©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute, (llrmi.com), 8th Cir. United States v. Jones, Decided June 8, 2010.
The Eighth Circuit Court of Appeals recently decided the United States v. Jonesi which serves as a review of the legal requirements to initiate a stop and frisk. The facts of Jones are as follows:
While routinely patrolling a high-crime area on a mild September afternoon, Omaha [Nebraska] police officer Paul Hasiak saw a person later identified as Fonta M. Jones walking across a church parking lot wearing a long-sleeved hooded sweatshirt and “clutching the front area of his hoodie pocket with his right hand.” Jones watched as the marked police cruiser drove by. The officers drove around the block and regained sight of Jones, still walking with his right hand clutching his front hoodie pocket in the same position. Officer Hasiak decided to stop and frisk Jones, who stopped walking when the cruiser pulled up. Hasiak told Jones to place his hands behind his back and then moved behind Jones, secured his hands, and patted him down for weapons. Jones was arrested when Hasiak found a 9-millimeter handgun in the front hoodie pocket and a loaded magazine in Jones’s back right pocket. When it was later determined that Jones had prior felony drug convictions, he was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).ii
Jones filed a motion to suppress the evidence against him arguing that the gun and ammunition where seized during an unlawful detention because the officer lacked sufficient reasonable suspicion to conduct the stop and frisk. The district court agreed with Jones and granted the motion to suppress. The prosecution appealed to the Eighth Circuit Court of Appeals.
The issue before the court was whether the officer had reasonable suspicion of criminal activity such that he could lawfully conduct the stop and frisk of Jones.
The Eighth Circuit noted that reasonable suspicion is determined by:
look[ing] at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing [based upon his] own experience and specialized training to make inferences from and deductions about the cumulative information available.iii
The prosecution argued that, based on the officer’s training and experience, the officer had reasonable suspicion to believe that Jones was concealing a firearm against his body. The prosecution relies on the following evidence that was elicited during the motion to suppress:
[Officer] Hasiak testified that he was trained to look for clues that an individual is carrying a firearm, such as walking with his hand held against his midriff, as if holding something against his body. Hasiak testified that, in his four years as a cruiser officer, he stopped ten other people walking in this manner, and every one was carrying a firearm. Officer John Supeh, Hasiak’s “street survival” trainer at the Omaha Police Training Academy, testified that holding one’s hand against the body is “considered a protective arm movement” to secure a weapon, an action which “would lead to what we consider a stop and frisk.” The government argues that Hasiak’s reasonable suspicion was supported by additional facts: (1) that Jones was walking in a high crime precinct in a neighborhood considered to be a violent “hot spot” in that precinct, (2) that it was sunny and 68 degrees, so Jones by wearing a long-sleeved sweatshirt “was obviously hiding something he did not want the world, and the cruiser officers, to see,” and (3) that Jones “continually watched the officers [as the cruiser drove by] as if concerned that they would stop him.iv
In considering the above argument from the prosecution, the Eighth Circuit noted that the prosecution did not identify any particular criminal activity that in which Jones may have engaged. The Eight Circuit stated:
we find it remarkable that nowhere in the district court record did the government identify what criminal activity Officer Hasiak suspected. Rather, the government leaped to the officer safety rationale for a protective frisk for weapons, ignoring the mandate in Terry that there must be reasonable suspicion of on-going criminal activity justifying a stop before a coercive frisk may be constitutionally employed. See, e.g., United States v. Hughes, 517 F.3d 1013,1019 (8th Cir. 2008); United States v. Gray, 213 F.3d 998, 1000 (8th Cir. 2000). Here, in contrast to the vast majority of cases in which protective frisks have been upheld, (i) the officers did not have reasonable suspicion that Jones was engaged in criminal activity other than carrying a weapon, such as drug trafficking or theft; (ii) Jones did not panic or flee when Officer Hasiak approached; and (iii) Jones was forcibly detained and searched before he said anything suspicious or incriminating. Thus, the only suspicion Hasiak articulated was that Jones was carrying a gun.v
In this appeal, the prosecution argued that Jones was suspected of the crime of “carrying a concealed weapon” under Nebraska statute.vi
The Eighth Circuit then examined the facts upon which the prosecution relies upon. Specifically, while the officer stated that he observed that Jones was clutching an objected concealed by his sweatshirt close to his body, the officer also admitted that he was unable to ascertain the shape of the object. Further, the officer admitted that Jones “exhibited none of the other clues he had been trained to look for, such as walking with an unusual gait, turning that part of his body away from the officers’ view, adjusting his grip or the location of the item in his pocket, or running away.”vii The court then stated:
The government does suggest the presence of other suspicious circumstances, but all were shared by countless, wholly innocent persons — walking in a high-crime area, wearing a sweatshirt on a September day that began at a cool 50 degrees in the morning but warmed to 68 degrees by late afternoon, and intently watching a police cruiser drive by. In other words, the totality of these circumstances, on which our inquiry must be based, adds nothing to Jones’s protective clutching of something in his hoodie pocket… We suspect that nearly every person has, at one time or another, walked in public using one hand to “clutch” a perishable or valuable or fragile item being lawfully carried in a jacket or sweatshirt pocket in order to protect it from falling to the ground or suffering other damage. With only this circumstance to support Officer Hasiak’s suspicion, though we are mindful of the need to credit law enforcement officers who draw on their experience and specialized training, we conclude that “[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity.”viii
The court then held that:
Officer Hasiak lacked the requisite reasonable suspicion that Jones was carrying a concealed firearm in his hoodie pocket, as opposed to some other object, or no object at all. The critical question is, again, whether Hasiak had a “particularized and objective basis” for his suspicion.ix
As such the suppression of the evidence by the district court was affirmed.
It does seem worth noting that the court also stated the following regarding the officer’s excellent instincts and observation skill in this case:
After he was arrested and placed in the police cruiser, Jones volunteered that he was glad Hasiak stopped him because Jones “was about to go do something that he would never get out of jail for.” This admission confirms that Officer Hasiak’s instincts were sound and his action eliminated a serious risk to public safety. However, that action also violated Jones’s Fourth Amendment rights, and we must enforce the rule excluding the use of evidence that was unconstitutionally obtained.x
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
i No. 09-1731, 2010 U.S. App. LEXIS 11599 (8th Cir. Decided June 8, 2010)
ii Id. at 1-2
iii Id. at 3 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002))
iv Id. at 3-4
v Id. at 4-5
vi Id. at 5-6 (§ 28-1202 of the Nebraska Revised Statutes, provides in relevant part:
(1)(a) Except as otherwise provided in this section, any person who carries a weapon . . . concealed on or about his or her person such as a revolver . . . commits the offense of carrying a concealed weapon.
(b) It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment. . .and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon . . . for the defense of his or her person, property, or family.
(2) This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act . . . .)
vii Id. at 7
viii Id. at 7-9
ix Id. at 6
x Id. at 10-11