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Is a hearty handshake evidence of a crime?

Author: Jim Chapman

 

In United States v. Drakeford, 992 F.3d 255 (4th Cir. 2021), Defendant Tremayne Drakeford was arrested and charged with possession and distribution of controlled substances after the police apprehended him at a Car Stereo Warehouse store and found narcotics in his sweatshirt pocket. After his arrest, Drakeford moved to suppress evidence of the narcotics. The United States District Court for the Western District of North Carolina denied Drakeford’s motion to suppress, and thereafter, he pled guilty to the charged crimes.


On appeal to the United States Court of Appeals for the Fourth Circuit, Drakeford argued that the District Court erred in denying his motion to suppress because the officers did not have a reasonable suspicion to stop and frisk him, and therefore, they violated his Fourth Amendment right to be free from an unreasonable search. The following facts are relevant to Drakeford’s appeal.


In August 2017, a confidential informant contacted Detective Douglas Moore advising him that a “light skinned black male, heavyset” with “a full beard” was trafficking cocaine and heroin. The informant provided the suspect’s vehicle tags but did not provide a name or address. The informant also never provided the detectives with any predictive behavior of Drakeford, such as that he was going to sell drugs to her on a particular date. Through further investigation, Detective Moore linked the vehicle tags provided by the informant to Drakeford. Once Detective Moore discovered Drakeford’s identity, he learned that Drakeford had been arrested several times for selling drugs, but Detective Moore did not have knowledge of any convictions resulting from Drakeford’s arrests.


Although the informant provided the tip to him in August 2017, Detective Moore did not begin further investigation of Drakeford until October 2017. At that point, Detective Moore located an address believed to be associated with Drakeford. In November and December 2017, Detective Moore conducted surveillance at the identified address. Detective Moore surveilled Drakeford’s address more than ten times, but to no avail, as Detective Moore never saw Drakeford at that location. Detective Moore then identified a female associate of Drakeford. He located her address and began conducting surveillance there. Detective Moore observed Drakeford at that residence over thirty (30) times, but he never witnessed any drug transactions.


On February 1, 2018, Detective Moore surveilled Drakeford at the address of his purported female associate. That afternoon, the surveillance team observed Drakeford leave the residence and drive to a gas station. At the gas station, Drakeford remained in his vehicle until a white pickup truck pulled up and parked next to him. The sole person in the pickup truck got out of his car, entered Drakeford’s car, and remained in Drakeford’s car for 30 to 45 seconds before exiting, re-entering his own car, and driving away. At that point, the surveillance team followed the white pickup truck. Detectives believed that the driver got high on drugs after he left the gas station because “he started to speed up and slow down.” As a result, the surveillance team called the local police to pull over the truck. During the traffic stop, a K-9 officer with a dog detected drugs, but the officers only found syringes in the vehicle, no drugs. Detective Moore testified at the suppression hearing that the syringes implied drug use because heroin is cooked and is then drawn from some type of apparatus into the syringe, and the syringe is placed inside the user -- in a blood line, in a vein inside the user. Further, Detective Moore testified that it was significant that syringes were recovered from the vehicle “because I felt like the driver was a heroin addict or used heroin and it was significant because he just left visiting with [Drakeford].”


Later that same week, detectives observed Drakeford leave the female’s residence and travel to a different gas station. At the gas station, Drakeford parked and sat in his car. Nothing else happened. Drakeford then left the gas station and returned to the female’s residence. Later that same day, Detective Moore contacted the informant and asked her to contact Drakeford to ask if Drakeford had any heroin to sell, which she did. According to the informant, Drakeford told her that he did not have any heroin and that he was waiting for a supply. At some point later that same day, detectives observed Drakeford leave the female’s residence and enter another residence. Drakeford did not have anything in his possession when he entered the home. A car with a Florida license plate arrived at the home, and a person entered the home carrying several bags. About an hour later, Drakeford left the home carrying a bag. Detectives followed Drakeford back to the female’s residence, and while they were following him, Drakeford called the informant to notify her that he had drugs to sell.


