Eleventh Circuit Court of Appeals - Published Opinions

Friday, June 21, 2013

Valerio: Stop and frisk "well outside" Terry

In U.S. v. Valerio, No. 12-12235 (June 20, 2013), the Court held that a seizure of marihuana plants in a Deerfield Beach, Fla., warehouse was not authorized by the Fourth Amendment, and that this evidence therefore should have been suppressed.

Surveillance of Valerio, including a K-9 sniff outside a unit he rented at a warehouse, failed to find evidence that, as police suspected, he was involved in a marihuana grow operation. One week after this unsuccessful surveillance ended, police went to Valerio’s home, waited across the street until he emerged and entered his truck. At that point, the officers blocked his exit, approached him with gun drawn and pointed in his direction, ordering him out of his truck. Police conducted a full-body pat-down search of Valerio. Police then questioned Valerio, who eventually admitted to growing marihuana at the warehouse.

The Court noted that the constitutionality of Valerio’s seizure in his driveway turned on whether it was a valid warrantless “stop-and-frisk” under Terry v. Ohio. The Court noted that “[t]he investigative stop contemplated by Terry is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the ‘rubric of police conduct’ addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter.”

Here, the seizure was “well outside” Terry. It was “not responsive to the development of suspicion within a dynamic or urgent law enforcement environment. Rather, the officers went to Mr. Valerio’s home nearly a week after they had last observed him do anything.” In view of the lack of exigency, the officers should have acted in conformity with the Fourth Amendment. The Court vacated the denial of the motion to suppress and remanded the case to the district court, pointing out that evidence obtained as a result of an illegal seizure “is suppressible as fruit of the poisonous tree.”