United States v. Marcelo Monsivais

Case: 15-10357 Document: 00513861299 Page: 1 Date Filed: 02/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 15-10357
Fifth Circuit

FILED
February 2, 2017

UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee

v.

MARCELO MONSIVAIS, also known as Marcelo Monsivais-Castro,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas

Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
The events leading to the arrest and conviction of Marcelo Monsivais
occurred on the side of Interstate 20 roughly midway between Abilene and Fort
Worth, in Palo Pinto County, Texas. On September 22, 2014, during daylight
hours, Deputy John Baker of the Palo Pinto County Sheriff’s Office and City
Marshal Abel Saldana of Strawn, Texas, were on patrol in a marked sheriff’s
car traveling east on I-20 when they saw Monsivais walking east on the
opposite side of the Interstate away from an apparently disabled truck. Baker
drove the squad car across the median and headed back toward Monsivais to
offer him roadside assistance, or as they put it, to do a “welfare check.”
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Baker stopped the squad car on the side of the highway facing Monsivais
as he approached and activated the car’s emergency lights as a traffic safety
precaution. Monsivais, however, did not stop but continued walking past the
squad car in his eastbound direction (toward Fort Worth). About the time
Monsivais passed the back of the squad car, the officers exited and Baker began
asking Monsivais questions. Baker could not remember exactly what he said
but thought his questions were about where Monsivais was headed, where he
had been, and if he needed any help. The officers testified that Monsivais said
he was heading to Fort Worth; that he appeared nervous and jittery, but was
polite in responding to the questions; and that he repeatedly put his hands in
his pockets, but took them out each time at Baker’s request.
Baker testified that after approximately four minutes, he told Monsivais
that he was going to pat Monsivais down for weapons “because of his behavior”
and “for officer safety reasons.” After being so informed, Monsivais told the
officers that he had a firearm in his waistband. Saldana grabbed Monsivais’s
right hand, bent his arm behind him, and seized the firearm. Both officers
then restrained and handcuffed Monsivais. When asked for identification,
Monsivais directed the officers to his wallet in his pocket, where they found an
expired Mexican passport. Their continued searches of his clothing revealed a
pipe and two small baggies of methamphetamine. Monsivais was arrested and
later charged with possession of a firearm while being unlawfully present in
the United States. See 18 U.S.C. § 922(g)(5).
Monsivais filed a motion to suppress the evidence obtained as a result of
the seizure and the searches. After a hearing at which the officers testified
(but Monsivais did not), the district court denied Monsivais’s motion to
suppress, stating only that the “consensual encounter was transformed into a
lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer-
safety reasons.” Monsivais pleaded guilty but reserved his right to appeal the
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denial of his motion to suppress. He timely appealed, arguing that the district
court judge erred in failing to exclude the firearm and other evidence because
the officers did not have reason to suspect him of a crime as a basis for an
investigatory detention, or reason to suspect him of being armed and
dangerous as a basis for a protective frisk for weapons. We agree that the
district court’s failure to exclude the firearm and other evidence was in error
because the officers lacked a basis to reasonably suspect him of a criminal act
before seizing him; therefore, we need not determine whether the officers also
lacked reasonable suspicion that Monsivais was armed and dangerous. 1
I
While the Fourth Amendment generally requires officers to obtain a
warrant before searching or seizing an individual, under the “very narrow
exception” announced in Terry v. Ohio, 392 U.S. 1 (1968), police officers may
briefly detain a person for investigative purposes if they can point to “specific
and articulable facts” that give rise to reasonable suspicion that a particular
person has committed, is committing, or is about to commit a crime. United
States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014). Although “reasonable
suspicion” is more than a “mere hunch,” it “need not rise to the level of probable
cause.” United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008) (quoting
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)). An “officer
must be able to point to specific and articulable facts which, taken together

1 When a reviewing court determines that an initial investigatory stop was lawful, it
must apply a different, more onerous standard to determine whether an ensuing frisk for
weapons was lawful. This separate standard is more burdensome, in recognition that a frisk
or pat down is “a serious intrusion upon the sanctity of the person, which may inflict great
indignity and arouse strong resentment, and it is not to be undertaken lightly.” Terry v.
Ohio, 392 U.S. 1, 17 (1968). “[T]o proceed from a stop to a frisk, the police officer must
reasonably suspect that the person stopped is armed and dangerous.” Arizona v. Johnson,
555 U.S. 323, 326–27 (2009); Terry, 392 U.S. at 27. Thus, because the stop or detention of
Monsivais was unlawful in the first place, the officers could not constitutionally proceed to
frisk him or pat him down.
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with rational inferences from those facts, reasonably warrant” an intrusion
into the privacy of the detained individual. Terry, 392 U.S. at 21. To find that
reasonable suspicion existed to justify a stop, a court must examine the
“totality of the circumstances” in the situation at hand, in light of the
individual officers’ own training and experience, and should uphold the stop
only if it finds that “the detaining officer ha[d] a ‘particularized and objective
basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266,
273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)).
The standard for appellate review of reasonable-suspicion
determinations is de novo. Id. at 275 (citing Ornelas v. United States, 517 U.S.
690, 691 (1996)). “The government bears the burden of showing the
reasonableness of a warrantless search or seizure.” United States v. Jaquez,
421 F.3d 338, 341 (5th Cir. 2005) (citing United States v. Chavis, 48 F.3d 871,
872 (5th Cir. 1995)). In reviewing the denial of the motion to suppress, “[w]e
view the evidence in the light most favorable to the party that prevailed in the
district court,” in this case, the Government. United States v. Solis, 299 F.3d
420, 435–36 (5th Cir. 2002) (quoting United States v. Hunt, 253 F.3d 227, 230
(5th Cir. 2001)).
Under the principles established by the Supreme Court, it is undisputed
that Deputy Baker effectively seized Monsivais when he announced that he
was going to pat him down; Deputy Baker thereby clearly asserted his
authority as a peace officer to seize Monsivais so that any reasonable person
in Monsivais’s position would have known that he had been detained at that
moment and was no longer free to walk away. See Florida v. Royer, 460 U.S.
491, 501–02 (1983) (citing United States v. Mendenhall, 446 U.S. 544, 554
(1980) (opinion of Stewart, J.)); see also 4 WAYNE R. LAFAVE, SEARCH AND
SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.4(a) (5th ed. 2012)
(discussing Mendenhall-Royer “free to leave” test). In so doing, Deputy Baker
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converted the officers’ roadside assistance or “welfare check” into an
investigatory stop or detention of Monsivais. The Government agrees that
Deputy Baker’s seizure and frisk of Monsivais commenced when Baker
announced that he was going to pat Monsivais down. Therefore, the focal point
of our analysis is whether the totality of the relevant circumstances that
transpired before Deputy Baker’s announcement of the pat-down revealed
articulable facts from which an officer could reasonably suspect that Monsivais
had committed, was committing, or was about to commit a criminal offense. If
the totality of circumstances did not, we must conclude that Deputy Baker’s
seizure of Monsivais did not fit within Terry or any other exception to the
warrant requirement and was a violation of the Fourth Amendment.
II
The police officers testified that prior to Monsivais’s seizure they did not
suspect Monsivais of any criminal activity. Deputy Baker, who at the time had
made more than 100 traffic stops in his career, testified that when he got out
of the patrol car to speak to Monsivais he did not place his hand on his weapon
or disconnect its clip as he would have in a traffic violation stop situation.
Deputy Baker further testified that when he first encountered Monsivais he
did not suspect him of any criminal act; when he began to question Monsivais
he did not suspect him of any criminal act; and when he told Monsivais he was
going to pat him down, he did not suspect him of a criminal act, saying, “I
wouldn’t say a criminal act, no. He was just acting suspicious.” Baker also
testified that if he encountered a stranded motorist who ran away from him
and his car’s flashing lights, he would not pursue such a person, and that if
Monsivais had not taken his hands out of his pockets as requested, Baker
would have continued to request that Monsivais do so and “told him to keep
walking” if he did not comply. He testified that he would not have tried to
detain Monsivais further or pat him down and that he believed Monsivais was
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free to walk away before he began the pat-down by announcing it to Monsivais.
