18

- 3729

- cr United States v. Walker

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

____________________ 3
4 August Term, 201 9 5
6 (Argued: January 9 , 20 20 Decided: July 14, 2020 ) 7
8 Docket No. 18

- 3729 9
10

____________________ 11
12 U NITED STATES OF AMERICA, 13
14 Appellee , 15
16

v. 17
18 JAQUAN W ALKER , 19
20 Defendant

- Appellant

. 21
22

____________________ 23
24 Before: CALABRESI , POOLER , and CARNEY , Circuit Judges

. 25
26 Appeal from an order of the United States District Court for the Northern 27
District of New York ( Thomas J. M c Avoy , J .) denying W alke r’s motion to 28

suppress statements made and narcotics discovered during a search incident to 29

arrest

. We hold that the officers lacked an objectively reasonable belief of legal 302 wrongdoing to justify stopping Walker . We further hold that t he attenuation 1

doctrine does not apply

. S uppression of the narcotics and Walker’s statements 2
during the search was accordingly warranted as the fruit of an illegal search 3

conducted in violation of the Fourth Amendment

. 4

Reversed and remanded

. 5

____________________ 6

MOLLY K. CORBETT , Assistant Federal Defender, for 7 Lisa A. Peebles, Federal Public Defender for the 8 Northern District of New York, Albany , NY , for 9 Defendant

- Appellant

. 10
11 PAUL D. SILVER , Assistant United States Attorney, for 12 Grant C. Jaquith, United States Attorney fo r the 13 Northern District of New York , Albany , NY, for Appellee

. 14
15 POOLER, Circuit Judge : 16
Jaquan W alker appeals from the December 13 , 201 8 judgment of 17

conviction entered in the United States District Court for the Northern District of 18
New York ( Thomas J. McAvoy , J. ) and challenges the den ial of his motion to 19

suppress statements Walker made and narcotics that police officers found in the 20

course of a search incident to arrest following the stop of Walker and discovery 21

of an unrelated arrest warrant

. 223 T he Fourth Amendment requires that officers enacting an investigatory 1
stop have reasonable suspicion that the detained individual is committing, or has 2
committed, a criminal offense

— and “courts agree that r ace, when considered by 3
itself and sometimes even in tandem with other factors, does not generate 4
reasonable suspicion for a stop. ” United States v. Swindle , 407 F.3d 562, 569

- 70 (2d 5
Cir. 2005). Nonetheless, the off icers in this case stopped Walker on the basis of a 6
photograph that provided little meaningful identifying information to the police 7

besides the race of a suspect. Because the police therefore lacked specific and 8
articulable facts giving rise to a reasonab le suspicion of criminal wrongdoing, we 9

hold that the stop violated the Fourth Amendment. 10

Th e resultant taint of illegality was not purged by the officers’ subsequent 11
discovery of an unrelated arrest warrant. We conclude that the search of Walker 12
yielding the narcotics and statements at issue was in sufficiently attenuated from 13

the unconstitutional stop

. T he officers’ justification for the stop falls much too 14
short of what the Fourth Amendment requires

. Additionally, a ny suspicion , 15

reasonable or otherwise , would have dissipated when the officers approached 16
Walker and could see up close that he did not resemble the photographed 17
suspect

. T he subsequent search for outstanding warrants was consequently 184 purposeful and flagrant conduct . We th erefore hold that the attenuation doctrine 1
does not apply, and suppression of the statements and narcotics remains the 2
appropriate remedy

. 3
Accordingly, we reverse the district court’s denial of W alker ’s motion to 4

suppress and remand for furt her proceedings consistent with this opinion. 5

BACKGROUND 6
At approximately 6:50 pm on September 2, 2017, Sergeant Peter Montanino 7
of the City of Troy Police Department was on patrol in the Central Business 8
District of Troy, New York. As he drove southbound down Church Street alley, 9

two black males

— Jaquan Walker and his friend Javone Hopkins

— entered the 10
alley and walked north past Mo ntanino. The area in which Walker and Hopkins 11

w ere walking was considered a safe area, and it was not uncommon for people 12
to be walking around in this area at the time. 13
As Walker and Hopkins walked by, Montanino said he recalled an email 14

he had received a day before that s ought the identification of a suspect in a 15
shooting that took place two days earlier. The email included a photograph a long 16
with the message that the sender was “trying to ID suspect #2 in this photo,” 17
mentioned the name of another suspec t, and asked that anyone who knew the 185 identity of “suspect #2” or had interacted with the other suspect reach out to the 1

lead officers on the case. App’x at 123

. Monta n ino pulled up th is email on his 2
iPhone 6 after Walker and Hopkins walked by, looked at the photograph, and 3
then decided that he needed to identify who the two individuals were. 4

