A case of mistaken identity

Today, the Eighth Circuit decided another mistaken identity case. A number of times during my career, I litigated cases involving investigatory stops where the reason for the stop was based on a mistaken belief, including a mistaken identity case where a guy got stopped for an outstanding warrant against his twin brother. That makes sense. But in US v. Lemons, it's not such a close call. Investigators in Dubuque surveilled a residence where a guy with an active warrant was thought to be. The guy had led police on a high speed chase, crashed, then later escaped from the hospital. The description was that he was stocky, six feet tall, Black, and had a full head of hair with a wraparound beard. The defendant was a short, stocky, Black guy with a full head of hair and a goatee. The Eighth Circuit said that the mistaken identity question doesn't really matter because the stop was justified by the "totality of the circumstances" test. They mentioned several factors which seemed suspicious when taken together:  the late hour, the high crime neighborhood, reports of multiple people nearby with guns, the apartment building was associated with other armed fugitives, and the people ducked inside and turned the lights off when the police car drove by.

This is the correct legal approach under current precedent. However, I understand the social concern. a lot of the reasons that were suspicious were outside the defendant's control. I don't think people choose to live in a high crime neighborhoods by choice. I'm not sure i have enough experience to understand what anyone is supposed to do when they see police. I think the local reputation of the police probably factors into it. One of the themes of my life has been to try to recognize the fact that we only control a tiny fraction of the things we believe we control. The defendant in this case was maybe doomed by geography, maybe even by birth. I don't know if he had many opportunities to make a different choice. I can't imagine how I would create a test around that, maybe that the factors are not generic or beyond the suspect's control. If I'm prosecuting this case, the officer probably knows so much about that night and that location that I could pile in enough different facts about that location to justify a stop of just about anyone there. That's the criticism from my friends who defend this type of case. If you can plop any innocent person into the scene and justify their stop, then what is that person supposed to do to conform to the law and prevent the stop? My prosecutor friends would respond that such a person may get inevitably stopped, but they would not be charged or convicted of anything, and the dispute comes down to how much freedom are innocent people willing to give up to apprehend the fugitive. 

I forgot to mention that he was ultimately charged for being a felon in possession of a firearm. We don't know why he had the gun that day, or what the felony was, but it's probably wise not to be defenseless in that neighborhood. This isn't a South Dakota case, but it counts as precedent here.