal force. Or the person — or persons — who fired the five or six gunshots could have simply disappeared in the dark,” they added.
The circumstances, the government argues, “established objectively a serious exigency.”
The government argues that, “faced with these exigencies, the officers needed to act quickly to ensure that they protected the lives of people on the scene, reduced risks to their own safety, and avoided the loss of essential evidence about what person or persons just committed the shooting.”