Monta n ino testified that Walker and Hopkins reminded him of the suspect in the 5

email because both Walker and Hopkins were “medium to dark skin toned black 6
males. They were thin build. Both were wearing glasses at the time. One had 7
little longer length, longer than shoulder length hair. The other one had what 8
appeared to be short hair

. . . . Both had f acial hair

. . . . Both appeared to have 9
goatees.” App’x at 45

. Without explaining his suspicions, Montanino then called 10
two of his subordinates, Officers Owen Conway and Martin Furciniti , and asked 11
if they could identify the two pedestrians. 12

When the officers could not, Montanino asked Conway and Furciniti to 13
“stop out ” and identify them. App’x at 47

- 48

. S topping out is a practice of the 14
Troy Police Department in which officers stop and e xit their vehicle, approach 15
pedestrians, request information and identification from the pedestrians, and 16
check for outstanding warrants , which Furciniti testified was part of a standard 17
procedure. Montanino testified that it was a “common course of practi ce, if 186 somebody is willing to give us, you know, their information, as a course of 1
business, so to speak, we will run their names.” App’x at 49

- 50. Montanino 2

testified that the stop out practice is typically employed with individuals 3

unknown to the officer s who are set to patrol a certain zone. 4
The “stop out” of Walker and Hopkins occurred in the following fashion: 5
Conway and Furciniti pulled up ahead of Walker and Hopkins, and Montanino 6
pulled up behind them before they all converged. Walker testified that he and 7
Hopkins were instructed to stop by the officers. Furciniti testified that the officers 8
asked if they could have a word with the men. No police vehicle lights were 9
flashing, but all the officers were uniformed with weapons on their sides. 10
The officers asked for identification, and Walker, feeling that he had no 11
other option, gave over his identification. Montanino showed Furciniti the 12
photograph in the email. Conway and Furciniti collected Walker and Hopkins’s 13

information and ran a file check for warrants and driver licenses. He also showed 14
the photograph to Hopkins. It was later determined that Walker was not the 15
person depicted in the photograph on which Montanino relied. 16

When the officers discovered the outstanding arrest warrant for Walker, 17

Walker was placed in handcuffs. Hopkins was allowed to leave. Walker was 187 brought to the police car whe re Furciniti conducted a search incident to arrest. 1
He found marijuana on Walker and co ntinued to pat him down when he felt a 2
bulge in Walker’s groin area. Furciniti then asked Walker if “there was anything 3
else [Furciniti] need[ed] to know, ” to which Walker replied that he possessed 4
approximately fifty grams of crack cocaine

. App’x at 95

. Walker offered to 5

retrieve the narcotics and also provided officers with information about drug and 6
gun activity. 7
Walker was then charged with possession with intent to distribute a 8
controlled substance in violation of 21 U.S.C. § 841(a)(1). He moved to s uppress 9
the drug evidence and any statements made during his arrest. The district court 10
ultimately denied the motion. The district court found that Montanino though t 11
Walker and Hopkins “reassembled [sic] a picture of a suspect in a shooting 12

incident that h ad occurred on August 31, 2017 .

. . abo ut five blocks from where 13
Sgt. Montanino first observed the men walking.” App’x at 128. It also found that 14
Walker, Hopkins, and “the shooting suspect were medium

- to

- dark skinned 15
Black males, had similar builds, wore glasses, and had facial hair. The shooting 16
suspect and Walker both had long hair.” App’x at 128. It then held that the 17
officers had reasonable suspicion to stop Walker because “Montanino observed 188 that Defendant resembled a shooting suspect depicted in a pi cture of the 1
shooting scene,” and this reasonable suspicion could be imputed to Furciniti and 2
Conway under the collective knowledge doctrine. App’x at 131. It concluded that 3
because Walker was lawfully stopped and then arrested on an outstanding 4

warrant, t he “fruit of the poisonous tree” doctrine did not apply, and 5
suppression of the found narcotics and Walker’s statements was thus not 6
required. The district court further held that Furciniti’s question to Walker was 7
not a custodial interrogation requiring M iranda warnings, so suppression of 8
Walker’s response was not required. 9
After the court’s denial of his motion, Walker entered a conditional plea. 10
The plea agreement allowed Walker to appeal the issue of “whether police 11
lacked reasonable suspicion to stop the defendant on September 2, 2017 such that 12
the cocaine base and post

