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Stop of a man in a hoodie for carrying a weapon lacked reasonable suspicion
OpenCarry.org ^ | 8 June, 2010 | United States v. Jones, 09-1731 (8th Cir. June 8, 2010).

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; News/Current Events
KEYWORDS: banglist; constitution; gun; police
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I recall, many years ago as a peace officer, an instructor told us that he didn't worry much about probable cause during a Terry stop, that if he found a weapon, he had never had a case overturned.

This is a huge step forward to restore the Constitutional protection to be secure in our persons.

1 posted on 06/08/2010 5:41:20 PM PDT by marktwain
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To: marktwain

What would Dirty Harry say?? Make my day punk... or something like that.


2 posted on 06/08/2010 5:45:15 PM PDT by refermech
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To: marktwain

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.


3 posted on 06/08/2010 5:47:23 PM PDT by The Magical Mischief Tour
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To: The Magical Mischief Tour

reigning not raining... jeeesh.


4 posted on 06/08/2010 5:47:49 PM PDT by The Magical Mischief Tour
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To: marktwain

If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.

Just a guess.


5 posted on 06/08/2010 5:48:34 PM PDT by boycott (CAL)
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To: boycott

Yes, everytime I go walking... I guess I contribute nothing good to society.

Nike will be so upset.


6 posted on 06/08/2010 5:50:12 PM PDT by The Magical Mischief Tour
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To: The Magical Mischief Tour

Yes, everytime I go walking... I guess I contribute nothing good to society.


Speaking of which ...... I need to go do now. Later. :>)


7 posted on 06/08/2010 5:52:32 PM PDT by boycott (CAL)
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To: marktwain
We find it remarkable that nowhere in the district court record did the government identify what criminal activity Officer Hasiak suspected.

I haven't read the opinion, so this might be a case of GIGO, but this sounds to me more a case of the prosecutors dropping the ball and 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 - unless, of course, this really is a case of an unjustified frisk.
8 posted on 06/08/2010 5:53:19 PM PDT by Oceander (The Price of Freedom is Eternal Vigilance -- Thos. Jefferson)
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To: boycott
If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.

Do you know me? Though I have contributed a lot to myself

9 posted on 06/08/2010 5:56:31 PM PDT by Stentor
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To: boycott
If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.

Something similar came to my mind also, a mental picture of just what a person carrying might look like.................

10 posted on 06/08/2010 6:15:38 PM PDT by Balding_Eagle (Overproduction, one of the top five worries of the American Farmer each and every year..)
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To: boycott

If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society.


Aren’t you the little police-state brownshirt!


11 posted on 06/08/2010 6:21:31 PM PDT by Atlas Sneezed (Anything worth doing, is worth doing badly at first.)
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To: boycott

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.


12 posted on 06/08/2010 6:21:52 PM PDT by SwedeBoy2
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To: boycott

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.


13 posted on 06/08/2010 6:35:15 PM PDT by Skywalk (Transdimensional Jihad!)
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To: marktwain

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.


14 posted on 06/08/2010 6:39:18 PM PDT by Dayman
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To: boycott

“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.


15 posted on 06/08/2010 6:41:34 PM PDT by Dayman
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To: marktwain

“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.


16 posted on 06/08/2010 6:43:17 PM PDT by dljordan ("His father's sword he hath girded on, And his wild harp slung behind him")
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To: The Magical Mischief Tour

try “reining”


17 posted on 06/08/2010 6:52:17 PM PDT by Solidstatechemist (SolidStateChemist)
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To: Stentor
Do you know me? Though I have contributed a lot to myself

Of course we know you.

You also wear one of those European purses bags!

But we won't tell........

giggle.....j/k

18 posted on 06/08/2010 6:54:51 PM PDT by LasVegasMac
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To: boycott

“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.


19 posted on 06/08/2010 7:08:37 PM PDT by Tublecane
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To: Oceander

“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.”