Marshal Saldana, who had over thirty years of experience as a peace officer,
testified consistently with Deputy Baker that prior to Baker’s announcement
that he was going to pat Monsivais down and Monsivais’s statement that he
had a firearm in his waist, the officers had observed nothing that made them
reasonably suspect that Monsivais had committed, was committing, or was
about to commit a criminal act.
The Government argues, however, that the following facts, when
considered together, support a reasonable articulable suspicion that justified
the detention and frisk of Monsivais: (1) Monsivais’s jittery demeanor and
habit during questioning of putting his hands in his pockets; (2) his confusion
as to where he had been and his allegedly inconsistent statement that he was
headed to Fort Worth when his apparently disabled truck was pointed toward
Abilene; and (3) the fact that he walked past and away from the squad car after
the officers stopped and turned on their flashing lights.
To evaluate the Government’s argument, we begin by assessing the
value associated with each of the individual facts forming part of the relevant
circumstances. We then evaluate these facts together, in logical relation to one
another, in order to discern whether the totality of the circumstances prior to
the seizure of Monsivais supports a reasonable suspicion of criminal activity.
A
The Supreme Court has said that “nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528
U.S. 119, 124 (2000) (emphasis added). But, in the present case, there is no
evidence that Monsivais acted evasively. “We have never held that
nervousness alone is sufficient to create reasonable suspicion of criminal
activity. In fact, we often give little or no weight to an officer’s conclusional
statement that a suspect appeared nervous.” United States v. Portillo-Aguirre,
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311 F.3d 647, 656 n.49 (5th Cir. 2002). Many other courts look skeptically upon
the probative value of an individual’s nervousness in assessing whether
reasonable suspicion of criminal activity exists. See United States v. Chavez-
Valenzuela, 268 F.3d 719, 725–26 (9th Cir. 2001) (collecting cases). There are
sound and compelling reasons for such skepticism. Nervousness is an “entirely
natural reaction to police presence.” United States v. McKoy, 428 F.3d 38, 40
(1st Cir. 2005). And therefore “it is common for most people ‘to exhibit signs of
nervousness when confronted by a law enforcement officer’ whether or not the
person is currently engaged in criminal activity.” United States v. Salzano,
158 F.3d 1107, 1113 (10th Cir. 1998) (quoting United States v. Wood, 106 F.3d
942, 948 (10th Cir. 1997)). Accordingly, nervousness per se carries with it no
readily discernible connection to criminal activity. Cf. United States v. Macias,
658 F.3d 509, 520 (5th Cir. 2011) (“Nervousness, standing alone, generally is
not sufficient to support reasonable suspicion.”).
The evidence that Monsivais placed his hands in his pockets deserves
equally little weight under the particular facts of this case for similar reasons.
See, e.g., United States v. Williams, 731 F.3d 678, 689 (7th Cir. 2013) (“[T]he
simple fact that one’s hands are in one’s pockets is . . . . of little value. If one
were to drive down any given street, it is likely that an uncountable number of
citizens would have their hands in their pockets.”). To begin, Monsivais
complied each time Deputy Baker asked him to remove his hands from his
pockets. Deputy Baker testified that he made this request during every citizen
encounter. Thus, Baker made this request purely as a standard precaution he
took when addressing citizens in traffic stops or other occasions, not only when
he suspected that a person was guilty of a crime or was dangerous. Both
officers testified that if Monsivais had refused to take his hands out of his
pockets, or had walked or run away, they would not have pursued him or
arrested him, because they didn’t suspect him of any criminal activity. The
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officers did not testify that Monsivais appeared to be holding something
suspicious or dangerous in his pockets. To the contrary, the officers testified
that Monsivais was polite and cooperative, and although he appeared to be
nervous and jittery, he did not appear threatening “in any sort of way.”
Regarding Monsivais’s statement as to his destination, it is not clear that
there was any inconsistency in his story. According to the officers, Monsivais
told them that he “was headed” to Fort Worth, although his stalled vehicle was
pointed in the opposite direction. However, Monsivais was in fact walking
eastbound towards Fort Worth when he was stopped. The officers did not
testify whether they asked Monsivais if Fort Worth was his ultimate
destination or only the nearest place he thought he could find gasoline or
whatever he may have needed for his vehicle.
Moreover, even if Monsivais spoke inconsistently about his ultimate
destination, rather than consistently with the direction he was walking after