- a rrest statements obtained from him should be 13
suppressed under the Fourth Amendment.” App’x at 13 7

. Should Walker 14
prevail, he would be free to withdraw his plea

. 15

W alke r timely appealed. 16

DISCUSSION 179 “On review of a challenged suppression order, we examine the district 1
court’s findings of fact for clear error, reviewing de novo questions of law and 2

mi xed questions of law and fact, including the existence of reasonable suspicion 3
to stop or extend a stop .” United States v. Santillan , 902 F.3d 49, 56 (2d Cir. 2018)

. 4
Our review is informed by the totality of the circumstances from the view of a 5

reasonable and cautious officer on the scene. Id

. 6
The Fourth Amendment protects “[t]he right of the people to be secure in 7
their persons , houses, papers, and effects, against unreasonable searches and 8

seizures.” U.S. Const. a mend. IV. Though officers may “approach a person for 9
purposes of investigating possibly criminal behavior even though there is no 10
probable cause to make an arrest,” Terry v. Ohio , 392 U.S. 1, 22 (1968), the stop 11
must be justified on the basis of reasonable suspicion “that the person to be 12
detained is committing or has committed a criminal offense , ” Dancy v. McGinley , 13
843 F.3d 93, 106 (2d Cir. 2016 ) (internal quotation marks and citation omitted). 14
Walker argues that the officers lacked reasonable suspicion to stop him 15

because : (1) the email that Montanino relied on did not contain specific or 16
articulable facts to suggest that the depicted individua l had committed any 17
crime; and (2) even assuming the email could provide reasonable suspicion of 1810 criminal activity , the photograph was not detailed enough and matched too 1
many individuals to provide reasonable suspicion to stop Walker. The 2

Government asser ts that even if the officers lacked reasonable suspicion, the 3
search was sufficiently attenuated from the unconstitutional stop by the 4
discovery of an unrelated warrant s o that suppression is not required under the 5

attenuation doctrine. Walker responds that the attenuation doctrine does not 6
apply because his stop was conducted pursuant to a policy by which police 7
officers may stop any pedestrian and search for warrants, and the warrant check 8
occurred after any suspicion w ould have been dispelled, making the stop 9
purposeful and flagrant conduct. 10

I. The Officers Lacked Reasonable Suspicion 11
“Reasonable suspicion demands specific and articulable facts which, taken 12
together with rational inferences from those facts, provide detaining officers with 13
a particulari zed and objective basis for suspecting legal wrongdoing. In assessing 14
reasonable suspicion, courts look at the totality of the circumstances through the 15
eyes of a reasonable and cautious police officer on the scene, whose insights are 16
necessarily guided by his experience and training. Courts do not, however, 1711 merely defer to police officers’ judgment.” United States v. Wallace , 937 F.3d 130, 1
138 (2d Cir. 2019) (internal quotation marks and citations omitted). 2

We have little trouble concluding that the offic ers in this case lacked 3
reasonable suspicion to stop Walker. 1 The justification for the stop revolved 4
around an emailed photograph of an individual, who Montanino claimed was a 5
suspect in a recent shooting and looked like Walker. 2 There are multiple reasons 6
why the Government’s justification fall s far short of what the Constitution 7
requires

. 8

1 T he Government conceded as much at oral argument. In response to Judge Pooler’s question of whether the Government “ concede [s] there was no reasonable suspicion , the photograph is not revealing enough to identify

. . . either of these two black men, there was no reasonable suspicion, they shouldn’t have been able to ask for the ID , and they shouldn’t have been able to do a

warran t search ,” counsel for the Government responded, “ I’m with you up to the last point, your honor. ” Oral Argument at 24:02

- 24:23; see also Oral Argument at 23:34

- 42 (“conceding” the lack of reasonable suspicion to stop Walker).

