“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 Sixth Circuit judge Eric Murphy cast the deciding vote to allow the use of evidence taken from a man who was asleep when police began to search him without his consent. The April 2020 case is United States v. Wilson.

 Very early one morning in Lansing, Michigan, police officers received a call about a man apparently asleep or “passed out” and sitting alone in a car in what police had labeled a high-crime area. The officers claimed that when they could not rouse him using a flashlight, they became concerned he could be having a medical problem; they then opened the door and shook his right arm until he responded. They said that when they moved his arm, he “suspiciously” moved it near his waistband, prompting concern over whether he had a weapon. They asked him to stand with his hands raised. He did so and identified himself as “Duke” Lantrel Wilson and said he had been visiting a friend in the area. An officer saw an open bottle of what appeared to be alcohol in the car, saw Wilson stumble and sway back and forth, and thought he was intoxicated.

When Wilson got out of the car, an officer asked if he could “pat him down” in order to “make sure our safety is fine.” The officer claimed that Wilson nodded yes, and then put his hands behind his back as requested. The pat down revealed a pistol, and Wilson was handcuffed and arrested. The officers learned that he had previously been convicted of a felony and was on supervised release. He was charged in federal court with improper possession of a weapon as well as possession of illegal drugs, which they later found in his pocket.

Wilson moved to suppress the evidence against him, contending that he did not consent to the search and that the officers did not have reasonable suspicion to pat him down. The trial judge rejected Wilson’s motion, claiming that the “totality of the circumstances” indicated that he had consented and that in any event, the officers had reasonable suspicion enough to justify their pat down. In a 2-1 decision with Murphy providing the deciding vote, the Sixth Circuit affirmed.

Judge Karen Nelson Moore vigorously dissented, relying in large measure on “revealing body camera footage” of the police’s conduct that the majority did not dispute. As Moore explained, the footage “directly contradicts” the officers’ version of the facts concerning consent. The footage “unmistakably reveals,” Moore went on, that Wilson’s “nod” occurred before the request to pat him down, and that he did not voluntarily put his hands behind his back, but instead that one of the officers ”grabs Wilson’s left wrist and moves it behind his back, before Wilson has an opportunity to act.”  The claim that Wilson voluntarily consented, Moore concluded, was “utterly discredited by the record,” and the court should not rely on such “visible fiction.”

Moore explained that the video footage also contradicted the assertion that the police officers had reasonable suspicion to think Wilson had a weapon after they first roused him. The footage “plainly reveals,” she noted, and one of the officers “admitted on the stand,” that when he shook Wilson’s arm, Wilson “simply returned the arm to its initial, resting position” on his lap, and did not “suspiciously relocate to his waistband.” The facts revealed that the officers did not have “reasonable suspicion to search Wilson,” Moore concluded, and at the very least, the case should have been sent back to the lower court.

Finally, Moore explained what was wrong with the backup argument of the district court and the majority that Wilson’s firearm would have “inevitably been discovered” even if the arguably unlawful search had not occurred. The case law makes clear, Moore went on, that in order to invoke the “inevitable discovery” doctrine, it must be proven that an arrest and later search of Wilson “would have happened” if the initial search did not.  The facts made clear, Moore elaborated, that there was “uncertainty” as to whether the police would have arrested Wilson in the absence of the initial search, since the police were not investigating a crime, but instead claimed to be concerned about his welfare. The bodycam footage showed that the officers repeatedly assured him that he was “not in trouble” or “under arrest or anything like that.” At the very least, she concluded, the Fourth Amendment demands a “more robust” inquiry than simply accepting one officer’s later testimony that he would have arrested Wilson anyway.

As a result of Murphy’s deciding vote, however, the police’s apparent violation of Wilson’s Fourth Amendment rights was upheld, creating a decision that perpetuates a lack of accountability for law enforcement unwarranted search and seizures practices. Such practices disproportionately harm people of color, and could harm others in the Sixth Circuit.