Affording Strong Deference to Police Training and Experience has Fourth Amendment Implications

By Megan E. Coleman

As a practicing criminal defense attorney, it is noticeable that far too often prosecutors in stop and search cases are able to win suppression hearings based in large part on the officer’s training and experience rather than the actual substance of the observations. Prosecutors simply establish the officer’s background and then extract an opinion that in the particular case the officer believed, based on his training and experience, that what he observed was consistent with a drug transaction or a furtive movement. Add in a fact that the officer had been tailing the defendant because of a tip received by a known reliable informant and the order denying the motion to suppress gets signed, sealed, and delivered to the defendant.

This is precisely what occurred in the Fourth Circuit in United States v. Tremayne Drakeford, No. 19-4912 (decided Mar. 26, 2021) (Opinion by Thacker, J., joined by Gregory, C.J., with Wynn, J. concurring). An experienced law enforcement officer witnessed what he believed was a “hand-to-hand” drug transaction between Appellant and others, after he had been alerted by a confidential informant (CI) whom he had used approximately 50 times before, that Appellant was a suspected drug dealer. With that information officers stopped and frisked Appellant, yielding the recovery of drugs from Appellant’s sweatshirt pocket. The district court denied Appellant’s motion to suppress the drugs.

In a refreshing opinion (at least for any defense attorney), the Fourth Circuit not only reversed the district court’s denial of the motion to suppress, but the majority and concurring opinions cogently educated the police, the prosecutor, and the suppression court that the Fourth Amendment requires more than rote reliance on an officer’s training and experience.

The touchstone for determining whether an officer had reasonable suspicion under the Fourth Amendment is looking at the totality of the circumstances. While it is true that “[s]eemingly innocent factors, when viewed together, can amount to reasonable suspicion”, it is important to remember that “the presence of additional facts might dispel reasonable suspicion.” The Fourth Circuit has been “skeptical of Government attempts to spin…largely mundane acts into a web of deception.”

1. A Tip by a Confidential Informant

“[T]ips fall somewhere on a spectrum of reliability.” In this case, the officers’ testimony on the reliability of the CI was scant. Though the officers testified that the CI assisted with “[a]pproximately 50” cases, the record was void as to the number of convictions the CI aided in, or any other facts that credited the reliability of the CI. The CI did not provide a name or address for Appellant nor did the CI predict Appellant’s future movements such as a place or time he was expected to be in possession of or sell drugs. Further, detectives never attempted to confirm the CI’s allegation by setting up a controlled buy between the CI and Appellant. The Fourth Circuit found that the CI’s information “deserves little weight in the totality of the circumstances.”

2. The Passage of Time

The officers’ surveillance provided them with nothing more than a single previous suspected drug exchange in which officers found no drugs. Officers surveilled Appellant over the course of several months and never observed suspicious behavior or drug transactions at those prior locations.

Despite the tip that Appellant purportedly received a re-supply of drugs on a certain date, it was not until nearly a week later that law enforcement decided to stop Appellant and at no point in between did officers attempt to set up a controlled purchase with Appellant.

3. The Handshake

The Government relied heavily on a handshake that occurred between Appellant and one of the men he met. This handshake was, according to the police, a “hand-to-hand” transaction. However, the officer did not provide more than this conclusory testimony. The officer never witnessed drugs or money changes hands, and his testimony did not provide any details about the handshake that would allow the Court to view this handshake as suspicious.

The Court determined that that “the officers’ bare suspicion of drug trafficking – without more” cannot “allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs.” This did not amount to reasonable, particularized suspicion. The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.

4. Dispelling Reasonable Suspicion

On the day of the stop itself, “several notable facts dispel[led] the notion that Appellant was engaged in a drug transaction.” The events that unfolded were inconsistent with how the officer testified that he would expect drugs to be sold or bought. The expected course of action would be one person entering a vehicle with another, exchanging drugs, the person leaving the vehicle, and then leaving the scene. However, in this case, the alleged drug transaction occurred outside of the vehicles, and when it was done, all three of the men entered a retail store together and proceeded to conduct a normal shopping trip.

Further, the entire interaction occurred in broad daylight, in the middle of the afternoon, in a public parking lot, and in front of a security camera.

Majority Conclusion

Judge Thacker reminded us all that to sustain reasonable suspicion, officers, while considering the totality of the circumstances, “must not overlook facts that tend to dispel reasonable suspicion” such as the interaction occurring in a public space, in broad daylight, outside of the vehicles, in front of a security camera, after which Appellant went into a store, rather than immediately leaving the scene.

In this case, officers relied on general information from a CI with no established reliability that Appellant was a drug dealer. Prior surveillance attempts of Appellant revealed no drugs. A single officer witnessed a handshake between Appellant and another man and concluded that it was a hand-to-hand drug transaction, even though the officer did not observe the exchange of drugs or money.

On these facts, the Court agreed with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped him. Consequently, the Court reversed the district court’s denial of the motion to suppress.

Judge Wynn’s Concurring Opinion

Judge Wynn wrote separately to explore the notion of why lower courts are so quick to rely on police experience and the potential implicit bias that accompanies injecting an officer’s generalizations from previous encounters into the individualized assessment of the current suspect’s ambiguous behaviors.

Judge Wynn asked why the district court credited the officer’s testimony that the handshake was, in fact, a “hand-to-hand” transaction? Was it because the officer had been a narcotics officer for years? Was it because in that capacity he had seen several dozen hand-to-hand transactions, even acting as an undercover conducting a few himself?

Though Appellant’s interaction was apparently “consistent with” the hand-to-hands that the officer had seen, it was also consistent with two friends shaking hands. Critically, what was it about this handshake, specifically, that led this officer to see it as something more nefarious?

Judge Wynn posited that “[s]uch meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer.” Yet, in the 50 years since Terry v. Ohio, “courts have afforded greater and greater weight to officers’ ‘training and experience’ – often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.”

“[T]he success or failure of a suppression motion cannot hinge on an officer saying, in essence, ‘I know it when I see it.’” The officers must “articulate why a particular behavior is suspicious.” Courts must “demand such an explanation from officers who, as in this case, testify as to both the underlying, objective facts as well as the significance of those facts.”

The “practice of affording strong deference to ‘training and experience’ has costs.” It incentivizes veteran officers to lean on their “impressions” instead of doing the hard work of building a case, fact by fact, which Judge Wynn coined “a worrisome consequence, given what we now understand (and are still coming to understand) about bias.”

For instance, literature has demonstrated that “a substantial portion of the racial profiling that occurs in modern policing is the product not of explicit racism but of implicit [bias].” “One behavioral effect of implicit bias is that it influences how individuals interpret the ambiguous behaviors of others.” Thus, there are good reasons to avoid bare reliance on generalizations based on officer “experience” when evaluating ambiguous behavior like a handshake.

Judge Wynn warned that “the more we defer to ‘experience’ as a placeholder for objective facts, the more variability we inject into the Fourth Amendment.” Judge Wynn suggested that suppression judges “curb these ill effects by dialing down the deference” and “treating police officers like other expert witnesses.” Where “an officer’s explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight.”