UNITED STATES of America, Plaintiff-Appellant, v. Omar Oneil LEWIS, a.k.a. Paul Campbell, a.k.a. Kevin Ellis, et al., Defendant-Appellee.
No. 10-13567.
United States Court of Appeals, Eleventh Circuit.
March 23, 2012.
674 F.3d 1298
AFFIRMED.
Robert Godfrey, Clarence W. Counts, Jr., Fed. Pub. Defenders, Orlando, FL, for Defendant-Appellee.
Before MARCUS, WILSON and COX, Circuit Judges.
MARCUS, Circuit Judge:
In this interlocutory appeal, the government appeals from a district court order granting defendant Omar Lewis‘s motion
The district court granted the motion to suppress the firearm, holding that the detention of Lewis was unreasonable and therefore violated the Fourth Amendment. We reverse and remand because under the peculiar facts of the case and the danger extant, it was reasonable for the officers to make a split-second decision to briefly detain all four individuals as they investigated possible violations of Florida‘s concealed-weapons laws.
I.
We take the facts essentially from the district court‘s order granting Lewis‘s suppression motion and from the transcript of the suppression hearing, accepting the trial judge‘s findings of fact. On the night of February 6, 2009, Deputy Noel Bojko was in uniform and on patrol with his field training officer, Deputy Scott Stiles. The two deputies were patrolling the Pine Hills area of Orange County, Florida. Around 8:50 p.m., the deputies entered the parking lot of the Seawinds restaurant, which was open for business at the time. No one disputes that the Seawinds restaurant is in a “high crime area” that is a “hotbed” of drug and gun activity.
As the deputies entered the parking lot, they observed four males standing in between two parked vehicles, one with a trunk open. The cars were parked perpendicular to the marked parking spaces in the crowded lot. At the suppression hearing, Deputy Bojko testified that the four men “were just hanging out in between the two cars,” and that “[t]hey were moving around computer equipment in the open trunk” of one of the cars. Both Deputies Bojko and Stiles observed that the men were just standing in the Seawinds parking lot and that there was no basis to conclude that the men were involved in the commission of a robbery, drug dealing, or any other crime.
The deputies did not immediately detain the four men, but instead approached them and engaged in a wholly consensual encounter. Deputy Bojko asked “how you guys doing” and tried “to start a casual conversation.” Deputy Stiles similarly testified that the deputies introduced themselves and said, “Hey, gentlemen, how is it going.” According to the officers, the four men responded that “they were just hanging out in the parking lot.”
Apparently the very next question asked by Deputy Bojko was whether any of the men were carrying guns. Two of the four men, Carlos Evans and Charles McRae, each responded affirmatively. The other two men, including Lewis, said nothing in response to the deputy‘s question. Evans told the officers that he had a handgun in a backpack in the open trunk of a car parked nearby, and McRae told the officer that he was carrying a handgun on his person, in his waistband. Deputy Bojko could see the top of the backpack in the open car trunk. There was no indication or testimony that McRae made any attempt to reach for the firearm or made any other sudden movements.
Three of the four men complied immediately. Lewis, however, took some ten seconds to comply. During those ten seconds, Lewis walked a few steps away from the other men. Lewis briefly had his back turned to the officers and moved away from the trunks of the parked cars and towards the front of one of the vehicles. At some point after Lewis sat down, Deputy Bojko ordered him to slide over to the other three men, and he complied.
Around this time, Corporal Steven Scott Jenny, who knew that the deputies were headed to the Seawinds restaurant, arrived on the scene. He saw all four men sitting on the ground. Corporal Jenny testified at the suppression hearing that his attention was immediately drawn to Lewis, who “looked extremely nervous, wouldn‘t sit still, wouldn‘t keep his hands in one position where we could see them. His hands were moving to his sides, towards his pockets, towards his back. He was scooting his body around.” Their concern heightened by Lewis‘s behavior, the officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. After observing the firearm, the officers had the four men lie prone and handcuffed all of them. The officers did not observe Lewis with the firearm on his person, nor did they observe Lewis discard the weapon. Corporal Jenny concluded, however, that Lewis was the only one of the men who was in a position to be able to discard the weapon in that particular spot.
