On March 17, 2020, the Eleventh Circuit Court of Appeals decided the United States v. Hardy[i], which serves as an excellent review of the law related to stop and frisk. The relevant facts of Hardy, taken directly from the case, are as follows:

At around 1:21 a.m. on Wednesday, November 8, 2017, a resident of the Spring Valley neighborhood in Montgomery, Alabama, called 911 to report that she could hear someone outside her home. The caller reported that she had heard the same noises the previous two nights, but she did not look outside and so was unable to provide a description of what had made the noise. Montgomery Police Officer Joshua Howell arrived outside the caller’s home seven minutes later, at around 1:28 a.m. At the subsequent suppression hearing, Howell testified that he understood that he was responding to a “prowler call,” a common term in police parlance. After arriving outside the home, Howell patrolled the immediate area for a few minutes, but saw no one. He then began to leave the neighborhood. At around 1:35 a.m., as he was driving out of the neighborhood, Howell saw Hardy walking by himself at the intersection of Spring Valley Road and Adler Drive. The intersection is approximately 0.3 miles—or around a five-minute walk—away from the caller’s home. At the time, Hardy was dressed in loose-fitting, all-black clothing, which Howell knew to be common for those who commit property crimes in the neighborhood.
Howell stopped his police car, got out, and approached Hardy. Howell testified that he did this because Hardy was in the vicinity of where the 911 call had been made, it was around 1:30 a.m. on a Wednesday, and because Hardy was dressed in all black and was the only person walking in the neighborhood at the time. Howell asked Hardy where he was coming from and where he was going. Hardy said that he was heading home from the store where he had just purchased some cigarillos, which he displayed to Howell. Given his familiarity with the area, Howell knew that the nearest store to the intersection was closed at the time, and that the second nearest store, Singh’s Mart, was about a mile and a half away.

Howell then told Hardy to “stand still,” and asked him if he was armed. Both parties acknowledge that Hardy’s interactions with Howell up to that point were consensual and that the encounter became a nonconsensual Terry stop only thereafter. According to Howell, Hardy was “evasive” with his answers and also said “don’t shoot me” several times, which Howell said further heightened his suspicions. Although Howell later acknowledged that he did not observe any visible bulge in Hardy’s clothing that would have suggested the presence of a weapon, he nevertheless proceeded to frisk Hardy, which revealed a handgun in the waistband of Hardy’s pants.[ii]

Hardy was ultimately charged with being a felon in possession of a firearm under federal law, and he filed a motion to suppress the evidence in this case.  The district court denied the motion, and Hardy pleaded guilty with the right to appeal the denial of the motion to suppress.  He then filed a timely appeal with the Eleventh Circuit Court of Appeals.

The issue before the court was whether the stop and frisk of Hardy was legal under the Fourth Amendment.  The court of appeals first noted all applicable Fourth Amendment precedent and rules related to this issue and stated

A law-enforcement officer may conduct a brief, investigatory stop of an individual if there is a “reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also Terry v. Ohio, 392 U.S. 1, 27 (1968). Despite reasonable suspicion being a less demanding standard than probable cause, a Terry stop cannot be based on an officer’s “inchoate and unparticularized suspicion or ‘hunch.'” Terry, 392 U.S. at 27; Wardlow, 528 U.S. at 123-24. When evaluating reasonable suspicion, we consider the totality of the circumstances, which must be viewed in “light of the officer’s special training and experience.” United States v. Matchett, 802 F.3d 1185, 1192 (11th Cir. 2015). This is because “behavior, seemingly innocuous to the ordinary citizen, may appear suspect to one familiar with [criminal] practices.” Ibid. (citation omitted); see also Terry, 392 U.S. at 27 (noting that a reasonable suspicion must be based on “the specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience”).

Courts have articulated specific factors that, when present, may support a finding of reasonable suspicion. Among others, these include: presence in a high-crime area, Wardlow, 528 U.S. at 124; nervous or evasive behavior, ibid.; unprovoked flight or conspicuous avoidance of police, United States v. Hunter, 291 F.3d 1302, 1306 (11th Cir. 2002); a visible bulge in the individual’s clothes that could signify a gun, Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977); or corroboration of reports or tips to the police, United States v. Lindsey, 482 F.3d 1285, 1291 (11th Cir. 2007). While the presence of simply one of these factors, standing alone, cannot serve as the basis for a Terry stop, reasonable suspicion is often found when more than one of these factors are present. See, e.g., Wardlow, 528 U.S. at 124.[iii]

At the outset, the court noted that both Hardy and the State agree that the initial encounter where the officer questioned Hardy was consensual; it became a “stop” when the officer told Hardy to “stand still” and then asked him if he was armed.  As such, the court of appeals examined the facts of the case and applied them to the legal principles discussed above to determine if the stop was supported by reasonable suspicion.

The court first noted that the officer was responding to a “prowler” call and was not acting on a mere hunch.  Furthermore, the court also noted that the neighborhood where this incident took place was known for prowler calls and had a high incidence of property crime.  Second, the court noted that Hardy was wearing all black clothing.  While there is nothing illegal about wearing black clothing, dark colored clothing is commonly worn by people committing crime at night, to make them less visible.  Additionally, it was 1:30 a.m. on a weekday.  Third, while the officer was responding to the prowler call, Hardy was the only person that he saw as he drove through the neighborhood.  Hardy was also in close proximity to the complainant’s residence.  This made it more likely that Hardy was the person responsible for the prowler noises heard by the complainant.  Fourth, Hardy’s story that he had walked to the store to purchase cigarillos was unlikely because the nearest open store at that time was one-and-a-half miles away, which is about a thirty-minute walk.  While it was certainly possible that Hardy was telling the truth, it was still reasonable for the officer to have “viewed Hardy’s story with at least some skepticism.”[iv]

The court of appeals then opined that all of the factors above, rather than alleviating the officers concerns that Hardy was the prowler, heightened his concerns that Hardy was involved in criminal activity.  As such, the “stop” of Hardy was based on reasonable suspicion of criminal activity.

The court also examined if the frisk was legal under the Fourth Amendment.  The court of appeals stated

[W]here nothing in the initial stages of the encounter serves to dispel [an officer’s] reasonable fear for his own or others’ safety, he is entitled . . . to conduct a carefully limited search[.]” Terry, 392 U.S. at 30.[v]

Here, Hardy’s answers did not dispel the officer’s concern that he was involved in criminal activity.  Additionally, when the officer asked Hardy if he was armed, Hardy acted “evasive” and repeatedly stated, “don’t shoot me.”  As such, the officer had a reasonable fear for his safety, and it was lawful for him to conduct frisk of Hardy for weapons, even though the officer testified that he did not see any weapon-like bulges on Hardy.

The court of appeals then stated

[E]ven if Hardy’s actions were open to innocent explanations, that does not necessarily render the Terry stop unconstitutional. “A reasonable suspicion of criminal activity may be formed by observing exclusively legal activity,” United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000), and “[e]ven in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.” Wardlow, 528 U.S. at 125. Terry recognized that an officer could stop a person simply “to resolve the ambiguity” created by that person’s actions. Ibid. Officer Howell’s attempts at resolving that ambiguity only served to further heighten his suspicions.[vi]

As such, the court of appeals affirmed the denial of the motion to suppress.

[i] No. 18-14884 (11th Cir. Decided March 17, 2020 Unpublished)

[ii] Id. at 2-3

[iii] Id. at 5-6 (emphasis added)

[iv] Id. at 7

[v] Id. (emphasis added)

[vi] Id. at 8 (emphasis added)

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