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United States v. Darrell

United States Court of Appeals, Fifth Circuit

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee

          Appeal from the United States District Court for the Northern District of Mississippi

          Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.


         Justin Harrington Darrell was arrested and charged with being a felon in possession of a firearm. He entered a conditional guilty plea, and now challenges the legality of the stop that precipitated his arrest. Finding no constitutional infirmity, we affirm Darrell's conviction and sentence.


         On September 3, 2017, Alcorn County Sheriff's Deputy Shane Latch and Farmington Police Department Officer Mike Billingsley drove to a home in Corinth, Mississippi.[1] They intended to serve an arrest warrant on one of the home's occupants, Brandy Smith, for failing to appear in court. Deputy Latch later described the residence as "a known drug house" where multiple arrests and disturbances-including a shooting-had taken place in the past. Indeed, Latch himself had made several arrests there.

         As the uniformed officers pulled up to the house in two marked squad cars, they saw a black Chevrolet Camaro parked in the driveway. "Almost instantaneously," Appellant Justin Darrell exited the Camaro and began walking toward the back of the house. Officer Billingsley called out to Darrell and instructed him to stop, but Darrell ignored the command and continued walking away from the officers, now at an increased pace. Deputy Latch later testified that if Darrell had walked an additional fifteen to twenty feet, he would have been behind the house and outside the officers' field of vision. Once out of their sight, the officers feared, Darrell might have withdrawn a concealed weapon or warned Ms. Smith of her impending apprehension-a crime under Mississippi law.[2] Officer Billingsley again ordered Darrell to stop. This time, Darrell complied and began walking back toward the officers. Officer Billingsley took a brown paper bag from Darrell and handed it to Deputy Latch. Inside was a bottle of whiskey-contraband in dry Alcorn County.

         Officer Billingsley then asked Deputy Latch to watch Darrell while Billingsley approached the door and attempted to apprehend Ms. Smith. Deputy Latch asked Darrell what his name was, but Darrell declined to answer.[3] Deputy Latch then noticed two knives hooked onto Darrell's belt. Latch confiscated the knives and asked Darrell if he had any other weapons. Although Darrell said no, Deputy Latch patted him down to be sure. As he did so, he felt an item in Darrell's front pocket. He asked what it was, but Darrell did not answer. Latch later testified that "when [he] edged the pocket open," he "could see the butt end of [a] pistol." Latch then "pushed [Darrell] against the car and removed the weapon," which turned out to be a loaded semiautomatic pistol with its serial number obliterated. Darrell's pocket also contained a substance believed to be methamphetamine. Deputy Latch handcuffed Darrell and placed him in a squad car.

         Latch estimated that the officers' entire encounter with Darrell lasted less than a minute. Only after Darrell had been handcuffed did the officers notice a man sitting in the passenger seat of the Camaro. He had not attempted to exit the vehicle or participated in any way in the confrontation. The officers asked the passenger to step outside, identified him as Donald Dunn, and arrested him on an outstanding warrant from the City of Farmington. Both men were transported to the Alcorn County Jail and held for investigation. A few days later, the Mississippi Bureau of Narcotics confirmed that Darrell was a convicted felon.[4]

         In January 2018, Darrell was indicted for being a felon in possession of a firearm.[5] He filed a motion to suppress, arguing that "law enforcement did not possess adequate reasonable suspicion to stop and subsequently search him." The district court denied Darrell's motion following a hearing at which Deputy Latch was the sole witness called to testify, and Darrell entered a conditional guilty plea "reserving the right to appeal the ruling on the motion to suppress evidence." On January 7, 2019, Darrell was sentenced to three years' imprisonment and a three-year term of supervised release. This appeal followed.



         When evaluating a ruling on a motion to suppress, we "review[] questions of law de novo and findings of fact for clear error."[6] All evidence is viewed "in the light most favorable to the party that prevailed" below-in this case, the Government.[7]


         "Warrantless searches and seizures are 'per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'"[8] The Supreme Court carved out one such exception in Terry v. Ohio.[9] Under Terry, if a law enforcement officer can point to specific, articulable facts that lead him to reasonably suspect "that criminal activity may be afoot," he may briefly detain an individual to investigate.[10] In addition, if the officer reasonably believes that the individual is "armed and presently dangerous to the officer[] or to others, [he] may conduct a limited protective search for concealed weapons"-often called a "frisk."[11]

