the fact that three white men were driving in a predominantly black neighborhood late at night does not by itself create a "reasonable suspicion"
How later courts described this case
- the fact that three white men were driving in a predominantly black neighborhood late at night does not by itself create a "reasonable suspicion"
- stop at 3:30 a.m. in area of recent burglaries was unjustified
Written by the judges who cited it.
The opinion
I respectfully dissent. In my opinion, the officer's actions in approaching and stopping the appellant's vehicle were justified under the rule established in Terry v. Ohio , 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The majority notes that Lt. Pennington testified that the following factors underlay his stop of the appellant's car:
"(1) three white juveniles out at 3:30 a.m., (2) driving below the speed limit, (3) with no apparent destination, (4) in a predominately black neighborhood (5) where car burglaries had occurred recently, (6) through a business district where the businesses had closed, and (7) one of the passengers looked back at Pennington a few times."
674 So.2d at 1379.
Even after giving due consideration to the often peculiar manifestations of wholly innocent behavior, I believe that Lt. Pennington articulated a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez , 449 U.S. 411 , 418 , 101 S.Ct. 690 , 695 , 66 L.Ed.2d 621 (1981). The totality of the circumstances afforded Lt. Pennington a reasonable foundation for his suspicions, which he should not have been required to discount as merely a "hunch." I cannot believe, as the majority apparently does, that the factors that aroused Lt. Pennington's suspicions, taken in combination , would, in fact, apply to " 'a large portion of the motorists engaged in travel upon our interstate highways.' " 674 So.2d at 1380 (quoting United States v. Tapia , 912 F.2d 1367 , 1371 (11th Cir. 1990)). Moreover, as other courts have observed, " '[i]t must be rare indeed that an officer observes behavior consistent only with guilt and incapable of innocent interpretation.' " United States v. Rickus , 737 F.2d 360 , 365 (3rd Cir. 1984) (quoting United States v. Price , 599 F.2d 494 , 502 (2d Cir. 1979)); accord United States v. Wallraff , 705 F.2d 980 , 988 (8th Cir. 1983); United States v. Black , 675 F.2d 129 , 137 (7th Cir. 1982), cert. denied , 460 U.S. 1068 , 103 S.Ct. 1520 , 75 L.Ed.2d 945 (1983); United States v. Viegas , 639 F.2d 42 , 45
(1st Cir.), cert. denied , 451 U.S. 970 , 101 S.Ct. 2046 , 68 L.Ed.2d 348 (1981). " '[I]t is important to recall that a trained law enforcement agent may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer." (quoting Brown v. Texas , 443 U.S. [47,] 52 n. 2, 99 S.Ct. [2637,] 2641 n. 2 [, 61 L.Ed.2d 357 *Page 1381
(1979)].' " Pianzio v. State , 423 So.2d 258 , 266
(Ala.Cr.App. 1981) (DeCarlo, J., dissenting), quoting United States v. Mendenhall , 446 U.S. 544 , 100 S.Ct. 1870 , 1882 , 64 L.Ed.2d 497 (1980).