At that point, Lewis was arrested and charged with carrying a concealed firearm in violation of Florida law. Subsequent testing found Lewis‘s DNA on the gun. The weapon was later determined to be registered to McRae. The officers searched Lewis incident to his arrest and discovered the car keys to a white Honda, which was also parked in the Seawinds parking lot. The Honda contained an empty gun box that the officers concluded was used to house the firearm the officers had discovered under the car.
McRae and Evans were not arrested or charged. McRae produced a valid concealed-weapons permit at the scene. Evans, who had indicated that he had a gun in the backpack, did not have a permit but was also released. The third individual, Carlos Bayes, was released as well. Lewis was the only individual arrested and charged following these events.
II.
On January 27, 2010, a federal grand jury sitting in the Middle District of Florida indicted Lewis for one count of unlawful possession of a firearm by an illegal alien, in violation of
The district court conducted a suppression hearing, at which Deputies Bojko and Stiles and Corporal Jenny were the only witnesses called. At the conclusion of the witnesses’ testimony, the district court deferred ruling, ordering the parties to provide supplemental briefing on two questions: “whether the admission that you have a weapon you‘re entitled to have on you is a basis for a ... Terry stop,” and, “if so, whether it is a basis to stop not only you by that admission, but everybody who is standing with you.”
Thereafter, the district court granted Lewis‘s motion and suppressed the firearm. The district court determined that the Terry stop was unlawful as to any of the four individuals, even concerning the two men (McRae and Evans) who had admitted to possessing firearms. The court concluded that the officers lacked any particularized and objective suspicion that any of the four men had been engaged in, or were about to engage in, criminal activity at the time the officers ordered the men to the ground. The record showed, the court said, that when the officers conducted the stop the four men were engaged in non-criminal activities: standing by a car; looking in the trunk of a car; talking to each other in association; standing in the parking lot of a restaurant while it was open for business; failing to park their cars in designated parking spaces in a crowded private parking lot; and lawfully possessing firearms. None of these activities, the trial court asserted, whether taken alone or in concert, established a reasonable basis to stop any of the men. The court reasoned that mere gun possession did not justify a Terry stop, because it was neither per se unlawful to possess a handgun nor illegal to admit to carrying one, and because the police had no reason to believe that McRae did not have a concealed-weapons permit for the firearm. Moreover, the restaurant and the surrounding neighborhood‘s “designation” as a high-crime area could not transform an unlawful detention into a reasonable Terry stop. Finally, the district court concluded there was no evidence or reasonable suspicion that the defendant Lewis had engaged in any criminal activity, and, therefore, there was no basis for detaining him under Terry v. Ohio.
This timely interlocutory appeal followed; we have jurisdiction under
III.
A motion to suppress evidence presents a mixed question of law and fact. United States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir.2009). “Because rulings on motions to suppress involve mixed
The
As an initial matter, the officers’ actions in approaching the four men late in the evening of February 6, 2009 and asking them questions did not implicate the
Plainly, what elevated the encounter from a consensual one into an investigatory detention implicating the
A.
As we see it, the district court made two fundamental and related legal errors in concluding that the officers lacked reasonable suspicion to detain any of the four men. First, the district court suggested that since the officers had no reason to suspect that McRae did not have a valid concealed-weapons permit, his admission to carrying a concealed weapon did not provide any reasonable suspicion about anything. And second, as an important part of its reasonable suspicion calculus, the district court relied on the officers’ knowledge, drawn only after the unfolding detention, that McRae‘s firearm possession was lawful.
Based on McRae‘s admission that he was carrying a handgun in his waistband, the officers had reasonable suspicion to believe that McRae was committing a crime under Florida law—carrying a concealed weapon.3 Under Florida law, “[a] person who carries a concealed firearm on or about his person commits a felony of the third degree.”
Moreover, because reasonable suspicion analysis is not concerned with “hard certainties, but with probabilities,” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), McRae‘s admission to carrying a concealed weapon was sufficient to justify briefly stopping him before inquiring further about whether he had an affirmative defense in the form of a valid concealed-weapons permit. The Supreme Court has made it abundantly clear that, although an individual may ultimately be engaged in conduct that is perfectly lawful—as turned out to be the case with McRae—officers may “detain the individual[] to resolve the ambiguity.” Wardlow, 528 U.S. at 125 (citing Terry, 392 U.S. at 30); see also United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (“A determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.“); Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“The
Terry accepts the risk that officers may stop innocent people. Indeed, the
Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further.
