Appeals Court Tosses Evidence Illegally Obtained By Opportunistic Cops Who Couldn’t Take ‘Nah’ For An Answer

from the your-tax-dollars-at-work-accomplishing-absolutely-nothing dept

It rarely seems obvious, but you can just walk away from (some) unwanted interactions with law enforcement. People with badges and guns often make this option seem untenable, what with their badges and guns and often profane shouting. But law enforcement officers need a certain amount of reasonable suspicion to detain people. But the less people know, the more often officers are able to engage in suspicionless searches and detentions.

We’ve formed a whole cottage industry around this uncertainty. Stop and frisk, the cops call it, before having their suspicionless search programs relegated to the history books by federal judges and agreements with the US Department of Justice.

Every so often, gambling on someone else’s rights doesn’t pay off for law enforcement. In most cases, nothing happens because the arrested person does not have the means to hire a lawyer willing to fight bullshit arrests. In other cases, everything comes together and results in an admonishment from a federal court that reminds officers about the rights of citizens. When it all comes together — as it does in this Appeals Court decision [PDF] — it also results in the elimination of all the wrongfully obtained evidence. Months after the fact, the plaintiff is finally free to go.

The Fourth Circuit Appeals Court decision notes that cops were out doing the sort of thing cops should be doing.

At 11:18 p.m. on September 22, 2019, two officers in a patrol car approached Anthony Buster as he walked along Fairfield Avenue in Richmond, Virginia. About 30 minutes earlier, the officers had responded to a report of “a domestic assault where a firearm discharged in the air” and had been looking for the assailant ever since.

All well and good until they happened to come across Anthony Buster, who was just minding his own business. They felt he matched the description of the assailant, and that he was the same person they had earlier seen outside of the victim’s apartment. They were wrong, but that was hardly an impediment.

They went after Anthony Buster. And Buster — fully within his rights — let them know he wasn’t receptive to their increasingly-aggressive advances.

After getting out of the patrol car, one officer said “Yo! Let me talk to you real quick” and motioned for Buster to come over. Buster said “Nah,” and continued walking. The same officer said “Yo! Hey!” and continued toward Buster.

Despite the compelling “yo, hey” arguments from the investigating officers, it was completely constitutional and acceptable for Buster to say “Nah” and expect to be left alone. The beliefs the officers harbored weren’t developed enough to justify what came next.

At that point, Buster took off running but tripped and fell almost immediately. The officers caught up with Buster while he was still on the ground and tackled him. Buster was wearing “a single-strap bag that goes across your body” whose pouch had “ended up in front of ” Buster when he fell.

Oh no. A pouch! In lieu of a convenient fainting couch, officers went for the bag that had “ended up in front of” the person they were pursuing for legally-inarticulate reasons. “Muh safety,” the cops managed to mentally articulate before taking the bag from Buster and searching it.

Perceiving that Buster was clutching or reaching for the bag, the officers pulled Buster’s arm away from the bag, pulled the bag to the rear of Buster’s body, and handcuffed him.

Buster noted the bag’s sudden position change had forced it across his neck and he was now choking. What may seem like an act of kindness was actually just the officers’ interest in the bag. They cut the bag’s strap off and went rooting through it — even though they had no reason to do so. One officer noted it was “hard to the touch.” (Also the bag, apparently.) Opening it, officers found a gun and a box of ammunition. Buster was arrested and charged with being a felon in possession of a firearm. This followed two interrogations by officers without Buster being advised of his Miranda rights.

The federal government, wisely, decided it would not attempt to submit statements made by Buster when he was interrogated without being apprised of his rights. But it still wanted the gun and ammo. It argued the cops had every right to pursue, tackle, strip of personal property, and engage in a search of said stripped property. The lower court found the government’s arguments persuasive and suppressed only the interview statements the government had already agreed it would not use as evidence. That faux suppression resulted in a sentence of 51 months in prison for Buster.

The Appeals Court does not agree with the lower court’s almost nonexistent effort.

We hold that the district court erred in denying Buster’s motion to suppress the firearm because the sole theory the government has pressed in support of that result does not apply here.

More specifically:

Here, however, the district court identified only one basis for denying Buster’s motion to suppress the firearm found during the search of his bag, and the government has never offered any other. Specifically, the district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine associated with Terry v. Ohio, 392 U.S. 1 (1968). JA 240. On the facts of this case, we respectfully disagree.

Officer safety? Protective search? None of that applies to the facts here. Buster was down on the ground, restrained, and cuffed. The officers had removed the bag from Buster’s possession before they searched it, cutting off the strap when Buster said the bag was choking him after the officers had tackled him to the ground. The government’s argument is hot garbage, says the Appeals Court.

Although the parties dispute many things about the events of the evening, there is no disagreement about one critical fact: When the officer opened Buster’s bag (thus beginning a “search” of the bag), Buster was handcuffed on the ground and had no access to it. Indeed, the record is clear that the officers opened the bag and examined its contents after they had tackled Buster, handcuffed him, cut the bag off his body, and “move[d] it away from his person.” The government offers no explanation for how the contents of the bag presented any credible threat to the officers’ safety at the time they searched it

The officers had minimal justification for the initial pursuit. And they had no justification at all for the warrantless search of Buster’s sole possession without a warrant. No evidence for you, says the Appeals Court.

Because the government has never so argued, we do not consider whether at some point the officers might have acquired probable cause to arrest Buster for assault or some other offense and, if they did, whether the district court’s decision not to suppress the firearm could have been justified on some other ground. We hold only — but importantly — that a doctrine authorizing a limited warrantless search to protect officer safety cannot be stretched to cover situations where there is no realistic danger to officer safety. Accordingly, we reverse the district court’s denial of Buster’s motion to suppress the firearm.

And that’s the only thing keeping Buster behind bars, considering the criminal charge was “felon in possession of a firearm.” Without the firearm, it’s a felon in possession of nothing but a bag the cops should have known better than to search without something more than some airy statements about officer safety.

Buster was well within his rights to walk away. The cops made it an issue by pursuing and tackling him. The ensuing search was quite possibly predicated on the officers’ need to do something — anything! — to justify this suspicionless stop. That Buster only ended up being charged with felon in possession charges makes it clear the officers never pursued their stated theory — that Buster was involved in the domestic violence call that triggered this chain of events — and instead decided to move forward with the evidence they had obtained illegally. Presumably the actual perpetrator is still out there, unmolested by the long arm of the law. This was a crime of opportunity, but one perpetrated by opportunistic police officers looking for an easy bust rather than seeking to solve a crime.

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Comments on “Appeals Court Tosses Evidence Illegally Obtained By Opportunistic Cops Who Couldn’t Take ‘Nah’ For An Answer”

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Coyne Tibbets (profile) says:

How Lame

And these cops couldn’t come up with, “Ahh, ummm, yeah, we thought there might be a bomb in the bag. Yeah, ummm, an armed bomb. We was in serious fear for our lives. Honest Abe…”

I guess they left the machiavellian cop at home.

That’s what is wrong with the Fourth Amendment today: the only times it works are when the machiavellian cop, the one with imagination, didn’t come along. When he is along, any search can be justified.

I’m not the machiavellian cop and it took me 5 seconds to find a safe harbor. The Appeals Court wouldn’t have even bothered to listen to the case.

This comment has been deemed funny by the community.
K`Tetch (profile) says:

Look, you can’t go expecting the cops to have to do things like “follow the law”, and “know the law” – I mean if you’re going to put restrictions like that on them, and make them abide by obscure things like ‘the constitution’, then why would anyone want to be a cop?

nasch (profile) says:


Specifically, the district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine

How about the police can choose to search whatever they want for their own safety, but cannot use any evidence from those searches for anything? I bet that would cut down on those types of searches by a good 90%.

Anonymous Coward says:

Pro-tip from Deaf person to fend off cops bothering you

Don’t play their game, play yours. I have a game that you could play with the cops.

If police is bothering you, and you are a good actor or you do know some sign language, you can try pretend to be Deaf and pretend not to understand them. Just do not speak and gesture that you cannot hear and talk by point/touch your ears then point/touch mouth and shake your head and then shrugs, and try to walk off. If they approach you, repeat gestures and pantomime writing on paper.. make them have to provide paper and pen. Write NEED ASL INTERPRETER and point to the words repeatedly. Ignore whatever other thing they write, just tap on your words and don’t engage in their game, make them engage in yours If they persist with their cop game, write something in your best ‘Deaf ASL English’ like ” NO WANT MISTAKE UNDERSTAND YOU ME. ME NEED ASL TALK YOU . WAIT ASL FOR TALK. ME HAVE ADA LAW RIGHT”

Chances are that they don’t call your bluff if you are good at pretending, and they walk away. In my experience as a Deaf person, many cops hate to take time to communicate with Deaf people that are difficult to communicate with. If they have nothing to go on, they prefer to give up than waste a lot of time and effort, playing their cop game. One has to be able to communicate effectively to play the fishing game, so I make communication their problem not mine. Any cop bothering me that does persist to communicate with me though paper, I simply pretend to be illiterate in English and always ask for an ASL interpreter. I don’t do no lipreading or no speaking, don’t write except to ask for an ASL interpreter. even the persistent ones give up and walk away. They never want to radio and wait for ASL interpreting that I ask for, so off they go and good riddance.