20 posted on 06/08/2010 7:09:59 PM PDT by Tublecane
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To: boycott
I would guess that the majority of men wearing hoodies haven’t contributed much to society.

Bill Belicheck frowns on you.

21 posted on 06/08/2010 7:24:31 PM PDT by green iguana
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To: dljordan
There are lots of people here who won’t see it that way.

You're obviously not reading the posts...

22 posted on 06/08/2010 7:25:43 PM PDT by green iguana
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To: Solidstatechemist

Yeah that too!


23 posted on 06/08/2010 7:36:47 PM PDT by The Magical Mischief Tour
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To: The Magical Mischief Tour

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?


24 posted on 06/08/2010 8:52:20 PM PDT by Oldexpat
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To: SwedeBoy2
I own a hooded sweatshirt, but not a "hoodie" since I was eight. Even back then, it was called a hooded sweatshirt.

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.

25 posted on 06/08/2010 8:57:29 PM PDT by Deaf Smith (When a Texan takes his chances, you know chances will be taken that's for sure.)
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To: SwedeBoy2

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.


26 posted on 06/08/2010 9:02:51 PM PDT by PA Engineer (Liberate America from the occupation media.)
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To: marktwain
This is a huge step forward to restore the Constitutional protection to be secure in our persons.

Yes, and long overdue.

27 posted on 06/08/2010 9:09:24 PM PDT by SUSSA
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To: marktwain

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.


28 posted on 06/08/2010 9:19:17 PM PDT by zeugma (Waco taught me everything I needed to know about the character of the U.S. Government.)
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To: marktwain
You think this is unwarranted?

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.”

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.

Cop ought to get a medal.
29 posted on 06/08/2010 9:21:41 PM PDT by eddie willers
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To: Beelzebubba

Aren’t you the little police-state brownshirt!


me so sorry .... I didn’t even read the article. again ... so sorry.


30 posted on 06/08/2010 9:26:53 PM PDT by boycott (CAL)
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To: SwedeBoy2

......... 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.


31 posted on 06/08/2010 9:32:03 PM PDT by boycott (CAL)
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To: The Magical Mischief Tour; Tax-chick
reigning not raining... jeeesh.

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.

32 posted on 06/08/2010 9:44:06 PM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Tublecane

In which case it wasn’t a valid stop-n-frisk, and the court was correct.


33 posted on 06/09/2010 3:32:47 AM PDT by Oceander (The Price of Freedom is Eternal Vigilance -- Thos. Jefferson)
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To: green iguana

“You’re obviously not reading the posts... “

Boy, was I surprised. Good.


34 posted on 06/09/2010 4:11:01 AM PDT by dljordan ("His father's sword he hath girded on, And his wild harp slung behind him")
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To: eddie willers
Cop ought to get a medal.

Cop ought to be thrown in jail.

35 posted on 06/09/2010 5:43:46 AM PDT by green iguana
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To: marktwain
The 4th Amendment?
Jeez I should have remembered that one that when I was 'young, frisky and STOO-PID.

'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)

36 posted on 06/09/2010 5:50:55 AM PDT by Condor51 (SAT CONG!)
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To: Oldexpat

“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?


37 posted on 06/09/2010 6:33:06 AM PDT by Tublecane
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To: eddie willers

“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.


38 posted on 06/09/2010 6:35:37 AM PDT by Tublecane
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To: Oceander

“In which case it wasn’t a valid stop-n-frisk, and the court was correct.”

Yes, precisely.


39 posted on 06/09/2010 6:37:00 AM PDT by Tublecane
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To: Solidstatechemist; The Magical Mischief Tour

Yes, it’s “reining”.

Damn homophones.


40 posted on 06/09/2010 6:44:34 AM PDT by Hepsabeth
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To: boycott
"If I had to guess, I would guess that the majority of men wearing hoodies haven’t contributed much to society."

Yeah...typical ne'er do-wells...


