U.S. v. Hughes

• Decision Date: 25 February 2008
• Docket Number: No. 07-2213.,07-2213.
• Citation: 517 F.3d 1013
• Parties: UNITED STATES of America, Appellee, v. Roy T. HUGHES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

517 F.3d 1013

UNITED STATES of America, Appellee, v. Roy T. HUGHES, Appellant.

No. 07-2213.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2007.

Filed: February 25, 2008.

Robert G. Kuchar, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, Stephen C. Moss, Asst. Fed. Public Defender, on the brief), for appellant.

Bruce E. Clark, Asst. U.S. Atty., Kansas, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before COLLOTON, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Roy T. Hughes was charged with being a felon in possession of ammunition. He moved to suppress evidence, asserting the police lacked reasonable suspicion to stop and frisk him. The district court, adopting the report and recommendation of the magistrate, denied the motion. After a conditional guilty plea, Hughes now appeals the denial of the motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court reverses.

I.

On August 11, 2005, at about 9:31 a.m., a Kansas City police officer was dispatched to an apartment complex on a call of "suspicious parties on the property," in response to an anonymous complaint. The complex is in a high crime area, due to reputed narcotics trafficking. Dispatch described the parties as two black males, one without a shirt, the other wearing a brown shirt and having braids. Dispatch also mentioned a red bicycle. When the officer arrived, he observed Hughes, another male, and a female standing a few feet from a bus stop across the street from the apartment complex. The officer did not recall seeing a bicycle. Hughes and the other male fit the description given by dispatch. The officer stopped all three, questioned what they were doing in the area, then frisked them. The officer felt hard cylindrical objects in one of Hughes's pockets, which he removed and determined were live rounds of ammunition.

At some point the officer did a computer check indicating that Hughes had no warrants, but was under supervision for domestic assault and affiliated with a gang in Omaha, Nebraska. There was conflicting evidence about when the check occurred. The officer prepared two reports, one stating that the check occurred before the frisk, and the other that it occurred after. The officer testified he had no specific recollection of the sequence of events. The district court did not make a finding as to the time of the check, explicitly noting that the "timing of the computer check is not clear."

Hughes was indicted on one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). In the report and recommendation on Hughes's motion to suppress, the magistrate found that because Hughes matched the description given by dispatch, the officer had "reasonable, articulable suspicion that defendant Hughes may have been engaged in criminal activity." The magistrate ruled that the frisk was "reasonable under the circumstances" because the officer was in a high crime area on a call of suspicious parties trespassing, and at some point became aware of Hughes's gang affiliation and domestic assault supervision. The magistrate concluded that the officer was "justified in removing the objects from Hughes's pocket to ensure his personal safety." The district court adopted the magistrate's report and recommendation.

II.

This court reviews the factual findings underlying the denial of a motion to suppress for clear error, and the determination that the Fourth Amendment was not violated de novo. See United States v. Janis, 387 F.3d 682, 686 (8th Cir.2004).

The Fourth Amendment protects against unreasonable searches and seizures by the government. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Where a police officer has reasonable suspicion that criminal activity may be afoot, the officer may briefly stop an individual and make reasonable inquiries aimed at confirming or dispelling the suspicion. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop may also be justified if an officer has reasonable suspicion that a crime has previously been committed by an individual. See United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (Terry stop permitted where police have reasonable suspicion that individual was involved in a completed felony). Reasonable suspicion must be supported by "specific and articulable facts." Terry, 392 U.S. at 21, 88 S.Ct. 1868. In determining whether an officer had a "`particularized and objective basis' for suspecting legal wrongdoing," this court must look at the totality of the circumstances, allowing officers to draw on their experience and training. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744.

"`When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' the officer may conduct a patdown search `to determine whether the person is in fact carrying a weapon.'" Dickerson, 508 U.S. at 373, 113 S.Ct. 2130, quoting Terry, 392 U.S. at 24, 88 S.Ct. 1868. There must be articulable and specific facts as to dangerousness. See Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ("In the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous."). In determining whether the frisk was justified, this court must look to the totality of the circumstances. See United States v. Hanlon, 401 F.3d 926, 929 (8th Cir.2005).

The district court found reasonable suspicion to justify a Terry stop because: (1) the area was a high crime area, and (2) Hughes matched the description given by dispatch. The officer testified that before he approached, Hughes and the others were standing near a bus stop, and were not engaged in any suspicious activity. Neither the district court nor the government points to any facts that support a reasonable suspicion that a crime was currently taking, or about to take, place. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (presence in a high crime area, without more, does not create reasonable suspicion for a Terry stop); United States v. Bailey, 417 F.3d 873, 877 (8th Cir.2005), cert. denied, 547 U.S. 1104, 126 S.Ct. 1894, 164 L.Ed.2d 578 (2006) (presence in a high crime area, plus officer's observation of suspicious behavior, creates reasonable suspicion for a Terry stop). Therefore, to justify this stop, the officer must have been investigating a past crime. The district court found that dispatch "did not provide any details regarding what was suspicious about these parties other than that they were trespassing."¹ This court will thus analyze this case as if the officer was investigating a trespass.

In Missouri, trespass in the first degree is a misdemeanor, and trespass in the second degree is an infraction.² See Mo.Rev. Stat. §§ 569.140, 569.150. Terry stops are permitted to investigate previous felonies, but the Supreme Court has never decided whether Terry stops are justified by a need to investigate previous misdemeanors (or lesser violations). See Hensley, 469 U.S. at 229, 105 S.Ct. 675 ("We need not and do not decide today whether Terry stops to investigate all past crimes, however serious, are permitted."). Cf. McFadden v. United States, 814 F.2d 144, 147 (3rd Cir.1987) (Terry stop to investigate a previous trespass, a felony in Pennsylvania, was not unreasonable under the circumstances).

Three other circuit courts have addressed this issue. The Sixth Circuit states that police may not make a stop on reasonable suspicion of a "mere completed misdemeanor." See Gaddis v. Redford Twp., 364 F.3d 763, 771 n. 6 (6th Cir.2004). The Ninth and Tenth Circuits refuse a per se standard, and following Hensley, balance the individual's interest with the governmental interest on a case-by-case basis. See United States v. Grigg, 498 F.3d 1070, 1081 (9th Cir.2007); United States v. Moran, 503 F.3d 1135, 1141 (10th Cir.2007).

The Supreme Court has "consistently eschewed bright-line rules [under the Fourth Amendment], instead emphasizing the fact-specific nature of the reasonableness inquiry." See Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Like the Ninth and Tenth Circuits, this court declines to adopt a per se rule that police may never stop an individual to investigate a completed misdemeanor. To determine whether a stop is constitutional, this court must balance the "nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion." See Hensley, 469 U.S. at 228, 105 S.Ct. 675; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ("[T]he reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."). Under this test, the nature of the misdemeanor and potential threats to citizens' safety are important factors. See Grigg, 498 F.3d at 1081 (courts must pay particular attention to the potential for ongoing or repeated danger, and risk of escalation); Moran, 503 F.3d at 1141 (the governmental interest is particularly strong when the criminal activity involves a threat to public safety).

On the facts here, the governmental interest in investigating a previous trespass does not outweigh Hughes's personal interest. Being stopped and frisked on the street is a substantial invasion of an individual's interest to be free from arbitrary interference by police. See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (...