United States v. Justin Darrell ( 2019 )

Case: 19-60087 Document: 00515247003 Page: 1 Date Filed: 12/23/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60087 FILED
December 23, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JUSTIN HARRINGTON DARRELL,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Justin Harrington Darrell was arrested and charged with being a felon
in possession of a firearm. He entered a conditional guilty plea, and now
challenges the legality of the stop that precipitated his arrest. Finding no
constitutional infirmity, we affirm Darrell’s conviction and sentence.
I.
On September 3, 2017, Alcorn County Sheriff’s Deputy Shane Latch and
Farmington Police Department Officer Mike Billingsley drove to a home in
Corinth, Mississippi. 1 They intended to serve an arrest warrant on one of the
The record does not state at what time the officers departed for the house, but Darrell
1
contends that all relevant events took place “during daytime.” The Government appears to
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home’s occupants, Brandy Smith, for failing to appear in court. Deputy Latch
later described the residence as “a known drug house” where multiple arrests
and disturbances—including a shooting—had taken place in the past. Indeed,
Latch himself had made several arrests there.
As the uniformed officers pulled up to the house in two marked squad
cars, they saw a black Chevrolet Camaro parked in the driveway. “Almost
instantaneously,” Appellant Justin Darrell exited the Camaro and began
walking toward the back of the house. Officer Billingsley called out to Darrell
and instructed him to stop, but Darrell ignored the command and continued
walking away from the officers, now at an increased pace. Deputy Latch later
testified that if Darrell had walked an additional fifteen to twenty feet, he
would have been behind the house and outside the officers’ field of vision. Once
out of their sight, the officers feared, Darrell might have withdrawn a
concealed weapon or warned Ms. Smith of her impending apprehension—a
crime under Mississippi law. 2 Officer Billingsley again ordered Darrell to stop.
This time, Darrell complied and began walking back toward the officers.
Officer Billingsley took a brown paper bag from Darrell and handed it to
Deputy Latch. Inside was a bottle of whiskey—contraband in dry Alcorn
County.
Officer Billingsley then asked Deputy Latch to watch Darrell while
Billingsley approached the door and attempted to apprehend Ms. Smith.
Deputy Latch asked Darrell what his name was, but Darrell declined to
answer. 3 Deputy Latch then noticed two knives hooked onto Darrell’s belt.
agree: In response to the judge’s questioning at the suppression hearing, the prosecutor
stated that he “d[id] not believe [the encounter with Darrell] was at night.”
2 See MISS. CODE ANN. § 97-9-103(b) (“[A] person ‘renders criminal assistance’ to
another if he knowingly . . . [w]arns the other person of impending discovery or apprehension
. . . .”).
3 According to Deputy Latch’s testimony, Darrell initially responded, “You know who
I am.” When asked again, he told Latch that his driver’s license was inside the house, but he
still did not identify himself.
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Latch confiscated the knives and asked Darrell if he had any other weapons.
Although Darrell said no, Deputy Latch patted him down to be sure. As he did
so, he felt an item in Darrell’s front pocket. He asked what it was, but Darrell
did not answer. Latch later testified that “when [he] edged the pocket open,”
he “could see the butt end of [a] pistol.” Latch then “pushed [Darrell] against
the car and removed the weapon,” which turned out to be a loaded
semiautomatic pistol with its serial number obliterated. Darrell’s pocket also
contained a substance believed to be methamphetamine. Deputy Latch
handcuffed Darrell and placed him in a squad car.
Latch estimated that the officers’ entire encounter with Darrell lasted
less than a minute. Only after Darrell had been handcuffed did the officers
notice a man sitting in the passenger seat of the Camaro. He had not attempted
to exit the vehicle or participated in any way in the confrontation. The officers
asked the passenger to step outside, identified him as Donald Dunn, and
arrested him on an outstanding warrant from the City of Farmington. Both
men were transported to the Alcorn County Jail and held for investigation. A
few days later, the Mississippi Bureau of Narcotics confirmed that Darrell was
a convicted felon. 4
In January 2018, Darrell was indicted for being a felon in possession of
a firearm. 5 He filed a motion to suppress, arguing that “law enforcement did
not possess adequate reasonable suspicion to stop and subsequently search
him.” The district court denied Darrell’s motion following a hearing at which
Deputy Latch was the sole witness called to testify, and Darrell entered a
conditional guilty plea “reserving the right to appeal the ruling on the motion
4 In May 2017, Darrell had been convicted of aggravated assault in Tennessee and
sentenced to three years in state prison, most of which was suspended for time served. In
addition, after his arrest in this case but before the federal indictment was issued, Darrell
was convicted of methamphetamine possession in Mississippi state court and sentenced to
eight years’ custody.
