CopLaw Update

June 10, 2010


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...protective clutching of something is not 'reasonable suspicion'... Government counsel....failed to clarify whether the other ten suspects to whom Hasiak generally referred had likewise exhibited only this one telltale clue. Because totality of the circumstances is the test, undue focus on one circumstance is suspect.

United States Court of Appeals


No. 09-1731

US v Jones

June 8, 2010


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... The government must prove that Officer Hasiak had reasonable suspicion to stop and frisk Jones because it conceded that Hasiak’s actions were a detention and search to which Fourth Amendment protections apply, not merely a consensual encounter between a citizen and the police... 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.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citations and quotations omitted). Though officers may not rely on “inarticulate hunches” to justify a stop, Terry, 392 U.S. at 22, the likelihood of criminal activity need not rise to the level required for probable cause. Arvizu, 534

U.S. at 274.... 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.... 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.”... In considering this argument, 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).... (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.


Like the district court, we conclude 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. Arvizu, 534 U.S. at 273. Given the deference we must accord both Hasiak’s training and experience and the inferences drawn by a resident district judge, this is a close question.


The government emphasizes that Jones by clutching the outside of his hoodie pocket exhibited one of the firearm-carrying clues Hasiak had been trained to observe, and Hasiak’s testimony that, on ten other occasions, the suspect he stopped and frisked was in fact armed. But this evidence was not as conclusive as the government suggests. On cross examination, Hasiak admitted that he was unable to see the size or shape of whatever was in Jones’s hoodie pocket, and that Jones exhibited none of the other clues Hasiak 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. Compare United States v. Jackson, 175 F.3d 600, 601-02 (8th Cir.), cert. denied, 528 U.S. 828 (1999). Government counsel then failed to clarify whether the other ten suspects to whom Hasiak generally referred had likewise exhibited only this one telltale clue. Because totality of the circumstances is the test, undue focus on one circumstance is suspect.


...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. Compare United States v. Wright, 582 F.3d 199, 212 (1st Cir. 2009) (while the totality of the circumstances gave rise to reasonable suspicion criminal activity was afoot, “the fact that Wright clutched at [something heavy in] his pocket, even while in flight, cannot support an inference that the object he clutched was specifically a weapon”).... 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.... (no reasonable suspicion if “circumstances describe a very large category of presumably innocent travelers”... Johnson v. Campbell, 332 F.3d 199, 208 (3rd Cir. 2003) (“There are limits, however, to how far police training and experience can go towards finding latent criminality in innocent acts.”); United States v. Crawford, 891 F.2d 680, 682 (8th Cir. 1989) (no reasonable suspicion when defendant’s “conduct [was] typical of countless innocent people”); United States v. Davis, 2008 WL 4372705, at *5 (S.D. Tex. Sept. 22, 2008).


Officer Hasiak could have initiated a consensual encounter, for which no articulable suspicion is required, and which “may both crystallize previously unconfirmed suspicions of criminal activity and give rise to legitimate concerns for officer safety.” United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.), cert. denied, 531 U.S. 883 (2000). In United States v. Stewart, 352 Fed. App’x 322, 323-24 (11th Cir. 2009), for example, defendant was seen running in a high crime area and apparently holding a heavy object in his pocket against his body, but he was not arrested until the officers asked if he had a gun, and he said “Yes, I’m dirty,” and then admitted not having a permit. See also United States v. Maher, 145 F.3d 907, 908-09 (7th Cir. 1998).


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.


Article I, § 1 of the Nebraska Constitution to provide that their “inherent and inalienable rights” include the right “to keep and bear arms for security or defense of self, family, home, and others . . .and all other lawful purposes.” This amendment doubtless did not invalidate § 28-1202(1)(a). See State v. LaChapelle, 451 N.W.2d 689, 690 (Neb. 1990). But giving police officers unfettered discretion to stop and frisk anyone suspected of carrying a concealed weapon without some particularized suspicion of unlawful carrying conflicts with the spirit of the amendment. It is also contrary to a basic purpose of the Fourth Amendment’s reasonableness standard -- to protect citizens from “the unconstrained exercise of discretion.” Delaware v. Prouse, 440 U.S. 648, 663 (1979) (police must have “articulable and reasonable suspicion that a motorist is unlicensed

or that an automobile is not registered” to stop a vehicle on those grounds).


United States v. Coleman, 2010 U.S. App. LEXIS 11588 (3d Cir. June 4, 2010) (unpublished).


Defendant was not seized when the officer drew a Taser on him when he refused to show his hands. The officer, however, already had reasonable suspicion at the point the Taser was drawn.