         Generally, the legality of such stops "is tested in two parts": "Courts first examine whether the officer's action was justified at its inception, and then inquire whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop."[12] As Darrell challenges only "the justification of the initial seizure," not the scope of the ensuing search, we must answer only whether, under the totality of the circumstances, the officers had reasonable suspicion to stop Darrell as he approached Ms. Smith's house.[13]

         The precise contours of the reasonable-suspicion standard remain "somewhat abstract."[14] Certainly, reasonable suspicion is a less demanding standard than probable cause or preponderance of the evidence, but the Supreme Court has "deliberately avoided reducing it to 'a neat set of legal rules.'"[15] Instead, it has "described reasonable suspicion simply as 'a particularized and objective basis' for suspecting the person stopped of criminal activity."[16] In short, while reasonable suspicion is not a "finely-tuned standard[], "[17] it is well established that "the Fourth Amendment requires at least a minimal level of objective justification for making" an investigatory stop.[18]


         The parties agree that Darrell was "seized," for purposes of the Fourth Amendment, when he complied with Officer Billingsley's second command to stop.[19] The question is whether the officers had reasonable, articulable suspicion to stop him based on what they had observed up until that moment.[20]

         The Government cites three key facts to support the stop. First, "Darrell exited his vehicle and attempted to flee the very moment officers pulled in behind him." Second, Darrell appeared to be heading toward the back of the house, where he could potentially "draw a gun or warn the occupants of the house." Finally, the location of the encounter-"a known drug house, where officers had made arrests and knew that a shooting had occurred"- put the officers on alert for dangerous or illegal activity. In short, "Darrell was told to stop . . . because he walked away from officers, attempting to leave their field of vision, as soon as officers arrived at a known drug house to make an arrest." Darrell counters that his behavior was innocent and that the officers had nothing but a "mere hunch," not reasonable suspicion of criminal activity.


         The Government relies almost exclusively on the Supreme Court's opinion in Illinois v. Wardlow, [21] so a detailed consideration of Wardlow must be the starting point of our analysis. In Wardlow, two uniformed Chicago police officers "were driving the last car of a four car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions."[22] One of the officers noticed Wardlow standing next to a building "holding an opaque bag."[23] Wardlow "looked in the direction of the officers and fled" down an alley before being cornered by the police cruiser.[24] An officer patted Wardlow down and discovered a loaded handgun.[25] Like Darrell, Wardlow filed an unsuccessful motion to suppress and was ultimately convicted of being a felon in possession of a firearm.[26]

         The Supreme Court held 5-4 that the officers had reasonable, articulable suspicion that Wardlow was engaged in criminal activity. The majority relied on two salient facts to support its conclusion: (1) the stop took place in a high-crime area, and (2) Wardlow took off in an "unprovoked flight" as soon as he saw the approaching police cars.[27] The majority acknowledged that "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime."[28] Neither, however, is an officer "required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation."[29]Likewise, although flight from officers "is not necessarily indicative of wrongdoing, . . . it is certainly suggestive of such" and is properly accorded substantial weight in the Terry analysis.[30] The Court held that, in combination, these two factors supported the officers' "determination of reasonable suspicion . . . based on commonsense judgments and inferences about human behavior."[31]

         The Court was careful to distinguish Wardlow from earlier cases in which it had recognized that "refusal to cooperate, without more," does not create reasonable suspicion.[32] While an "individual has a right to ignore the police and go about his business," the Wardlow Court explained,

[f]light, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.[33]

         The four Wardlow dissenters had no quarrel with the majority's legal framework; indeed, they commended the majority for refusing to adopt a "bright-line rule" either categorically authorizing or prohibiting Terry stops based on flight from police.[34] In this particular case, however, they were not persuaded by "the brief testimony of the officer who seized" Wardlow.[35] In the dissenters' view, the officer's testimony left too many relevant questions unanswered. For instance, were the vehicles in the police caravan marked or unmarked? Was there anyone else on the street near Wardlow? Was it clear that Wardlow actually saw the police approaching before he ran?[36] Without these facts, the dissenters could not be sure that the officers' suspicion was sufficient to justify the stop.[37]