5 See 18 U.S.C. § 922(g)(1).
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to suppress evidence.” On January 7, 2019, Darrell was sentenced to three
years’ imprisonment and a three-year term of supervised release. This appeal
followed.
II.
A.
When evaluating a ruling on a motion to suppress, we “review[]
questions of law de novo and findings of fact for clear error.” 6 All evidence is
viewed “in the light most favorable to the party that prevailed” below—in this
case, the Government. 7
B.
“Warrantless searches and seizures are ‘per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.’” 8 The Supreme Court carved out one such exception in
Terry v. Ohio. 9 Under Terry, if a law enforcement officer can point to specific,
articulable facts that lead him to reasonably suspect “that criminal activity
may be afoot,” he may briefly detain an individual to investigate. 10 In addition,
if the officer reasonably believes that the individual is “armed and presently
dangerous to the officer[] or to others, [he] may conduct a limited protective
search for concealed weapons”—often called a “frisk.” 11
Generally, the legality of such stops “is tested in two parts”: “Courts first
examine whether the officer’s action was justified at its inception, and then
inquire whether the officer’s subsequent actions were reasonably related in
6 United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001) (citing United States v.
Jones, 234 F.3d 234, 239 (5th Cir. 2000)).
7 Id.
8 United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)).
9 392 U.S. 1 (1968).
10 Id. at 30.
11 United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (citing Terry,
392 U.S. at 24).
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scope to the circumstances that justified the stop.” 12 As Darrell challenges only
“the justification of the initial seizure,” not the scope of the ensuing search, we
must answer only whether, under the totality of the circumstances, the officers
had reasonable suspicion to stop Darrell as he approached Ms. Smith’s house. 13
The precise contours of the reasonable-suspicion standard remain
“somewhat abstract.” 14 Certainly, reasonable suspicion is a less demanding
standard than probable cause or preponderance of the evidence, but the
Supreme Court has “deliberately avoided reducing it to ‘a neat set of legal
rules.’” 15 Instead, it has “described reasonable suspicion simply as ‘a
particularized and objective basis’ for suspecting the person stopped of
criminal activity.” 16 In short, while reasonable suspicion is not a “finely-tuned
standard[],” 17 it is well established that “the Fourth Amendment requires at
least a minimal level of objective justification for making” an investigatory
stop. 18
III.
The parties agree that Darrell was “seized,” for purposes of the Fourth
Amendment, when he complied with Officer Billingsley’s second command to
12 United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (citing Terry, 392 U.S.
at 19–20).
13 See United States v. Arvizu, 534 U.S. 266, 273 (2002).
14 Id. at 274.
15 Id. (quoting Ornelas v. United States, 517 U.S. 690, 695–96 (1996)).
16 Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981));
see Whren v. United States, 517 U.S. 806, 813 (1996) (quoting Scott v. United States, 436 U.S.
128, 138 (1978)) (An “officer [need] not have the state of mind which is hypothecated by the
reasons which provide the legal justification for the officer’s action . . . as long as the
circumstances, viewed objectively, justify that action.”).
17 Illinois v. Gates, 462 U.S. 213, 235 (1983).
18 Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing United States v. Sokolow, 490
U.S. 1, 7 (1989)).
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stop. 19 The question is whether the officers had reasonable, articulable
suspicion to stop him based on what they had observed up until that moment. 20
The Government cites three key facts to support the stop. First, “Darrell
exited his vehicle and attempted to flee the very moment officers pulled in
behind him.” Second, Darrell appeared to be heading toward the back of the
house, where he could potentially “draw a gun or warn the occupants of the
house.” Finally, the location of the encounter—“a known drug house, where
officers had made arrests and knew that a shooting had occurred”— put the
officers on alert for dangerous or illegal activity. In short, “Darrell was told to
stop . . . because he walked away from officers, attempting to leave their field
of vision, as soon as officers arrived at a known drug house to make an arrest.”
Darrell counters that his behavior was innocent and that the officers had
nothing but a “mere hunch,” not reasonable suspicion of criminal activity.
A.
The Government relies almost exclusively on the Supreme Court’s
opinion in Illinois v. Wardlow, 21 so a detailed consideration of Wardlow must
be the starting point of our analysis. In Wardlow, two uniformed Chicago police
officers “were driving the last car of a four car caravan converging on an area
known for heavy narcotics trafficking in order to investigate drug
transactions.” 22 One of the officers noticed Wardlow standing next to a building
19 See Terry, 392 U.S. at 17 (“[W]henever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.”); see also Brendlin v.
California, 551 U.S. 249, 254 (2007) (citing California v. Hodari D., 499 U.S. 621, 626 & n.2
(1991)) (“A police officer may make a seizure by a show of authority and without the use of
physical force, but there is no seizure without actual submission . . . .”).
20 Darrell is correct that “anything found after” the moment he was stopped—
including the liquor bottle, knives, and gun—“does not weigh in favor of reasonable suspicion
because it was not obtained until after the seizure.” See Peterson v. City of Fort Worth, Tex.,
588 F.3d 838, 845 (5th Cir. 2009).
21 528 U.S. 119 (2000).
22 Id. at 121.
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“holding an opaque bag.” 23 Wardlow “looked in the direction of the officers and
fled” down an alley before being cornered by the police cruiser. 24 An officer
patted Wardlow down and discovered a loaded handgun. 25 Like Darrell,
Wardlow filed an unsuccessful motion to suppress and was ultimately
convicted of being a felon in possession of a firearm. 26
The Supreme Court held 5–4 that the officers had reasonable, articulable
suspicion that Wardlow was engaged in criminal activity. The majority relied
on two salient facts to support its conclusion: (1) the stop took place in a high-
crime area, and (2) Wardlow took off in an “unprovoked flight” as soon as he
saw the approaching police cars. 27 The majority acknowledged that “[a]n
individual’s presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion that the person
is committing a crime.” 28 Neither, however, is an officer “required to ignore the
relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further investigation.” 29
Likewise, although flight from officers “is not necessarily indicative of
wrongdoing, . . . it is certainly suggestive of such” and is properly accorded
substantial weight in the Terry analysis. 30 The Court held that, in combination,
these two factors supported the officers’ “determination of reasonable suspicion
. . . based on commonsense judgments and inferences about human behavior.”31
23 Id.
24 Id. at 122.
25 Id.
26 Id.
27 Id. at 124.
28 Id. at 124 (citing Brown v. Texas, 443 U.S. 47, 49 (1979)); see also Gonzalez v. Huerta,
826 F.3d 854, 857 (5th Cir. 2016) (“[T]he basic scenario of a reportedly suspicious person in
an area where criminal activity had occurred in the past . . . does not support the conclusion
that a particular individual is engaged in criminal conduct.”).
29 528 U.S. at 124.
30 Id.
31 Id. at 125 (citing Cortez, 449 U.S. at 418).
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The Court was careful to distinguish Wardlow from earlier cases in
which it had recognized that “refusal to cooperate, without more,” does not
create reasonable suspicion. 32 While an “individual has a right to ignore the
police and go about his business,” the Wardlow Court explained,
[f]light, by its very nature, is not “going about one’s business”; in
fact, it is just the opposite. Allowing officers confronted with such
flight to stop the fugitive and investigate further is quite consistent
with the individual’s right to go about his business or to stay put
and remain silent in the face of police questioning. 33
The four Wardlow dissenters had no quarrel with the majority’s legal
framework; indeed, they commended the majority for refusing to adopt a
“bright-line rule” either categorically authorizing or prohibiting Terry stops
based on flight from police. 34 In this particular case, however, they were not
persuaded by “the brief testimony of the officer who seized” Wardlow. 35 In the
dissenters’ view, the officer’s testimony left too many relevant questions
unanswered. For instance, were the vehicles in the police caravan marked or
unmarked? Was there anyone else on the street near Wardlow? Was it clear
that Wardlow actually saw the police approaching before he ran? 36 Without
these facts, the dissenters could not be sure that the officers’ suspicion was
sufficient to justify the stop. 37
The Government is correct that Darrell’s case shares several salient
factual similarities with Wardlow. Just like Wardlow, Darrell responded to the
32 Id. (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)); see also Florida v. Royer,
460 U.S. 491, 497–98 (1983) (noting that where an officer approaches and questions an
individual without reasonable suspicion, “[t]he person approached . . . need not answer any
question put to him; indeed, he may decline to listen to the questions at all and may go on
his way”).
33 528 U.S. at 125.
34 Id. at 126 (Stevens, J., concurring in part and dissenting in part); see id. at 136
(“[T]he Court is surely correct in refusing to embrace either per se rule. The totality of the
circumstances, as always, must dictate the result.”).
35 Id. at 127.
36 See id. at 137–38.
37 Id. at 140.
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arrival of police by making a sudden attempt to get out of the officers’ sight,
and in both cases the stops took place in “area[s] of expected criminal
activity.” 38 In fact, at least one of the two officers in this case had personally
responded to prior reports of drug and gun crimes at Brandy Smith’s address. 39
Moreover, the ambiguities that unsettled the Wardlow dissenters are not
present here. We know that both police vehicles were marked, both officers
were in uniform, and there was no one else present outside the house. More
importantly, Deputy Latch’s testimony provides compelling evidence that
Darrell exited his vehicle in response to the officers’ arrival. On direct
examination, Deputy Latch testified that Darrell got out of the car “just a
couple of seconds” after the officers arrived and immediately “started down the
side of the house trying to get out of sight.” On cross, Latch explained where
Darrell’s Camaro was parked with reference to Google Maps photos of the
premises. Together, the testimony and photos indicate that Darrell would have
had a clear view of the driveway in his rear-view mirror as the officers
approached, and no party has identified any other event that might have
prompted Darrell’s exit.
