Special need exception to reasonable suspicion – Fairfax criminal lawyer decries it

Special need police stops result from Terry v. Ohio’s slippery slope, says Fairfax criminal lawyer

Special need is sometimes used by police to try to justify stopping people when they do not have probable cause nor individualized reasonable articulable suspicion to stop, frisk or search a person for evidence of criminal activity. As a Fairfax criminal lawyer, I am disheartened by how watered-down the United States Supreme Court has made the Fourth Amendment to the United States Constitution by permitting Terry police stops for reasonable suspicion rather than probable cause, and police safety checkpoints.

Split appellate panel finds a nearby gunshot from half a minute earlier constitutes a permissible “special need” for police to stop people nearby

A recent split Fourth Circuit panel — in a case destined for en banc consideration of the full United States Court of Appeals for the Fourth Circuit — found a lawful special need for the following police stop:

“While patrolling a [Richmond, Virginia] residential neighborhood after dark, police officers heard several gunshots close by. They rushed to the scene to find the Defendant, Billy Curry, Jr., and a half dozen other men, walking away from where the shots were fired. The officers shined flashlights on the men and instructed them to stop, raise their hands, and then lift their shirts to expose their waistbands for any concealed weapons.”

United States v. Curry, ___ F.3d ___ (4th Cir., Sept. 5, 2019).

Dissenting judge warns about the danger of approving the stop in Curry

Praised be dissenting Judge Floyd, who underlines:

“[T]he exigent circumstances exception, like all such exceptions, ‘must be narrow and well-delineated to retain [its] constitutional character.” United States v. Yengel, 711 F.3d 392, 396 (4th Cir. 2013). Yet the majority’s analysis blurs the lines that have heretofore defined the exigent circumstances exception, conflating exigent circumstances with the special needs exception.”

Continuing his compelling dissent, Judge Floyd insists:

“Applying the special needs doctrine under the circumstances of this case is especially dangerous considering that the officers selectively stopped and frisked certain individuals while not seizing others who were closer to the suspected scene of the shooting. In special needs cases, absent individualized suspicion, the Supreme Court has long insisted upon programmatic safeguards designed to protect against a law enforcement officer’s arbitrary use of unfettered discretion. See, e.g., Maryland v. King, 569 U.S. 435, 447 (2013).

Does police authority to tell men to lift their shirts permit frisking a man who leaves his shirt in place?

Curry reverses the trial court’s wise suppression of the handgun found on Curry — despite the prosecutor’s special need argument — under the following circumstances:

“Curry refused to fully comply [with lifting his shirt]. When officers sought to pat Curry down, a brief scuffle ensued. After Curry was taken to the ground and handcuffed, the officers then recovered a silver revolver from the ground near Curry.”

Curry concludes: “We therefore reverse the district court’s conclusion that the initial stop was unlawful and remand for the district court to determine whether the totality of the circumstances, known before the initial stop and learned during the stop, supported reasonable suspicion that Curry may have been armed as to justify the frisk.”

Fairfax criminal lawyer Jonathan L. Katz pursues winning defense against felony, misdemeanor & DUI prosecutions. To discuss your case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.