Page 32 - Jan Feb TPA Journal

irrelevant to a determination of whether reasonable high-crime neighborhood; (3) wearing a sweatshirt
suspicion existed in order to initiate an investigatory when it was 68 degrees and sunny, suggesting that he
detention. was “hiding something”; and (4) watching the officers
As to the backpack, a panel of the court once in a concerned manner. Id. at 966.
stated that “the very common occurrence of having a The suspect “did not panic or flee,” and the officers
backpack in a vehicle and the multitude of innocent detained him “before he said anything suspicious or
uses for a backpack in a vehicle render[ed] the incriminating.” The court held that the suspect’s
presence of a backpack in [the suspect’s] vehicle of behavior was innocent; walking in a high-crime area
little persuasive value.” We agree with that in a sweatshirt and watching a police vehicle pass
assessment. There is no indication from the body- were not reasonably suspicious.
camera videos that the officers even saw the backpack Similarly, McKinney did not panic or flee; there
before stopping the group. In the police report, the were no suspicious statements; and there were no
officers mentioned the weather and McKinney’s suspicious, concerned looks emanating from
“floppy hat” but did not mention a backpack. those whom the police ended up stopping.
We consider the jacket, and how it appeared to Thus, we are back to the jacket. Could police
the officers, to be the one piece of evidence that, reasonably believe it was so out-of-season in
when added to the rest of what we have discussed, appearance, with whatever lighting existed as the stop
might have created just enough suspicion to move was occurring, to be suspicious? Or did it instead
beyond a mere hunch. appear to be a light jacket useful
Generally speaking, the concealing nature of a for nothing more than keeping off rain. and such rain
suspect’s clothing may support a stop or a search. In a had been occurring?
traffic-stop case, we held that an officer had The current record does not allow us to determine.
reasonable suspicion to prolong the stop based on The district court also relied on its finding that
extreme nervousness exhibited by the driver and the woman attempted to distance herself when the
passengers, inconsistent answers to his questions, officers arrived. In the body-camera video, she
the inability of the driver to provide basic appears to slowly walk away from the group, but she
information, and also that the driver was wearing immediately complied with the officer’s order to
baggy clothing. In another case, we held that an return. Her apparently evasive behavior is not
officer acted reasonably in immediately drawing his mentioned in the police report.
weapon when he confronted the suspect, in part The Supreme Court has held officers had
because the suspect wore a long tan jacket that could reasonable suspicion when, in a high-crime area, the
hide a weapon. The officer was responding to a call suspect noticed the police and immediately engaged
that a suspicious man was on a grocery store premises in “unprovoked flight.” There, the suspect ran from
in a neighborhood known for violence and weapons. police in a “headlong” manner.” We recently allowed
We have much less in the present case. The lesser speed to create suspicion where “flight” was a
officers initiated the investigatory detention before quick walk away from police. As officers arrived at a
observing nervousness or hearing any statements, house to serve an arrest warrant, they noticed a car
much less inconsistent ones. There also was no report parked in the driveway. The suspect immediately
of a just committed offense for which individuals in exited the vehicle and began walking toward the
the immediate area might be seen as more likely house, ignoring commands from officers to stop while
involved. We see some similarities to the facts that increasing his pace. The suspect eventually complied
caused the Eighth Circuit to hold that officers did not and walked back to the officers. The Darrell court
have reasonable suspicion to stop and frisk an held that this constituted “flight from police in a high-
individual. That person was “wearing a long-sleeved crime area,” which was “a prototypical case of
hooded sweatshirt and clutching the front area of his suspicious activity.”
hoodie pocket with his right hand.” The Government We have also held that a defendant’s girlfriend’s
argued that reasonable suspicion existed based on the brisk walk from a car after noticing police did not
suspect’s: (1) holding his hand against his body, create reasonable suspicion as to the defendant,
indicative of carrying a firearm; (2) walking in a who was still sitting in the car. As to the defendant,

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