leaving his disabled vehicle, that inconsistency did not link Monsivais with any
reasonably suspected unlawful conduct. The Government mistakenly relies on
United States v. Fishel, 467 F.3d 855 (5th Cir. 2006), and United States v.
Jones, 185 F.3d 459 (5th Cir. 1999), two cases involving the permissible scope
of questioning and searches after valid automobile traffic violation stops. In
those cases, unlike in the seizure and detention in the present case, the
investigatory detentions were based on officers’ probable cause (i.e., more than
reasonable suspicion) that the motorists had violated traffic laws. Fishel, 467
F.3d at 857 (improper lane usage, weaving, expired license); Jones, 185 F.3d at
463-64 (improper lane usage); see generally 4 LAFAVE § 9.3(a) (“[M]ost traffic
stops are made based upon the direct observations of unambiguous conduct or
circumstances by the stopping officer. That is, in most of the cases the stopping
will have been made on full probable cause.” (footnote omitted)). Although the
courts in traffic violation cases purport to apply a version of Terry to determine
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whether the length and intensity of the detention was unreasonable, the
question of whether the initial traffic stop was constitutional is usually not at
issue. In the present case, on the other hand, whether Deputy Baker’s initial
seizure of Monsivais was constitutional is the crucial issue. In deciding this
issue, the basic principles of Terry must be applied with full force and effect.
Consequently, traffic violation cases have little or no bearing on whether
Deputy Baker and Marshal Saldana violated the Fourth Amendment by
detaining and frisking Monsivais—a pedestrian—without reasonable
suspicion that he had committed or was committing a violation of the law while
walking along the side of the interstate highway after his truck became
disabled.
Finally, the Government argues that Monsivais’s walking past the
officers’ patrol car without asking for their assistance supports a reasonable
suspicion that he was somehow involved in criminal activity. While it may be
true that many individuals would gladly welcome police presence during an
automobile malfunction, the Constitution does not command individuals to
enthusiastically greet law enforcement under such circumstances. To the
contrary, the Supreme Court has made it abundantly clear that unless a police
officer has reasonable suspicion to conduct an investigatory stop, an
“individual has a right to ignore the police and go about his business.”
Wardlow, 528 U.S. at 125.
The context in which a person seeks to avoid contact with a peace officer
is important. Reasonable suspicion may arise when an individual flees from
police in a high-crime area, id. at 124–25; when the officers are already
patrolling the area in response to a specific report of criminal activity, United
States v. Tuggle, 284 F. App’x 218, 225–26 (5th Cir. 2008); or when the police
have received a tip that the fleeing individual had committed a crime, United
States v. Holloway, 962 F.2d 451, 460 (5th Cir. 1992). But these situations
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involve discernable facts or combination of facts specifically linking the fleeing
individual to reasonably suspected criminality—e.g., flight in a high-crime
area or flight after receipt of a tip indicating criminality. Unlike the facts in
these situations, Monsivais’s exercise of his right to avoid contact with the
police and to go about his business offers no such linkage to reasonably
suspected criminal activity. Moreover, Monsivais did not “flee” the officers, but
merely waked past them.
B
We turn now to assessing whether criminal activity by Monsivais could
have been reasonably inferred or deduced once all of the facts are considered
together in their totality. We conclude that, although Monsivais’s behavior
might not have been typical of all stranded motorists, the totality of the
circumstances prior to Deputy Baker’s announcement of a pat-down did not
point to any reason to suspect Monsivais of criminal activity.
Our decision in Hill helps to illumine why the facts offered by the
Government, considered all together, do not support a finding of reasonable
suspicion in this case. In Hill, while on an investigative patrol, the police
approached Regon Hill while he was sitting with his girlfriend in his car, which
was parked in her apartment complex. 752 F.3d at 1031–32. An officer
demanded to know where Hill’s gun and his driver’s license were. Id. at 1032.
When Hill replied that he had neither a gun nor his driver’s license, the police
officer ordered him out of his car and conducted a frisk, during which the officer
recovered a firearm. Id. To justify the stop and frisk, the Government
emphasized that Hill’s car was parked at an apartment complex in a “high-
crime area”; that “he was there at night”; that he “was backed into [a] parking
space, which . . . is sometimes how people park when they want to conceal their
license plate and, by extension, their identity”; and that Hill’s girlfriend exited

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the car in a “hurrying” fashion when the officers began to approach. Id. at
1035–36.
This court held that Hill’s detention was not supported by reasonable
suspicion and was therefore unconstitutional. Id. at 1034. We observed that
the Government, rather than pointing to specific and articulable facts that
would support a reasonable suspicion of criminal activity, “attempt[ed] to put
an ominous gloss on what appears almost entirely ordinary.” Id. Dismissing
the Government’s argument that these facts gave rise to a reasonable
suspicion, we concluded that “[r]easonable officers in such circumstances
would have very little cause to suspect criminal activity rather than, say, a
couple who just arrived home on a weekend night and were preparing to go
inside.” Id. at 1038.
A fundamental principle—derived from Terry and underlying our
decision in Hill—provides critical instruction in the instant case. “[T]he
essence of all that has been written is that the totality of the circumstances—
the whole picture—must be taken into account. Based upon that whole picture
the detaining officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S.
at 417–18 (citing Brown v. Texas, 443 U.S. 47, 51 (1979); United States v.
Brignoni-Ponce, 422 U.S. 873, 884 (1975)). Thus, if the totality of the
circumstances prior to the seizure of the defendant does not provide a
particularized and objective basis for suspecting the particular person seized
of criminal activity, the seizure violates the Fourth Amendment. Hill’s
reasoning recognizes that drawing a reasonable inference is a logical process
of reasoning from known facts. See Terry, 392 U.S. at 21–22 (emphasizing the
need for facts and “rational inferences” drawn from those facts, and
distinguishing the latter from “inarticulate hunches”); Arvizu, 534 U.S. at 273
(emphasizing the importance of “mak[ing] inferences and deductions” from
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“cumulative information”) (emphasis added). There must be some articulable
premise—some fact linking that behavior to reasonably suspected criminality.
Without that premise, there can be no objectively logical reason to impute
criminality to a lawful range of behavior. 2
Keeping these words and the need for an objectively logical step or path
to criminality in mind, consider, by way of contrast, Professor LaFave’s incisive
discussion of the situation in Cortez, which he views as an “excellent
illustration” of what would constitute a “reasonably specific statement by an
officer of the circumstances underlying his action”:
[In Cortez] . . . , an otherwise innocent-seeming vehicle was stopped
by Border Patrol agents because of a series of inferences drawn by
those agents. Piecing together the limited information at their
disposal, primarily what was learned from previously discovered
tracks indicating the crossing of aliens from Mexico, they deduced:
what night another group of aliens likely would be guided by the
same person; what time the aliens were likely to arrive; the point
on the highway at which they were likely to be picked up; the
direction from which the pickup vehicle would likely come; the
direction the pickup vehicle would then take; the likely number of
aliens which would be brought; and the likely type of vehicle
needed to pick up that number of aliens. In holding that a vehicle
of that type moving at the predicted time in the predicted
directions was lawfully stopped, a unanimous Court quite correctly
relied upon the proposition that this result was supported by the
fact that trained law enforcement officers are permitted to make
‘inferences and deductions that might well elude an untrained
person.’ This is because in Cortez the inferences and deductions
had been fully explained at the suppression hearing, and