Still, Wardlow is not as exact a match as the Government contends. In
Wardlow, the suspect broke into “unprovoked flight upon noticing the police,”
38 Id. at 124 (Rehnquist, C.J.).
39 Darrell suggests, without expressly arguing, that there is not enough evidence to
characterize Smith’s residence as a high-crime area. However, we have recognized that
“[v]isiting a house linked to drug activity is similar to being in a high-crime area.” United
States v. Spears, 636 F. App’x 893, 899 (5th Cir. 2016) (unpublished). Moreover, this Court
routinely credits officer testimony that a neighborhood or home has a reputation for criminal
activity, especially when the officer has personally responded to calls there in the past. See,
e.g., United States v. Tuggle, 284 F. App’x 218, 224 (5th Cir. 2008) (unpublished) (per curiam)
(accepting an officer’s testimony “that he was familiar with the criminality of the area, . . .
had examined police reports detailing recent criminal activity in the area[,] . . . had made
prior arrests for narcotics activities [nearby] and . . . was aware of a shooting on the block”);
United States v. Miles, 275 F.3d 1078, 2001 WL 1465241, at *1 (5th Cir. 2001) (unpublished)
(per curiam) (“Officer Burge knew this address to be a ‘drug house’, and it was located in an
area known for narcotics trafficking and violent crime.”).
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running down an alley until he was cornered by officers. 40 In this case, Darrell
walked away from the police and never left their field of vision. It is true that
Darrell increased his pace after Officer Billingsley first ordered him to stop.
However, he never tried to run: “He just started walking faster until he was
told the second time,” at which point he complied and came to a stop. Certainly,
the Government is correct that “flight . . . is the consummate act of evasion” 41—
but we doubt Darrell’s behavior can fairly be described as “flight.”
The case law on flight is not clear-cut. In United States v. Tuggle, we
stated that a “defendant does not have to run away for his behavior to be
considered unprovoked flight.” 42 However, we focused not on the subject’s
“brisk walk” away from police but on other contextual factors supporting an
inference of flight. We particularly concentrated on the fact that a driver who
had just been conversing with the subject in an apparent drug transaction
“sped off” when the police approached. 43 Similarly in United States v. Lawson,
the subject “began to act nervous and quickly started walking away” when an
officer approached him. 44 As the officer drew nearer, however, the subject
“began running through busy streets in order to avoid” him. 45 The Court
characterized this behavior as unprovoked flight “approach[ing] that [seen] in
Illinois v. Wardlow.” 46 Unfortunately, the opinion did not make clear precisely
when the subject’s behavior became suspiciously evasive; we are left to
speculate whether the stop would have been upheld had the subject never
broken into a run but instead continued walking quickly.
40 Wardlow, 528 U.S. at 124.
41 Id.
42 284 F. App’x at 225 (citing United States v. Gordon, 231 F.3d 750, 757 (11th Cir.
2000)).
43 Id.
44 233 F. App’x 367, 370 (5th Cir. 2007) (unpublished) (per curiam).
45 Id.
46 Id.
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We have also recognized that retreat may be a tactical strategy for an
armed suspect who wishes to harm the police. In United States v. Sanders, an
officer responded to a convenience store owner’s report of “a suspicious person
with a gun on the premises.” 47 Upon arrival, the officer saw a man who
matched the suspect’s description and wore a long jacket that concealed his
waistband. 48 As the man “saw the squad car pulling up, he turned and started
to walk away.” 49 This, together with several other contextual factors, justified
the officer’s decision to immediately draw his weapon and confront the man.
The Court noted that walking away “can be used by a criminal to prepare for
a violent confrontation by surreptitiously retrieving a concealed weapon then
spinning back around to face the officer and use the weapon against him.” 50
No doubt, this is the kind of tactic Deputy Latch feared when he saw
Darrell “start[ing] down the side of the house trying to get out of sight.” Given
our thin and highly fact-dependent precedent on flight, however, we hesitate
to affirm the stop on the basis of Wardlow alone without also considering the
cases cited by Darrell.
B.
Darrell relies extensively on two of this Court’s recent Fourth
Amendment cases: United States v. Hill 51 and United States v. Monsivais. 52 In
Hill, the defendant was sitting in his car with his girlfriend outside her
apartment complex when a “multi-car convoy of police” approached. 53 The
police had not been called to the location; instead, they were conducting a
“rolling patrol” in response to a county-wide increase in crime. 54 This particular
47 994 F.2d 200, 201 (5th Cir. 1993).
48 Id. at 202.
49 Id. at 207.
50 Id.
51 752 F.3d 1029 (5th Cir. 2014).
52 848 F.3d 353 (5th Cir. 2017).