Happening to be difficult to communicate with is not a reasonable suspicion to detain as far as I know, so you could try my Deaf game if a cop is bothering you for no good reason. No need to suffer their nosy questions if you dont have to.

nasch (profile) says:


A dangerous game to play. They might be able to get you on lying to the police (they’re allowed to lie to you but not vice versa) if they do call your bluff. And even if the charges don’t stick, or you don’t even get charged, you could spend the night in jail for your trouble. Better to just rely on the rights the Constitution grants you. You still can’t stop them from arresting you inappropriately, but you will be on solid ground.

Anonymous Coward says:

Re: Re: Dangerous game? I think not.

Oh, you are not allowed to lie to the police at all? Really? What happened to free speech? I’m sure you are allowed in some situations. This is not perjury we are talking about.

And you misunderstood me. This tip is not about avoiding arrest or detainment per se. It is about avoiding unwanted optional interactions with police. This is in context with the case this Techdirt article covers. Tell me, if Mr. Buster instead of said “nah” and walked away , he pretended to be Deaf to avoid unwanted verbal interactions with the police and walked away, is he breaking the law?

And relying on Constitutional Rights, didnt help Mr. Buster though. As the court ruled in this situation, Mr. Buster had the Constitutional Right to walk away. This tip is for similar situations. If Buster had pretended he was Deaf and incapable of verbal interactions, and walked away, he could have avoided all the legal troubles he had to go through.

Is it a dangerous game if you are a good actor? In my experience as Deaf person, I think no. the risks is low. Police just don’t want the hassle of accommodating my communication needs so they leave me alone. I have yet had to see a police officer call an interpreter on me.

Tanner Andrews (profile) says:

Re: Re: Re: lying to law enforcement

Oh, you are not allowed to lie to the police at all? Really?

They call it ``obstruction” and they can do you for it. Entirely bogus charge, yes, but courts will convict anyway. You couild be mistake and say that it is monday instead of Tuesday, and an eager prosecutor can turn it into prison time.

The FBI takes great advantage of this by making sure that their interviews are not recorded. Then, if they get nothing else, they can write up their ``notes” to include something false that they think you said, and you have just obstructed an investigation.

(preview still broken)

nasch (profile) says:

Re: Re: Re:

I can see how it would seem low risk to you, because you’re actually deaf or hard of hearing. Would you be as comfortable pretending to have some other disability to escape police attention? Would you not be concerned about what might happen if you got caught?

Oh, you are not allowed to lie to the police at all? Really? What happened to free speech? I’m sure you are allowed in some situations. This is not perjury we are talking about.

Again, that’s easy for you to say because you wouldn’t be lying. State laws vary, but I don’t want to take the chance of even being charged, even if there is little chance of conviction.

This tip is not about avoiding arrest or detainment per se. It is about avoiding unwanted optional interactions with police.

As we see from this story, optional interactions can quickly turn into detainment and arrest more or less at police discretion.

And relying on Constitutional Rights, didnt help Mr. Buster though.

On the contrary, it got all the charges dismissed.

If Buster had pretended he was Deaf and incapable of verbal interactions, and walked away, he could have avoided all the legal troubles he had to go through.

Possibly. That’s pure speculation.

Is it a dangerous game if you are a good actor? In my experience as Deaf person, I think no.

Your experience as a deaf person is exactly what makes you unqualified to determine how hard it is to pass as a deaf person. Because you can’t pretend to be deaf, you can’t possibly know how hard it is to do convincingly.

Wyrm (profile) says:


If you’re actually deaf, you’re not acting or lying, so it’s easy for you to pass as deaf. Acting deaf is more difficult than you seem to imagine. There are reflexes in us that are difficult to prevent from triggering. For example, if they snap their fingers near your ear by surprise, you will likely react. Even just moving your eyes towards the source of the sound, if not turning your head completely, will get you caught.

Once you’re caught lying, as other commenters have stated, they can pile some charges, bogus as they are, to make your life miserable. And then you’re in a worse place than mister Buster above.

So please don’t recommend faking disabilities. That’s dangerous for us non-disabled people, but it’s also bad for you: if suddenly lots of people start faking deafness, they will be less inclined to believe you when you’re actually deaf.

E says:


I would always play the huh. What. Who. I don’t know maybe it is the other black guy that looks like the other black guy. You looking for a 18 to 30 between 5 and 6 foot? Slim, oh hmm I think I know someone like that but that’s probably majority of all the black guy in my town. My name, oh it’s daddi, (which is legally) and they think I’m saying I’m your daddy

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