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Trump Judge’s Deciding Vote Upholds Groundless Stop-and-Frisk: Confirmed Judges, Confirmed Fears

James Ho
News & Analysis

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judge James Ho cast the deciding vote to affirm a lower court order that approved the stop-and-frisk of a man who, the dissent pointed out, did not give the police “specific and articulable grounds to suspect” him. The December 2019 case is United States v. Darrell.

Justin Darrell and another individual were sitting in a parked car in a residential area when two police cruisers pulled up to the adjacent house. Darrell left the car and began walking away toward the house.  The police asked him to stop; he continued walking for a moment, and then complied after their second request and walked back toward the police. The police then frisked him and found a semiautomatic pistol as well as what they thought was methamphetamine. Because Darrell had a prior felony conviction and was subsequently banned from possessing a firearm, he was arrested and prosecuted for possession of a firearm.

Darrell’s attorney brought a motion to exclude the firearm as evidence because it was the product of an improper stop and frisk. The district court rejected the motion, and a 2-1 decision by the Fifth Circuit, including Judge Ho, affirmed. They concluded that the police had reasonable suspicion to stop and frisk Darrell because 1) the house was a “known drug house,” 2) they feared that he initially walked away toward the house to alert someone of the police officers’ presence and probable imminent arrest for failing to appear in court, and 3) he did not comply with their initial request to stop.

Judge James Dennis strongly dissented. Unlike a previous case where the Supreme Court ruled that a person’s “head-long flight from police” in a high drug area warranted a stop-and-frisk, Dennis explained, Darrell was not engaged in such a “flight,” and the Court had specifically recognized that “an individual has a right to ignore the police and go about his business” without creating a specific and articulable basis for a stop and frisk, which is required by law. In fact, Dennis went on, this case was very similar to another Fifth Circuit case in which the court had ruled that the stop-and-frisk was improper: Darrell was in a high-crime area although police had “no particular reason to suspect criminal activity;” ; he left his vehicle “almost immediately” when the police arrived and began to “walk toward” the house; and the police “lacked a reasonable basis to infer much of anything” about Darrell’s “exiting the car and taking a few steps” toward the house  “during the same time as their arrival.” Although Darrell did not comply with the police’s first request to halt, Dennis noted the Supreme Court’s “unequivocal reaffirmation” that a simple refusal to cooperate with police “does not furnish the minimal level of objective justification needed for a detention or seizure.”

As Judge Dennis explained, the majority decision joined by Ho did more than affirm the stop-and-frisk of Darrell and his later conviction. It also “ventures down a slippery slope that erodes individuals’ constitutional right to go about their lives free from arbitrary police interference.”