53 752 F.3d at 1030.
54 Id. at 1031.
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apartment complex was believed to be a “hotspot” for criminal activity. 55 Two
officers parked their patrol car a few spots away from Hill’s vehicle. 56 Hill’s
girlfriend then got out of the car and walked briskly toward the nearby
apartment building. 57 While one officer approached the woman and began
questioning her, the other knocked on the driver’s side window of the car and
asked Hill: “Where’s your gun?” 58 Hill said he did not have one. The officer then
asked for his license, and Hill again responded that he did not have one. 59 The
officer told him to get out of the car, motioned for him to turn around, and
frisked him—discovering a gun in the process. 60 Hill was charged with being a
felon in possession of a firearm. 61
On appeal from the district court’s denial of Hill’s motion to suppress, we
held that the officer lacked reasonable suspicion to conduct a Terry stop. 62 After
all, the police were not responding to a call, Hill was not violating any traffic
ordinances, and Hill himself made no attempt to evade the officers. 63 As the
Government points out, the question in Hill “was not whether officers had
reasonable suspicion to seize Hill’s passenger, who [at least arguably]
attempted to flee when officers arrived, but whether the officers had
reasonable suspicion to seize Hill, who sat peacefully in the vehicle after the
officers arrived.” Citing Wardlow, the Hill Court explained:
Hill’s girlfriend’s movements, described by the officers as “quick,”
did not add up to a reasonable suspicion that Hill was engaged in
criminal activity. . . . [The officers] 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
55 Id.
56 Id. at 1032.
57 Id.
58 Id.
59 Id.
60 Id.
61 Id.
62 Id. at 1034.
63 Id. at 1034–35.
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their arrival. . . . Moreover, the question presented is not whether
the officers had reasonable suspicion to seize the girlfriend, . . . but
rather whether the officers pointed to specific, articulable facts
that cast reasonable suspicion on Hill, who stayed seated in his car
and made no suspicious movements. 64
Given that Hill himself did not retreat from police, his case has little to tell us
about the legal significance of Darrell’s movements. 65 As the Government
points out, Darrell is more analogous to the girlfriend than the defendant in
Hill, while Darrell’s passenger is analogous to Hill himself: “Here, Darrell was
involved in the suspicious behavior, while his passenger . . . just sat in the car.”
The second case on which Darrell relies, United States v. Monsivais, 66
also differs from his own in several critical respects. There, two patrolling
officers “saw Monsivais walking east on the opposite side of the Interstate
away from an apparently disabled truck.” 67 When they pulled over “to offer him
roadside assistance,” Monsivais “did not stop but continued walking past the
squad car.” 68 The officers got out of their car and began asking Monsivais
questions, to which he responded “polite[ly]” but with apparent nervousness. 69
Monsivais “repeatedly put his hands in his pockets, but took them out” upon
request. 70 After approximately four minutes of this walking-and-talking
exchange, one of the officers, Deputy Baker, stopped Monsivais and said he
was going to pat him down. 71 Monsivais, a Mexican citizen without legal status
in the United States, admitted to having a gun in his waistband and was
64 Id. at 1037 (internal citations omitted).
65 See id. at 1038 (Although “the girlfriend’s quick movements might reflect to some
extent on Hill too, since she just exited the car in which they both sat, . . . the persuasive
value of her movements vis-á-vis reasonable suspicion of him is relatively diminished.”).
66 848 F.3d 353 (5th Cir. 2017).
67 Id. at 356.
68 Id.
69 Id.
70 Id.
71 Id.
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ultimately charged with possessing a firearm while being unlawfully present
in the country. 72
On appeal from the district court’s denial of his motion to suppress, we
held that the officers lacked reasonable suspicion to stop and frisk Monsivais.73
We noted that Deputy Baker had testified that at no point in the encounter did
he suspect Monsivais of any criminal act. Rather, Baker decided to pat
Monsivais down because he was “just acting suspicious.” 74 Baker even
admitted that he generally would not pursue “a stranded motorist who ran
away from him and his car’s flashing lights,” and he offered no explanation for
his decision to follow Monsivais on this occasion. 75 The Court rejected the
Government’s argument that “Monsivais’s jittery demeanor and habit during
questioning of putting his hands in his pockets” contributed to Deputy Baker’s
reasonable suspicion. 76 It is true, we acknowledged, that “nervous, evasive
behavior is a pertinent factor in determining reasonable suspicion.” 77 However,
there was nothing evasive about Monsivais’s behavior, and his nervousness
was an “entirely natural reaction to police presence.” 78
As for Monsivais’s choice to continue walking past the officers’ car, we
emphasized that “[t]he context in which a person seeks to avoid contact with a
peace officer is important.” 79 Although “[r]easonable suspicion may arise when
an individual flees from police,” such cases “involve discernable facts or
combination of facts specifically linking the fleeing individual to reasonably
72 Id. Like Darrell, Monsivais also had methamphetamine in his pocket but was not
charged with a drug offense.
