In a reversal of an earlier decision, the Virginia Court of Appeals ruled Tuesday that an officer’s stop of two Black men in a Waynesboro neighborhood on suspicion of involvement in a home invasion that had just occurred had not violated one man’s rights against unreasonable seizure. 

In a majority opinion, Judge Lisa Lorish wrote that the officer “possessed a reasonable, articulable suspicion of criminal activity to briefly detain” one of the men until other officers arrived within several minutes to provide additional information.

Judges Dominique Callins and Vernida Chaney both dissented, with Chaney writing in a sharply worded opinion that “today, while purporting to ‘make no new law,’ the majority grants police license to seize a Black man at gunpoint for merely walking late at night within the wide general area of a recent crime and ‘matching’ the race and gender of the suspects.”  

The case stems from a home invasion and pistol-whipping in Waynesboro that was reported by the victims around 11 p.m on a night in February 2020. After police responded to the home, officers issued a “be on the lookout” dispatch for three armed Black men “wearing black sweatshirts.”

The dispatch was heard by Augusta County Sheriff’s Deputy C. Stroop, who went by the house, spoke to officers there and then began to drive around the neighborhood to look for the perpetrators. Within what the court later determined were six to 10 blocks from the crime scene, he saw two Black men, Arun Rashid Turay and Justice Ahmed Carr, walking and stopped them at gunpoint. 

Roughly one and a half to two minutes later, other Waynesboro officers arrived. One of the responding officers confirmed Turay’s clothing matched security video footage but said Carr’s did not. When the men were searched, officers found credit cards belonging to one of the victims in Carr’s pocket and a victim’s keys and bloody clothes and shoes in a bookbag on Turay. Both men were arrested and later pled guilty to armed burglary and other charges after the court decided that the evidence found as a result of Stroop’s stop could be considered in the case. 

In different cases, Turay and Carr each appealed the Waynesboro judge’s decision not to suppress that evidence. Turay’s challenges have sparked a string of different rulings from the Virginia Court of Appeals, which has flip-flopped on whether the stop was constitutional, ruling first against Turay, then in his favor and, most recently, against him once more. 

Turay had argued that the evidence from the searches shouldn’t be allowed to be used because Stroop’s stop was an unconstitutional seizure not supported by “reasonable suspicion” that he was involved in the robbery. 

U.S. and Virginia courts have dealt at length with the thorny question of what constitutes reasonable suspicion. In Virginia, the courts have assessed, among other tests, whether an officer’s reasonable suspicion is based on “specific and articulable facts” as well as “an assessment of the totality of the circumstances.” 

In the case of a stop related to a specific crime, the appeals court on Tuesday wrote that an officer could consider factors such as a person’s distance from where a crime is committed, the amount of time that has elapsed between the crime and the stop, the degree to which a person matches a description of a suspect, the suspect’s behavior and how many other people matching a description might be present. 

In her opinion, Lorish conceded that the vague description of the suspects in the be-on-the-lookout dispatch “was too general to give rise to reasonable suspicion to detain any person.” 

“Without more, this vague description could not allow police to reasonably detain any Black male wearing dark clothing as a suspect in the crime,” she wrote. 

But, she continued, other circumstances were relevant: Turay and Carr were seen within 10 blocks of the crime scene and within roughly 30 minutes of the police report. They were on foot. And they were the only people walking in the neighborhood late on a cold February night. 

“These factors all increase the relevance of Turay matching what would otherwise be a vague or general description,” the court found. Ultimately, it determined, “we cannot say Deputy Stroop lacked reasonable suspicion under the totality of the circumstances.” 

The dissenting judges, however, argued the ruling “disregards the well-established protections of the Fourth Amendment and, in effect, authorizes race-based seizures of persons who appear to be engaged in innocent, lawful activity.” 

Chaney contended that “at the time of the seizure, there was no particularized, objective basis for suspecting Turay of criminal activity.” Instead of the black sweatshirt described in the be-on-the-lookout announcement, she noted, Turay was wearing “a long-sleeved black top with a wide red stripe down each sleeve and a wide blue panel on each side,” while Carr was wearing a “long-sleeved white top.” Neither appeared to be armed. Only two men were walking, rather than the three described in the dispatch. And, the judge maintained, the deputy only testified that “not a lot” of people were around rather than saying definitively he had seen no one else.

“The totality of the facts and circumstances known at the time of the seizure does not give rise to reasonable, articulable suspicion that Turay participated in the robbery even if no other people were observed out on the street when the deputy first observed Turay,” she wrote.

Similarly, Callins said the majority ruling “would be akin to holding that, when a Black man commits a crime and flees, any Black man in the vicinity is inherently a suspect.” 

“Racially motivated stops are a pervasive problem in our society, and we must examine whether a stop could be justified by any information available to the officer before determining that the stop was illegal,” she wrote. “But I cannot say, given the totality of the circumstances, that this stop justified as particularized.”