2 We find it noteworthy that Montanino, in contravention of usual practice, did not inform Conway and Furciniti that he thought Walker or Hopkins had been involved in a shooting, or were otherwise suspected to be dangerous, when he ordered the stop out. This omission is peculiar in li ght of the proffered justification. However, because an officer’s subjective beliefs are irrelevant to our inquiry, United States v. Bayless , 201 F.3d 116, 133 (2d Cir. 2000), we nonetheless accept the Government’s justification for purposes of conducting our analysis.12 First , Montanino lacked reasonable suspicion to stop Walker based on the 1
photograph

. As we have repeatedly said, “race, when considered by itself and 2

so metimes even in tandem with other factors, does not generate reasonable 3
suspicion for a stop.” Swindle , 407 F.3d at 569

- 70. For instance, w e have said that 4
the description of a suspect as “thin, black, and male” was “too vague . . . to 5
justify a stop of anyone meeting it.” Dancy , 843 F.3d at 109 . Here, the 6
characteristics of the suspect identified by the district court based on the 7
photograph

— black male, medi um

- to

- dark skin tone, glasses, facial hair, and 8
long hair

— is likewise a “description [that] fit[s] too many people to constitute 9
sufficient articulable facts on which to justify a forcible stop.” Id

. 10

The use of “black male” and “medium

- to

- dark” skin tone alone captures a 11

wide swath of individuals

. Nor are the other traits , such as glasses, long hair, or 12
facial hair, of which there are numerous types, any more particularized. Even 13

with the combination of these characteristics , we are simply not convinced that 14
the description fits a narrow enough subset of individuals to constitute a specific, 15
articulable fact upon which reasonable suspicion may be based. See Terry , 392 16
U.S. at 15 (“Under our decision, courts still retain their traditional res ponsibility 17
to guard against police conduct which is over

- bearing or harassing, or which 1813 trenches upon personal security without the objective evidentiary justification 1
which the Constitution requires.”). 2

Second , the fact that Walker was walking near the crime scene also fails to 3
support reasonable suspicion. As the officers themselves testified, it was not 4

unusual to see individuals walking around in the Central Business District of 5
Troy where Walker was s topped

. Therefore, a lthough Walker and Hopkins were 6
“found walking within several city blocks of the crime scene, such proximity was 7
innocuous given the unremarkable nature of the area in question.” Dancy , 843 8

F.3d at 109. 9
Finally, though the district court concluded that Montanino believed the 10
photographed individual was a suspect in a shooting, this finding is clearly 11
erroneous. Although Montanino testified that the email related to a shooting 12
suspect, the email containing the photograph itself simply states that the sender 13

was “tr ying to ID suspect #2,” without any mention of any crime, let alone a 14
shooting, or the depicted suspect’s criminal involvement. App’x at 123

. In 15
addition, Montanino admitted that he did not know where the photograph was 16
taken or whether the depicted indivi dual was even the shooter. As such, the 17
district court’s decision to credit Montanino’s testimony that he believed the 1814 photograph showed a shooting suspect is clear error. See Anderson v. City of 1
Bessemer City , 470 U.S. 564, 575 (1985) (“Documents or objec tive evidence may 2
contradict the witness’ story; or the story itself may be so internally inconsistent 3
or implausible on its face that a reasonable factfinder would not credit it. Where 4
such factors are present, the court of appeals may well find clear err or.”). 5
This lack of evidence is critical. Absent any indication that the 6
photographed individual had been involved in the shooting

— that is, “specific 7
and articulable facts which . . . provide . . . a particularized and objective basis for 8
suspecting legal wrongdoing,” Dancy , 843 F.3d at 106

— Montanino lacked 9
reasonable suspicion to justify stopping the person depicted in the photograph. 10
As a result, Montanino’s claim that Walker looked like the individual in the 11
emailed photograph could not provide him a su fficient basis upon which to stop 12

Walker. 13
Because there was no indication in the email that the individual depicted 14
in the attached photograph had committed a crime, and because attributes 15
derived from the photograph fit too many people to constitute sufficient 16
articulable facts, we conclude that the Troy Police Department officers did not 1715 have reasonable suspicion that Walker had engaged in criminal activity to justify 1
stopping h im. 2

II. The Attenuation Doctrine Does Not Apply 3
Although the stop in this case was unconstitutional, that does not 4

necessar il y mean that the evidence against Walker must be suppressed. While it 5

is true that typically “the exclusionary rule

— the rule that ofte n requires trial 6
courts to exclude unlawfully seized evidence in a criminal trial

— became the 7
principal judicial remedy to deter Fourth Amendment violations,” that rule has 8
exceptions. Utah v. Strieff , 136 S. Ct. 2056, 2061 (2016). One such exception is the 9

attenuation doctrine : “Evidence is admissible when the connection between 10
unconstitutional police conduct and the evidence is remote or has been 11
interrupted by some intervening circumstance, so that the interest protected by 12
the constitutional guarantee t hat has been violated would not be served by 13
suppression of the evidence obtained.” Id. (internal quotation marks and citation 14
omitted). 15
Whether the doctrine applies turns on three factors. “First, we look to the 16
temporal proximity between the unconstitutional conduct and the discovery of 17
evidence to determine how closely the discovery of evidence followed the 1816 unconstitutional search.” Id