73 Id. at 356–57.
74 Id. at 358.
75 Id.
76 Id. at 358–59.
77 Id. at 359 (quoting Wardlow, 528 U.S. at 124).
78 Id. (quoting United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005)).
79 Id. at 360.
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suspected criminality—e.g., flight in a high-crime area or flight after receipt of
a tip indicating criminality.” 80
Hill and Monsivais do not offer Darrell the support he claims they do. In
fact, under the terms of Monsivais, Darrell’s behavior is a prototypical case of
suspicious activity: flight from police in a high-crime area. The Monsivais
language, together with Wardlow’s reliance on these same two factors, plainly
contradicts Darrell’s claim that his presence in a “high crime area and evasive
behavior” are insufficient “to support a finding of reasonable suspicion.”
Moreover, as Deputy Latch testified, the officers reasonably feared that Darrell
might draw a weapon or warn the target of their arrest warrant if he were
permitted to withdraw from view. Finally, the fact that Darrell “was not seen
committing any criminal activity” does not detract from the reasonableness of
the officers’ suspicion. Terry requires “reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot’”; it does not require
certainty that a crime is in fact being committed. 81 Viewing this case under the
totality of the circumstances, we hold that reasonable suspicion supported the
brief investigatory stop of Darrell.
IV.
For the foregoing reasons, Appellant’s conviction and sentence are
affirmed.
80 Id. at 360–61.
81 Sokolow, 490 U.S. at 7 (quoting Terry, 392 U.S. at 30).
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Case: 19-60087 Document: 00515247003 Page: 16 Date Filed: 12/23/2019
No. 19-60087
JAMES L. DENNIS, Circuit Judge, dissenting.
This Fourth Amendment case centers on whether police had the
reasonable suspicion required to conduct an investigatory seizure of the
defendant under Terry v. Ohio, 392 U.S. 1 (1968). The majority affirms the
district court’s denial of the defendant’s motion to suppress. I respectfully
disagree that reasonable suspicion under Terry existed here.
In order to seize a person for investigation, the officer must be able to
point to specific and articulable facts that lead him to reasonably suspect that
a particular person is committing, or about to commit, a crime. United States
v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014). The officer must be able to
articulate more than an “‘inchoate and unparticularized suspicion or hunch’ of
criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123–124 (2000) (quoting
Terry, 392 U.S. at 27). The government has the burden of proving “the specific
and articulable facts that support the reasonableness of the suspicion.” See id.
Here, the government fails to satisfy that requirement.
I.
On September 3, 2017, two police officers pulled their police cruisers into
the driveway of a home in Corinth, Mississippi to execute an arrest warrant on
one of the residents of the home for failing to appear in court. In doing so, the
officers blocked in a black Chevrolet Camaro that was occupied by its owner,
defendant Justin Darrell, and another person. The police officers were aware
that the location was “a known drug house” where past disturbances had
occurred and arrests had been made.
Darrell exited the driver’s seat of the Camaro and began walking toward
the carport-adjacent left side of the house. One of the officers ordered Darrell
to stop, but Darrell did not comply and instead slightly increased the pace of
his walk. The officer ordered Darrell to stop a second time, and this time
Darrell obeyed, turning and walking back to the officers. When Darrell drew
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Case: 19-60087 Document: 00515247003 Page: 17 Date Filed: 12/23/2019
No. 19-60087
close, one of the officers noticed two sheathed knives on Darrell’s belt and
proceeded to pat Darrell down. He discovered a gun in Darrell’s pocket, and,
based on this weapon, Darrel was later indicted for being a felon in possession
of a firearm in violation of 18 U.S.C. 922(g)(1).
Prior to trial, Darrell moved to suppress the firearm found on his person,
arguing the officers violated the Fourth Amendment when they seized him
because they did not have reasonable suspicion that he was engaged in
criminal activity. At a hearing on the motion, the Government argued that
reasonable suspicion existed because the officers feared Darrell would either
retrieve a weapon or warn the target of the arrest warrant. The district court
proceeded to find that reasonable suspicion existed, citing the setting of the
stop at a known drug house, Darrell’s exit and walk toward the side of the
house upon the police’s arrival, and Darrell’s increase in walking pace after the
initial order to stop. The court therefore denied Darrell’s motion to suppress.
Darrell entered a conditional guilty plea that reserved his right to appeal the
court’s ruling, and this appeal followed.
II.
The parties agree that Darrell was seized when he complied with the
officer’s second order to stop, and that this initial seizure did not rise to the
level of a full arrest requiring probable cause. Relying primarily on Illinois v.
