Argued: December 12, 2018
from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, District
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellant.
Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellee.
Zachary Terwilliger, United States Attorney, Alexandria,
Virginia, Holli R. Wood, Special Assistant United States
Attorney, Michael A. Jagels, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellant.
C. Kamens, Federal Public Defender, Alexandria, Virginia,
Paul G. Gill, Assistant Federal Public Defender, Laura J.
Koenig, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellee.
NIEMEYER, FLOYD, and RICHARDSON, Circuit Judges.
RICHARDSON, CIRCUIT JUDGE
patrolling a 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. Only Curry failed to comply, leading to a pat down
that revealed a silver revolver.
he was indicted for being a felon in possession of a firearm,
Curry moved to suppress the revolver. The district court
granted Curry's motion, reasoning that the initial stop
and flashlight illumination of the men leaving the site of
the shooting violated the Fourth Amendment, which rendered
the later pat down illegal. The Government appeals.
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 governmental 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. We therefore reverse the district court's
conclusion that the brief stop and flashlight search violated
the Fourth Amendment. We leave for the district court to
consider whether the officers had reasonable suspicion to
search Curry after he disregarded their orders.
The stop and search
night of September 8, 2017, four uniformed officers from the
Richmond Police Department's Focus Mission Team-a
division dedicated to violent crime and drug suppression-were
patrolling the Creighton Court neighborhood in Richmond,
Virginia.The officers were assigned to patrol
Creighton Court because it had been the site of frequent gun
violence, with six shootings and two homicides in the
previous three months. The most recent homicide in the
neighborhood had occurred just ten days earlier. At around
9:00 PM, the officers heard around a half dozen gunshots
coming from the direction of a street called Walcott Place.
Two of the officers activated their body cameras, which
provide a clear record of what happened. The below satellite
image, taken from a Government exhibit, shows the
officers' initial location marked as "A." J.A.
hearing the gunfire, the officers made a U-turn and drove
northeast across a field toward Walcott Place. The district
court estimated that "the patrol car travelled two to
three blocks, taking only thirty-five seconds to arrive
behind Walcott Place" at the location marked
"B" on the map. J.A. 256-57. In that short time,
the officers' radios announced that at least two 911
calls "had come in for random gunfire, one of which was
on Walcott Place." J.A. 257. Before stopping, the
officers observed a man in a red shirt who "appeared to
be maybe favoring one of his arms." Id.
officers arrived at what they believed to be the site of the
shooting (it was likely within 50 yards), they spotted
several individuals, including Curry, "walking away from
a cut-through from Walcott Place, away from where the
gunshots originated." J.A. 258. The officers met Curry
at the location marked "C."
their flashlights, the officers "fanned out and began
approaching different individuals," "illuminating
the individuals . . ., their waistbands and hands, looking
for any handguns or firearms." Id. In doing so,
the officers stopped the first men encountered leaving the
scene, including Curry. The other individuals complied with
the officers' directives to lift their shirts and submit
to a visual inspection of their waistbands for concealed
firearms. Curry refused to fully comply. 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.
The district court's suppression order
was indicted for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He then moved to
suppress the revolver, arguing that the officers violated the
Fourth Amendment by stopping and searching him without
reasonable suspicion that he was engaged in criminal
activity. In response, the Government argued first that the
officers did have reasonable suspicion, and, alternatively,
that the exigent circumstances at the time of the stop
rendered it reasonable without reasonable suspicion.
an evidentiary hearing, the district court suppressed the
recovered revolver. Applying Terry v. Ohio, 392 U.S.
1 (1968), the court determined that the officers lacked
reasonable suspicion to justify the brief investigatory stop.
The court reasoned that because the officers "ha[d] no
particularized suspicion as to Curry" and were "not
attempting to detain only Curry," Terry could
not support the initial stop. J.A. 274.
suppressing the revolver, the court also found the
surrounding "exigencies" of the situation could not
excuse the prerequisite of individualized reasonable
suspicion. See J.A. 281 ("Despite Officer
Gaines's legitimate concern for his own safety and the
safety of his partners, the exigencies in this situation
cannot undermine the Fourth Circuit's clear holding that
'the Constitution requires a particularized and
objective basis for suspecting the particular person
stopped of criminal activity.'" (quoting
United States v. Massenburg, 654 F.3d 480, 485 (4th
Cir. 2011)); J.A. 276 ("Even in these circumstances,
with the attendant emergency and safety concerns, the Fourth
Amendment allowed the officers only to initiate a consensual
encounter, not the Terry stop they
undertook."). The district court thus held that the
initial stop was unlawful and granted Curry's motion
without considering whether the officers were later justified
in frisking Curry. The Government timely appealed and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §
decide whether the officers' initial stop of the men
leaving Walcott Place was constitutional. See United
States v. Robinson, 846 F.3d 694, 700 (4th Cir. 2017)
(en banc). If not, then the revolver was properly suppressed,
and the case is over. If, however, the initial stop was
lawful, then we will remand to the district court to
determine whether the later search of Curry was also lawful.
determine whether the initial stop was lawful, we review the
district court's legal conclusions de novo and its
findings of fact for clear error. United States v.
Kehoe, 893 F.3d 232, 237 (4th Cir. 2018); United
States v. Day, 591 F.3d 679, 682 (4th Cir. 2010). Here,
we have both. The district court found that the officers were
responding to an emergency and that legitimate safety
concerns existed when they encountered the men leaving the
shooting, and we review that factual finding for clear error.
United States v. Moses, 540 F.3d 263, 270 (4th Cir.
2008). Whether those legitimate concerns constituted exigent
circumstances that excused the requirement for individualized
suspicion calls for a legal conclusion, which we review de
novo. United States v. Singleton, 441 F.3d 290, 293
(4th Cir. 2006).
The governing Fourth Amendment principles
Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Const. amend. IV. As the first clause makes plain, the
"touchstone" of any Fourth Amendment analysis is
"the reasonableness in all circumstances of the
particular governmental invasion of the citizen's
personal security." Pennsylvania v. Mimms, 434
U.S. 106, 108-09 (1977); see also United States v.
McCoy, 513 F.3d 405, 410 (4th Cir. 2008) ("As is
obvious from the constitutional text, the central inquiry
under the Fourth Amendment is
touchstone inquiry of reasonableness requires determining
whether the government's interest in undertaking a search
or seizure "outweigh[s] the degree to which the search
[or seizure] invades an individual's legitimate
expectations of privacy." Maryland v. King, 569
U.S. 435, 461 (2013); see also Camara v. Municipal
Court, 387 U.S. 523, 536-37 (1967) (evaluating a
warrantless governmental intrusion for reasonableness
requires "balancing the need to search against the
invasion which the search entails"). And this balance
"depends on the context within which a search takes
place." New Jersey v. T.L.O., 469 U.S. 325, 337
on the context, law enforcement officers often need some
suspicion of criminal activity to reasonably search or seize
an individual. For example, a vehicle may be stopped if
officers reasonably suspect the driver committed a traffic
violation. United States v. Kellam, 568 F.3d 125,
136 (4th Cir. 2009). Once the vehicle is stopped, an occupant
may be frisked for weapons if officers reasonably suspect the
occupant is armed and dangerous. United States v.
George, 732 F.3d 296, 299-302 (4th Cir. 2013). And the
vehicle itself ...