Page 35 - TPA Journal May June 2022

inside the convenience store but also stationed reaffirmed that “officers c[an] detain [] individuals
where they could watch its entrance. Convenience to resolve the ambiguity” in their conduct. Indeed,
stores are a type of establishment known to be the Court emphasized that, in allowing such
frequent targets for theft, robbery, and burglary. detentions, the Fourth Amendment “accepts the
Taken together, these facts present a similarly risk that officers may stop innocent people.”
suspicious scenario to that which alerted the officer In the case before us, there is no indication that the
in Terry, and it captured the attention of the officer officers were either abusive or threatening. Once
here. Finally, the non-threatening nature of Officer Flowers opened his window, Officer Stanton
Stanton’s approach to the car’s occupants is smelled a distinct odor of marijuana, and
supported here by the lack of hostility on the part of immediately afterward he saw Mayo apparently
Flowers and Mayo, and indeed a reaction that attempting to swallow something that could be
indicated Flowers was attempting to cooperate with evidence. At that point, it is undisputed that he had
the “field interview.” probable cause to seize Flowers by asking him to
step out of the car, leading to the immediate
It bears repeating that apart from the presence of a discovery of his pistol. * * *
number of police cars, the tenor of Officer Based on the foregoing discussion, we AFFIRM
Stanton’s encounter with Flowers was entirely the conviction.
benign until Stanton smelled marijuana. He
conducted no physical frisk of Flowers’s person but U.S. v. Flowers, No. 20-60056, 5 th Cir. July
simply approached the Cadillac to ask some th
30 , 2021.
questions.
************************************
If this course of conduct is constitutionally ************************************
impermissible, then it is difficult to see how any *
active policing can take place in communities
endangered and impoverished by high crime rates. EVIDENCE – ASSAULT – LESSER INCLUDED
Officers in such areas may well require safety in OFFENSE – ear bitten: injury or serious injury?
numbers, while the law-abiding citizens
desperately need protection that will be denied if After biting off his ex-wife’s new boyfriend’s
law enforcement officials believe that incriminating earlobe, Appellant was
evidence will be suppressed or they will be sued charged with aggravated assault by causing serious
for alleged violations of rights. Terry prescribes a bodily injury.
careful balance that protects individual rights, but During his trial, Appellant testified that, in his
not at the expense of reasonable law enforcement opinion, biting off a portion of the victim’s ear, the
activity and officer safety. aforementioned earlobe, did not cause
serious bodily injury to the victim because it did
More recently commenting on these types of cases, not result in “serious permanent disfigurement.”
the Supreme Court noted in Illinois v. Wardlow, Appellant requested a jury instruction on the lesser-
“[e]ven in Terry, the conduct justifying the stop was included offense of assault by causing bodily
ambiguous and susceptible of an innocent injury. The trial court denied Appellant’s request,
explanation.” The Court rejected the proposition and the jury found Appellant guilty of
that because the suspect’s flight from officers might aggravated assault causing serious bodily injury.
have been innocent and “not necessarily indicative The court of appeals held that there was legally
of ongoing criminal activity,” the detention was sufficient evidence to establish that the victim had
constitutionally unreasonable. The Court suffered serious bodily injury. However, the court

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