Submitted: October 18, 2018
from United States District Court for the Northern District
of Iowa - Waterloo
WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
ARNOLD, CIRCUIT JUDGE.
the government indicted Airrington Sykes for being a felon in
possession of a firearm, see 18 U.S.C. §
922(g)(1), he moved to suppress evidence that a police
officer obtained after he stopped Sykes and frisked him. When
the district court denied the motion, Sykes pleaded guilty to
the charge but reserved his right to appeal the denial of his
motion. He appeals and we affirm.
December evening just shy of midnight, a police officer in
Waterloo, Iowa, was dispatched to a 24-hour laundromat where
he met a woman in the parking lot who reported finding a
loaded handgun magazine in a laundry basket. She explained
that the only other people in the laundromat at the time she
discovered the magazine were two men dressed in black. She
stated she was unsure if they had anything to do with the
magazine, but she noticed they had stood near her basket at
one point. She said that the men were still in the
laundromat, though other people had since arrived.
officer entered the laundromat and began approaching the two
men in question. His body camera shows that, when he entered
the aisle where the men stood, one of the men, Sykes, turned
and began walking away. The officer attempted to intercept
Sykes at a back corner of the laundromat near an exit and a
bathroom. The officer's body camera shows Sykes bypass
the exit, enter the restroom, and close the door. Moments
later the officer opened the restroom door and told Sykes to
"give me one second" and that he needed "one
second of [his] time." Sykes complied, and the officer
grabbed Sykes's sleeve and guided him out of the
restroom. He then patted Sykes for weapons and discovered a
handgun in Sykes's pants pocket.
primary argument on appeal is that the officer lacked a
reasonable suspicion that Sykes was committing a crime. The
government disagrees, responding that Iowa Code §
724.4(1), which makes it an aggravated misdemeanor for
someone to go "armed with a dangerous weapon concealed
on or about the person," supplied the legal basis for
the stop. Sykes counters that the officer had no reason to
believe that he lacked a permit for the gun or that he was
anything other than a lawful gun carrier.
recently decided a case that presented this very issue.
See United States v. Pope, 910 F.3d 413 (8th Cir.
2018). We held in Pope that an officer in Iowa may
briefly detain someone whom the officer reasonably believes
is possessing a concealed weapon. Id. at 416. We
explained that, since a concealed-weapons permit is merely an
affirmative defense to a charge under § 724.4(1), an
officer may presume that the suspect is committing a criminal
offense until the suspect demonstrates otherwise.
Id. at 415-16. We therefore reject Sykes's
also argues that the officer lacked a reasonable suspicion
that he even possessed a gun. We disagree. It is true that
this case is unlike Pope, where an officer saw the
suspect conceal a weapon in his pants. But here we have a
report from a known person with whom the officer had an
extensive discussion and who asserted that she found a loaded
handgun magazine of unknown origins; and she identified the
only two people who had access to the location where the
magazine was found. We think it reasonable to suspect that a
person with loaded handgun magazines may have a handgun
since, without the handgun, the magazines are of little use.
We also believe it was reasonable to suspect that Sykes or
his companion had a concealed gun, as opposed to a gun openly
carried, since the woman who found the magazine never
reported that she actually saw a gun in Sykes's or his
companion's possession. And the officers who approached
Sykes never testified to seeing a gun being openly displayed,
either through the windows of the laundromat or during their
approach of Sykes. See United States v. Polite, 910
F.3d 384, 388 (8th Cir. 2018).
to emphasize that we give no weight to the fact that Sykes
turned and walked away from the officers as they approached
him. Though a person's unprovoked "flight" from
police may be considered in the reasonable-suspicion
calculus, a person's decision during a consensual police
encounter "to ignore the police and go about his
business" cannot. See Illinois v. Wardlow, 528
U.S. 119, 124-26 (2000). After reviewing the body-camera
video ourselves, we think Sykes's avoidance of the
officer lies near the intersection of these two principles.
But we need not decide the legal significance, if any, of
Sykes's walking away from the officer because we think
the officer had reasonable suspicion to detain Sykes even
before Sykes began to leave.
suggests that the officer did not have reasonable suspicion
at that point because he had no reason to suspect that Sykes,
as opposed to the other person present, was engaged in
criminal activity, and the Fourth Amendment requires "a
particularized and objective basis for suspecting the
particular person stopped of criminal activity." See
United States v. Cortez, 449 U.S. 411, 417-18 (1981). As
he sees it, "nothing points to Sykes possessing the
firearm instead of his friend."
stop-and-frisk purposes, however, the Fourth Amendment does
not require that an officer must suspect only one person to
the exclusion of all others. "[T]he simultaneous
stopping of multiple 'suspects' for a one-person
crime may sometimes be justified by the virtual certainty
that the perpetrator is a member of that group and that means
of singling him out will soon be available." 4 Wayne R.
LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.5(b) (5th ed. Oct. 2018). The Third
Circuit's decision in United States v. Ramos
nicely illustrates this principle. 443 F.3d 304 (3d Cir.
2006). There, when police officers drove between two vehicles
in an otherwise empty parking lot, one of the officers
smelled marijuana. After one of the vehicles left the lot,
the officers conducted a traffic stop and discovered illegal
contraband. A defendant in the vehicle argued that the
officers' stop violated the Fourth Amendment because the
officers' suspicion of him was not sufficiently
particularized since the odor could have been coming from the
other vehicle. The Third Circuit disagreed, holding that
"it would have been reasonable for the officers to
conclude that the odor was coming from one, the other, or
both vehicles," and so their suspicion was sufficiently
particularized under the Fourth Amendment to allow them to
stop the vehicle they stopped. Id. at 309.
conclude that it would likewise have been reasonable here for
the officer to suspect that Sykes, his companion, or both
were carrying a concealed firearm, so we detect no
constitutional violation. In the abstract, we recognize that
as the number of suspects to be stopped increases, it will be
less likely that suspicion will be sufficiently
particularized to meet constitutional standards. Various
considerations will bear on whether a given search is
particularized enough in the circumstances. The key, as is
typical in the Fourth Amendment context, is reasonableness,
see Cty. of L.A. v. Mendez, 137 S.Ct. 1539, 1546