In short, the district court erred in concluding that the officers lacked reasonable suspicion sufficient to justify a Terry stop of any of the four men, even McRae. Indeed, during the course of the suppression hearing, Lewis‘s attorney conceded that the officers had reasonable suspicion to conduct a Terry stop of McRae and Evans. In response to the district court‘s question, “once they stopped these four individuals and they said, ‘Do you have weapons on you,’ two of them confirmed that they did have weapons. Was that at that time a basis for them to conduct a Terry stop?” Lewis‘s counsel replied, “As to those two individuals, yes. But not as to my client, Your Honor.”
That, of course, is not the end of the inquiry. McRae was never arrested and is not a party to this case. Thus, we are obliged to answer whether it was also reasonable under the circumstances for the officers to detain the defendant Lewis as well as McRae.
B.
Again, in determining whether a Terry stop is justified, “the totality of the circumstances—the whole picture—must be taken into account.” Cortez, 449 U.S. at 417. “Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417-18; see Denson v. United States, 574 F.3d 1318, 1341 (11th Cir.2009); United States v. Roper, 702 F.2d 984, 988 (11th Cir.1983). As a general matter, reasonable suspicion of criminal activity must attach to the particular person stopped. See Cortez, 449 U.S. at 418 (“[A]n assessment of the whole picture ... must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.“).
But, as the Supreme Court has also made crystal clear, individualized suspicion is not an absolute prerequisite for every constitutional search or seizure. Samson, 547 U.S. at 855 n. 4,
We begin with this observation: under controlling law the officers could lawfully detain McRae in order to inquire further into a possible concealed-weapons violation. The central question then boils down to whether it was also reasonable under the circumstances for the officers to briefly detain all four individuals for reasons of safety, having been told by McRae and Evans that each of them was armed (McRae carrying a weapon on his person, and Evans having ready access to one in a nearby open trunk), but absent any particularized reasonable suspicion concerning Lewis.
We answer that question in the affirmative. The officers faced substantial, immediate danger when confronted with the known possession of two firearms. Case precedent from both the Supreme Court and this Circuit has established that, for safety reasons, officers may, in some circumstances, briefly detain individuals about whom they have no individualized reasonable suspicion of criminal activity in the course of conducting a valid Terry stop as to other related individuals. Thus, in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Supreme Court held that, in the context of a traffic stop,5 an officer may order a passenger out of a vehicle even though the driver is the only person the officer reasonably suspected of committing a traffic infraction. Id. at 408. The relevant inquiry for reasonableness purposes “depends on a balance between the public interest and the individual‘s right to personal security free from arbitrary interference by law officers.” Id. at 411 (internal quotation marks omitted). The Court concluded that the “weighty” interest in officer safety was a powerful justification for the practice of ordering a passenger out of the vehicle (plainly a detention, albeit a brief one), which outweighed the more limited intrusion on the passenger. Id. at 412-13.
In Hudson v. Hall, 231 F.3d 1289 (11th Cir.2000), a panel of this Court considered, in the qualified immunity context of a
More significantly, our decision in United States v. Clark, 337 F.3d 1282 (11th Cir.2003), is analogous to the instant case. Clark also involved a brief detention of an individual in the absence of any particularized, reasonable suspicion of criminal activity. An Atlanta police officer was patrolling alone in a high crime area at night. Id. at 1283. He saw two men wrestling and fighting in the middle of the street. Id. Nearby, an automobile was parked on the wrong side of the street with its lights on, a door open, and the engine running. Id. A third person, the defendant, was watching the fight from the sidewalk. Id. The officer broke up the fight, confirmed that the vehicle belonged to one of the two fighters, and ordered everyone (including the defendant) into the car while he called for backup and investigated further. Id. The defendant had informed the officer prior to the detention that he had been a passenger in the vehicle and was associated with the two men. Id. The officer testified that he ordered the defendant “to reenter the vehicle because he was ‘part of the scene.‘” Id.
After the defendant was detained by the officer who ordered him into the car, the events that followed led to the discovery of a handgun in the car and the subsequent arrest of the defendant. Id. The officer‘s backup arrived on the scene and saw the defendant “fumbling around under the seat.” Id. The defendant was ordered to put his hands on the dashboard, and when one of the officers opened the passenger door to remove the defendant from the vehicle, a .40 caliber handgun fell onto the street. Id. The defendant was then arrested.
