United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3109
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael B. Lowry
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: April 18, 2019
Filed: August 30, 2019
____________
Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
____________
KOBES, Circuit Judge.
Michael Lowry entered a conditional guilty plea to being a felon in possession
of a firearm violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals, arguing
that the district court1 erred in denying his motion to suppress evidence recovered
from a stop not supported by reasonable suspicion. Although we agree that the
officer who stopped Lowry lacked reasonable suspicion, suppression of the evidence
is inappropriate under the attenuation doctrine. We therefore affirm.
I.
On a cold and windy January night, Michael Lowry was waiting at a bus stop
near U.S. Highway 40 and I-70 in Independence, Missouri. The bus stop had two
shelters, separated by about 25 yards, and was located in a high crime area. Lowry
was wearing heavy clothes and seated inside one of the two shelters. Tyson Parks
was inside the other shelter. Law enforcement had previously banned Parks from the
bus stop.
Shortly after 9 p.m., Officer Joseph Thomas Hand of the Independence Police
Department (Independence) arrived at the bus stop on a routine patrol. Independence
proactively patrolled the bus stop and Officer Hand tried to visit it five or six times
a night. He was accompanied by a ride-along officer from another police department
who was in the process of being hired by Independence. The ride-along officer had
not been deputized and therefore could not assist Officer Hand with any police
activities. Officer Hand was responsible for the ride-along officer’s safety.
Officer Hand immediately noticed Parks and approached him. He later
admitted that he was frustrated because he knew that Parks was banned from the bus
stop and he had previously found Parks intoxicated and causing disturbances there.
As he approached, he yelled that Parks needed to leave. At the same time, he noticed
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable Matt
J. Whitworth, United States Chief Magistrate Judge for the Western District of
Missouri.
-2-
Lowry looking in his direction and then getting up to walk behind the other shelter,
out of his sight. Lowry remained behind the shelter a short time and then returned to
the front side, while Officer Hand was still talking with Parks. He remained there
until Officer Hand looked in his direction again and they made eye contact. When
Lowry turned away and started to walk behind the shelter for a second time, Officer
Hand shined his flashlight on him and ordered him to come over. Normally, Officer
Hand testified, he would have approached Lowry and talked with him, but because
he had a ride-along in his car and was busy with Parks in the other shelter he directed
Lowry to come to him.
Officer Hand testified that he suspected Lowry was engaged in some sort of
criminal activity and might have been hiding weapons, drugs or alcohol. He also
believed that Lowry was attempting to avoid contact. Lowry’s bulky clothing, his
backpack, and his presence at a bus stop in a high crime area amplified Officer
Hand’s suspicions.
Lowry obeyed the directive and Officer Hand asked him to provide
identification, which he also did. Lowry then waited by the patrol car while Officer
Hand ran a warrant check. The warrant check revealed outstanding warrants and
warned that Lowry was known to be violent. Officer Hand approached Lowry and
asked him to place his hands behind his back, at which point Lowry informed Officer
Hand that he had a gun in his waistband, a clip in his back pocket, and a collapsible
baton in his backpack. He also told Officer Hand that he was a convicted felon.
Officer Hand placed him under arrest and searched him, recovering the gun, the clip,
and the baton.
Lowry was charged with being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a motion to suppress the evidence
as the fruit of an unlawful stop. The motion, including whether or not the attenuation
doctrine should apply to prevent suppression, was briefed and a hearing was
-3-
conducted before the magistrate. At the hearing, Lowry’s attorney cross-examined
Officer Hand.
The magistrate recommended that the motion be denied because Officer Hand
had reasonable suspicion to stop Lowry, and the district court adopted the
recommendation. Neither the magistrate nor the district court addressed the
attenuation issue. Lowry entered a conditional guilty plea, reserving the right to
challenge the suppression decision.
II.
“A mixed standard of review applies to the denial of a motion to suppress
evidence.” United States v. Smith, 820 F.3d 356, 359 (8th Cir. 2016). “The trial
court’s findings of fact are reviewed for clear error and its denial of the suppression
motion is reviewed de novo.” United States v. Ford, 888 F.3d 922, 925 (8th Cir.
2018).
A.
The Fourth Amendment prohibits unreasonable searches and seizures. Law
enforcement “may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” United States v. Fields, 832 F.3d 831, 834 (8th Cir. 2016)
(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The government concedes
that such a stop occurred when Officer Hand ordered Lowry to come to him.
Therefore, it must prove, “looking at the totality of the circumstances of each case,
that the detaining officer had 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. Jones, 606 F.3d 964, 966 (8th Cir. 2010) (cleaned up) (quoting United States
-4-
v. Arvizu, 534 U.S. 226, 273 (2002)). Lowry argues that the government cannot make
this showing and that the exclusionary rule should therefore prevent the government
from using the seized firearm as evidence.
Reasonable suspicion “requires less than probable cause of criminal activity,
but the suspicion cannot be based on an ‘inarticulate hunch[].’” United States v.