2 In this vein consider the following passage from Hill:
The point is, because the officers did not observe the scene for more than a
few seconds and they had no other reasons to reasonably suspect criminal
activity, such as a tip, they lacked a reasonable basis to infer much of
anything about the girlfriend exiting the car and taking a few steps towards
the apartment during the same time as their arrival.
752 F.3d at 1037 (emphasis added).

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therefore . . . ‘a particularized and objective basis’ for the stop was
established.

4 LAFAVE § 9.5(a) (citing Cortez, 449 U.S. 411) (footnotes omitted). 3
On the facts of this case, we can see no objectively logical path of
deduction that leads to reasonable suspicion of criminal activity at the time of
Monsivais’s seizure and detention. Unlike in Cortez, neither the Government
nor the arresting officers have pointed to an objective fact that is contextually
or inherently suggestive of criminal activity by Monsivais prior to the pat-
down. And of course, where an articulable deductive relationship or connection
between facts taken as premises does not form part of an officer’s conclusion of
criminal suspicion, then that conclusion cannot be objectively logical and can
only be based on an impermissible intuitive sense or feeling—i.e., a hunch. 4
III
The Government has failed to satisfy its burden under Terry of pointing
to specific and articulable facts warranting reasonable suspicion that

3 The dissent erroneously cites United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994)
(en banc), as supporting the seizure of Monsivais. It clearly does not. In Michelletti, which
is clearly distinguishable, before the officer stopped and frisked the defendant, the officer saw
him walk out of a bar at 2 o’clock in the morning after closing time with an open can of beer,
thereby committing alcoholic beverage offenses under the Texas Alcoholic Beverage
Commission regulations, id. at 841; and the officer observed that “Michelletti, a large and
imposing man, was heading straight toward him with a ‘cocky,’ perhaps defiant attitude and
his right hand concealed precisely where a weapon could be located,” id. at 842. Thus, the
officer in Michelletti pointed to specific and articulable facts warranting suspicion that
Michelletti had committed, was committing, or was about to commit criminal acts before the
officer stopped Michelletti and patted him down. In stark contrast, the officers here, prior to
seizing Monsivais, pointed to no specific or articulable facts warranting suspicion of
criminality by Monsivais, and in fact testified that they did not suspect him of any criminal
act before Deputy Baker began the seizure of Monsivais by announcing that he was going to
pat him down.
4 Compare Inference, THE NEW SHORTER OXFORD ENGLISH DICTIONARY (4th ed. 1993)

(“1 The action or process of inferring; Logic the drawing of a conclusion from data or premises;
illation. . . . 2 A conclusion drawn from data or premises; an implication; the conclusion that
is intended to be drawn.”) with Hunch, id. (“5 An intuitive feeling. Colloq. (orig. US).”). See
also Deduce, id. (“2 Infer, draw as a logical conclusion (from something already known or
assumed); derive by a process of reasoning.”).
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Monsivais had committed, was committing or was about to commit a criminal
act prior to his seizure. Looking at the totality of the circumstances without
sacrificing the rational inferences that Terry demands, we can see no
objectively logical process that justifies interpreting the range of Monsivais’s
behavior as reasonably suspected criminal conduct. Therefore, the seizure
violated his rights under the Fourth Amendment, and the evidence obtained
therefrom must be suppressed. For these reasons, the district court’s denial of
the motion to suppress the evidence is REVERSED and Monsivais’s conviction
and sentence are VACATED.

