Chief appeals judge critiques Wynn in 4th Amendment case

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  • A 2-1 split in a Fourth Amendment case from Durham prompted the chief judge of the 4th US Circuit Court of Appeals to critique fellow Judge James Wynn's dissent.
  • Chief Judge Albert Diaz wrote the majority opinion upholding James Edward McDonald's convictions on drug and gun charges.
  • Diaz critiqued Wynn's dissent for "several critical errors, both in its interpretation of the facts and in the standard of review governing this appeal."

A split 2-1 ruling in a Fourth Amendment case from North Carolina Tuesday prompted the chief federal appellate judge to take issue with fellow Judge James Wynn’s dissent. The majority opinion devoted multiple pages to critiquing Wynn’s arguments.

In an unpublished opinion in United States v. McDonald, the 4th US Circuit Court of Appeals affirmed James Edward McDonald’s convictions on charges of possession with intent to distribute cocaine and possession of a firearm by a felon. McDonald was sentenced to six years in prison and three years of supervised release.

Chief Judge Albert Diaz and Judge Robert King affirmed US District Judge Loretta Biggs’ ruling in the case. Wynn dissented. Democratic presidents appointed all four judges.

McDonald argued that police Officer Thomas Greathouse “lacked a reasonable, articulable suspicion” to seize and search McDonald during a police operation at a Durham public housing parking lot, according to the 4th Circuit opinion.

Wynn agreed. “The Fourth Amendment demands that warrantless stops be justified by a particularized, objective basis for suspecting that the individual stopped is engaged in criminal activity,” he wrote. “And while we evaluate the totality of the circumstances in determining whether that particularized basis existed, the totality-of-the-circumstances standard is not a magic wand that can transform unparticularized, innocuous facts into indicators of criminal activity.”

“But that is precisely how it operates in the majority opinion,” Wynn argued. “The majority acknowledges that most of the factors on which it relies in concluding Greathouse had reasonable suspicion that McDonald was engaged in criminal activity would be insufficient on their own to justify a stop. Yet it holds, without explanation, that together they are sufficient to pass constitutional muster. Because I see the factors on which the majority relies as falling far below the threshold of reasonable suspicion—even when viewed together—I respectfully dissent.”

Diaz’s majority opinion tackles Wynn’s criticism. “Our colleague in dissent voices sweeping concerns about how law enforcement might use — and abuse — this opinion to justify otherwise plainly unconstitutional conduct,” the chief judge wrote. “But in doing so, the dissent makes several critical errors, both in its interpretation of the facts and in the standard of review governing this appeal.”

“To begin, we revisit our standard of review: we recount the facts in the light most favorable to the government. We need go no further to discern the dissent’s first error. Rather than accept this standard, the dissent instead wrangles the facts in McDonald’s favor,” Diaz explained.

Police had arrived at the scene to arrest Joseph Cates, “a known gang member with an outstanding warrant for aggravated assault,” Diaz wrote.

Yet McDonald and an “armed and wanted” Cates were “merely two people hanging out” when police showed up, according to Wynn’s view. “Indeed, McDonald was simply ‘chatting with friends,’ and at ‘3 PM on a Friday,’ no less, an apparently crime free time of day,” Diaz wrote, paraphrasing the dissent.

“Not only should we view these facts in McDonald’s favor, we also should find each circumstance ‘unparticularized’ and wholly ‘innocuous,’ forming ‘no basis” at all for reasonable suspicion,” Diaz said of his colleague’s dissent. “In scoffing at the totality-of-the-circumstances approach, the dissent doesn’t simply argue that the circumstances don’t, in sum, support reasonable suspicion. Rather, in the dissent’s view, each of the circumstances registers no measure of suspicion at all.”

“But the dissent overlooks our directive that even ‘factors susceptible of innocent explanation, when taken together, may form a particularized and objective basis of reasonable suspicion,’” Diaz wrote. “And by taking this absolutist approach, the dissent fails to unpack how the district court layered these factual circumstances into a ‘whole picture.’ … Simply labeling a circumstance as innocuous doesn’t make it so.”

“The dissent also makes arguments on McDonald’s behalf, to include some that McDonald didn’t even raise to the district court,” Diaz added. “So, for example, our friend chides us for ‘accept[ing] without question’ the district court’s holding on when McDonald was ‘seized’ for Fourth Amendment purposes. But McDonald never invited us to question that holding.”

“Put simply, we can’t agree with our colleague that law enforcement was lying in wait to ‘provok[e]’ a ‘frightened reaction,’ out of McDonald to justify seizing him,” Diaz wrote. “The totality of these circumstances more than justified the search and seizure here.”

“We agree with our colleague that our decisions should never provide fodder for law enforcement (or anyone) to abuse our Constitution,” the chief judge concluded. “But we don’t believe, given the fact-intensive analysis required for each Fourth Amendment case and our existing precedent, that today’s holding could reasonably do so.”