United States v. Brown, 2024 WL 3838738 (4th Cir. 2024)
Detectives were monitoring the Instagram feed of a known gang member, J.S., and saw a video with J.S. and six other men brandishing firearms at an apartment complex early one morning at approximately 0500. The men were pointing handguns and rifles with extended magazines in the air, in random directions, and directly at the camera. The video, posted shortly before the detectives saw it, included two men later identified as Anthony Cornelius Brown Jr. and Dequane Aquil McCullers. Brown and McCullers were wearing distinctive clothing. Detectives accessed live surveillance video feeds from the apartment complex security cameras and saw men who looked identical to the people in the Instagram video at the same location in the complex.
While one detective remained behind to monitor the real-time security cameras, two other detectives traveled to the apartment complex, some 10 to 20 minutes away. When they arrived, the men began to walk away in different directions (calls to mind California v. Hodari D., 499 U.S. 621 (1991), quoting Proverbs 28:1: “The wicked flee when no man pursueth….” ). A detective shouted for Brown to stop, ordering him to “stop reaching” in front of his torso. Brown complied. Another detective commanded McCullers to raise his hands and get on the ground. He then handcuffed McCullers, frisked him, and found a handgun. McCullers told the detective he was a convicted felon. Two other men were detained.
The department’s policy directed that one officer run background checks to minimize miscommunications and lower the risk that something will be missed in the checks. Accordingly, a single detective gathered the men’s identification information and performed records checks. Just as detectives were preparing to release Brown, 46 minutes after initial contact with him, detectives noticed a bulge in Brown’s pants. Checking, they found a gun. An additional background check showed Brown had a prior felony, and he was arrested.
Brown and McCullers were charged with being felons in possession of firearms. They asked the trial court to suppress evidence of the guns found on their persons. The men claimed there was no reasonable, articulable suspicion to stop them and no reasonable suspicion to believe McCullers was armed. They also asserted the detectives impermissibly extended the length of Brown’s stop. The trial court denied their motion. Brown and McCullers entered conditional guilty pleas and appealed the trial court’s suppression ruling.
It is common in appellate cases to see “woulda, coulda, shoulda” questions. Considering the answers to such questions is one way toward continuous improvement.
The appellate court upheld the denial of the suppression motion, affirming the detectives had reasonable suspicion to stop Brown and McCullers based on the Instagram video and the men’s actions upon seeing the detectives arrive. The court also held that the frisk of McCullers was justified by a reasonable belief he was armed. The court opined that the length of Brown’s detention was reasonable under the circumstances.
A casual look at the facts suggests overwhelming justification to detain and frisk Brown and McCullers. The trial court noted the apartment complex has a reputation for being a hot spot for gang violence, where gang members “post inciting videos on social media to goad each other to violence.” The appellate court agreed that “a reasonable officer could suspect that a video posted by a known gang member—J.S.—featuring hand gestures and aggressive posturing with firearms was meant to communicate a message to members of other gangs in the area.” Only a short time prior to this incident, a mother and three-month-old were fatally shot at the complex. The appellate court cited the men’s “evasive conduct” as an important factor for a court to consider when making a reasonable suspicion determination.
McCullers had been seen in the Instagram video brandishing a gun, providing the detectives a reasonable basis to believe he was armed when they saw him. Though there was no conclusive evidence that the video had been recently created and posted on Instagram, when the detectives saw the live surveillance video and when they approached Brown and McCullers, they were wearing the same distinctive clothing from the video. The court held “an officer could reasonably suspect that the video was taken shortly before—if not at the same time as—it was posted.”
Brown’s extended detention while a single detective conducted criminal history and warrants checks on each of the detained men was permissible. In Terry v. Ohio (392 U.S. 1 (1968)), and in subsequent cases, the Supreme Court stated an investigative detention can last no longer than reasonably necessary to carry out the purpose or mission of the stop. Law enforcement’s mandate also “includes ‘ordinary inquiries incident to stop,’” such as checking identification, determining whether there are outstanding warrants, and attending to related safety concerns (Rodriguez v. United States, 575 U.S. 348 (2015)).
The court also held it was reasonable to detain Brown while his companions were also under investigation. According to Supreme Court precedent, a suspect can be reasonably detained while he and his associates are being investigated (Brendlin v. California, 551 U.S. 249 (2007)). More specifically, a reasonable “police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.”
One judge dissented and would have reversed the suppression denial. Notwithstanding what appears to be a surplus of articulable, reasonable suspicion to detain and frisk the men seen waving firearms in an area rife with gang violence and shootings, a shift in perspective casts doubt on the lawfulness of the stop and frisk. Closer examination also suggests some small additional investigative steps that might have been taken.
The dissenting judge opined that Brown’s and McCullers’ actions seen in the Instagram video were insufficient to give rise to reasonable suspicion. After all, they were “openly displaying firearms in a state that permits open carry.” The dissent presented an alternative reason for the men to be armed at 0500 hrs in the apartment complex: “There had recently been a deadly shooting in the area — an occurrence that might well give rise to an individual’s belief that they needed to exercise their lawful right to self-defense.”
The dissent also expressed “substantial doubts regarding whether a similar video would have drawn the ire of law enforcement had the video’s participants not been young, Black men.” Citing studies of attentional bias and implicit bias, the dissent posited that “it is easy to imagine why young, Black men may choose to avoid engagement with law enforcement.” Brown and McCullers, according to the dissenting judge, “were merely two people who wanted — for whatever reason — to be left alone.”
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It is common in appellate cases to see “woulda, coulda, shoulda” questions. Considering the answers to such questions is one way toward continuous improvement. The dissent also focused on the uncertainty regarding when the Instagram video was actually recorded. It was possible Brown and McCullers and the other men recorded it a long time prior to J.S. posting it and they just happened to be wearing the same clothing. Could further investigation into metadata have confirmed that the video was of recent creation? Could the detectives have used some resources to identify Brown, McCullers and the other men before approaching them and detaining them? If so, would it have been possible to determine that the men were convicted felons (who had been brandishing firearms)? The dissent stated, “It is dubious at best whether the video bore any resemblance to videos that had previously incited violence.” If there was some resemblance or similar features, could detectives have included that information in police reports and court testimony?
Finally, though the dissent cited academic studies about implicit bias and suggested the officers might have reacted differently if the men waving guns had not been young Black men, neither academics, political leaders, social scientists or cops have yet discovered the answer to the thorny question of implicit bias. This seems like a case in which detectives saw several men waving guns in an indisputably high crime area known for gang violence and went to investigate, hoping to prevent violence.
