If an armed police officer approaches you in a train station and asks to speak with you, in theory you have the right to decline and walk away. But how “voluntary” is that conversation, really—would a typical person indeed feel comfortable declining such a request? Courts have long had to grapple with that question when deciding whether to suppress evidence collected during such encounters, but amid national controversy over fatal police shootings, courts are increasingly having to consider another question as well: Does the answer perhaps change if the person being approached is black?
That question has now divided the South Carolina Supreme Court, as a fractured court ruled that one African-American man’s encounter with police was voluntary, overturning a decision by the state’s Court of Appeals.
Federal agents were surveilling a train station in Columbia in search of drug couriers in 2012 when they noticed Eric Spears and his girlfriend acting in a manner they deemed suspicious. As the couple was walking away from the station, three agents—two of them visibly armed—walked briskly from behind to catch up with them and then asked to speak with them. The couple complied, and during the conversation, Spears’s behavior aroused further suspicion. One of the agents frisked Spears for weapons, and found none, but did discover a fair amount of crack cocaine.
A trial judge declined to suppress evidence from the search, and Spears was convicted of drug charges and sentenced to 30 years in prison. He appealed, and in 2017 a divided panel of the state’s Court of Appeals reversed, finding that Spears had been seized without reasonable suspicion because a reasonable person would not have felt free to walk away.
The Supreme Court granted the state’s request to review the decision, and in a Feb. 12 decision a narrowly divided court reversed the ruling and reinstated Spears’s conviction.
Justice George James, writing for the court in an opinion joined by Justice John Few, said that there was evidence in the record to support the trial court’s ruling that a reasonable person would have felt free to leave: it was broad daylight on a public street, the officers never touched Spears before the frisk (which the Supreme Court deemed to be reasonable under the circumstances), and they never mentioned anything about Spears being free or not free to leave. The length of the detention, estimated at 20 minutes, was deemed not excessive under the circumstances.
The Court of Appeals had particularly focused on the facts that two of the officers were visibly armed and the officers had walked briskly to catch up to Spears and his girlfriend, but James wrote that these factors were not terribly important in this case, and the Court of Appeals’ reasoning would impose an undue hardship on law enforcement.
“A finding of a seizure in this context could create the absurd result of law enforcement officers only being able to ask questions of individuals who were standing still, walking slowly, or walking toward the officers,” James wrote, subsequently adding that “It would be unrealistically restrictive and unsafe for a law enforcement officer to have to remove his firearm and leave it elsewhere before approaching and questioning a person on the street.”
Chief Justice Donald Beatty dissented from the ruling. In an opinion joined by Justice John Geathers, Beatty argued that a true consideration of the totality of the circumstances can’t ignore how an individual’s personal characteristics impact whether he would feel free to terminate an encounter with police.
“Our current framework fails to meaningfully consider the ways in which a person’s race can influence their experience with law enforcement,” Beatty wrote. “As a result, I fear minority groups are not always afforded the full protections of the Fourth Amendment. Given the interests at stake, one would expect our criminal justice system to forcefully resist marginalizing the experiences of people of color by insisting on a ‘color-blind’ reasonable person standard. In my opinion, the seizure analysis should consider whether a reasonable Black person felt free to end an encounter with police.” (Emphasis in the original.)
James responded to this criticism in the court’s opinion, but said that the issue of Spears’s race had not been properly preserved for appeal because Spears never raised that argument before the trial court.
Justice Kaye Hearn wrote a concurring opinion to say that she shared many of the concerns offered in the dissent, but agreed that the question had not been preserved for appeal.
Appellate Defender LaNelle Cantey DuRant of Columbia represented Spears on appeal. Victor Seeger, who is currently handling the case, said that his office will file a petition for a re-hearing and that he believed that the issue of whether Spears’s race influenced whether his encounter with the police was truly voluntary had been properly preserved for appeal.
“We think that under the totality of the circumstances, race should be considered, and that it’s not incumbent upon the trial attorneys to argue every possible angle in order to keep that angle preserved,” Seeger said. “If the fact is put before the trial court, then it is within their purview to consider that with the totality of the circumstances. Because if we limited it to the arguments of counsel, than we limit it to counsel’s imagination or the court’s time rather than the totality of the circumstances.”
The 28-page decision is State v. Spears (Lawyers Weekly No. 010-010-20). The full text of the opinion is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan