South Carolina's Top Court Decides Black Men Should Feel Free To Terminate 'Consensual' Stops By Law Enforcement Officers

from the sure,-if-you-ignore-everything-about-cops dept

A stop-and-frisk case that resulted in arrest made it to the top of the South Carolina court system, only to be rejected by three white judges with a dissent written by two black judges. (via

Here's a brief summary of the underlying events (and the court's decision) by John Monk of The State:

Two white justices — John Few and Buck James — wrote that in a public encounter with law enforcement where there are no grounds for police to question a person, that person is free to decline to answer questions and has the right to walk away from police. Associate Justice Kaye Hearn agreed in a concurring opinion.

However, in this encounter with police, as Spears started to answer officers’ questions, he began patting his shirt, prompting one officer to repeatedly request Spears not to move his hands. After Spears refused, the officer told him he was going to frisk him to “be sure he didn’t have any weapons on him or anything that was going to hurt me,” the majority ruling said.

It was during that frisk that Agent Dennis Tracy found under Spears’ shirt a small ball of what turned out to be less than half an ounce of crack cocaine.

Because Spears did not at first refuse to answer questions and keep on walking, he had in effect given his consent to what happened next, the majority opinion said.

There's a question about race to be asked here, but it wasn't asked by the defendant, so the appeals court's finding the stop was an unjustified seizure is overturned. But the decision [PDF] was even closer than that. The concurring opinion, written by Justice Hearn (who is white), asks a question about biased policing the court is unable to answer for procedural reasons.

I concur but write separately because I share many of the dissent's concerns regarding whether Eric Spears—an African-American male— actually felt free to walk away from the encounter with law enforcement. While I am skeptical that he did, this does not change the fact that our standard of review requires us to affirm unless there is clear error, meaning we cannot substitute our judgment for that of the trial court.


Spears never raised the argument the dissent advances to the trial court, where it would have had the opportunity to specifically address this issue when deciding whether he was seized pursuant to the totality of the circumstances. Indeed, had Spears raised this issue to the trial court and briefed it before this Court, we would be in a position to consider the reasoning of the dissent.

The dissent does address this. It also addresses the fact the officers who stopped Spears did not have an objective basis to perform a stop. DEA officers often watched bus depots for travelers originating from New York City under the theory that New York is a drug source town and every stop along the way is a "destination" town. That's a pretty thin premise since people who aren't in the illicit drug business also use the same buses to travel for normal, law-abiding reasons.

The very thin premise was stretched even thinner by the officers' sworn declarations about the "activity" they observed that supposedly justified their stop of Spears. From the dissent:

In addition to paying the agents an "excessive" amount of attention, the officers made only the following observations prior to stopping Spears: Spears and his companion arrived on a bus line known to be used by criminals; the pair retrieved four large pieces of luggage; Spears did not appear to be meeting anyone at the bus stop; Spears began walking down the road away from the bus stop; and, while walking away, Spears's companion handed him an unidentified item. In my view, none of these facts, standing alone or together, provide articulable and reasonable suspicion to justify a seizure.

Several of the aforementioned facts are entirely reasonable given the context of the situation. One would expect two people traveling to South Carolina from New York to have several pieces of luggage. Further, walking away from a bus stop after disembarking is not suspicious activity. Indeed, Spears's companion testified the pair decided to walk when their ride failed to show up. In addition, Spears walked at a normal pace even though he knew he was being followed. Moreover, not one agent could testify regarding the specifics of what Spears's companion handed him— or even if she actually handed Spears anything at all. Therefore, these facts cannot be relied upon to establish a reasonable suspicion that criminal activity was afoot.

This pretext is made even more flimsy by the officers' statements that they were at the bus station following up on a tip that two black males were transporting drugs to South Carolina via the bus line. Their decision to chase down a man and a woman who exited the bus stop makes little sense in this context and makes even less sense when all they had really observed (other than the disputed pass of an unidentified object) was a couple exiting a bus station with their luggage.

The end result of this suspicionless stop (that the government argues was consensual and not a seizure under the Fourth Amendment) is a mandatory thirty-year sentence for Eric Spears. That the state's top court found the stop "consensual" shows the "reasonable person" standard cannot be deployed across the board -- not when you consider the history of law enforcement's treatment of black people. Since there has been little equitable treatment of minorities by law enforcement, it's unreasonable to expect minorities to feel the same as Caucasians about "consensual" stops when approached by officers.

Here's some more from the dissent:

Our Fourth Amendment jurisprudence does not take into account personal characteristics such as race, sex, age, disability, and so forth when making this determination. The test does, however, consider the totality of the circumstances. In my view, a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.


The United States population includes 42 million Americans of African descent. Inexplicably, these Americans are basically invisible to those of us who apply the analytical framework for reasonable behavior or beliefs. Somehow the judiciary, intentionally or not, excludes these Americans' normal behaviors, responses, and beliefs in circumstances involving law enforcement agents. For most, the "totality of the circumstances" does not include consideration of the reasonable behavior or response of African-Americans when confronted with certain stimuli. Thus, the regrettable and unsettling conclusion is that the question of what is "reasonable" is viewed solely from the perspective of Americans who are White. I shudder to think about the probable result had the defendant continued to walk and ignore the police.

This won't head off the inevitable comments about how it's "unfair" to treat blacks differently than whites when applying the Fourth Amendment to supposedly "consensual" encounters with law enforcement, but I'm putting this here anyway:

Ask yourself why it's unreasonable to apply the history of our nation -- specifically, law enforcement's relationship to minority communities -- to determinations of what a "reasonable" person would do during a stop like this. Then ask yourself why minorities should only have to come out on the losing end of "inequitable" applications. Minorities weren't even treated as actual human beings for more than 100 years in this country and blacks were treated as property until after the Civil War. Then, once they were freed, they were treated as a lower class of human being than whites, subjected to open discrimination. The trend continues to this day, where people of color are treated as inherently suspicious, whether they're shopping at WalMart or just hanging out with people of their own race. If they have the misfortune of living in a high-crime area, they're treated as de facto criminals. Applying a different standard to Fourth Amendment jurisprudence makes sense. It levels the playing field for people of color. It does not elevate them above whites. It only recognizes that a person's race is a factor that should be considered when determining whether a consensual encounter with law enforcement could "reasonably" be ended by the person being stopped.

Filed Under: 4th amendment, consensual stops, police stops, race, south carolina, stop and frisk

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  1. icon
    arp2 (profile), 4 Mar 2020 @ 5:51am

    Re: Re: Seeing the world through the filter of priviledge

    Perhaps not life or death, but his analogy still holds true- the idea that you can "technically" walk away from the encounter does not mean that's practically what would happen.

    For example, some courts have ruled that failure to give consent to a search is not probable cause.

    However, not giving consent + a vague description of acting suspiciously does. You can see how easy it is manipulated by the police who face zero repercussions for lying.

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