Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure

Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity.  In particular, Officers suspected that after seeing one of the men openly carrying a firearm - which was legal in North Carolina – that there was most likely another firearm present.  When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave.  Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon.  Mr. Black was charged with being a felon in possession of a firearm.  Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him.  His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment.  The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.

On the night of June 15, 2010, Officers Matthew Zastrow and Shane Strayer of the Charlotte-Mecklenburg, North Carolina, Police Department were patrolling the Eastway Division of Charlotte, NC in an area which was known for armed robberies and violent crime. 

As the officers were on patrol, they approached a gas station, where they saw a vehicle parked but not pumping gas.  After three minutes of observation, the officers noticed that the occupant did not leave the car, pump gas, or enter the convenience store.  Officer Zastrow determined that this behavior was unusual and likely indicative of a drug transaction. 

The officers ran a check of the vehicle’s license plate, which revealed no outstanding traffic violations.  The officers then followed the vehicle when it departed the gas station and drove to a nearby parking lot located between two apartment complexes. 

At the parking lot, the officers observed the driver of the vehicle, later identified as Dior Troupe, park his vehicle and walk toward a semi-circle of five men in who were speaking and laughing with each other. Four of the five men were standing, but one, an African-American male later identified as Nathaniel Black, sat to the left of the semi-circle. The six men saw the police vehicle but did not react.  The Officers noticed no indication of criminal activity.

Officer Zastrow then drove out of view of the group and requested assistance from other units, noting that he wished to engage a voluntary encounter, but did not wish to do so when significantly outnumbered.  Once two (2) additional officers arrived, the four (4) officers drove back to the semi-circle and noticed that one of the individuals – Charles Gates – was known by them to have previously been arrested for drug and alcohol related offenses.  However none of the officers knew whether Mr. Gates had ever been convicted of a crime. 

The officers then exited their vehicles and approached Mr. Troupe.  Seeing the officers’ approach, Mr. Troupe pointed out to the officers that he had a firearm, which was holstered to his hip in plain view, so that they would be aware of its presence.  Officer Zastrow later noted that although it is legal to carry a firearm openly in North Carolina, he had never seen anyone do so in the Eastway Division of Charlotte, which he had patrolled for several years.  Officer Strayer seized the firearm and Mr. Troupe and stored it in a police vehicle.  Officer Strayer also obtained Mr. Troupe’s driver’s license.  Officer Zastrow and Officer Strayer would later testify that they had been trained to suspect the presence of additional firearms when they found one firearm, and thus they suspected another gun was present. 

Around this time, two (2) additional officers arrived, and ultimately, one (1) more officer joined the group, and thus seven (7) officers were present at the scene, as well as several marked patrol cars.  Once six or seven were present – the record was unclear as to when the seventh officer arrived - two officers stood about ten (10) to fifteen (15) feet away to ensure that no one would approach the scene; the court of appeals would later infer that this was also a measure to ensure that no one left the scene.  As Officer Strayer was securing Mr. Troupe’s gun, the officers began to frisk the group of men one by one.  Officer Zastrow then asked if any of the men lived in the nearby apartment complexes.  Several of the men began to argue at this point, but Mr. Black calmly stood up and voluntarily presented his state identification card in a display of cooperation which Officer Zastrow found to be highly unusual, although several other men produced identification upon request.  Mr. Black then stated that he was visiting friends in the area; this statement and the address on his identification card indicated tended to indicate that Mr. Black did not live in one of the nearby apartments.  Officer Zastrow later described Mr. Black’s conduct as “extremely cooperative.”  Officer Zastrow then kept Mr. Black’s identification card rather than return it to him. 

As the officers proceeded to frisk individuals, Mr. Black began to look around, which some of the Officers would later explain is a sign that an individual is about to flee.  Mr. Black then stood up and said that he was going home, and he began walking towards the apartments.  Officer Zastrow then stepped in front of Mr. Black and told him that he was not free to leave and further remarked that he should sit down.  Mr. Black replied with words along the lines of “I can’t leave?” or “I can’t go home?” and continued walking away. 

Officer Zastrow then grabbed Mr. Black’s arm and felt that Mr. Black’s pulse was “extremely fast.”  Mr. Black then began to run.  Two of the officers directed Mr. Black to stop and then chased him when he did not.  As another officer tackled Mr. Black, Officer Zastrow attempted to grab Mr. Black’s wrist so that he could handcuff Mr. Black.  In doing so, Officer Zastrow felt a hard metal object beneath Mr. Black’s hand and immediately recognized it as a firearm.  Officer Zastrow yelled “gun” and held on to Mr. Black arm until the firearm fell to the ground.  Mr. Black was then immediately arrested. 