On appeal, a panel of this Court concluded that the brief detention of the defendant (against whom there was no particularized suspicion and who was simply standing on the sidewalk when the officer encountered him) was lawful and reasonable under the circumstances in order to protect the officer‘s safety “while he conducted an investigation of reasonably suspicious violent conduct that occurred in his presence.” Id. at 1285. Notwithstanding the fact that the officers never stopped any vehicle, we found the case analogous to the earlier cases of Wilson and Hudson, id. at 1286-87, concluding that, under the circumstances, the officer could briefly detain the defendant by ordering him into the vehicle in order to control the situation, even absent any individualized suspicion, essentially for the same reasons that the officer in Wilson could order the defendant passenger out of the vehicle, id. at 1285, 1288. Moreover, we stressed that “the ‘risk of harm’ to officers is ‘minimized’ when police officers ‘exercise unquestioned command of the situation.‘” Id. at 1288 (quoting Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)). Indeed, citing our earlier decision
The brief detention of Lewis in this case served exactly the same safety purposes discussed in Clark and in the traffic stop cases of Wilson and Hudson—to control the movements of nearby associates and exercise command over the situation once the officers had reasonable suspicion of criminal activity that warranted further investigation. Once the officers had that reasonable suspicion, they were not obliged to let three of the four associated individuals walk about freely while they investigated McRae, in light of the officers’ powerful concern for their own safety. Clark, 337 F.3d at 1288.6
The reasonableness of the officers’ conduct under the totality of the circumstances was heightened greatly by the admitted presence of two firearms, which posed a serious risk to the safety of the officers as well as the other individuals present in the crowded parking lot.7 See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (“Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry‘s rule, which permits protective police searches on the basis of reasonable
As the Supreme Court emphasized in Terry itself, a brief stop-and-frisk is permissible, even absent probable cause to arrest, “for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.” 392 U.S. at 27,
In short, under the totality of the circumstances of this case, the officers were entitled to control the scene and exercise command over the situation in the course of briefly detaining McRae for further investigation. A brief detention of all four associated individuals was reasonable, in light of the substantial risks to the officers’ safety. Accordingly, we REVERSE the district court‘s order granting Lewis‘s motion to suppress, and REMAND for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
I agree with the majority that the district court erroneously considered information unavailable to the officers at the time of the stop at issue. Furthermore, I do not dispute that the officers had reasonable suspicion to detain McRae to investigate whether he illegally possessed a concealed weapon in violation of Florida law. I do not, however, join the majority in finding that the stop of Lewis was proper.
For purposes of the
Although the majority holds that this stop was reasonable under the circumstances, it does so without meaningfully balancing the competing public and private interests at issue. In ignoring this balance, the majority has essentially found that a broad assertion of officer safety necessarily trumps the private right of individual liberty and therefore justifies a warrantless stop. I emphasize that I fully appreciate the high value we place on officer safety, which typically leads us to defer to an experienced officer‘s judgment about how to control the scene of an investigation. However, I am not aware of any court that has held that concerns for officer safety justify every intrusion on individual liberty. See Edmond, 531 U.S. at 42 (“[T]he gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.“).
To the contrary, Lewis had a weighty interest in his own personal liberty at the
I
In lieu of conducting its own balance of the interests, the majority mistakenly analogizes the stop of Lewis to the limited control that an officer can exercise over the passenger of a vehicle whose driver is under investigation for illegal activity. In the cases cited by the majority, the prolonged detentions were deemed reasonable because of the preexisting restriction on the passenger‘s liberty. I do not read the combination of Wilson, Hudson, and Clark to establish a broad officer-safety exception to the requirement of reasonable suspicion; I understand these cases to support a common-sense principle that, because a vehicle‘s passengers are seized once their driver has been detained—that is, they have no real alternative but to await the conclusion of the investigation—an officer‘s direction of their movement is not sufficiently burdensome to violate the passengers’
In Maryland v. Wilson, the Court found it reasonable for an officer to order a passenger out of a stopped vehicle, even when no reasonable suspicion existed that the passenger was involved in any unlawful conduct. See 519 U.S. at 414-15. This holding was based on the reality that the passengers were already detained “by virtue of the stop of the vehicle.” Id. at 414. In evaluating reasonableness, the Court explained that the additional intrusion on the passenger in light of this preexisting detention was “minimal” and, therefore, outweighed by the government‘s heavy interest in the safety of its officers. Id. at 413, 415. In other words, because the detention of the vehicle prevented the passenger from leaving, it was reasonable to direct the passenger to a location where he would not pose a risk to the officer during the ensuing investigation.
