A deputy did not have an articulable suspicion to detained appellant and a companion because he thought they matched the description of a “be on the lookout” description of three armed robbery suspects.
Deputy Stroup “could not recall the specifics of the BOLO description, which included a vague description of clothing but did not include a description of any suspect’s height, weight, build, hair style, facial characteristics, or any other distinguishing physical features apart from race (Black) and gender (male).”
The trial court incorrectly refused to suppress evidence found while searching appellant.
“[T]he record shows that Carr and Turay [Carr’s companion] did not match the extremely vague BOLO description of ‘three armed Black males wearing black sweatshirts.’
“First, there were only two of them, not three. Second, neither Carr nor Turay appeared to be armed, and neither was armed. Third, Sergeant Lemons reported that neither Carr’s nor Turay’s clothing matched the suspects’ clothing description in the BOLO.
“When Carr was detained, he was wearing a white top and light gray pants. Carr was not wearing a black sweatshirt and, moreover, he was not wearing black at all.
“Significantly, although the circuit court found that “the Defendants at the time [Deputy] Stroop encountered them, matched the description in sex, race, and some of the clothing,’ none of Carr’s clothing was found to match the BOLO description at all. (Emphasis added).
“Thus, Carr only matched the BOLO description of the suspects’ race (Black) and gender (male). Therefore, when Deputy Stroop seized Carr ‘because [he] matched the description that [Deputy Stroop] heard over the radio,’ Carr was – unlawfully – seized because he is a Black male.
“Under the totality of the circumstances here, Deputy Stroop’s observations of Carr did not provide a particularized, objective basis for suspecting Carr’s involvement in the robbery or any other criminal activity. Carr was not wearing or doing anything that warranted suspicion of criminal activity.
“The observation of a Black man walking late at night in cold weather in a residential neighborhood six to ten blocks from where a crime was committed thirty minutes earlier does not give rise to reasonable, individualized suspicion of criminal activity. …
“Therefore, when Carr was seized for having ‘matched’ the BOLO description, Carr was seized because he is a Black male. The record does not support a finding that this seizure was based on either a reasonable mistake of fact or a good faith belief that the seizure was constitutional. …
“The evidence obtained from the race-based seizure of Carr [the victim’s credit cards] must be suppressed to deter such patently unconstitutional seizures that are unsupported by particularized reasonable suspicion of criminal activity.”
“Accordingly, this Court reverses the circuit court’s decision denying the motion to suppress, vacates Carr’s convictions, and remands to the circuit court for further proceedings not inconsistent with this opinion, allowing Carr to withdraw his guilty pleas pursuant to Code § 19.2-254.”
Reversed and remanded.
Carr v. Commonwealth, Record No. 1136-21-3, Oct. 18, 2022. CAV (Chaney, Petty dissenting) From the Circuit Court of the City of Waynesboro (Dryer). Jennifer T. Stanton for appellant. Liam A. Curry, Jason S. Miyares, Sharon M. Carr for appellee. VLW 022-7-462, 14 pp.