Wardlow, 528 U.S. 119 (2000), the majority holds that reasonable suspicion
existed for an investigatory seizure under Terry v. Ohio, 392 U.S. 1 (1968), due
to Darrel’s walking away from the officers while being present in the driveway
of a known drug house. I disagree with the majority’s conclusion that Wardlow
applies here. Darrel exited a car and walked away from it, leaving his vehicle
and a passenger in the driveway. Characterizing this as unprovoked flight is
essentially speculation—the kind of “inchoate and unparticularized suspicion
or ‘hunch,’” that is not a reasonable basis for suspicion under Terry. 392 U.S.
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No. 19-60087
at 27. The police had no “specific and articulable” basis for suspecting Darrell
of criminal activity, id. at 21, because his actions were at least equally
consistent with an innocent “continuation of previously-undertaken actions” as
they were with flight from the police. Alexander v. City of Round Rock, 854
F.3d 298, 304 (5th Cir. 2017). Such conduct “does not create reasonable
suspicion” under our precedents. Id.
The majority is correct that in Wardlow, the Supreme Court held that,
where a suspect was present in an area known for heavy narcotics trafficking
and carrying an opaque bag, his unprovoked, “head-long” flight from police was
a reasonable basis for suspicion to justify a Terry stop. 528 U.S. at 124. As the
majority relates, however, the Court was careful to distinguish earlier cases in
which it had held that “an individual has a right to ignore the police and go
about his business” without creating reasonable suspicion. Id. at 125 (citing
Florida v. Royer, 460 U.S. 491 (1983); Florida v. Bostick, 501 U.S. 429, 437
(1991)). “Flight is not ‘going about one’s business’;” the Court emphasized. Id.
“[I]n fact, it is just the opposite.” Id.
This court examined this distinction in United States v. Hill, 752 F.3d
1029 (5th Cir. 2014), which the majority finds inapposite. In Hill, officers on
a roaming patrol parked next to a vehicle containing the defendant Hill and
his girlfriend at an apartment complex that the officers later testified was a
“hotspot” for criminal activity. 752 F.3d at 1031-32. Hill and his girlfriend
noticed the police’s arrival and the girlfriend proceeded to exit the car and
quickly walk toward the apartment complex. Id. at 1032. While one officer
approached the girlfriend, the other ordered Hill out of the car, saw a gun butt
protruding from Hill’s pocket, and arrested him. Id. In considering whether
the girlfriend’s swift exit and walk toward the apartment created reasonable
suspicion that Hill was engaged in criminal activity, this court stated,
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No. 19-60087
Of critical importance is that only a matter of seconds
passed between [the officers’] first seeing Hill and the
girlfriend in the car and the officers’ stopping and
observing the girlfriend step out of the car and take a
few steps towards the apartment. Considering that
the officers had no particular reason to suspect
criminal activity at the apartment complex at the time
they arrived (that is, there was no tip or other
particularized cause for believing that anything was
afoot), there is little basis to infer anything from the
fact that the girlfriend exited the car at the same time
the police arrived on the scene. Of course, she could
have exited the car out of a desire to flee from the
police; or, she could have simply exited the car because
Hill drove her home, they finished saying their
“goodbyes,” and she was preparing to go inside. 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.
Id. at 1037 (citation omitted).
The majority argues that Hill “has little to tell us about the legal
significance of Darrell’s movements” because ultimately the court was
analyzing whether the girlfriend’s actions created reasonable suspicion that
the defendant Hill was involved in criminal activity. Because Darrell is more
analogous to the girlfriend who exited the car than to Hill who remained in the
car, the majority considers Hill nonapplicable. But this court later
incorporated Hill’s analysis of whether the officer could reasonably suspect the
girlfriend of criminal activity into the holding of Alexander v. City of Round
Rock. 854 F.3d at 304. Alexander was a § 1983 case alleging a Fourth
Amendment violation based on an officer’s seizure of an individual in a high
crime area who got in his car and began to drive away upon seeing a police
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No. 19-60087
cruiser. Id. In summarizing Hill’s reasoning, the court expressly held that
“circumstances that could equally be interpreted as flight from officers or as
continuation of previously-undertaken actions do not create reasonable
suspicion.” Id.
In light of this subsequent holding, the parallels between Hill and the
present case become much more compelling. As in Hill, Darrell was sitting in
a car in an area that police testified was known for criminal activity, but police
“had no particular reason to suspect criminal activity at the [house] at the time
they arrived (that is, there was no tip or other particularized cause for
believing that anything was afoot).” Hill, 752 F.3d at 1031, 1037. And as in
Hill, Darrell exited his vehicle almost immediately upon the officers’ arrival
and proceeded to walk toward the dwelling. Darrell “could have exited the car
out of a desire to flee the police; or, [he] could have simply exited the car
because” he had arrived at his destination or realized he had forgotten
something. 1 Id. at 1037. Indeed, the record is not even totally clear that
Darrell saw the police arrive. The officers “lacked a reasonable basis to infer
much of anything about [Darrell] exiting the car and taking a few steps
towards the [house] during the same time as their arrival.” Id. In short,
Darrell’s actions could at least be “equally . . . interpreted as flight from officers
or as continuation of previously-undertaken actions,” and this court has held
that such circumstances “do not create reasonable suspicion.” Alexander, 854
F.3d at 304.