Similarly, in Hudson v. Hall, 231 F.3d 1289 (11th Cir.2000), we analyzed the appropriateness of an officer‘s behavior in directing car passengers after a valid underlying vehicle stop. There, we seized upon Wilson to explain that “a police officer performing his lawful duties may direct and control—to some extent—the movements and location of persons nearby, even persons that the officer may have no reason to suspect of wrongdoing.” Id. at 1297. Again, the officer in Hudson exerted control of the situation only after the vehicle had been pulled over, thereby detaining the driver and all passengers. See id. at 1295-96. Thus, like in Wilson, any additional intrusion on Hudson was negligible in light of the preexisting, justified detainment of the vehicle and its passengers. And, in Hudson, the officer actually offered to allow the passenger to walk
For similar reasons, the majority‘s analogy to United States v. Clark, 337 F.3d 1282 (11th Cir.2003), is misplaced. The issue confronted in Clark was “whether a law-enforcement officer may briefly detain and order a passenger to reenter an automobile to protect the officer‘s safety while the officer investigates a crime committed in his presence by two associates of the passenger.” Id. at 1282.3 Essentially, the court faced Wilson in reverse, as the officer ordered a car‘s occupants to re-enter (rather than exit) the vehicle pending investigation of the driver‘s observed illegal conduct. Id. at 1283. Here again, when the officer seized the vehicle‘s driver, Clark was temporarily incapable of leaving that specific situation by reason of investigation of the driver. Consistent with Wilson and Hudson, the officer could reasonably direct Clark back inside the car because the intrusion on his personal liberty was minimal—he admittedly arrived in that vehicle and would presumably be leaving in it as well. See id. (recalling the fact that the officer directed Clark‘s movement only after being advised that Clark had been a passenger in the vehicle).
Also significant in Clark was the credible threat of violence facing the officer, which bore on the reasonableness of the detainment. The officer in Clark approached a situation in which he plainly observed violence and other illegal activity. Id. at 1287 (noting the totality of the circumstances, which included observation of a physical confrontation and an illegally parked car on the street). And he confronted this violent situation alone. Id. Far from that scenario, the two officers who stopped Lewis here could not identify any behavior to suggest that any of the four men ultimately detained were committing any violent crimes or planned to do anything but cooperate.
In sum, the intrusion on Lewis‘s personal liberty far exceeded the de minimis detention held reasonable in Wilson, Hudson, and Clark. Because Lewis was not “already stopped” as a result of the consensual encounter with police, see Wilson, 519 U.S. at 414, this court is obligated to analyze whether reasonable suspicion justified detention of Lewis, see Tapia, 912 F.2d at 1370.
II
In an “on-the-street encounter,” a Terry stop is lawful “when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Johnson, 555 U.S. at 326 (emphasis added). Florida law does not appear to criminalize the act of standing in close proximity to an individual who carries a concealed weapon.4 The proper inquiry thus becomes
As the majority recounts, the officers approached Lewis and his three companions and engaged them in a valid, consensual encounter. See United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir.2011). At that point, Lewis and the others could have ignored the police entirely and continued conducting their lawful business in the parking lot.5 See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). The only intervening fact between the consensual encounter and the stop of Lewis was the voluntary, affirmative responses of Evans and McRae when asked whether any person in the group possessed a firearm. The suspected possession offenses on behalf of other persons, however, did not implicate Lewis in the commission of any crime, and it therefore could not serve as a basis to draw weapons on the entire group otherwise lawfully present in the parking lot.