Mr. Black was charged in a one-count indictment for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).  Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the firearm on the basis that it was the fruit of the unlawful seizure of his person.  Mr. Black argued that he was unlawfully seized when he was told he could not leave, and the seizure was not supported by reasonable articulable suspicion. The Government relied on Supreme Court precedent in the case California v. Hodari D., 499 U.S. 621 (1991), to argue that until Officer Zastrow grabbed Mr. Black’s arm, Mr. Black had not been seized for Fourth Amendment purposes, and his seizure at that point was supported by reasonable suspicion. The district court agreed with the Government and denied the suppression motion.  Mr. Black entered a conditional guilty plea preserving his right to appeal the decision and was sentenced to fifteen (15) years imprisonment to be followed by a term of three years of supervised release.

Mr. Black then appealed the denial of his suppression motion to the United States Court of Appeals for the Fourth Circuit. 

The court of appeals had two distinct issues to consider on appeal:  whether and when Mr. Black had indeed been seized, and whether his seizure had been lawful.  The court of appeals thus explained that “[a] lthough brief encounters between police and citizens require no objective justification . . . it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity.” Terry v. Ohio, 392 U.S. 1, 21 (1968).  Furthermore, “[a] person is ‘seized’ within the meaning of the Fourth Amendment if, ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’”  United States v. Mendenhall, 446 U.S. 544, 554 (1980).

Against this backdrop, the court of appeals noted that there are “[s]pecific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they ‘touched the defendant or made any attempt to physically block his departure or restrain his movement’; (v) ‘the use of language or tone of voice indicating that compliance with the officer’s request might be compelled’; (vi) whether the officers informed the defendant that they suspected him of ‘illegal activity rather than treating the encounter as “routine” in nature’; and (vii) ‘whether, if the officer requested from the defendant . . . some form of official identification, the officer promptly returned it.’ Mendenhall, 446 U.S. at 554; Gray, 883 F.2d at 322-23.”

In light of these factors, the court of appeals determined that Mr. Black had clearly been seized well before Officer Zastrow grabbed his arm.  The presence of up to seven police officers and multiple police cruisers constituted a “collective show of authority by the uniformed police.”  Two of the officers also performed perimeter duty “ensuring that no other individuals interrupted the police interaction, and preventing the men from leaving the vicinity.”  Furthermore, the officers had also seized Mr. Troupe’s firearm and stored it in a police vehicle, and they were also frisking the men one by one, again indicating that they were not free to leave.  Also, the officers seized Mr. Black’s identification card and did not return it to him, again indicating that he was not free to leave. 

Based on this analysis, the court of appeals determined that Mr. Black had been seized at least as early as when his identification card had been seized.  The court of appeals viewed the verbal direction from the officers to Mr. Black not to leave and to sit down was not an initiation of the seizure, but an affirmation of an already existing seizure. 

Given this determination, the court of appeals next turned to an analysis of whether the seizure had been lawful.  The court of appeals noted that “[t]o be lawful, a Terry stop ‘must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ Reid v. Georgia, 448 U.S. 438, 440 (1980). The level of suspicion must be a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009). As such, ‘the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry, 392 U.S. at 21.”

The court of appeals then reviewed each of the proffered articulable suspicions suggested by the officers.  The court of appeals first noted that “Officer Zastrow’s suspicion that a lone driver at a gas pump who he did not observe drive into the gas station is engaged in drug trafficking borders on absurd. . . .  [C]oncluding that Troupe’s presence in his vehicle at a gas station is suspicious is unreasonable.” 

“Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black.” 

“Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe’s gun was legally possessed and displayed.  The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. . . .  We are not persuaded.  Being a felon in possession of a firearm is not the default status.  More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.  Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” 

Fourth, the officers’ assumption that where there is one gun there is most likely a second the court of appeals held that it “would abdicate [its] judicial role if [it] took law enforcement-created rules as sufficient to establish reasonable suspicion. . . .  Such a rule subjects to seizure or search anyone who actively or passively associates with a gun carrier.  The seizure has no connection with the individual seized, the activity they are involved in, their mannerisms, or their suspiciousness; rather, the seizure is a mere happenstance of geography.” 

“Fifth, it is counterintuitive that Black provided a justification for reasonable suspicion by volunteering his ID to the officer. . . . The record indicates that three of the six men provided identification to the officers, thus, Black’s action could hardly be characterized as overly cooperative.  Additionally, we have noted that this type of argument—that cooperation is a justification for reasonable suspicion—actually places a defendant in a worse position than if he had simply refused to cooperate altogether because the Supreme Court has ‘consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ . . . Likewise, there is nothing suspicious about the fact that Black’s ID revealed he lived outside the district. . . . The pertinent facts remaining in the reasonable suspicion analysis are that the men were in a high crime area at night.  These facts, even when coupled with the officers’ irrational assumptions based on innocent facts, fail to support the conclusion that Officer Zastrow had reasonable suspicion that Black was engaging in criminal activity.”

For these reasons, Mr. Black’s seizure was not reasonable.  Accordingly, the decision to deny Mr. Black’s suppression motion was reversed.  Rather than remand for further proceedings, the court of appeals vacated Mr. Black’s sentence. 

This case, United States v. Black, can be found here

This case law update was written by Michael S. Causey, associate attorney at the law firm of Shaw Bransford & Roth.  

Tags: open-carry, free to leave

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