United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1731
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United States of America, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Fonta M. Jones, * [TO BE PUBLISHED]
*
Defendant - Appellee. *
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Submitted: February 12, 2010
Filed: June 8, 2010
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Before LOKEN, Chief Judge,* GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.
While routinely patrolling a high-crime area on a mild September afternoon,
Omaha 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 Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
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).
Jones moved to suppress the seized firearm and ammunition and a post-arrest
statement, arguing that Officer Hasiak lacked reasonable suspicion to stop and frisk.
See Terry v. Ohio, 392 U.S. 1 (1968). After an evidentiary hearing, the district court1
granted the motion. The government appeals this interlocutory order, which we have
jurisdiction to review. 18 U.S.C. § 3731. We affirm.
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. We review the district court’s determination of reasonable suspicion de
1
The HONORABLE JOSEPH F. BATAILLON, Chief Judge of the United
States District Court for the District of Nebraska, adopting the report and
recommendations of the HONORABLE F.A. GOSSETT, III, United States Magistrate
Judge for the District of Nebraska.
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novo and its findings of historical fact for clear error, giving “due weight to inferences
drawn from those facts by resident judges and local law enforcement officers.”
Ornelas v. United States, 517 U.S. 690, 699 (1996).
The government argues that testimony at the evidentiary hearing established
that Officer Hasiak had reasonable suspicion to believe, based upon his training and
experience, that Jones was holding a firearm against his body. 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.”
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).
Here, in contrast to the vast majority of cases in which protective frisks have been
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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.
On appeal, the government argues for the first time that Officer Hasiak had
reasonable suspicion that Jones was carrying a concealed weapon in violation of § 28-
1202 of the Nebraska Revised Statutes, which 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 . . . .
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.
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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 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. 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. With only this circumstance to support Officer
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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.” Gray, 213 F.3d at 1001; see Reid v. Georgia, 448 U.S. 438, 441
(1980) (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).
We do not underestimate the importance of ferreting out violent offenders who
unlawfully carry firearms in public, and the value of protective frisks in guarding the
safety of law enforcement officers and others who may be in harm’s way. See Terry,
392 U.S. at 23-24. But as we noted in Hughes, 517 F.3d at 1018, “[b]eing stopped and
frisked on the street is a substantial invasion of an individual’s interest to be free from
arbitrary interference by police,” and the police have “less invasive options” for
“identifying the perpetrators of crime.” Most obviously, 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).
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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.
Accordingly, the order of the district court dated March 4, 2009, is affirmed.
LOKEN, Chief Judge, concurring.
I join the opinion of the court. In addition, even if I agreed with the government
that Officer Hasiak had reasonable articulable suspicion that Jones was carrying a
concealed weapon, I would affirm the suppression of evidence in this case.
The plain language of Neb. Rev. Stat. § 28-1202 makes clear that a significant
portion of the general public may lawfully carry a concealed weapon -- persons
engaged in a lawful business in circumstances justifying carrying the weapon for
defense of “person, property, or family,” and persons holding a valid permit issued
under the Concealed Handgun Permit Act, Neb. Rev. Stat. §§ 69-2427 to -2448. If
police find a concealed weapon during the course of a valid stop, such as a traffic stop,
they may well have probable cause to arrest the person for violating a statute such as
§ 28-1202(1)(a). See United States v. Peyton, 108 F.3d 876, 877 (8th Cir. 1997). But
the question here is whether anyone reasonably suspected of having a firearm in his
or her pocket or purse may be forcibly stopped and searched when the police have no
particularized reason to suspect that the person is unlawfully carrying a weapon. No
Eighth Circuit opinion has addressed that issue. In the one case upholding a stop
based upon the criminal activity of carrying a concealed weapon, we emphasized that
the officer also had reasonable suspicion the defendant “was too young to obtain a
permit to carry a concealed weapon.” United States v. Brown, 550 F.3d 724, 727 (8th
Cir. 2008).
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The government asserted at oral argument that sweeping authority to stop and
frisk any person suspected of carrying a concealed weapon is reasonable because the
“exceptions” to the prohibition in § 28-1202(1)(a) are merely affirmative defenses.
In the first place, the assertion is wrong. Although § 28-1202(1)(b) provides that
carrying a weapon for self-defense reasons is an affirmative defense, § 28-1202(2)
provides that the prohibition “does not apply to a person who is the holder of a valid
permit.” Therefore, because the government offered no evidence that Officer Hasiak
had reasonable suspicion Jones lacked a valid permit, it failed to prove a valid stop
based on this statute.
More importantly, even if the statute expressly declared that all circumstances
when a concealed weapon may be lawfully carried are “exceptions” and “affirmative
defenses” to its prohibition, the people of Nebraska in the 1988 general election, some
years after the enactment of § 28-1202, amended 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).
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