Mimesis Law
4 March 2021

Fourth Circuit To Cops: Investigate Before Getting A Warrant

February 9, 2017 (Fault Lines) — If you “fit the description” of a suspected perpetrator, you’re a likely target for a stop and questioning by a police officer. Depending on how well you “fit the description,” there’s a good chance you’ll get arrested. Fortunately for defendants in the Fourth Circuit, “fitting the description” for an arrest now requires more than a common name, skin color, and past criminal history.

Officers Jason Munday and Charles McGinley wired a professional snitch CI* one night in March of 2009 to see if they could locate a suspected crack dealer. Armed with sixty bucks, the CI traveled to a house, bought some rock, and then went back to the officers with his newly purchased plunder.

Munday and McGinley weren’t really familiar with the wire they used, or failed to check their equipment before sending the CI off to buy drugs. You’d think if you were sending a CI off to buy drugs and score a positive identification, you’d at least test the device. Not in Lincolnton, North Carolina.

Because the audio recorder had no batteries, it failed to record the transaction…And because the camera wired to [the CI] pointed in the wrong direction, the video recording did not capture the drug sale…The video instead shows an unidentified black woman sitting on a front porch, and two other individuals standing on the porch.

The only information Officers Munday and McGinley had to identify their potential crack dealer was the CI’s word he purchased drugs from a black female named “April Smith.” Their notes from the night only give a couple of additional characteristics. “April Smith” was skinny, and she might have been in her forties.

Something didn’t sit well with Jason Munday about that night. His failure to collar a crack dealer caused him to sift through police databases looking for residents of Lincoln County named April Smith who had criminal records. Munday found three women named April Smith in his search. For some reason, Munday focused his attention on an April Yvette Smith, who’d been convicted of selling crack on three separate occasions. That was good enough for Munday, but not for the Fourth Circuit.

[Munday] had no indication that the woman who sold crack cocaine to [the CI] in March 2009 had a criminal record, or was even a Lincoln County resident. And the record reflects no further attempt by Munday to investigate Smith or connect her to the crime. (Emphasis added.)

Officer Munday had the name of a black woman with priors for selling crack. That was enough to get him an arrest warrant nine months after the sale. Two Lincolnton cops served the warrant on Smith at her home, eleven miles from the site of the March buy.

April Smith sat in jail for eighty days over this arrest. She lost her job. Eventually someone at the  Lincoln County District Attorney’s office looked at the lack of evidence in this case, said “oops,” and dismissed the charges. Cue the federal lawsuit for everything under the sun, including constitutional violations, assault, battery, false imprisonment, and false arrest.

The district court’s response to April Smith’s suit was a sadly expected “meh.” April Smith sold drugs in the past. The sale was eleven miles from Smith’s home. She was a black woman. The surprising factor from the district court’s response was an admission Smith’s weight** might have factored against probable cause. On appeal, the Fourth Circuit rejected the district court’s definition of “probable cause.”

[E]ven ignoring Smith’s weight, a criminal history, common race, common gender, and unfortunately common name is not enough to establish probable cause.

“Probable cause,” according to the Fourth Circuit, requires establishing two factors: “the suspect’s conduct as known to the officer, and the contours of the offense thought to be committed by that conduct.” According to the Fourth Circuit, Officer Munday established neither when applying for April Smith’s arrest warrant.

All Officer Munday had for “probable cause” was a name, a race, and a comment about the dealer being “skinny.” In an effort to strengthen his case for probable cause, he ran a search of Lincoln County residents with criminal histories. After finding three individuals with the same name, Munday singled one “for no immediately apparent reason” and ran to the nearest magistrate for an arrest warrant. That lack of further investigation didn’t sit well with the Fourth Circuit.

There is no evidence that Munday attempted to identify Smith as the black woman in the video footage. There is no evidence that the officers showed Lynch a photo of Smith to establish the identification. There is no evidence that the officers investigated Smith herself, or found any indication that Smith frequented the site of the drug sale…at all…In short, Munday had no evidence about Smith’s conduct, let alone whether she was a participant in, connected to, or even physically present near the drug sale in question.

The evidence Officer Munday used to obtain an arrest warrant on April Yvette Smith was so scant the Fourth Circuit remarked if such a low bar constituted probable cause, then “officers would have probable cause to obtain arrest warrants for any local residents who fit the generic description of the day.” A name plus priors isn’t enough. Cops still have to investigate. Munday’s lack of investigation and the subsequent rubber-stamping of an arrest warrant violated April Smith’s Fourth Amendment rights.

But what about qualified immunity? Is there not some variant of the reasonably stupid cop rule absolving Officer Munday of his egregious sin? Unfortunately, the answer is yes. If a Fourth Amendment violation involves a warrant, the issuance of a warrant is indicative the officers acted in “objective good faith.”

There’s a big exception here, and it applies to Smith’s case. If the warrant application “is so lacking in indicia of probable cause as to render official belief in its existence unreasonable” qualified immunity does not apply. April Smith’s case now returns to the district court for a determination on what rights Officer Munday violated.

It’s unfortunate the Fourth Circuit dismissed the claims against the other defendants, but this ruling is a sound one for those accused of a crime. If cops in the Fourth Circuit want an arrest warrant, they’ll have to do their job and investigate before getting one. A suspect “fitting the description” no longer cuts it.

*Cooperating Informant

**The district court’s discussion over the term “skinny” briefly noted April Yvette Smith weighed between 160-200 lbs, and the other two “April Smiths” weighed 130 and 140 lbs.

3 Comments on this post.

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  • Richard G. Kopf
    9 February 2017 at 1:33 pm - Reply

    Chris,

    What is the over/under on the Supremes taking this one and reversing with a per curiam opinion and without oral argument? The opinion would start with, “As judge Agee observed in dissent …,”

    All the best.

    RGK

    • CLS
      9 February 2017 at 1:48 pm - Reply

      Judge,

      I’ll only reply with a famous line from Doc Holliday in the film “Tombstone.”

      “Only suckers try and buck the house.”

  • Anon
    10 February 2017 at 2:43 pm - Reply

    “The district court’s discussion over the term ‘skinny’ briefly noted April Yvette Smith weighed between 160-200.”

    [Attorney]: Your Honor, no reasonable person could look at this *woman* and think that’s skinny.
    [April] “Yea-, um, what?”
    [Attorney]: *Pokes client’s arm* See, look at that jiggle.
    [April]: “Hey now.”
    [Attorney]: “The only time she burns calories … is by leaving the pizza in the oven.
    [April]: *Glares*
    [Attorney]: “I’d like the Court to take judicial notice of the fact that when my client sits around the house, she sits *around* the house.