. at 2062 (internal quotation marks and citation 1
omitted). A space of “only minutes after the illegal stop” counsels against 2

attenuation. Id. “Second, we consider the presence of intervening circumstances.” 3

Id. (internal quotation marks and citation omitted) . A valid warrant that predates 4

the unconstitutional conduct and “is entirely unconnected with the stop” 5
supports attenuation. Id. “ Third, and particularly significant, we examine the 6
purpose and flagrancy of the official misconduct.” Id. (internal quotati on marks 7
and citation omitted). Conduct that is “at most negligent” weighs in favor of 8
attenuation, as does the absence of any indication “that this unlawful stop was 9
part of any systemic or recurrent police misconduct,” a “suspicionless fishing 10
expedition ,” or “a dragnet search” for outstanding arrest warrants. Id. at 2063

- 64. 11
In the case before us, the re is no question that the temporal

- proximity 12

factor cuts against finding attenuation , because only approximately ten minutes 13
elapsed between the unconstitutional stop and the search of Walker. See id. at 14

2 062. T here is similarly no doubt that the intervening

- circumstances factor favors 15

attenuation , because Walker was arrested pursuant to a valid, unrelated warrant 16
that predated the stop. See id. The parties do not seriously dispute either of these 17

conclusions. 1817 The parties fiercely dispute , however, whether the officers’ conduct was 1
purposeful or flagrant. W e conclude that the conduct was purposeful or flagrant, 2
and therefore, the attenuation doctrine does not apply. There are two primary 3
reasons why the officers’ conduct here is “most in need of deterrence

. ” Id. at 4

2063

. First, the explanation for stopping Walker is “woefully short” of what the 5
Fourth Amendment requires. See United States v. Shrum , 908 F.3d 1219, 1239 (10th 6
Cir. 2018). Second, any suspicion that Walker was the individual in the 7
photograph was dispelled when Montanino approached Walker and could 8

confirm that he was not th e photographed suspect. 9

A s discussed above, the re are numerous reasons why the officers lacked 10
any objectively reasonable suspicion to stop Walker. Most glaring is the fact that 11

the email and photograph Montanino cited in justifying the stop contains no 12
indication that the photographed individual had committed any crime , 13
rendering Montanino’s explanation for stopping Walker so obviously deficient 14
that it constitutes “deliberate, reckless, or grossly negligent cond uct.” Herring v. 15

United States , 555 U.S. 135, 144 (2009) . Similarly, any reliance on the fact that 16
Walker, like the photographed individual, was a black male with medium

- to

17
dark skin tone, glasses, facial hair, and long hair is such an unsound basis that 1818 we cannot characterize it as mere negligence , especially when considering the 1
significant costs of such conduct: “ s pecificity in articulating the basis for a stop is 2
necessary in part because according the police unfettered discretion to stop and 3

frisk cou ld lead to harassment of minority groups and severely exacerbate police

4
community tensions,” Dancy , 843 F.3d at 111 (internal quotation marks and 5
citation omitted), in addition to subjecting individuals to the “humiliations of [] 6

unconstitutional searches” based on race, Strieff , 136 S. Ct. at 2070 (Sotomayor, J ., 7
dissenting). With “discretionary policing” comes “opportunities for racial 8
profiling.” Sarah A. Seo, Policing the Open Road 264 (2019). 9

The Government correctly points out that lack of reasonable suspicion 10
alone is not enough to find conduct to be purposeful or flagrant in light of Strieff

. 11

But it is not simply the lack of reasonable suspicion that supports a finding of 12
purposefulness or flag rancy here

