North Carolina officers who stopped and frisked a Black man after seeing him shake hands with two other Black men lacked “reasonable suspicion” to believe the handshake was a hand-to-hand drug deal, a federal court ruled late last month. Adding to the absurdity, no money or drugs were seen exchanging hands, while the suspected drug deal “occurred in broad daylight, in the middle of the afternoon, in a public parking lot, and in front of a security camera.”
“The Fourth Amendment does not allow the government to label a person as a drug dealer and then view all of their actions through that lens,” the Fourth U.S. Circuit Court of Appeals declared in a unanimous decision. United States v. Drakeford also promoted a fiery concurrence that blasted federal courts for their often unwarranted deference to law enforcement.
Back in August 2017, a confidential informant contacted Detective Douglas Moore that a “light skinned black male, heavyset” with “a full beard” was a drug trafficker. But many key details were lacking: The informant didn’t provide a name, address, or any indication about the next time the man would sell drugs. In fact, the only germane information the informant gave was the man’s vehicle tags. But as the Fourth Circuit wryly observed, “that alone does not connect him to drug trafficking. It connects him to a vehicle and that is it.”
Eventually, Detective Moore was able to track down where the suspect (one Tremayne Drakeford) lived and began to surveil him. But even after surveilling the man’s house 10 times and then monitoring him another 30 times at the home of a “female associate,” the detective “never witnessed any drug transactions.”
After months of coming up empty handed, in February 2018, detectives followed Drakeford to the parking lot of a Car Stereo Warehouse. Drakeford waited in his car until two Black men got out of a white Cadillac. The three men shook hands, talked briefly, and then shook hands again before they entered the store.
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One of the officers on the scene, Detective Paul Murphy, testified that he “honestly believed” the second handshake was a hand-to-hand drug transaction. Despite not actually seeing any drugs or money exchange hands, the detective nevertheless thought the second handshake was nefarious because it was “more deliberate and it wasn’t as brief as the first action.”
Based on that information, Detective Moore decided that the officers would stop and frisk Drakeford when he came out of the store. During a pat down, one of the officers found a small bag of narcotics in Drakeford’s pocket. Officers then executed a search warrant at the home of his female associate, where they found more drugs and a gun.
Drakeford was indicted and charged with possession with intent to distribute 500 grams or more of cocaine, 50 grams or more of methamphetamine, 100 grams or more of heroin, and marijuana, as well two firearm possession charges. In response, Drakeford filed a motion to suppress, arguing that he was unlawfully stopped and that the evidence found at the home “were the fruits of an unlawful search.”
Unfortunately for him, a federal district court denied his motion, ruling that the officers’ actions were reasonable and justified. With that, Drakeford pled guilty and was sentenced to more than 17 years in prison.
But on appeal, the Fourth Circuit lambasted the officers for suspecting a handshake to be a drug deal. “We cannot hold that officers’ bare suspicion of drug trafficking—without more—can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs,” the court held. “This cannot amount to reasonable, particularized suspicion.”
The government’s case became “even less convincing” when considered within “the totality of the circumstances.” For instance, Detective Moore had testified that the interaction at the Car Stereo Warehouse was consistent with “how drugs are sold or bought in Charlotte” and said he expected “one person to exit the vehicle, enter the other vehicle, exchange drugs, leave their vehicle, and then leave the transaction.”
But what did happen “did not at all meet Detective Moore’s description,” countered the Fourth Circuit. In Drakeford’s case, the interaction took place outside of the cars and “instead of any of the men re-entering their own vehicles and leaving the location, all three men entered the store together and proceeded to conduct a normal shopping trip.”
As the Fourth Circuit had previously ruled, “we are skeptical of government attempts to spin…largely mundane acts into a web of deception.” Nor can the government “rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.”
In a short and sharp concurrence, Judge James Wynn blasted federal courts for granting “greater and greater weight to officers’ ‘training and experience’—often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.”
For Drakeford’s case, this meant the lower court had accepted “thin facts…bolstered by a thinner interpretation of those facts.” More specifically, a handshake was seen as a drug deal because the witnessing officer said the interaction was “consistent” with the “several dozen” hand-to-hand transactions he had seen in his four-year career as a narcotics officer.
“Such meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer,” asserted Judge Wynn. “The success or failure of a suppression motion cannot hinge on an officer saying, in essence, ‘I know it when I see it.’”
“Our practice of affording strong deference to ‘training and experience’ has costs,” the judge argued. First, deference to law enforcement “incentivizes veteran officers to lean on their ‘impressions’ instead of doing the hard work of building a case, fact by fact. That’s a worrisome consequence, given what we now understand (and are still coming to understand) about bias.”
Moreover, Judge Wynn warned that “the more we defer to ‘experience’ as a placeholder for objective facts, the more variability we inject into the Fourth Amendment.” For instance, stops made by a veteran could be upheld, while a rookie’s stops made in the exact same situation would be invalidated, a situation that would make the Fourth Amendment’s protections “arbitrarily variable.”
According to Wynn, “judges can begin to curb these ill effects by dialing down the deference—even slightly—and treating police officers like other expert witnesses. Doing so would be consistent with both precedent and common sense.”
“No doubt, experienced officers can see things the rest of us would miss,” Wynn readily acknowledged, and an officer “may of course rely on it, so long as he can later explain in court why the fact is significant.” “But if an officer’s explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight,” Wynn added.
Attorneys for both sides declined to comment.