Horton, 611 F.3d 936, 940 (8th Cir. 2010) (quoting Terry v. Ohio, 392 U.S. 1, 22
(1968). It may be based on, among other things, the “time of day or night, location
of the suspect parties, and the parties’ behavior when they become aware of the
officer’s presence.” United States v. Quinn, 812 F.3d 694, 697–98 (8th Cir. 2016)
(citation omitted). But, facts that are “shared by countless, wholly innocent persons”
cannot give rise on their own to reasonable suspicion. Jones, 606 F.3d at 967.
Our decision in Jones offers a useful comparison to this case. There, an officer
stopped Jones after he drove past twice in his police cruiser and observed Jones
staring at him. Id. at 965. Jones was walking in a high crime area, wearing a hoodie
(although it was 68 degrees outside), and clutching his pocket in a way that the
officer had been trained to associate with carrying a weapon. Id. at 966. Finding that
the officer lacked reasonable suspicion to initiate a stop, we emphasized that
“nowhere in the district court record did the government identify what criminal
activity [the officer] suspected” and that “[t]oo many people” could be described as
Jones was “to justify a reasonable suspicion of criminal activity” on the basis of that
description. Id. at 966–67.
The facts supporting reasonable suspicion are weaker here. Officer Hand could
only offer a vague justification that he suspected Lowry was engaged in some sort of
criminal activity and might have been hiding weapons, drugs, or alcohol when he
walked behind the bus shelter. Leaving aside the issue that possessing weapons and
alcohol is not necessarily a crime, reasonable suspicion must rest on a “particularized
and objective basis,” id. at 966, and not a “mere ‘hunch,’” Navarette v. California,
-5-
572 U.S. 393, 397 (2014). Officer Hand’s equivocal explanation for the stop suggests
that this stop was in fact based on a hunch.
The government grounds much of its argument in facts that, like those at issue
in Jones, are shared by wholly innocent and reasonable persons. People visit bus
stops in high crime areas because they need to catch a bus. Everyone wears heavy
clothing on winter nights. People tend to watch when a police officer engages in a
heated exchange with someone in their vicinity. And there are any number of
innocent impulses that might motivate someone in Lowry’s situation to walk behind
the shelter, including the desire to move around or to steer clear of the tense situation
between Parks and Officer Hand.
That Lowry continued to look at Officer Hand when he walked away, a fact
that the district court considered significant, does not—without more— transform this
innocent behavior into a basis for reasonable suspicion. “Because totality of the
circumstances is the test, undue focus on one circumstance is suspect.” Jones, 606
F.3d at 967. In United States v. Quinn, 812 F.3d 694 (8th Cir. 2016), relied on by the
government, we found it important that in addition to the fact that “Quinn reacted
suspiciously when he noticed [the officer’s] presence by ‘constantly looking over his
shoulder toward [the officer’s] direction,’” he also partially matched a description of
a suspect and was seen walking near a crime scene when there were few other
pedestrians around. 812 F.3d at 698. No similar facts are present here and Lowry’s
eye contact with the officer is insufficient. We therefore respectfully disagree with
the district court and conclude that Officer Hand lacked reasonable suspicion to
detain Lowry.
B.
The lack of reasonable suspicion does not resolve the case. The government
argues because Officer Hand discovered the evidence against Lowry after he learned
-6-
of an outstanding arrest warrant, the initial violation of Lowry’s Fourth Amendment
rights was sufficiently unrelated to the ultimate discovery of the evidence that
suppression is inappropriate.2 We agree.
At issue is the “attenuation doctrine,” an exception to the exclusionary rule that
applies “when the connection between unconstitutional police conduct and the
evidence is remote or has been interrupted by some intervening circumstance, so that
‘the interest protected by the constitutional guarantee that has been violated would
not be served by suppression of the evidence obtained.’” Utah v. Strieff, 136 S. Ct.
2056, 2061 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)).
We use a three-part test to determine whether the attenuation doctrine applies.
“First, we look to the temporal proximity between the unconstitutional conduct and
the discovery of evidence to determine how closely the discovery of evidence
followed the unconstitutional search. Second, we consider the presence of
intervening circumstances. Third, and particularly significant, we examine the
purpose and flagrancy of the official misconduct.” Id. at 2062 (citations omitted).
Much of the dispute here centers on how similar the facts are to those in Strieff.
There, police officers staked out a suspected drug house, watching individuals visit
the house for a few minutes at a time. 136 S. Ct. at 2059. An officer saw Strieff,
leaving the house and stopped him, directing him to hand over his identification. Id.
The officer then relayed the information to a police dispatcher who informed him that
Strieff had an outstanding warrant for a traffic violation. Id. The officer arrested
Strieff and, during a search incident to arrest, discovered drug paraphernalia and
methamphetamine on his person. Id.
2
Lowry urges us to remand for the district court to consider this question in the
first instance. We decline to do so because the argument was presented to the district
court and the record has been fully developed. United States v. Wearing, 837 F.3d
905, 909 (8th Cir. 2016) (“[W]e may affirm on any basis supported by the record.”).
