The search of a Richmond man in violence-troubled Creighton Court one night two years ago is at the center of a battle that will now play out in a rare hearing before the full 4th U.S. Circuit Court of Appeals.
The Richmond-based appeals court on Tuesday ordered a hearing before all 15 of the court’s judges over the Sept. 8, 2017, arrest of Billy Curry Jr.
Richmond police arrested Curry while patrolling the area in the wake of six shootings and two homicides that had occurred there in the prior three months.
Curry, 44, a convicted felon barred from possessing a firearm, was stopped and searched near a 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.
Last year, U.S. District Judge M. Hannah Lauck agreed with Curry’s lawyers that he was detained and searched by police without “reasonable articulable suspicion that Curry was engaged in criminal activity.” Therefore, the firearm discovered in the search could not be used as evidence against him, she ruled.
The Fourth Amendment to the U.S. Constitution protects the public from unreasonable searches and seizures.
The government appealed Lauck’s ruling to the 4th Circuit, the federal court of last resort before the U.S. Supreme Court for the states of Virginia, Maryland, West Virginia, North Carolina and South Carolina.
Most cases are argued before a three-judge panel of the appeals court. In September, in a 2-1 ruling, the panel that heard Curry’s case sided with prosecutors and overruled Lauck.
According to the majority opinion, when the officers heard the gunshots they rushed to the scene and found Curry and a half-dozen other men in the area walking away. The police shined flashlights on the men and 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 turned up a silver revolver, according to the majority opinion.
“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.
Judge Henry F. Floyd, of South Carolina, disagreed. In a dissenting opinion, he wrote that the majority’s reasoning would imply that the sound of gunshots in a high-crime area creates an emergency situation that allows police to stop and frisk anyone in the area without individualized suspicion.
The circumstances surrounding Curry’s detention and search involved complications that the majority glossed over, Floyd wrote. It took the police 35 seconds to get to the area where they believed the shots were fired. Once there, they saw five to eight men walking in and around the area and heading away, he added.
The officers did not have the description of a suspect. “It is also clear that the officers did not stop everyone close to the scene, akin to a checkpoint. Indeed, the officers did not seize the people closest to the reported location of the shots,” he said.
“Allowing officers to bypass the individualized suspicion requirement based on the information they had here — 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,” Floyd wrote.
Last month, Curry’s lawyers asked the full court to rehear the case.
“The panel’s holding represents a vast expansion of the exigent circumstances doctrine, and is unsupported by any decision of this Court, the Supreme Court, or any other circuit” court, wrote the federal public defender’s office in asking for the full court to review the issue.
It takes at least eight of the court’s 15 judges to order a full court hearing. Tuesday’s order tentatively set the matter for argument during its Jan. 28-31 session.
Carl Tobias, a professor at the University of Richmond School of Law and an expert on the appeals court, said there are only a handful of cases each year that the court agrees to hear as a full court.