Something is seriously wrong with the Fourth Circuit. Back on April 25, CA4 released an unpublished (but not unanimous, which begs the question why unpublished?) opinion in United States v. Graham, 2017 U.S. App. LEXIS 7260 (4th Cir. April 25, 2017), reversing a conviction for UPF and unlawful possession of ammo by a felon. Chief Judge Gregory delivered the (majority) opinion.
"Jamesthy Wardell Graham entered a conditional guilty plea to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Graham now appeals the district court’s denial of his motion to suppress the firearm and ammunition. He argues that the district court erred in finding that exigent circumstances justified the warrantless search and subsequent seizure of the loaded firearm. We agree, and for the reasons that follow, the district court’s judgment is reversed."
"On the night of May 29, 2014, Deputy Chad Reid of the Florence County Sheriff’s Office responded to a 911 hang-up call from a residence in Pamplico, South Carolina. The 911 dispatcher described 'hear[ing] people' who 'were disorderly in the background' in both the initial hang-up call and when the dispatcher called back. J.A. 44. When Deputy Reid arrived at the residence at 10:27 p.m., he saw two groups of people, one in the yard near the road and one near the residence. He also saw a Chevrolet Tahoe parked illegally in the road, in the traffic lane, with its headlights off. J.A. 44, 52. As Deputy Reid was getting out of his patrol car, the driver of the Tahoe started its engine and 'was fixing to leave.' J.A. 53. Deputy Reid approached the Tahoe and through its open passenger window told the driver, Defendant-Petitioner Graham, to stop. Deputy Reid shined a flashlight and saw in plain view two open containers of beers in the center console. Deputy Reid told Graham to turn off the Tahoe, hand over his driver’s license, and wait while Deputy Reid investigated the source of the 911 call. J.A. 45–46, 53. Graham complied with Deputy Reid’s instructions."
"Deputy Reid waited near the Tahoe for backup to arrive. Meanwhile, the dispatcher radioed that there was an outstanding warrant for Graham in Myrtle Beach, South Carolina, with an attachment that said to 'use caution, consider armed and dangerous.' J.A. 55. The dispatcher did not yet know whether Myrtle Beach would extradite Graham. Deputy Clay Lowder arrived shortly thereafter, and the officers approached the Tahoe and asked Graham to get out. Deputy Reid advised Graham that 'he was being detained pending the response from Myrtle Beach.' J.A. 59."
So some exigencies are ok, like an anonymous tip, but other exigencies are not, like a subject, with an active caution to law enforcement on file, with a bench warrant out on him, and is "fixing to leave" when police show up and seize the subject pursuant to an investigation, then not Mirandizing a subject, is NOT ok. The outcome of this case presents somewhat of a problem for CA4, especially when coupled with United States v. Black, in that it has contradicted itself twice. "This is not RS, this is RS, this is not RS." Distinction is that Robinson argued that carrying a gun is not unlawful per se in West Virginia, whereas Graham did not.
"After arresting Graham, Deputy Lowder patted him down. Deputy Lowder told Graham that the patdown was for officer safety, and without giving Graham Miranda warnings, asked Graham whether he had 'any weapons on him or anything that may hurt me or him.' J.A. 66. Graham responded that there was a firearm under the driver’s seat of the Tahoe. With Deputy Reid securing Graham, who was handcuffed and detained in the residence’s yard, Deputy Lowder retrieved the loaded gun from Graham’s truck. J.A. 67."
And the kicker....if there had been an anonymous tip, this outcome would be different....
"There is no evidence that anyone other than Graham and the officers even knew about the gun. We agree with the Ninth Circuit that the presence of a firearm does not alone create an exigency; there must be something more to justify a warrantless search and seizure based on exigent circumstances."
Does that mean that an anonymous tip of an MWAG is sufficient to justify a warranty search? I guess so. They held the entire stop and detention to be unlawful, not just the search. It seems to me like the difference between Robinson and Graham (not to be confused with the cell site simulator case currently being considered by SCOTUS) is that, in Robinson, the RS was solely based on an anonymous tip while in Graham, the RS was based on a warrant check that returned an active warrant and caution on file. In other words, CA4 said it isn't OK for police responding to domestic disturbances to run warrant checks on people there, especially ones who are attempting to leave when the police arrive. But when there is an anonymous tip of a man with a gun (in a jurisdiction where carriage is lawful per se) then reasonable suspicion exists to stop and search the vehicle. Ok, and in other news....gag. It's worth noting that the court did not cite Black OR Robinson.
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