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.
Bill Belicheck frowns on you.
You're obviously not reading the posts...
Yeah that too!
Even my dog is alerted by men in hoodies. Even more so if they wear dark glasses. Without a little restraint she would do a little stop and frisk.
People need to be aware of the image they project. Hunched over in a hoodie, wearing dark glasses and your hands in the pockets doesn’t give another observer a warm and fuzzy feeling. More like cross over to the other side of the street feeling. It is part of the lost civility in our society. Why do people want to copy the worst traits of our society?
But then, you have eight grand kids. My sister teaches elementary school and she talks to everyone like they are third graders, so I guess it is the atmosphere.
Ditto. No more fleece with a house full of cats. Underarmour hoodies shed hair and have not worn out with repeated washes. A tad expensive, but so is fleece if you have to replace it every couple of years. Underarmour hoodies are also good for layering in cold weather.
Yes, and long overdue.
yup. Sounds like a good call. Will have to read through the entire ruling. I hope they appeal it to the supreme court. This would be a good one to apply nationwide.
While routinely patrolling a high-crime area on a mild September afternoon, Omaha police officer Paul Hasiak saw a person later identified as Fonta M. Jones walking across a church parking lot wearing a long-sleeved hooded sweatshirt and “clutching the front area of his hoodie pocket with his right hand.”Cop ought to get a medal.Jones watched as the marked police cruiser drove by. The officers drove around the block and regained sight of Jones, still walking with his right hand clutching his front hoodie pocket in the same position. Officer Hasiak decided to stop and frisk Jones, who stopped walking when the cruiser pulled up.
Hasiak told Jones to place his hands behind his back and then moved behind Jones, secured his hands, and patted him down for weapons.
Jones was arrested when Hasiak found a 9-millimeter handgun in the front hoodie pocket and a loaded magazine in Jones’s back right pocket. When it was later determined that Jones had prior felony drug convictions, he was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922.
Aren’t you the little police-state brownshirt!
me so sorry .... I didn’t even read the article. again ... so sorry.
......... and Yes I do wear a Hoodie on occasion.
hippie!
Just kidding. I should have read to article before I ever commented on it. Sorry.
Oh, dude, rule 1 when in a hole is "Stop digging"!
Raining: Water falling from the sky.
Reigning: Ruling as a monarch.
Reining [in]: Restraining, as when riding a horse.
In which case it wasn’t a valid stop-n-frisk, and the court was correct.
“You’re obviously not reading the posts... “
Boy, was I surprised. Good.
Cop ought to be thrown in jail.
'We' used to get stopped and FRISKED all the time just because we wore our 'Colors' (yep, I was in an 'Outlaw' MC Club). One day in winter, a 'nice' CPD Tactical Officer even went through my car truck without asking my permission after a stop.
(The stop was because he saw my Colors when he was behind me, no other reason.)
That Tactical Cop was a known p___k.
'We' had friends who were on the CPD and worked the same District, no one liked him)
“Even my dog is alerted by men in hoodies”
My dog is alerted by shadows on the wall and the wind blowing through trees. So what?
“You think this is unwarranted?”
Yes! Seeing someone clutch something is NOT probable cause. We do not walk the streets by the leave of cops.
“In which case it wasn’t a valid stop-n-frisk, and the court was correct.”
Yes, precisely.
Yes, it’s “reining”.
Damn homophones.
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