The United States Court of Appeals for the Fourth Circuit is often referred to as one of the more conservative circuits for criminal law. Fortunately, the Fourth Circuit breaks from that characterization from time to time, including earlier this week, when the court determined that the police had no Constitutional/Fourth Amendment basis for detaining and searching a man observed doing nothing other than being alone for three minutes in his car in a gas station (not pumping gas), then going to be with a few men (one of whom was lawfully openly possessing a handgun, and another who had a felony charge), and then running away from police after the police unlawfully told him he was not free to leave. U.S. v. Black, ___ F.3d ___ (Feb. 26, 2013). On top of that, the police kept and never returned appellant/defendant Nathaniel Black’s voluntarily-offered identification, which the court counted as a factor in determining whether he had been seized.  

Following is the wonderful underpinning of Black:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspiciousactivity. See United States v. Powell, 666 F.3d 180 (4th Cir. 2011); Massenburg, 654 F.3d 480; United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011); and United States v. Foster, 634 F.3d 243 (4th Cir. 2011). Although factors "susceptible of innocent explanation," when taken together, may "form a particularized and objective basis" for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277-78 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion.

Black.