-7-
Utah conceded that the officer lacked reasonable suspicion for the stop, but the
Supreme Court nonetheless declined to suppress evidence found during the search
because the attenuation doctrine applied. Id. at 2063. Although it recognized that the
first factor, “temporal proximity” favored exclusion, the other two factors both
favored finding attenuation. Id. at 2062. Regarding the second factor, the Court
reasoned that the discovery of the warrant was an “intervening circumstance” because
it was “valid, it predated [the officer’s] investigation, and it was entirely unconnected
with the stop. And once [the officer] discovered the warrant, he had an obligation to
arrest Strieff.” Id. The third factor also favored attenuation because the officer had
been “at most negligent” and had made “two good-faith mistakes,” so that the
misconduct was neither purposeful nor flagrant. Id.
This case is similar to Strieff. As both sides agree, the first attenuation factor,
the temporal proximity of the intervening circumstance to the original violation,
favors suppression. However, the second factor, “the presence of intervening
circumstances,” favors attenuation. As in Strieff, once Officer Hand discovered an
arrest warrant that pre-existed the stop and was unconnected with it, his arrest of
Lowry “was a ministerial act that was independently compelled by the pre-existing
warrant,” and Officer Hand’s search incident to that arrest was lawful. Id. at 2063.
The third factor, “the purpose and flagrancy of the official misconduct,” also favors
attenuation. Officer Hand lacked reasonable suspicion to stop Lowry, but “[f]or the
violation to be flagrant, more severe police misconduct is required than the mere
absence of proper cause for the seizure.” Id. at 2064. Officer Hand testified that
under normal circumstances, he would simply have approached Lowry and spoken
with him, leading to a consensual encounter rather than a Terry stop. He did not do
so here because he was busy managing a tense situation with Parks inside the other
bus shelter and had a non-deputized ride-along officer in his car. This may amount
to an “error[] in judgment” comparable to that in Strieff, but it is not a “flagrant” or
“purposeful” violation of the Fourth Amendment. Id. at 2063.
-8-
Lowry makes several arguments that this case differs from Strieff, but we are
unpersuaded. First, he argues that the police had a stronger basis for the stop in
Strieff than Officer Hand had here. However, the Supreme Court made it clear that
“[f]or [a] violation to be flagrant, more severe police misconduct is required than the
mere absence of proper cause for the seizure.” Id. at 2064. The only question is
whether there was proper cause, not how close the call was. In that regard, Strieff is
the same as this case—neither officer had reasonable suspicion. Id. at 2064. To the
extent that he argues that the lack of reasonable suspicion was so clear that it calls
Officer Hand’s motivation for stopping him into question, Lowry is still incorrect.
Admittedly, there are cases like Jones where we have found no reasonable suspicion
even though the officer had more to go on than Officer Hand did, but the relative
weakness of the government’s case here is not so extreme that it gives rise to an
inference that Officer Hand acted purposefully to violate Lowry’s rights.3 In fact,
Officer Hand’s actions are understandable, even if unconstitutional, under the
circumstances of the stop. Nothing in the record suggests that Officer Hand knew that
he lacked reasonable suspicion and flagrantly disregarded that fact.
Lowry also argues that the discovery of the arrest warrant was not actually an
“intervening” event because it was, far from being “entirely unconnected with the
stop,” the actual purpose of the stop. Id. at 2062. The dissenting Justices in Strieff
raised the specter of this argument when they predicted that officers would conduct
unlawful stops in the hope of discovering outstanding arrests warrants that would
render any evidence found admissible. See, e.g., id. at 2073 (Kagan, J. dissenting).
But Strieff did not announce a per se rule that the discovery of a warrant would
always vitiate subsequent searches. Whether it is characterized as a part of the second
element of the attenuation test (that the intervening event be unconnected to the
purpose for the stop) or as a part of the third element of the attenuation test (that the
officer not have a flagrant or unconstitutional purpose), Strieff instructs that we
3
We described Jones as a “close question.” 606 F.3d at 967.
-9-
should decline to find attenuation where there is evidence that the police officer was
engaged in a fishing expedition for old warrants. Id. at 2063.
The record does not suggest a fishing expedition. Although Lowry’s attorney
had the opportunity to cross-examine him, there is nothing to suggest that Officer
Hand routinely stopped individuals without reasonable suspicion just to fish for
outstanding warrants. In fact, the record reveals Officer Hand did not usually make
stops in similar situations. Also, although Independence instructed its officers to visit
the bus stop several times a night, there is no evidence that it encouraged officers to
conduct dragnet warrant checks while they were there. And as previously discussed,
the fact that Officer Hand’s suspicion about Lowry was vague does not by itself give
rise to the inference that his sole purpose for stopping Lowry was to check for a
warrant. That Officer Hand’s first action when stopping Lowry was to ask for
identification might suggest a fishing expedition as a possibility, but it is not enough
on its own to clear the bar set by Strieff.
We do not intend to close the door to future challenges, under Strieff, to
evidence found in stops like this one. Strieff, in declining to adopt a per se rule, left
that door open. But in such a challenge, we require more evidence of flagrancy or of
purpose than is present here.
III.
The discovery of the evidence used against Lowry was attenuated from his
unlawful stop and suppression is inappropriate in this case. The judgment of the
district court is affirmed.
______________________________
-10-