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The Fourth Circuit rejects giving ESP powers to searching cops. Was this a Walking While a Young Black Male patdown?

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The U.S. Court of Appeals for the Fourth Circuit in Richmond is particularly conservative, unfortunately. Even though a president can try to overcome the Fourth Circuit’s conservative reputation by appointing judges not expected to be conservative, the Fourth Circuit’s judges may not overturn the court’s precedents except en banc. Although the Fourth Circuit judges always come down from bench at the end of oral argument to shake the hands of the arguing lawyers, I would much prefer more favorable decisions for the Bill of Rights than a handshake that precedes a court opinion to the opposite effect.

In the foregoing context, I am completely giddy over the Fourth Circuit’s circuit-splitting opinion this week that rejects the aggregation rule adopted by some other circuits that imputes cop A’s knowledge to searching cop B, even when cop A has not shared his or her relevant knowledge with cop B in advance of the search. U.S. v. Massenburg, ___ F.3d ___ (4th Cir., Aug. 15, 2011).

In Massenburg, police arrived after a report of gunshots. in a purportedly high crime section of Richmond. Officer A saw four young black males walking in the area. Did the cop focus on them for their young black male status, and I am curious why the court opinion states their race (perhaps to wonder whether the cop marked them in part for their WWYBM (walking while a young black male, a variation on a DWB/driving while black stop) status?)? I wonder if the cops who don’t consider race for stops, searches and arrests would all fit in a phone booth, or maybe just in a tennis ball can. 

Cop B arrived, and cop A asked if they would consent to a weapons patdown. The first three consented, but Massenburg — bless his Fourth Amendment-asserting heart — did not consent. Cop B patted him down anyway and found a handgun. Cop B was not aware at the time of his patdown that cop A had seen a "small bulge in the left jacket pocket" of Massenburg before cop B started his patdown. Cop B decided to do the patdown of Massenburg without cop A even asking him to.

Massenburg shows us that in such circuits as the Seventh, Eighth and Tenth, which apply the aggregation rule, cop A’s bulge knowledge would have been imputed to cop B, which of course makes no sense. Refusing to follow the nonsense of the aggregation rule, Massenburg reverses his conviction, concluding:

Because we believe the aggregation rule runs contrary to the Supreme Court’s Fourth Amendment jurisprudence, would seriously erode the efficacy of the exclusionary rule’s deterrent purposes, and serves none of the legitimate ends of law enforcement, we reject it. We do not impute Officer Fries’s [Cop A’s] observation of a "bulge" in Massenburg’s jacket pocket to Officer Gaines [Cop B], and thus, for the reasons stated above, we hold that Gaines lacked the reasonable suspicion needed to conduct a lawful nonconsensual frisk. Accordingly, the district court erred when it failed to suppress the fruits of that unlawful search.


Massenburg highlights the importance of giving judges and everyone else the chance to do the right thing, in this instance the Fourth Circuit, no matter the reputation of that person or group of persons. To do otherwise will create serious blocks, hurdles, and counterproductive negative energy in one’s effort to persuade.