... Because we conclude the patrolmen stopped Coleman based on a reasonable, articulable suspicion that Coleman was carrying an illegal weapon, we will affirm....According to Wilkers, blading “is a term used when people turn their body, blade their body away from you . . . .in an attempt to conceal an item, conceal contraband from you, conceal a bulge in their pants or their jacket.”... Based on Wilkers’s training to identify suspects carrying concealed weapons and his experience arresting fifteen or sixteen suspects in possession of concealed firearms, he explained that blading is a trait consistent with suspects concealing weapons. Due to Coleman’s posture the patrolmen could not see his hands or the lower part of his chest.... Wilkers could see Coleman’s elbow, however, which he testified was positioned in such a way to suggest he was holding something against his abdomen.... Based on Coleman’s “bladed away” posture, his blank stare, the fact he was holding something close to his abdomen, and the fact he matched the description relayed in the tip, Wilkers became concerned Coleman was armed. Wilkers ordered Coleman to “[s]how [them] his hands” two or three times in a loud and forceful tone. (Id. 72.) Coleman did not comply. Then, Wilkers pulled out his taser and repeated this command three or four more times. Coleman neither complied nor changed his posture; “[h]e just kept starring at me and did not move . . . . [and his hands were] [s]till towards his abdomen.” (Id.)... After Coleman refused to comply with Wilkers’s requests, Wilkers put his taser away, walked up on the porch, told Coleman to get on the ground, and grabbed Coleman by the arm. Wilkers used a “little force” to put Coleman face-first on the porch floor. (Id. 73.) Coleman did not resist and Wilkers handcuffed him “[f]or [his] safety, just in case [Coleman] was armed.” (Id.) Then, as Wilkers rolled Coleman to his right side in an attempt to help him up, Coleman’s t-shirt slid up and revealed a firearm in his



Our decision in United States v. Waterman, 569 F.3d 144 (3d Cir. 2009), and Supreme Court jurisprudence call into question whether a person can be “seized” for Fourth Amendment purposes when a reasonable person in the same circumstances would not feel free to terminate the encounter with law enforcement, without a law enforcement officer physically restraining the suspect or making a showing of authority to which the suspect submits. Brendlin, 551 U.S at 254 (determining a person is only “seized” if physically restrained or he or she submitted to law enforcement’s show of authority; anything less is an attempted seizure); Waterman, 569 F.3d at 146 (“[W]e have universally looked to the requirements set forth in Hodari D. to determine whether a police encounter with a citizen constitutes a ‘seizure.’”).


An officer may conduct a brief investigatory stop and pat down the individual “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Wardlow, 528 U.S. at 123. A reasonable, articulable suspicion is defined as “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry, 392 U.S. at 21. The suspicion must be more substantial than a hunch. Johnson v.Campbell, 332 F.3d 199, 206 (3d Cir. 2003).


The reasonableness of the officer’s suspicions is measured by what the officer knew before the stop occurred. United States v. Valentine, 232 F.3d 350, 358 (3d Cir. 2000). An officer is permitted to draw inferences and deductions from prior experience and training. United States v. Arvizu, 534 U.S. 266, 273 (2002); Brown, 448 F.3d at 246. Establishing objective specificity does not demand scientific certainty and can be based on observing entirely legal activity. Johnson, 332 F.3d at 206


Both this Court and the Supreme Court have acknowledged that an anonymous tip that a person is carrying a gun, without additional corroboration, “lack[s] the ‘indicia of reliability’ needed to justify a stop under the reasonable suspicion standard.” Virginia v. Harris, 130 S. Ct. 10, 10 (2009); Florida v. J.L., 529 U.S. 266, 270 (2000); Brown, 448 F.3d at 249. An anonymous tip can only be the basis for reasonable suspicion if accompanied by specific indicia of reliability. J.L.,529 U.S. at 270. We consider five factors to assess whether a tip is reliable:

(1) The tip information was relayed from the informant to the officer in a face to-face interaction such that the officer had an opportunity to appraise the

witness’s credibility through observation.

(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

(3) The content of the tip is not information that would be available to any observer . . .

(4) The person providing the information has recently witnessed the alleged criminal activity.

(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility [.]United States v. Torres, 534 F.3d 207, 211 (3d Cir. 2008).


We have also recognized other facts which serve to bolster an insufficient tip, including: (1) presence of the suspect in a high-crime area; (2) presence of the suspect on the street at a late hour; (3) a suspect’s nervous or evasive behavior; and (4) any behavior by the suspect that conforms to an officer’s specialized knowledge of criminal activity. Id.


FN 3 the patrolman’s observations, suggesting Coleman possessed a weapon, could support a reasonable suspicion of criminal activity because such a suspicion presumes Coleman is not in lawful possession of the handgun. Because Delaware law places the burden on the defendant to prove he had a license to carry a concealed weapon, an officer can presume a subject’s possession is not lawful until proven otherwise. Lively v. State, 427 A.2d 882, 884 (Del. 1981). Therefore, Wilkers could presume Coleman’s possession of the handgun was illegal, despite having no knowledge about whether Coleman could legally possess a gun.


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