         The Government is correct that Darrell's case shares several salient factual similarities with Wardlow. Just like Wardlow, Darrell responded to the arrival of police by making a sudden attempt to get out of the officers' sight, and in both cases the stops took place in "area[s] of expected criminal activity."[38] In fact, at least one of the two officers in this case had personally responded to prior reports of drug and gun crimes at Brandy Smith's address.[39]Moreover, the ambiguities that unsettled the Wardlow dissenters are not present here. We know that both police vehicles were marked, both officers were in uniform, and there was no one else present outside the house. More importantly, Deputy Latch's testimony provides compelling evidence that Darrell exited his vehicle in response to the officers' arrival. On direct examination, Deputy Latch testified that Darrell got out of the car "just a couple of seconds" after the officers arrived and immediately "started down the side of the house trying to get out of sight." On cross, Latch explained where Darrell's Camaro was parked with reference to Google Maps photos of the premises. Together, the testimony and photos indicate that Darrell would have had a clear view of the driveway in his rear-view mirror as the officers approached, and no party has identified any other event that might have prompted Darrell's exit.

         Still, Wardlow is not as exact a match as the Government contends. In Wardlow, the suspect broke into "unprovoked flight upon noticing the police," running down an alley until he was cornered by officers.[40] In this case, Darrell walked away from the police and never left their field of vision. It is true that Darrell increased his pace after Officer Billingsley first ordered him to stop. However, he never tried to run: "He just started walking faster until he was told the second time," at which point he complied and came to a stop. Certainly, the Government is correct that "flight . . . is the consummate act of evasion"[41]- but we doubt Darrell's behavior can fairly be described as "flight."

         The case law on flight is not clear-cut. In United States v. Tuggle, we stated that a "defendant does not have to run away for his behavior to be considered unprovoked flight."[42] However, we focused not on the subject's "brisk walk" away from police but on other contextual factors supporting an inference of flight. We particularly concentrated on the fact that a driver who had just been conversing with the subject in an apparent drug transaction "sped off" when the police approached.[43] Similarly in United States v. Lawson, the subject "began to act nervous and quickly started walking away" when an officer approached him.[44] As the officer drew nearer, however, the subject "began running through busy streets in order to avoid" him.[45] The Court characterized this behavior as unprovoked flight "approach[ing] that [seen] in Illinois v. Wardlow."[46] Unfortunately, the opinion did not make clear precisely when the subject's behavior became suspiciously evasive; we are left to speculate whether the stop would have been upheld had the subject never broken into a run but instead continued walking quickly.

         We have also recognized that retreat may be a tactical strategy for an armed suspect who wishes to harm the police. In United States v. Sanders, an officer responded to a convenience store owner's report of "a suspicious person with a gun on the premises."[47] Upon arrival, the officer saw a man who matched the suspect's description and wore a long jacket that concealed his waistband.[48] As the man "saw the squad car pulling up, he turned and started to walk away."[49] This, together with several other contextual factors, justified the officer's decision to immediately draw his weapon and confront the man. The Court noted that walking away "can be used by a criminal to prepare for a violent confrontation by surreptitiously retrieving a concealed weapon then spinning back around to face the officer and use the weapon against him."[50]

         No doubt, this is the kind of tactic Deputy Latch feared when he saw Darrell "start[ing] down the side of the house trying to get out of sight." Given our thin and highly fact-dependent precedent on flight, however, we hesitate to affirm the stop on the basis of Wardlow alone without also considering the cases cited by Darrell.


         Darrell relies extensively on two of this Court's recent Fourth Amendment cases: United States v. Hill[51] and United States v. Monsivais.[52] In Hill, the defendant was sitting in his car with his girlfriend outside her apartment complex when a "multi-car convoy of police" approached.[53] The police had not been called to the location; instead, they were conducting a "rolling patrol" in response to a county-wide increase in crime.[54] This particular apartment complex was believed to be a "hotspot" for criminal activity.[55] Two officers parked their patrol car a few spots away from Hill's vehicle.[56] Hill's girlfriend then got out of the car and walked briskly toward the nearby apartment building.[57] While one officer approached the woman and began questioning her, the other knocked on the driver's side window of the car and asked Hill: "Where's your gun?"[58] Hill said he did not have one. The officer then asked for his license, and Hill again responded that he did not have one.[59] The officer told him to get out of the car, motioned for him to turn around, and frisked him-discovering a gun in the process.[60] Hill was charged with being a felon in possession of a firearm.[61]

         On appeal from the district court's denial of Hill's motion to suppress, we held that the officer lacked reasonable suspicion to conduct a Terry stop.[62] After all, the police were not responding to a call, Hill was not violating any traffic ordinances, and Hill himself made no attempt to evade the officers.[63] As the Government points out, the question in Hill "was not whether officers had reasonable suspicion to seize Hill's passenger, who [at least arguably] attempted to flee when officers arrived, but whether the officers had reasonable suspicion to seize Hill, who sat peacefully in the vehicle after the officers arrived." Citing Wardlow, the Hill Court explained:

