If you are arrested and charged with a crime, the criminal defense and post-conviction appeal team, here at the Federal Criminal Law Center, insists on the rule that the criminally accused should NEVER EVER stop fighting for their constitutional rights. Why? First, if your rights are vindicated, you retain your freedom and clean record. Second, even judges do not always agree — and often intensely disagree — on whether constitutional rights have been violated. You have to keep fighting and arguing until your rights are vindicated.
A case in point is the recent so-called “spread eagle order” case recently decided by an en banc panel of the Second Circuit Court of Appeals sitting in New York City. See US v. Weaver, Case No. 18-1697-cr (US 2nd Circuit, August 16, 2021). No less than thirteen judges evaluated the facts of the case and, including the original decision from the trial judge, nine distinct legal opinions were written with regard to whether the defendant’s constitutional rights had been violated.
The case involved whether a police officer’s pat-down frisk and search of a suspect for weapons was a violation of the defendant’s constitutional rights protected by the Fourth Amendment. The defendant — Calvin Weaver — was a passenger in a vehicle driving in a Syracuse, NY, neighborhood that was supposedly known as a “high-crime area.” Police officers pulled the vehicle over for a violation of New York traffic laws. In the case, there was no argument about the constitutionality of the traffic stop (although several judges passionately lamented the legitimacy of the New York traffic laws that permitted the stop).
Once the vehicle was pulled over, Weaver was ordered to exit the vehicle, move to the back of the car and “place his hands on the trunk” of the car and “spread” his legs. There was — is — a factual dispute about whether the police officer touched Weaver as he was exiting the vehicle. That legal nuance matters for whether Weaver was “in custody” which affects the required legal standard. In any event, shortly after spread-eagling on the trunk, the officer ordered Weaver to step back from the vehicle. Then the officer gave Weaver a pat-down frisk, finding a gun and drugs. Weaver was arrested and eventually charged with being a felon in possession of a gun and other crimes.
The legal question became whether the pat-down frisk was constitutional. To be constitutional, police officers must have a “reasonable suspicion” that the person has a gun or is otherwise a danger to the officers or others. On the question of “reasonable suspicion,” the trial judge said “yes” and held the pat-down frisk to be constitutional.
In agreeing that there was “reasonable suspicion,” the trial judge cited these facts:
- The area was known to the officers to be a high-crime neighborhood
- When first observed, Weaver was walking and he looked at the officers in a manner that the officers “found unusual” being a look that was “longer” than the usual amount of time that people look at police officers
- The frisking officer saw Weaver “pull up his waistband while walking”
- When the vehicle was pulled over (which Weaver had entered), one of the other passengers in the rear of the car — there were now five occupants — opened his door in a manner that “caused the officers to believe he might attempt to flee”
- While approaching the vehicle, the frisking officer saw Weaver “slouching in his seat and pushing down on his pelvic area with both hands while shifting his hips left to right as if he was attempting to conceal something in his pants”
- When the frisking officer told Weaver to put his hands up, Weaver responded “I don’t got nothing.”
- When ordered outside the vehicle, Weaver pressed his pelvis toward the car, which the officers found “abnormal”
Based on these facts, the trial judge held that “reasonable suspicion” existed for the pat-down frisk. The judge denied a request to suppress the gun and drugs.
However, on appeal, a three-member panel of judges of the US Court of Appeals for the Second Circuit disagreed with the trial judge on a 2-1 vote. See US v. Weaver, 975 F. 3d 94 (Court of Appeals, 2nd Circuit 2020). All three judges wrote opinions. Two members of the panel said that the frisking officer did NOT have reasonable suspicion to believe that Weaver had a weapon, only reasonable suspicion that Weaver was concealing something “illicit.” The dissenting judge agreed with the trial court.
An appeal was taken to a 12-member panel of judges of the US Court of Appeals for the Second Circuit (which included the three judges from the first panel). The 12-member panel disagreed with the decision of the three-member panel and agreed with the trial court that the frisking officer had “reasonable suspicion.” One judge from the three-member panel — Cabranes — changed his mind and ultimately agreed with the trial judge. The 12-member panel issued five separate legal opinions. The vote from the 12-member panel was 7-2-3. That is, seven judges agreed with the trial court, two judges agreed with the result reached by the trial court but for different legal reasons and three judges dissented and said there was no “reasonable suspicion” for the pat-down frisk. The disagreements among the judges can only be described as “bitter” and “heated.”
While he did not ultimately prevail, the history of Weaver’s case demonstrates one essential reason that a criminally accused should never give up the fight: Even the judges have bitter disagreements about the rules and how they are to be applied in any given case. Weaver’s case also shows the need for having an experienced and dedicated criminal defense team.
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For more information, contact the criminal defense and post-conviction appeal team at the Federal Criminal Law Center. Our firm knows how to fully assess an individual’s case and how to identify the strongest grounds for appeal. Contact us today by calling (404) 633.3797 or by completing our quick and convenient online form. Contact us today.