FOURTH CIRCUIT SUPPRESSES EVIDENCE OF SEIZED GUN

 

[Posted April 30, 2009]  Yes, you read that right.  For those of you who mistakenly think that all the Fourth does with criminal appeals is rubber-stamp the findings of guilt (and maybe remand for an occasional Booker resentencing), US v. Neely, decided yesterday, is for you.  May it broaden your perspective on the Fourth’s views of criminal cases.

 

Neely was driving in what yesterday’s opinion calls a high-crime area of Charlotte, NC in the wee hours of the morning three years ago.  A police officer spotted him driving without headlights, so he initiated a routine stop.  The driver handed over the requested license and registration, and everything checked out fine.  The officer then returned to the car to give the driver a warning.  But when he got there, it occurred to him to ask if the driver had a weapon inside.  “Why, no,” came the answer, “Would you like to check the trunk?”  The driver tried without success to pop the trunk.  After about 30 seconds of that, the officer asked him to step outside.  The driver did so, and handed the officer the keys.  The officer then did a quick patdown search (again, clean) and directed the driver to go and sit on the hood of the police car, where another officer was standing.

 

The driver did exactly as he was told, and the first officer then returned to the car and searched the interior (note: not the trunk, but the inside of the passenger compartment), where he found a handgun behind the passenger seat.  That’s double trouble, since this driver was a convicted felon and the recipient of a domestic violence restraining order.  Because possession of a firearm by a person in either category is a federal offense, the driver had more to worry about than driving without headlights.

 

His lawyer moved the district court to suppress, but the court refused to do so, finding that the driver had consented to the search.  It also ruled, in a separate, parallel ruling, that the search of the car was legitimate for the officer’s protection.  Based on these rulings, the driver entered a conditional guilty plea to each charge, reserving the right to appeal the suppression ruling.

 

That tactic bears fruit on appeal, as the Fourth Circuit reverses both prongs of the district court’s decision.  It concludes that while the driver may have consented to a search of the trunk, he never consented to a search of the car’s interior.  You can, indeed, limit the scope of your consent, and the officer has to respect those limits; if he isn’t happy with such a limitation, he can go get a search warrant.  Nor was there sufficient reason for the officer to believe himself in danger from the driver, who had behaved fairly normally, complied with all of the officer’s directions, and never threatened anyone the whole time leading up to the discovery of the weapon.  Under these circumstances, the search of the interior of the car was impermissible, so the conviction gets reversed.  The government now has to decide whether to try to proceed with the prosecution anyway, but with no gun to introduce into evidence, that would likely be a very short trial, followed by a successful motion to strike the government’s evidence.