— rather, it is the extreme lack of reasonable 13
suspicion

. See Herring , 555 U.S. at 143

- 44 (observing that the exclusionary rule 14
may apply when an officer’s search was “patently unconstitutional,” was “so 15
lacking in sworn and particularized informa tion that not even an order of court 16
would have justified such procedure,” or was conducted “without a shadow of 17
authority” (internal quotation marks and citations omitted)). I n other cases in 1819 which the evidence and unconstitutional stop s were sufficiently attenuated, the 1

officers ’ mistakes were less egregious

. In Strieff , for instance, the officer had seen 2

d efendant Strieff exit a house believed to be a drug house based on a tip and the 3

officer’s own surveillance. 136 S. Ct. at 2059

- 60. T he officer’s central mistake was 4
in failing to ascertain the length of time Strieff had spent at the house, thereby 5
calling into question whether Strieff had been at the house for an illegal drug 6

transaction. Id. at 2063. But unlike in Strieff , in which the suspicion of criminal 7
activity w as based on two independent sources suggesting drug activity in the 8
house Strieff had exited, absolutely nothing in the record supports Montanino’s 9
belief that the individual in the emailed photograph had comm itted a crime. And 10

while the officer in Strieff had based his suspicions of Strieff’s criminality on 11
observing Strieff exit the suspected drug house, Montanino’s suspicions were 12
largely based on Walker’s skin color. 13
Similarly, in United States v. Mendez , 885 F.3d 899 , 905 (5th Cir. 2018), 14
although the officers lacked reasonable suspicion in stopping and searching 15
defendant Mendez’s car, they only d id so to detain Mendez while other officers 16

executed a search warrant at Mendez’s home. Mendez was known to be “armed, 17
dangerou s , and unstable,” he was a suspect in a drive

- by shooting, and “there 1820 were bullet

- riddled vehicles sitting in his front yard

. ” Id. at 912. Accordingly, the 1

Fifth Circuit concluded that the officers “were motivated by genuine, serious, 2
and objectively reaso nable safety concerns.” Id. By contrast, Montanino had no 3

in dication that any crime had been committed, let alone a violent crime . Nor was 4
there any other allegation that Walker was considered armed or dangerous. 5

Even if Montanino’s justification for the stop were not woefully anemic , 6
the officers’ conduct is purposeful or flagrant for yet another reason

. A ny 7
suspicion that Walker was the individual in the photograph was dispelled when 8
Montanino approached Walker and could confirm that he was not the 9
photographed suspect. Nonetheless, pursuant to the Troy Police Department’s 10
stop

- out practice, the officers r an a search for outstanding warrants against 11
Walker and Hopkins. But after the dissipation of any reasonable suspicion, there 12
was simply no cause to run Walker and Hopkins’s identifications for warrants

— 13
beyond, that is, a mere fishing expedition “in the ho pe that something would 14
turn up.” Strieff , 13 6 S. Ct. at 2064 (internal quotation marks and citation 15
omitted). Given that the officers’ conduct continued after the elimination of any 16
reasonable suspicion that may have existed, suppression is warranted. See, e.g., 17
United States v. Lowry , 935 F.3d 638, 644 (8th Cir. 2019) (emphasizing the absence 1821 of evidence “that Officer Hand knew that he lacked reasonable suspicion and 1
flagrantly disregarded that fact” in concluding that the conduct was not 2
purposeful or flagrant). 3
Finally, we decline to address Walker’s argument that Walker’s stop was 4
part of the T ro y Police Department’s “practice of pulling a police car over and 5
indiscriminately stopping residents of Troy, New York to randomly conf ront 6
them with questio ns, request their identification when no criminal activity is 7
suspected and run their information for warrants.” Appellant’s Reply Br. at 14. 8
Though such conduct would certainly meet Strieff ’s articulation of purposeful or 9
flagrant conduct, we need not rea ch this argument in light of our decision that 10
the conduct is purposeful or flagrant for other reasons. 11
Because the officers lacked an objectively reasonable belief that W alker 12
was engaged in, or had previously engaged in, criminal activity, the stop was 13

unconstitutional . In addition, because the justification for stopping and 14
identifying Walker falls woefully short of what the Fourth Amendment requires, 15
the conduct was purposeful or flagrant. Reliance on the photograph to stop 16
Walker involved impermissibl e and manifest stereotyping, which cannot be 17
characterized as merely negligent conduct. Even if the officers had been justified 1822 in making the initial stop, their continued questioning when it was evident that 1
Walker was not the person in the photograph would justify rejecting the 2

attenuation doctrine. Therefore, the attenuation doctrine does not appl y , and the 3

statements made and n arcotics seized must be suppressed as the fruit of an 4

unconstitutional search. 3 5

CONCLUSION 6
For the foregoing reasons, we reverse and remand the district court’s 7
denial of the motion to suppress. 8

3 On appeal, Walker also challenges the district court’s determination that Furciniti’s question to Walker was not a custodial interrogation requiring Miranda warnings. In light of our holding, we need not reach the Miranda issue.