Between five and seven days later, detectives were again surveilling Drakeford when they observed him leave the female’s residence and drive to a Car Stereo Warehouse store. Drakeford parked his car in the parking lot and remained inside the car. Detective Moore testified that the surveillance team was “expecting someone to meet [Drakeford] and this to be like the other occasions when somebody would meet him.” Detective Moore also testified that this stop was consistent with how he would expect a drug transaction to occur. Notably, the location where Drakeford parked was not in a high crime area and was directly in front of a security camera. As Detective Moore described it, the location was a “busy area in a public parking lot.” While Drakeford was waiting in his car, a white Cadillac pulled up, and two black males exited the vehicle. Drakeford also exited his vehicle. Detective Moore testified that this interaction was “consistent ... in how [Drakeford] meets people in public areas,” and stated, “I honestly believed that it was a drug deal was going to happen, a transaction was going to occur.”


Detective Moore further testified at the suppression hearing that someone radioed that a “hand-to-hand” money and drug exchange occurred in the Car Stereo Warehouse parking lot between Drakeford and one of the men. Detective Paul Murphy testified that he first witnessed “a quick dap, quick handshake ... , some brief conversation.” Then, as the men continued talking, they exchanged a second handshake, which Detective Murphy “believed to be a hand-to-hand narcotics transaction.” He testified: “At that point there was an exchange of narcotics for money or just an exchange of narcotics just based on the mannerisms of that action.” But, on cross-examination, when specifically asked if he saw drugs or money exchange hands, Detective Murphy admitted that it was just the actions and mannerisms that indicated to him that it was a drug transaction. He did not actually see drugs exchanged, nor did he see any money exchanged. Detective Murphy only witnessed a long handshake. Detective Murphy provided no further detail about why this second handshake led him to conclude that a hand-to-hand drug transaction had occurred. In fact, when asked to describe why he thought the second handshake was a “hand-to-hand transaction versus just another greeting,” Detective Murphy conceded: “Well, the first interaction was brief. The second, what I believe to be the hand-to-hand transaction, was more deliberate and it wasn’t as brief as the first action.” No other officer witnessed drugs or money changing hands between Drakeford and either of the other men.


After the second handshake and the supposed “hand-to-hand” exchange, Drakeford and his two companions entered the Car Stereo Warehouse. Detective Moore testified that, after the radio call about the hand-to-hand exchange, he made the decision that detectives were going to make a stop. Nonetheless, Detective Moore thought that suspicious activity may have been occurring inside the business, and so, he entered the Car Stereo Warehouse behind the three men. Inside, the men talked to a salesperson about purchasing something and remained in the store for about 10 or 15 minutes. While at the counter, one of the men had a backpack, which was at his feet. When Detective Moore walked past the men at the counter, the man with the backpack cuffed the bag with his foot and slid it closer to him as if he was protecting it.


After the three men and Detective Moore exited the store, the three men “continu[ed] to meet,” and Detective Moore had the uniformed patrol cars enter the parking lot. Detectives confronted Drakeford in the parking when he exited the store and entered his vehicle. They asked Drakeford to step outside from the driver’s side of his vehicle. Detective Hank Suhr led Drakeford to the back of his vehicle where Detective Suhr had Drakeford place his hands on the trunk of the vehicle. Detective Suhr told Drakeford to remove his hands from his pockets. Detective Suhr testified that “[Drakeford’s] body language was consistent with not being completely truthful or he appeared to be a little apprehensive.” While Drakeford was facing the car with his hands on the trunk, he turned around and removed his hands from the trunk of the car twice. Detectives Suhr and Todd Hepner then handcuffed Drakeford.


Detective Suhr testified that he patted down Drakeford’s pocket and felt what was immediately apparent to him as narcotics. He pulled a round bag of contraband out of Drakeford’s left pocket. Drakeford contends that Detective Suhr did not pat him down for weapons but, instead, manipulated his pocket in order to feel the bag of drugs. Detective Hepner testified that Detective Suhr did not manipulate the pocket but “just patted it down real quick.” Further, Detective Suhr testified: “And [I] just felt, again, through my training and experience, that there was some form of narcotics in that pocket.” Drakeford contended that the body camera footage from Detectives Suhr and Hepner demonstrated that Detective Suhr never made motions consistent with a pat down, but rather, Detective Suhr opened Drakeford’s pocket, reached in, and pulled out a bag of narcotics.