We have previously held that illegal activity combined with suspicion that a suspect carries a concealed weapon provides reasonable suspicion to justify a Terry stop to search for weapons. See United States v. Hunter, 291 F.3d 1302, 1307 (11th Cir. 2002). We have similarly held that “[a] person‘s proximity to a person whom officers have probable cause to believe is committing a crime may be considered as a factor in assessing reasonable suspicion.” United States v. Gonzalez, 70 F.3d 1236, 1238 (11th Cir.1995) (per curiam) (emphasis added).6 We have never, though, extended this reasoning to impute an officer‘s reasonable suspicion of one individual to an associate who is in the vicinity and engaged in purely lawful activity. See United States v. Afanador, 567 F.2d 1325, 1331 (5th Cir.1978) (“Lest there be any doubt, we state here that ‘reasonable suspicion’ must be specifically directed to the person to be searched .... [T]he [F]ourth [A]mendment does not permit any automatic or casual transference of ‘suspicion.‘“). And there is good reason for this court not to do so, as the piggy-backing of reasonable suspicion, especially in a circumstance where the possible offense is of singular possession, is too attenuated to pass muster under the
As the district court explained, “the deputies specifically testified that they did not have any evidence that [Lewis] had participated in a robbery or had been selling drugs or was in any other way engaged in or about to be engaged in the commission of a crime.” Dist. Ct. Order at 10. The only “specific and articulable” facts the Government offers to establish reasonable
Based on the circumstances, precedent provides that the appropriate scope of the detention here would have been a pat down of the armed individuals to ensure the safety of the officers. See Hunter, 291 F.3d at 1307 (“An officer who has a reasonable suspicion that an individual is engaged in illegal activity and is armed with a concealed weapon is justified in conducting a limited search for weapons.“) (emphasis added).8 The officers would likewise act reasonably if they were to ask the two men not suspected of any illegal activity to walk a safe distance away from the scene. See Hudson, 231 F.3d at 1292. And any escalation of the situation would justify appropriate measures to respond to evolving circumstances. However, the response here, in light of the actual facts and not a scenario the majority conceives, exceeded the valid scope of a stop under Terry, which permits an officer “for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of” persons deemed “armed and presently dangerous” in order to “discover weapons which might be used to assault him.” 392 U.S. at 30, 88 S.Ct. 1868. No case law from this circuit has interpreted Terry to permit more intrusive detentions than a pat down for weapons of those reasonably suspected of criminal activity, and the majority‘s unsupported criticism of this established principle contravenes precedent without explanation.
As a result of the foregoing, I do not find the broad “reasonableness” standard, or the cases cited by the majority, to be instructive to the proper resolution of this case. Nor can I identify any “specific and articulable facts” that would give rise to the inference that Lewis was engaged in criminal activity. Because the officers had no legal justification for their course of behavior, I would affirm the district court‘s order suppressing the firearm at issue here.
DEALERTRACK, INC., Plaintiff-Appellant, v. David L. HUBER and Finance Express, LLC, Defendants-Appellees, and John Doe Dealers, Defendant, and RouteOne, LLC, Defendant-Cross Appellant.
Nos. 2009-1566, 2009-1588.
United States Court of Appeals, Federal Circuit.
Jan. 20, 2012.
Notes
Q. Okay. Why did you issue the order?
A. I needed to get the subjects under control, especially since firearms were involved for my safety and the safety of my field training officer.
Deputy Stiles amplified the nature of the danger posed in these words:Q. Why do you ask the question [whether the individuals had any weapons on them]?
A. To find out if they do, because I‘m worried about my safety and other officer safety.
Q. Did they have guns on them or weapons?
A. Yes ma‘am. Two of them said they were armed.
Q. Specifically, what was said?
A. One said, “I have on in my waistband,” and the other one said, “I got one in the trunk.”
Q. Did this concern you?
A. Absolutely.
Q. Why?
A. Because I don‘t want to get in a gun fight. I don‘t want to get shot. I don‘t want my partner to get shot.
Q. And how many deputies were there at this point?
A. Two.
Q. And how many individuals were there?
A. Four.
Q. Did that ratio concern you in any way?
A. Yes, ma‘am.
Q. Why?
A. Because we could be outgunned. There could be four guns there to our two.
The district court found the following as part of the totality of the circumstances at the time of the stop: “standing by a car; looking in the trunk of a car; talking to each other in association; standing in a parking lot of a restaurant while it was open for business; [and] failing to park their cars in designated parking spaces in a crowded private parking lot.” Dist. Ct. Order at 8. Although the district court improperly considered that the two individuals possessing firearms did so lawfully, that circumstance was wholly inapplicable to Lewis, who never volunteered to the officers that he possessed a weapon.