United States v. Titus Dillard ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1668
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Titus K. Dillard
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 19, 2015
Filed: June 9, 2016
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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
The government indicted Titus K. Dillard for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Dillard moved to suppress the firearm,
claiming its seizure violated the Fourth Amendment. After the district court1 denied
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
the motion to suppress, Dillard entered a conditional guilty plea, reserving the right
to appeal the denial of his motion to suppress. We now affirm.
I.
At approximately 9:00 PM on May 10, 2013, Kansas City, Missouri Patrol
Officers Jeremy Gragg and Tyrone Phillips were patrolling together in a marked patrol
car near the intersection of 50th Street and Michigan Avenue in Kansas City. The
officers testified that this is a high-crime area of Kansas City where shootings, illegal
drug activity, and automobile thefts are common. While patrolling, Officers Gragg
and Phillips noticed three individuals standing near a Ford Taurus that was legally
parked on the side of Woodland Avenue. As another patrol car passed by the Taurus,
all three individuals moved away from the vehicle. Dillard, who was standing by the
driver’s door, which was also the street-side door, moved to the rear of the Taurus and
then returned to the driver’s door after the patrol car passed. The other two
individuals who had been standing by the Taurus walked toward a nearby residence
and did not return to the Taurus.
Officers Gragg and Phillips decided to drive by the Taurus to obtain the license
plate number. As they did so, Dillard again walked to the rear of the vehicle and out
of the street as the patrol car passed. Believing Dillard’s activities to be suspicious,
Officers Gragg and Phillips decided to conduct a “pedestrian check” or “car check.”
The officers suspected that Dillard was either attempting to break into the vehicle, had
previously stolen the vehicle, or possibly was hiding something in the vehicle with
which Dillard did not want to be associated. As the officers made a U-turn, they
realized the Taurus was gone from its parking spot and no longer visible. Officer
Phillips, who was driving the patrol car, testified that based on his familiarity with
Woodland Avenue, which had a speed limit of 25 miles-per-hour, the Taurus would
not be able to reach the next intersection and travel out of view in the time it took the
officers to make the U-turn unless the Taurus was traveling at a high rate of speed.
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The officers radioed for assistance locating the car and gave a description of the car
and driver. Another officer located and stopped Dillard. During that stop, officers
discovered a loaded firearm in the car.
Dillard moved to suppress the firearm. A United States Magistrate Judge made
findings of fact and issued a report recommending that the motion be granted,
concluding the officers’ decision to stop the Taurus was the product of a hunch and
not based on reasonable suspicion of criminal activity. The district court adopted the
magistrate judge’s factual findings, but declined to adopt the recommended
disposition of the motion to suppress. Instead, the district court held Dillard “engaged
in a series of seemingly innocent acts, that when taken together warranted further
investigation.” The district court noted that those acts that established reasonable
suspicion to stop the Taurus included standing near the vehicle in a group in a high-
crime area, walking away from the vehicle and returning to the vehicle after a patrol
car passed, and driving away from the area just after officers passed by the vehicle in
what the officers, based on their training and experience, believed to be a high rate of
speed. The district court denied Dillard’s motion to suppress.
II.
“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)
(quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). “We will affirm
the district court unless the denial of the motion is unsupported by substantial
evidence, based on an erroneous interpretation of the law, or, based on the entire
record, it is clear that a mistake was made.” United States v. Zamora-Lopez, 685 F.3d
787, 789 (8th Cir. 2012) (internal quotations omitted).
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Under the Fourth Amendment, “[l]aw enforcement officers may make an
investigatory stop if they have a reasonable and articulable suspicion of criminal
activity.” United States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir. 2005) (citing
Terry v. Ohio, 392 U.S. 1, 25-31 (1968)). “A reasonable suspicion is a ‘particularized
and objective’ basis for suspecting [criminal activity by] the person who is stopped.”
Id. (quoting United States v. Thomas, 249 F.3d 725, 729 (8th Cir. 2001)). Reasonable
suspicion is determined by “look[ing] at the totality of the circumstances of each case
to see whether the detaining officer has a particularized and objective basis for
suspecting legal wrongdoing [based on his] own experience and specialized training
to make inferences from and deductions about the cumulative information available.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal citations and quotations
omitted). Although officers may not rely on “inarticulate hunches” to justify the stop,
see Terry, 392 U.S. at 22, the likelihood of criminal activity also does not need to rise
to the probable cause level, see Arvizu, 534 U.S. at 274. The Supreme Court has
repeatedly reminded that the concept of reasonable suspicion is composed of
“commonsense” and “nontechnical” concepts instead of “finely-tuned standards,” and
determining whether there is reasonable suspicion depends on “‘the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’” Ornelas v. United States, 517 U.S. 690, 695-96 (1996)
(quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).
We agree with the district court’s conclusion that the officers had reasonable
suspicion to stop Dillard. As Officers Gragg and Phillips were patrolling in a high-
crime area, they observed Dillard and others act suspiciously when another patrol car
drove past the Taurus. Everyone except Dillard moved away from the vehicle and did
not return. Dillard moved from the driver’s side door to the rear of the Taurus and
then returned to that spot after the other patrol car had passed. When Officers Gragg
and Phillips drove by Dillard and the Taurus, they observed him again move to the
rear of the Taurus and return to the driver’s side after they passed. Based on these
observations, the officers decided to perform a “pedestrian check” or “car check.”
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When the officers made a U-turn to perform the check, the Taurus was gone, and the
officers, based on their training and experiences, reasonably believed the Taurus had
left at a high-rate of speed. See United States v. Hightower, 716 F.3d 1117, 1121 (8th
Cir. 2013) (“Although simply ignoring the police cannot be the basis for reasonable
suspicion, conduct beyond merely ignoring, such as attempting to flee, can create
reasonable suspicion to support a Terry stop.”).
We disagree with Dillard’s assertion that this situation is controlled by our
decision in United States v. Jones, 606 F.3d 964 (8th Cir. 2010) (per curiam). Jones
is distinguishable because there we criticized the failure of the government to
“identify what criminal activity [the officer] suspected” Jones of engaging in and the
government’s “leap[] to the officer safety rationale for a protective frisk for weapons”
without first showing reasonable suspicion for the Terry stop. Id. at 966. Only on
appeal did the government identify a possible criminal violation the officers could
have believed Jones was committing. Id. at 966-67. Further, the only suspicious
activity identified by the officer in Jones was the defendant’s clutching of his outside
hoodie pocket, and we noted “that nearly every person has, at one time or another,
walked in public using one hand to ‘clutch’ a perishable or valuable or fragile item
being lawfully carried in a jacket or sweatshirt pocket in order to protect it from
falling to the ground or suffering other damage.” Id. at 967.
Here, the officers decided to conduct the “pedestrian check” or “car check”
because they reasonably believed Dillard could be involved in an automobile theft or
could have been hiding something illegal in the Taurus. Reasonable suspicion arose
when the officers made the U-turn and reasonably believed that the Taurus had fled
the scene at a high rate of speed. Considered with the other circumstances observed
by the officers leading up to that moment, the officers were justified under the Fourth
Amendment in stopping the fleeing Taurus to investigate whether criminal activity
was afoot. See Arvizu, 534 U.S. at 273.
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III.
Accordingly, we affirm the district court’s denial of Dillard’s motion to
suppress.
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