Submitted: February 11, 2016
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, ARNOLD, and BENTON, Circuit Judges.
A. Fields conditionally pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He appeals the district
court's denial of his motion to suppress the firearm,
which was seized during an investigative stop. Fields also
appeals his 37-month sentence. Relying on the Supreme
Court's post-sentencing decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), he argues the residual
clause in U.S.S.G. § 4B1.2(a)(2) (2014) is
unconstitutionally vague, and therefore the district court
erred in concluding that his prior felony conviction for
violating Mo. Rev. Stat. § 575.150 constituted a
"crime of violence." We conclude that Fields's
motion to suppress was properly denied and affirm his
conviction. We vacate the sentence and remand.
The Suppression Issue.
suppression hearing, Kansas City Police Detective James
Manley testified that, on the afternoon of December 28, 2013,
marked patrol cars and detectives in unmarked cars conducted
surveillance at the funeral of the victim of an unsolved
homicide. The surveillance was to protect the victim's
family -- who had requested a police presence -- and to
obtain information pertinent to the homicide investigation.
Manley testified that approximately one hundred people
attended the funeral and that violence at funerals is not
after the funeral ended at 4:00 p.m., Manley saw a Chevy
Tahoe legally park some 150 feet from the funeral home, when
there was available parking closer to the home. Four men,
including Fields, got out of the Tahoe and walked toward the
funeral home. They entered for a "couple minutes, "
then walked back out and stood next to the Tahoe. Fields and
another man then returned to the funeral home, stayed a
"couple minutes, " exited the building, and stood
"on the opposite sides of the doorway" of the
funeral home for approximately 15 minutes, acting "like
they were waiting for something." A funeral home
employee telephoned Manley and told him the family did not
know the men and were afraid for their safety. Manley thought
it "possible" the men were associated with the
homicide. He requested officers in the marked patrol cars to
conduct a "pedestrian check" of the four men to
determine their identities. Manley had no suspicion the men
were committing a crime.
Officer Michael Sartain was assigned to watch the funeral
home at 3:27 p.m. and parked his marked car approximately
eighty feet from the funeral home. He observed two men
silently stand on each side of the door for fifteen or twenty
minutes, "as if they were protecting the door, "
and then rejoin the other two. Sartain, who had prior
experience with violent confrontations at funerals, was
generally suspicious and wondered if the two men were armed.
But he did not see Fields do anything to suggest he was
committing a crime nor make a movement suggesting he had a
approximately 4:20 p.m., Sartain received the call that
detectives wanted him to stop and identify the four men.
Sartain drove toward the group. Fields walked away from the
group toward Sartain's patrol car. Sartain noticed a
bulge on Fields's right hip consistent with a gun.
Sartain pulled his vehicle into a driveway to block
Fields's path, exited the patrol car, and asked Fields if
he was armed. Fields responded "yes, " nodding in
the direction of the bulge. Sartain handcuffed Fields, patted
him down, and retrieved a loaded handgun from his waistband.
Sartain later learned that Fields had a prior felony
conviction and arrested him for being a felon in possession
of a firearm. Fields also lacked a concealed weapons permit,
a violation of Missouri law. See Mo. Rev. Stat.
the hearing, Magistrate Judge Larsen filed a Report and
Recommendation that Fields's motion be denied, concluding
that the officers had reasonable suspicion to stop Fields and
conduct a protective pat-down search for a firearm. In
adopting the Report and Recommendation, Judge Sachs noted:
"Unlike the situation where a bulge in clothing is
deemed insufficient to suspect drug packaging, I accept the
view that a bulge covering a firearm is more readily
suspected by experienced law enforcement officers, at least
in circumstances similar to that at bar."
appeal, Fields argues the police had "no reasonable
suspicion to believe [he] was engaged in criminal
activity" or committing a crime when he was stopped by
Officer Sartain. Therefore, the investigative detention was
unlawful, and the fruit of the pat-down search must be
suppressed. Like the district court, we disagree.
police officer "may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot." Illinois v. Wardlow, 528
U.S. 119, 123 (2000), citing Terry v. Ohio, 392 U.S.
1, 30 (1968). "The existence of reasonable, articulable
suspicion is determined by the totality of the circumstances,
taking into account an officer's deductions and rational
inferences resulting from relevant training and
experience." United States v. Horton, 611 F.3d
936, 940 (8th Cir. 2010), citing United States v.
Arvizu, 534 U.S. 266, 273-74 (2002); see Ornelas v.
United States, 517 U.S. 690, 699 (1996). "We review
the district court's determination of reasonable
suspicion de novo." United States v.
Dupree, 202 F.3d 1046, 1048 (8th Cir. 2000). The
government must prove that the officer had reasonable
suspicion that criminal activity was afoot, not that the
subject of the stop was actively engaged in a crime. See
United States v. Carpenter, 462 F.3d 981, 986 (8th Cir.
2006), cert. denied, 549 U.S. 1343 (2007).
Manley testified that the actions of the four men at the
funeral home were sufficiently suspicious that he called on
uniformed officers to conduct a "pedestrian check."
The suspicious circumstances were that the funeral was for
the victim of an unsolved homicide, so there was a heightened
risk of violence; the victim's family had asked for a
protective police presence; the four men arrived after the
funeral services and parked further from the funeral home
than necessary; two of the men stood silently on either side
of the funeral home door for fifteen minutes, as if standing
guard; and a funeral home employee told Manley the family did
not know the men and were concerned for their safety.
Sartain responded to this call and approached Fields as he
walked away from the group. When Sartain saw a bulge on
Fields's hip consistent with a hidden firearm, he made a
Terry stop and immediately asked Fields if he was
armed. Whether Sartain would have detained Fields without
this additional, highly relevant evidence that criminal
activity may be afoot is irrelevant speculation. Sartain
might simply have done the kind of "pedestrian
check" the Fourth Amendment always permits -- "by
merely approaching an individual on the street or in another
public place, by asking him if he is willing to answer some
questions, [and] by putting questions to him if the person is
willing to listen." Florida v. Bostick, 501
U.S. 429, 434 (1991) (quotation omitted). But with reasonable
suspicion that Fields was carrying a concealed ...