41 posted on 06/09/2010 6:46:04 AM PDT by Joe 6-pack (Que me amat, amet et canem meum)
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To: eddie willers

“Cop ought to get a medal.”

And you ought to get a pocket constitution but I doubt you could begin to understand it.


42 posted on 06/09/2010 10:45:31 AM PDT by at bay (My father was born with 28 ounces of flesh in 1924 then went on to become Mr. (Glenn) Holland.)
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To: at bay

And I’m sure you think checking young Muslim males is racial profiling.

And I guess the fact that the officer was correct and that a convicted felon was breaking the law is immaterial to you.


43 posted on 06/09/2010 12:01:28 PM PDT by eddie willers
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To: eddie willers
running across a parking lot clutching the front of a hoodie is not a crime. A cop can not stop someone unless he has reasonable ARTICULABLE suspicion that a crime is occurring. He did not have that, just a hunch. If someone matching the victims description had just robbed a gas station in the direction this guy was coming from then he would have had RAS. As it is, he did not.

The cop should be sued and lose his pension.

44 posted on 06/09/2010 12:58:01 PM PDT by Dayman
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To: eddie willers

(SNIP) And I guess the fact that the officer was correct and that a convicted felon was breaking the law is immaterial to you.” (/SNIP)

The 4th amendment is worth more than an arrest or a felon with a gun. It is immaterial. The ends never justify the means when they involve trampling basic rights.


45 posted on 06/09/2010 1:01:11 PM PDT by Dayman
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To: All

maybe doesn’t mean more to the innocent folks he was gonna rob/kill....
In this case, the cops’ instincts were absolutely correct.
The Constitution isn’t a suicide pact...


46 posted on 06/09/2010 1:07:18 PM PDT by Maverick68
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To: Maverick68

Well let’s make a suicide pact, you and I. You go first chanting “I was given precious constitutional rights but I failed to recognize them as such, never gaining even a rudimentary understanding of the fourth amendment protections, so in violating my duty to defend the Constitution, I have failed my duty as a citizen and no longer wish to live.”


47 posted on 06/09/2010 1:26:51 PM PDT by at bay (My father was born with 28 ounces of flesh in 1924 then went on to become Mr. (Glenn) Holland.)
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To: Maverick68
As the judges admitted, this was no slam dunk decision and that they, themselves, wavered but came down with, what I believe, is an incorrect decision.

From the opinion:

After he was arrested and placed in the police cruiser, Jones volunteered that he was glad Hasiak stopped him because Jones “was about to go do something that he would never get out of jail for.” This admission confirms that Officer Hasiak’s instincts were sound and his action eliminated a serious risk to public safety.

However, that action also violated Jones’s Fourth Amendment rights, and we must enforce the rule excluding the use of evidence that was unconstitutionally obtained. Accordingly, the order of the district court dated March 4, 2009, is affirmed.

The judges, apparently, felt that the officer's experience and knowledge (views a young black male...walking in high crime area...sunny 68° weather wearing a long sleeve hoody....cradling his pocket in a way that has, 10 out of 10 times in the officer's own history, been determined to conceal a weapon) was insufficient.

I disagree.

48 posted on 06/09/2010 1:34:11 PM PDT by eddie willers
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To: at bay

Have you even read the facts of the case?

I guess knee-jerk reactions are not exclusive to liberals.


49 posted on 06/09/2010 1:36:38 PM PDT by eddie willers
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To: eddie willers

Tell you what, spend a month in jail on an arrest without probable cause and get back to me about how you feel about arrest without probable cause.

Nor does that “thank god you arrested me before I comitted a heinous crime” stuff sway anyone who understands the principal that underlies suppression of evidence/ fruit of the poisoned tree.


50 posted on 06/09/2010 4:45:58 PM PDT by at bay (My father was born with 28 ounces of flesh in 1924 then went on to become Mr. (Glenn) Holland.)
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