Hill's girlfriend's movements, described by the officers as "quick," did not add up to a reasonable suspicion that Hill was engaged in criminal activity. . . . [The officers] lacked a reasonable basis to infer much of anything about the girlfriend exiting the car and taking a few steps towards the apartment during the same time as their arrival. . . . Moreover, the question presented is not whether the officers had reasonable suspicion to seize the girlfriend, . . . but rather whether the officers pointed to specific, articulable facts that cast reasonable suspicion on Hill, who stayed seated in his car and made no suspicious movements.[64]

         Given that Hill himself did not retreat from police, his case has little to tell us about the legal significance of Darrell's movements.[65] As the Government points out, Darrell is more analogous to the girlfriend than the defendant in Hill, while Darrell's passenger is analogous to Hill himself: "Here, Darrell was involved in the suspicious behavior, while his passenger . . . just sat in the car."

         The second case on which Darrell relies, United States v. Monsivais, [66] also differs from his own in several critical respects. There, two patrolling officers "saw Monsivais walking east on the opposite side of the Interstate away from an apparently disabled truck."[67] When they pulled over "to offer him roadside assistance," Monsivais "did not stop but continued walking past the squad car."[68] The officers got out of their car and began asking Monsivais questions, to which he responded "polite[ly]" but with apparent nervousness.[69] Monsivais "repeatedly put his hands in his pockets, but took them out" upon request.[70] After approximately four minutes of this walking-and-talking exchange, one of the officers, Deputy Baker, stopped Monsivais and said he was going to pat him down.[71] Monsivais, a Mexican citizen without legal status in the United States, admitted to having a gun in his waistband and was ultimately charged with possessing a firearm while being unlawfully present in the country.[72]

         On appeal from the district court's denial of his motion to suppress, we held that the officers lacked reasonable suspicion to stop and frisk Monsivais.[73]We noted that Deputy Baker had testified that at no point in the encounter did he suspect Monsivais of any criminal act. Rather, Baker decided to pat Monsivais down because he was "just acting suspicious."[74] Baker even admitted that he generally would not pursue "a stranded motorist who ran away from him and his car's flashing lights," and he offered no explanation for his decision to follow Monsivais on this occasion.[75] The Court rejected the Government's argument that "Monsivais's jittery demeanor and habit during questioning of putting his hands in his pockets" contributed to Deputy Baker's reasonable suspicion.[76] It is true, we acknowledged, that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."[77] However, there was nothing evasive about Monsivais's behavior, and his nervousness was an "entirely natural reaction to police presence."[78]

         As for Monsivais's choice to continue walking past the officers' car, we emphasized that "[t]he context in which a person seeks to avoid contact with a peace officer is important."[79] Although "[r]easonable suspicion may arise when an individual flees from police," such cases "involve discernable facts or combination of facts specifically linking the fleeing individual to reasonably suspected criminality-e.g., flight in a high-crime area or flight after receipt of a tip indicating criminality."[80]

         Hill and Monsivais do not offer Darrell the support he claims they do. In fact, under the terms of Monsivais, Darrell's behavior is a prototypical case of suspicious activity: flight from police in a high-crime area. The Monsivais language, together with Wardlow's reliance on these same two factors, plainly contradicts Darrell's claim that his presence in a "high crime area and evasive behavior" are insufficient "to support a finding of reasonable suspicion." Moreover, as Deputy Latch testified, the officers reasonably feared that Darrell might draw a weapon or warn the target of their arrest warrant if he were permitted to withdraw from view. Finally, the fact that Darrell "was not seen committing any criminal activity" does not detract from the reasonableness of the officers' suspicion. Terry requires "reasonable suspicion supported by articulable facts that criminal activity 'may be afoot'"; it does not require certainty that a crime is in fact being committed.[81] Viewing this case under the totality of the circumstances, we hold that reasonable suspicion supported the brief investigatory stop of Darrell.


         For the foregoing reasons, Appellant's conviction and sentence are affirmed.

          JAMES L. DENNIS, Circuit Judge, dissenting.

         This Fourth Amendment case centers on whether police had the reasonable suspicion required to conduct an investigatory seizure of the defendant under Terry v. Ohio, 392 U.S. 1 (1968). The majority affirms the district court's denial of the defendant's motion to suppress. ...

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