Submitted: November 19, 2015
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges
SHEPHERD, Circuit Judge
government indicted Titus K. Dillard for being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). Dillard moved to suppress the firearm, claiming its
seizure violated the Fourth Amendment. After the district
court denied the motion to suppress, Dillard
entered a conditional guilty plea, reserving the right to
appeal the denial of his motion to suppress. We now affirm.
approximately 9:00 PM on May 10, 2013, Kansas City, Missouri
Patrol Officers Jeremy Gragg and Tyrone Phillips were
patrolling together in a marked patrol car near the
intersection of 50th Street and Michigan Avenue in Kansas
City. The officers testified that this is a high-crime area
of Kansas City where shootings, illegal drug activity, and
automobile thefts are common. While patrolling, Officers
Gragg and Phillips noticed three individuals standing near a
Ford Taurus that was legally parked on the side of Woodland
Avenue. As another patrol car passed by the Taurus, all three
individuals moved away from the vehicle. Dillard, who was
standing by the driver's door, which was also the
street-side door, moved to the rear of the Taurus and then
returned to the driver's door after the patrol car
passed. The other two individuals who had been standing by
the Taurus walked toward a nearby residence and did not
return to the Taurus.
Gragg and Phillips decided to drive by the Taurus to obtain
the license plate number. As they did so, Dillard again
walked to the rear of the vehicle and out of the street as
the patrol car passed. Believing Dillard's activities to
be suspicious, Officers Gragg and Phillips decided to conduct
a "pedestrian check" or "car check." The
officers suspected that Dillard was either attempting to
break into the vehicle, had previously stolen the vehicle, or
possibly was hiding something in the vehicle with which
Dillard did not want to be associated. As the officers made a
U-turn, they realized the Taurus was gone from its parking
spot and no longer visible. Officer Phillips, who was driving
the patrol car, testified that based on his familiarity with
Woodland Avenue, which had a speed limit of 25
miles-per-hour, the Taurus would not be able to reach the
next intersection and travel out of view in the time it took
the officers to make the U-turn unless the Taurus was
traveling at a high rate of speed. The officers radioed for
assistance locating the car and gave a description of the car
and driver. Another officer located and stopped Dillard.
During that stop, officers discovered a loaded firearm in the
moved to suppress the firearm. A United States Magistrate
Judge made findings of fact and issued a report recommending
that the motion be granted, concluding the officers'
decision to stop the Taurus was the product of a hunch and
not based on reasonable suspicion of criminal activity. The
district court adopted the magistrate judge's factual
findings, but declined to adopt the recommended disposition
of the motion to suppress. Instead, the district court held
Dillard "engaged in a series of seemingly innocent acts,
that when taken together warranted further
investigation." The district court noted that those acts
that established reasonable suspicion to stop the Taurus
included standing near the vehicle in a group in a high-crime
area, walking away from the vehicle and returning to the
vehicle after a patrol car passed, and driving away from the
area just after officers passed by the vehicle in what the
officers, based on their training and experience, believed to
be a high rate of speed. The district court denied
Dillard's motion to suppress.
review the denial of a motion to suppress de novo but the
underlying factual determinations for clear error, giving due
weight to inferences drawn by law enforcement
officials." United States v. Hurd, 785 F.3d
311, 314 (8th Cir. 2015) (quoting United States v.
Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). "We
will affirm the district court unless the denial of the
motion is unsupported by substantial evidence, based on an
erroneous interpretation of the law, or, based on the entire
record, it is clear that a mistake was made." United
States v. Zamora-Lopez, 685 F.3d 787, 789 (8th Cir.
2012) (internal quotations omitted).
the Fourth Amendment, "[l]aw enforcement officers may
make an investigatory stop if they have a reasonable and
articulable suspicion of criminal activity." United
States v. Bustos-Torres, 396 F.3d 935, 942 (8th Cir.
2005) (citing Terry v. Ohio, 392 U.S. 1, 25-31
(1968)). "A reasonable suspicion is a
'particularized and objective' basis for suspecting
[criminal activity by] the person who is stopped."
Id. (quoting United States v. Thomas, 249
F.3d 725, 729 (8th Cir. 2001)). Reasonable suspicion is
determined by "look[ing] at the totality of the
circumstances of each case to see whether the detaining
officer has a particularized and objective basis for
suspecting legal wrongdoing [based on his] own experience and
specialized training to make inferences from and deductions
about the cumulative information available." United
States v. Arvizu, 534 U.S. 266, 273 (2002) (internal
citations and quotations omitted). Although officers may not
rely on "inarticulate hunches" to justify the stop,
see Terry, 392 U.S. at 22, the likelihood of
criminal activity also does not need to rise to the probable
cause level, see Arvizu, 534 U.S. at 274. The
Supreme Court has repeatedly reminded that the concept of
reasonable suspicion is composed of "commonsense"
and "nontechnical" concepts instead of
"finely-tuned standards, " and determining whether
there is reasonable suspicion depends on "'the
factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act.'" Ornelas v. United States, 517 U.S.
690, 695-96 (1996) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983)).
agree with the district court's conclusion that the
officers had reasonable suspicion to stop Dillard. As
Officers Gragg and Phillips were patrolling in a high-crime
area, they observed Dillard and others act suspiciously when
another patrol car drove past the Taurus. Everyone except
Dillard moved away from the vehicle and did not return.
Dillard moved from the driver's side door to the rear of
the Taurus and then returned to that spot after the other
patrol car had passed. When Officers Gragg and Phillips drove
by Dillard and the Taurus, they observed him again move to
the rear of the Taurus and return to the driver's side
after they passed. Based on these observations, the officers
decided to perform a "pedestrian check" or
"car check." When the officers made a U-turn to
perform the check, the Taurus was gone, and the officers,
based on their training and experiences, reasonably believed
the Taurus had left at a high-rate of speed. See United
States v. Hightower, 716 F.3d 1117, 1121 (8th Cir. 2013)
("Although simply ignoring the police cannot be the
basis for reasonable suspicion, conduct beyond merely
ignoring, such as attempting to flee, can create reasonable
suspicion to support a Terry stop.").
disagree with Dillard's assertion that this situation is
controlled by our decision in United States v.
Jones, 606 F.3d 964 (8th Cir. 2010) (per curiam).
Jones is distinguishable because there we criticized
the failure of the government to "identify what criminal
activity [the officer] suspected" Jones of engaging in
and the government's "leap to the officer safety
rationale for a protective frisk for weapons" without
first showing reasonable suspicion for the Terry
stop. Id. at 966. Only on appeal did the government
identify a possible criminal violation the officers could
have believed Jones was committing. Id. at 966-67.
Further, the only suspicious activity identified by the
officer in Jones was the defendant's clutching
of his outside hoodie pocket, and we noted "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." Id. at 967.
the officers decided to conduct the "pedestrian
check" or "car check" because they reasonably
believed Dillard could be involved in an automobile theft or
could have been hiding something illegal in the Taurus.
Reasonable suspicion arose when the officers made the U-turn
and reasonably believed that the Taurus had fled the scene at
a high rate of speed. Considered with the other circumstances
observed by the officers leading up to that moment, the
officers were justified under the Fourth ...