Posted on 06/08/2010 5:41:20 PM PDT by marktwain
From FourthAmendment:
The officer suspected that defendant was carrying a gun in the pocket of his hoodie, but it was based on his experience as an officer and no other facts about the hands or what he might be holding. The Eighth Circuit [surprise!] finds this not enough for reasonable suspicion under Terry and Arvizu. United States v. Jones, 09-1731 (8th Cir. June 8, 2010).
The opinion, to be published. Excerpts:
Given the deference we must accord both Hasiak’s training and experience and the inferences drawn by a resident district judge, this is a close question.
We find it remarkable that nowhere in the district court record did the government identify what criminal activity Officer Hasiak suspected. Rather, the government leaped to the officer safety rationale for a protective frisk for weapons, ignoring the mandate in Terry that there must be reasonable suspicion of on-going criminal activity justifying a stop before a coercive frisk may be constitutionally employed.
We suspect 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. With only this circumstance to support Officer Hasiak’s suspicion, though we are mindful of the need to credit law enforcement officers who draw on their experience and specialized training, we conclude that “too many people fit this description for it to justify a reasonable suspicion of criminal activity.”
We do not underestimate the importance of ferreting out violent offenders who unlawfully carry firearms in public, and the value of protective frisks in guarding the safety of law enforcement officers and others who may be in harm’s way. See Terry, 392 U.S. at 23-24. But as we noted in Hughes, 517 F.3d at 1018, “Being stopped and frisked on the street is a substantial invasion of an individual’s interest to be free from arbitrary interference by police,” and the police have “less invasive options” for “identifying the perpetrators of crime.” Most obviously, Officer Hasiak could have initiated a consensual encounter, for which no articulable suspicion is required, and which “may both crystallize previously unconfirmed suspicions of criminal activity and give rise to legitimate concerns for officer safety.”
When a court finds the issue to be a "close question" it almost always decides in favor of the government. This is a very rare exception in favor of liberty that benefits all persons, not just American gun owners.
For those interested, please read the whole opinion.
This is a huge step forward to restore the Constitutional protection to be secure in our persons.
What would Dirty Harry say?? Make my day punk... or something like that.
Its about time the courts began raining in search and seizure, especially the stop and frisk.
Far too many cops stop and frisk AND THEN justify themselves after something is found.
reigning not raining... jeeesh.
If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.
Just a guess.
Yes, everytime I go walking... I guess I contribute nothing good to society.
Nike will be so upset.
Yes, everytime I go walking... I guess I contribute nothing good to society.
Speaking of which ...... I need to go do now. Later. :>)
Do you know me? Though I have contributed a lot to myself
Something similar came to my mind also, a mental picture of just what a person carrying might look like.................
If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.
Father of three Here, Fully Paid Child Support and Two of the Three are College Graduates. Eight Grandchildren.
Still working making Aircraft Parts at 59 Years Old. Will Probably have to work until I’m 66, If my health holds out
and Yes I do wear a Hoodie on occasion.
I don’t like collectivist reasoning about “contribution to society” because it treats human beings as means to an end or based on how their life profits another.
Good thing the court made the right call. There is no gun exemption to the 4th amendment and seeing someone with a gun is not reason to even approach a person, let alone ask them for ID or detain them. Cops need to get this through their heads.
“If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.”
That may be the case but they have the same right to own and carry firearms as you or I do. Someone in a hoodie should no more be accosted by the police for carrying a firearm than someone in a golf shirt and khakis.
“This is a huge step forward to restore the Constitutional protection to be secure in our persons.”
There are lots of people here who won’t see it that way.
try “reining”
Of course we know you.
You also wear one of those European purses bags!
But we won't tell........
giggle.....j/k
“If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.”
Yeah, like them Franciscans. Dirty bums.
“not doing their basic casefile development to spell out in the trial court’s record what, precisely, the officer’s experience was, and what his experience was telling him about this guy”
Most likely, the officer’s experience told him the guy was a “punk,” and punks are always up to “no good.”
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