United States v. Gray, 99-3485

• Decision Date: 15 February 2000
• Docket Number: No. 99-3485,99-3485
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ERIC GRAY, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 998

213 F.3d 998 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. ERIC GRAY, DEFENDANT - APPELLANT.

No. 99-3485

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 15, 2000

Filed: June 12, 2000

Appeal from the United States District Court for the Eastern District of Missouri.

Before Richard S. Arnold, Heaney, and Loken, Circuit Judges.

Loken, Circuit Judge.

After the district court denied his motion to suppress, a jury convicted Eric Gray of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). Gray appeals, arguing the firearm was discovered during an unconstitutional search and seizure. Concluding the police lacked reasonable suspicion that criminal activity was afoot when they frisked Gray during a consensual stop, we reverse.

At approximately 9:45 PM on January 8, 1998, St. Louis Police Officers David Ellison and Lawrence Little were patroling St. Louis's Eighth District, driving east along the 3900 block of Maffitt Avenue, an area in which drug activity and prostitution were common. The officers observed three women Ellison assumed were prostitutes. Ellison also saw Gray walking west along the south sidewalk. When Gray noticed the police vehicle, he crossed the street "in a hurried fashion" and continued walking west on the opposite side of the street. The officers drove around the block. When they returned to Maffitt Avenue, Gray was standing at approximately 3965 Maffitt. The officers exited their squad car and approached Gray, who identified himself, stated that he lived nearby, and told the officers he was waiting for a friend. Ellison then did a pat-down search of Gray over his winter coat. Feeling a hard object he believed was a gun, Ellison lifted Gray's coat and seized a .38-caliber revolver. As a felon in possession, Gray was indicted for violating 922(g)(1). He was convicted and sentenced to 188 months in prison after the district court denied his pre-trial motion to suppress. That ruling is the only issue on appeal. We review whether Officer Ellison's pat-down search was constitutionally reasonable de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996).

The law enforcement justification for a pat-down search or protective frisk is officer safety. See United States v. Davis, 202 F.3d 1060, 1062 (8th Cir. 2000). A protective frisk is both a search and a seizure for Fourth Amendment purposes. See Terry v. Ohio, 392 U.S. 1, 19 (1968). A protective frisk is constitutionally reasonable when a police officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous." Id. at 30.

The requirement that a protective frisk be based upon reasonable suspicion that criminal activity is afoot explains why this type of search is normally preceded by an investigative stop based upon an officer's reasonable suspicion of criminal activity. In this case, by contrast, the pat-down search occurred during the course of routine questioning based upon Gray's consent. Of course, police officers are free to approach a citizen on the street and ask if he is willing to answer a few questions. See Florida v. Bostick, 501 U.S. 429, 434 (1991). But absent reasonable suspicion justifying a Terry investigative stop, the citizen is free to refuse to answer questions and walk away. See Terry, 392 U.S. at 32-33 (Harlan, J., concurring); id. at 34 (White, J., concurring). And it surely follows that a citizen's consent to answer questions cannot, without more, supply the reasonable suspicion that criminal activity is afoot needed to justify a pat-down search. Therefore, there must be "specific and articulable facts," beyond Gray's willingness to stop and answer questions, justifying Officer Ellison's decision that Gray might be...