After the search at the Car Stereo Warehouse, officers executed a search warrant at the female associate’s residence and found additional drugs and a firearm. Drakeford was indicted and charged with possession with intent to distribute controlled substances including 500 grams or more of cocaine, 50 grams or more of methamphetamine, 100 grams or more of heroin, and marijuana. He was also charged with being a felon in possession of a firearm and possessing a firearm in furtherance of a drug trafficking crime.


Subsequently, Drakeford filed a motion to suppress the evidence from the Car Stereo Warehouse stop and the evidence found through the search warrant, claiming that the stop was unlawful and that the evidence found by the police from the search warrant was the fruits of an unlawful search. After conducting a hearing, the District Court denied Drakeford’s motion to suppress the evidence, and Drakeford timely appealed.


The Fourth Circuit began its consideration of Drakeford’s appeal by noting that the Fourth Amendment guarantees the right of the people to be secure in their persons against unreasonable searches and seizures and by explaining that the Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. The protection against unreasonable seizures includes brief investigatory stops, i.e., a Terry stop. The Fourth Circuit opined that, in a Terry stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant an intrusion. The level of suspicion must be a particularized and objective basis for suspecting the particular person stopped of criminal activity. Anything less invites intrusions upon Constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.


Furthermore, in order to determine if an officer has a reasonable suspicion, courts look to the totality of the circumstances. Seemingly innocent factors, when viewed together, can amount to reasonable suspicion. But, the presence of additional facts might dispel reasonable suspicion. Accordingly, the prosecution cannot rely upon post hoc rationalizations in order to validate those seizures that happen to turn up contraband.


In this case, the Fourth Circuit agreed with Drakeford that the District Court erred in denying his motion to suppress. The Fourth Circuit determined that the officers had relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a couple of handshakes between Drakeford and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged.


Moreover, the officers concluded that this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Drakeford went into a store, rather than immediately leaving the scene. On these facts, the Fourth Circuit held that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Drakeford. In other words, a couple of handshakes in broad daylight without anyone witnessing money or drugs exchanging hands did not create a reasonable suspicion that justified the Terry stop.


Finally, the Fourth Circuit gave little weight to the confidential informant’s tip. The Fourth Circuit stated that tips fall somewhere on a spectrum of reliability, and under the Fourth Amendment, a reviewing court may take into account all of the facts surrounding a tip in assessing the totality of the circumstances supporting a stop. In this case, the officers’ testimony on the reliability of the confidential informant was scant. When asked how many cases the informant had assisted with, Detective Moore testified: “Approximately 50.” However, Detective Moore never indicated the number of convictions that the informant aided in, if any, or any other facts that credit the reliability of the informant.

Here, the informant provided two pieces of information about a person who was allegedly trafficking cocaine and heroin to detectives: first, that the person was a “light skinned black man, heavyset” “with a full beard”; and second, the vehicle tags for the person’s car. Although the informant assisted detectives in other cases, she failed to provide any specific identifying information about Drakeford. She did not provide a name, an address, or any information predicting his movements, such as a particular place or time he was expected to be in possession of or sell drugs. In fact, the only information that the informant provided that proved useful to the detectives in connecting the informant’s tips to Drakeford was the vehicle tag number that was connected to him. But, the Fourth Circuit opined that that information alone did not connect Drakeford to drug trafficking activity. Instead, the information only connected Drakeford to a vehicle. Notably, the Fourth Circuit stated that, despite the informant’s ability to communicate with Drakeford, the detectives never attempted to confirm the informant’s allegation by setting up a controlled buy between the informant and Drakeford, nor did they seek any predictive information that would lend to her credibility. Accordingly, the Fourth Circuit found that the information provided by the informant as to Drakeford’s alleged illegal activities deserved little weight under the totality of the circumstances.

In sum, the Fourth Circuit held that, because the officers did not have a reasonable suspicion to conduct an investigatory stop of Drakeford, the subsequent frisk of Drakeford and the search of the female’s residence could not be justified. Accordingly, the Fourth Circuit reversed the District Court’s denial of Drakeford’s motion to suppress and remanded the case to the District Court for further proceedings.


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