1 That Darrell appeared to be on a path to use an entrance other than the front door
is reasonable given the setting; the home appears to be located on a large plot of land in a
rural area, and residents may enter homes from a carport or rear door in these environments.
Moreover, Darrell could have been in the process of retrieving something from the back yard
or any number of other activities elsewhere on the property. The officers “lacked a reasonable
basis to infer much of anything about [Darrell] exiting the car and taking a few steps” in any
direction. Hill, 752 F.3d at 1037.
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No. 19-60087
Considering the above analysis, I believe it is apparent that, had Darrell
complied with the officers’ first order to halt, he would have been subjected to
an illegal seizure because no reasonable suspicion existed at that point in time.
What remains of the facts relied on by the Government are essentially Darrell’s
non-compliance with this initial attempted unlawful seizure and his
subsequent increase of walking pace. 2 However, it is difficult to square the
notion that this non-compliance may give rise to reasonable suspicion with
Wardlow’s unequivocal reaffirmation that “any ‘refusal to cooperate, without
more, does not furnish the minimal level of objective justification needed for a
2 The Government argues that this seizure was justified under Terry in part because
the officers needed to secure Darrell to prevent him from retrieving a weapon or warning the
target of the arrest warrant of the police’s presence. However, the purpose of a Terry stop is
inherently investigatory, and, absent reasonable suspicion, Terry does not permit an officer
to seize a person for the practical, non-investigative purpose of preventing the individual
from interfering with the execution of a warrant. See Terry v. Ohio, 392 U.S. 1, 22 (1968)
(“[A] police officer may in appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest.” (emphasis added)). An initial Terry stop is justified only
when the officer has reasonable suspicion that an individual is committing or will imminently
commit a crime. Arizona v. Johnson, 555 U.S. 323, 326 (2009). Here, while it would certainly
have been a crime for Darrell to retrieve a weapon and harm the officers or to warn the target
of the warrant in order to help her evade arrest, the government has not pointed to any
specific and articulable facts that support a reasonable suspicion that Darrell would have
engaged in these crimes.
The government emphasizes that this was a split-second decision based on the need
to ensure officer safety and the integrity of the law enforcement operation. But the Supreme
Court has addressed Fourth Amendment concerns regarding the need to seize individuals
without reasonable suspicion for these purposes through a separate exception to the warrant
requirement In Michigan v. Summers, the Court held that a search warrant for contraband
carries with it the authority to detain individuals on the premises of the targeted dwelling
while the warrant is executed irrespective of whether there is any reason to believe they are
involved in criminal activity. 452 U.S. 692, 702–03 (1981). The motivations for this rule
include the need to protect the executing officers from harm and to prevent the spoliation of
evidence. Id. Neither the Supreme Court nor this circuit has extended Summers to cover
the execution of an arrest warrant, however, and the Government has not raised Summers
or its progeny as support for its authority to detain Darrell. The Government’s contentions
regarding the practical necessity of detaining Darrell are therefore irrelevant to our analysis.
And, while we do not consider officers’ subjective intentions in determining the
reasonableness of a Terry seizure, see Whren v. United States, 517 U.S. 806, 813 (1996), the
government’s arguments on this point notably suggest that any claim that the officers had
grounds to suspect Darrell of such criminal activity is a post hoc rationalization.
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Case: 19-60087 Document: 00515247003 Page: 22 Date Filed: 12/23/2019
No. 19-60087
detention or seizure.’” 528 U.S. at 125 (quoting Bostick, 501 U.S. at 437); see
also id. (“[W]hen an officer, without reasonable suspicion or probable cause,
approaches an individual, the individual has a right to ignore the police and go
about his business.” (citing Royer, 460 U.S. at 498)).
Accordingly, I would hold that the totality of the circumstances indicates
the officers did not have reasonable suspicion under Terry that Darrell was
engaged in criminal activity.
***
As set out above, I respectfully disagree with the majority’s conclusion
that the officers in this case had specific and articulable grounds to suspect
Darrell of criminal activity. Darrell’s walking away was not the unprovoked,
head-long flight that the Supreme Court found reasonably suspicious in
Wardlow, and I fear today’s decision ventures down a slippery slope that erodes
individuals’ constitutional right to go about their lives free from arbitrary
police interference. I would therefore hold that the district court erred by
denying Darrell’s motion to suppress because Terry does not justify the seizure
at issue in this case.
22