by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a second handshake that was “more deliberate” and longer in duration than an earlier handshake failed to provide officers reasonable suspicion to conduct an investigative stop pursuant to Terry v Ohio, 392 U.S. 1 (1968) (“Terry stop”). Furthermore, the Court explained that the officers in this case ignored circumstances that dispelled reasonable suspicion.

In August 2017, a confidential informant (“CI”) contacted Detective Douglas Moore and reported that a bearded “light-skinned black male, heavyset, was trafficking in cocaine and heroin.” The CI provided vehicle tag numbers that Moore traced to Tremayne Drakeford.

Moore waited until October 2017 before investigating Drakeford. He surveilled Drakeford’s residence 10 times and surveilled the residence of Drakeford’s female associate 30 times – not once observing a drug transaction at either residence. Being doggedly persistent, in February, 2018, Moore trailed Drakeford to a gas station. A white pickup truck parked next to Drakeford’s vehicle. The only person in the truck entered Drakeford’s vehicle briefly, then returned to his truck, and drove off. Officers stopped the truck. A search revealed no drugs, but police did find syringes. Moore would later testify at a suppression hearing that the syringes were significant “[b]ecause heroin is cooked and [is then] drawn from some type of apparatus … and then the syringe is placed … in a vein inside the user.”

Sometime within the next three days, Moore contacted the CI and asked her to contact Drakeford to inquire if he had any heroin to sell. Afterward, the CI informed Moore that Drakeford stated he didn’t have any, but he was awaiting a supply. Later that same day, detectives observed an empty-handed Drakeford enter a residence. About an hour later, Drakeford exited the residence carrying a bag. While detectives were following Drakeford, he allegedly phoned the CI to notify her he now had drugs to sell.

In the early afternoon of February 9, 2018, detectives followed Drakeford to Car Stereo Warehouse. Drakeford parked in the store’s parking lot directly in front of a surveillance security camera. Moments later, a white Cadillac pulled up, and two Black males emerged. Drakeford exited his vehicle, and the men exchanged a quick handshake followed by a brief conversation. The men concluded talking and exchanged a second handshake. The three men then entered Car Stereo Warehouse together. Moore entered the store and overheard the three men discussing purchasing a stereo with a clerk.

When the three men exited the store, Moore instructed Drakeford to place his hands on the trunk of his car. Moore conducted a pat-search and removed a bag of narcotics from Drakeford’s pocket. Based on those narcotics, officers executed a search warrant at the female associate’s residence where they recovered additional narcotics and a firearm. Drakeford was indicted on several drug- and firearm-related offenses. He filed a motion to suppress, arguing that the police lacked reasonable suspicion to conduct the Terry stop and search. As a result, the search and seizure were unlawful, and all the ensuing evidence was the fruit thereof and must be suppressed.

At a hearing on the motion, Moore testified he had reasonable suspicion that a drug transaction occurred. Moore testified that drug deals often transpire in public places. The parties involved in the deal arrive at an agreed-upon place in separate vehicles. One party exits his vehicle and enters the other party’s vehicle. Drugs are bought or sold in that vehicle. The first party then returns to his vehicle, and the parties go their separate ways.

Moore also testified that the second handshake provided him with reasonable suspicion. He said the second handshake was “more deliberate” and lasted longer in duration than the first handshake. Based on his knowledge and experience as a police officer, that was a handshake that indicated a drug transaction. On cross-examination, Moore admitted that he never saw any money or drugs change hands. The U.S. District Court for the Western District of North Carolina denied the motion, and Drakeford appealed.

The Court observed “[t]he Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.’” The Fourth Amendment’s protections extend to brief investigatory stops. United States v. Curry, 965 F.3d 313 (4th Cir. 2020). A police officer may conduct a brief investigatory stop based on a reasonable, articulable, suspicion that criminal activity is afoot. Terry. Intrusions upon constitutional rights require more than inarticulable hunches. Id. To determine if an officer had reasonable suspicion, courts look to the totality of the circumstances. United States v. Foster, 824 F. 3d84 (4th Cir. 2016). Seemingly innocent factors, when viewed together, can amount to reasonable suspicion. Id. But the presence of additional facts might dispel suspicion. Kansas v. Glover, 140 S. Ct. 1183 (2020).

The Fourth Circuit is skeptical of government attempts to spin largely mundane acts into a web of deception; consequently, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband. Foster.

In the instant case, the Court gave little weight to the CI’s tip because the CI didn’t provide a particular time or date that Drakeford would be possessing or selling drugs, i.e., the tip provided nothing to support reasonable suspicion. The same was true of the surveillance of the residence as nothing was observed to indicate any drug transactions, the Court stated.

Regarding the incident with the pickup truck at the gas station, no drugs were found in the truck as it left from the meeting with Drakeford. While syringes were found in the truck, it simply wasn’t plausible that the lone driver “cooked” and injected any drugs while driving down the highway.

With regard to Drakeford allegedly being resupplied with drugs as the CI claimed, the detectives failed to use the CI to make a controlled buy even though she claimed Drakeford had just called her and told her he had drugs to sell to her, the Court noted.

And regarding the second handshake, there was no difference between that handshake and any other innocent handshake between friends. Thus, the Court determined that Moore’s testimony that it was more deliberate and lasted longer than the earlier handshake failed to state a reasonable articulable suspicion that crime was afoot.

Finally, the officers failed to consider the circumstances that dispelled suspicion of drug trafficking, e.g., in all those days of surveilling the residences there was not one instance of drug trafficking; no drugs were found in the pickup truck after the one instance when behavior mirrored that of a drug transaction; Drakeford parked his vehicle directly in front of a surveillance camera at Car Stereo Warehouse in broad daylight; no money or drugs were observed exchanging hands; and the men never entered one another’s vehicles, and they did not go their separate ways after meeting in the parking lot (that is, their behavior did not mirror behavior that Moore testified would indicate a drug transaction).

The Court pronounced “[g]iven all the foregoing, we are skeptical of Government attempts to spin largely mundane acts into a web of deception.” Therefore, the Court ruled that the officers did not have reasonable suspicion to conduct a Terry stop, and all evidence flowing from the stop must be suppressed.

Accordingly, the Court reversed the district court’s denial of the motion to suppress and remanded. See: United States v. Drakeford, 992 F.3d 255 (4th Cir. 2021).

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