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JONES, Circuit Judge, dissenting:
The question the majority decide is whether officers formed a sufficient
“reasonable suspicion” to attempt patting down a suspect walking away from
an apparently broken down truck beside a major highway. Unusual facts
imbue this police-suspect encounter, which should have warranted a narrow,
fact-bound decision. Instead, my colleagues have chosen to engage in a broad
analysis that departs from established Fifth Circuit authority and even from
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the interpretive root of Fourth
Amendment precedent. I dissent. This conviction should be upheld and, more
importantly, the right of peace officers to act for their own safety on facts that
would raise suspicion in the minds of any reasonable observer (including
judges) should also be vindicated.
Consider first the facts. The patrol officers saw Monsivais walking
eastbound on Interstate Highway 20 at dusk, in a rural area, and stopped to
offer him assistance. Monsivais fluffed them off, walking directly by their car
without saying a word. What kind of person, unless perhaps inebriated,
mentally ill, or engaged in criminal behavior, would go around the patrol car
to avoid the officers who are the only humans around and who could have
helped him? When accosted, his answers to their polite questions made no
sense. He couldn’t tell them where he came from. He said he was headed to
Ft. Worth, but his car was pointing in the opposite direction. He kept placing
his hands in his pockets (where a weapon might be concealed) and had to be
reminded multiple times to remove them. He acted extremely nervous and
jittery, although the officers were in no way aggressive or threatening.
Who would not have regarded the totality of this bizarre behavior as
suspicious? And why give no deference to Deputy Sheriff Baker, who
frequently encountered people walking along the highway and never found
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them nervous in talking with him? Officer Baker had conducted more than a
hundred traffic stops, and Officer Saldana had over thirty years of law
enforcement experience. The majority concede that Monsivais’s behavior
“might not have been typical of all stranded motorists.” This is a clever but
misleading judicial understatement. The officers were not harassing a guy on
a city street. Law-abiding or sober people whose cars are stuck on the side of
a highway, far out in the country, at dusk may fear to seek assistance from
non-uniformed good Samaritans. But it is impossible to conceive that they’d
flaunt their libertarian instincts to avoid contact with helpful law enforcement
officers. The facts cry out reasonable suspicion.
Consider next the majority’s application of long-settled law to the facts.
The law is clear that a reviewing court examines the “totality of the
circumstances,” in light of the officers’ training and experience, and should
uphold the stop only if “the detaining officer ha[d] a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu,
534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002) (internal quotation omitted).
Equally important, this court holds that the district court’s denial of a motion
to suppress must be upheld “if there is any reasonable view of the evidence to
support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en
banc) (emphasis added). The majority’s application of these standards is
incomprehensible.
The majority ignore the officers’ training and experience. The majority
then deconstruct each item referenced in the officers’ testimony, and finding
each one “alone” insufficient to establish reasonable suspicion, stretch to the
conclusion that, taken as a whole, they had no reasonable suspicion that
Monsivais had violated or was about to violate the law. The majority conclude
that “if the totality of the circumstances prior to the seizure of the defendant
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does not provide a particularized and objective basis for suspecting the
particular person seized of criminal activity, the seizure violates the Fourth
Amendment.” They add that, “[t]here must be some articulable premise—some
fact linking that behavior to reasonably suspected criminality.” They
characterize the legal requirement as an “objectively logical path of deduction”
that is “contextually or inherently suggestive of criminal activity.”
What does the majority’s reasoning mean? Exactly what additional facts
were necessary to imply a “context or suggestion” of criminal activity by
Monsivais? Did they have to see a bulge in his breast pocket, drug
paraphernalia dangling from his pants, smudges of white powder on his
clothes? The majority emphasize that the officers had no suspicion of exactly
what crime Monsivais might have perpetrated or contemplated, but
“reasonable suspicion” is a much lower standard than “probable cause.”
Arvizu, 534 U.S. at 274, 122 S. Ct. at 751. Even less does Terry demand
“particularized suspicion of a particular, specific crime.” United States v. Pack,
622 F.3d 383, 383 (5th Cir. 2010). In Terry, the officer patdown was approved
by the Supreme Court simply on “reasonable suspicion” that the defendants,
seen hanging around a jewelry shop, might be casing the establishment for a
robbery. 392 U.S. at 28, 88 S. Ct. at 1883. The Supreme Court recently
reiterated these bare facts and approvingly summarized the holding of Terry:
Terry established the legitimacy of an investigative stop “in
situations where [the police] may lack probable cause for an
arrest.” Id., at 24, 88 S. Ct. 1868. When the stop is justified by
suspicion (reasonably grounded, but short of probable cause) that
criminal activity is afoot, the Court explained, the police officer
must be positioned to act instantly on reasonable suspicion that
the persons temporarily detained are armed and dangerous. Ibid.
Recognizing that a limited search of outer clothing for weapons
serves to protect both the officer and the public, the Court held the

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No. 15-10357
patdown reasonable under the Fourth Amendment. Id. at 23–24,
27, 30–31, 88 S. Ct. 1868.

Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 786 (2009). In Terry,
the Supreme Court relied heavily on the officers’ seasoned judgment. 392 U.S.
at 22–23, 88 S. Ct. at 1880–81. Yet under the majority’s reasoning here, bereft
of deference to the law enforcement officers, how could the Terry defendants’
walking back and forth in front of the jewelry store constitute an “articulable
premise” and a “fact linking [the defendants’] behavior to reasonably suspected
criminal activity”?
This court long ago relied on Terry in an en banc decision that upheld an
officer’s patdown of a suspect who barged out the back door of a bar at closing
time. Michelletti, 13 F.3d at 839. The officer’s suspicions were aroused
principally by the aggressiveness of the man’s stride toward a group of men
and by his holding a beer in the left hand while his right hand remained in his
pants pocket. (A convicted felon, the man illegally possessed a handgun in that
pocket.) The majority fail to mention, much less distinguish Michelletti, which
has been frequently cited and remains controlling in this court. See, e.g.,
Allen v. Cisneros, 815 F.3d 239, 245 (5th Cir. 2016); Estep v. Dallas Cty., Tex.,
310 F.3d 353, 363–64 (5th Cir. 2002); United States v. Baker, 47 F.3d 691, 694
(5th Cir. 1995); United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010).
Under the majority’s reasoning, what additional facts would have been
necessary to create an “objectively logical path of deduction” and uphold the
patdown of Michelletti?
The majority cite only one case from this circuit to support suppression
of the evidence incriminating Monsivais, and they stretch that case well
beyond its facts. In Hill, this court concluded that officers incorrectly insisted

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on doing a patdown on the basis of nothing more than “almost entirely
ordinary” behavior by the defendant and a woman who’d been sitting in his car
in apartment complex parking lot. United States v. Hill, 752 F.3d 1029, 1034
(5th Cir. 2014). This court’s commonsense conclusion was that “[r]easonable
officers in such circumstances would have very little cause to suspect criminal
activity rather than, say, a couple who just arrived home on a weekend night
and were preparing to go inside.” 752 F.3d at 1058. In contrast to Hill, there
is nothing “almost entirely ordinary” about Monsivais’s conduct in his
encounter with these officers. Hill is readily distinguishable.
It is relevant to the Fourth Amendment inquiry that the officers’ seizure
of Monsivais involved only the level of intrusion necessary to assure their
safety. Scroggins, 599 F.3d at 441. That is to say, the handcuffing and actual
frisk occurred only after he had voluntarily revealed a handgun in his
waistband. (The record contains no suggestion that Monsivais tried to claim
possession of a concealed handgun permit). Recall as well this defendant’s
repeatedly reaching into his pockets where weapons might also be concealed.
Under such circumstances, officers conducting a Terry stop may pat down and
even handcuff a subject to ensure their personal safety. United States v.
Webster, 162 F.3d 308, 332 (5th Cir. 1998); see also United States v. Hurd,
785 F.3d 311, 315 (8th Cir. 2015) (frisk justified where the person refused to
remove hands from pockets when walking toward police).
The majority opinion, in my view, conflicts with Terry and this court’s
precedent and may create great confusion for officers on the beat. Over twenty
years ago, this court noted in Michelletti that since Terry had been decided,
“the number of police officers killed annually in the line of duty has
tripled . . . [and] the numbers of those assaulted and wounded has risen by a
factor of twenty.” 13 F.3d at 844 (citation omitted). The dangers inherent in
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law enforcement to officers and the public has, if anything, intensified in recent
years. “Surely the constitutional legitimacy of a brief patdown such as
occurred here may and should reflect the horrendously more violent society in
which we live, [forty-nine] years after Terry.” Id. I respectfully dissent.

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