Page 35 - TPA Journal July August 2021

interactions are possession wildly expands the logical SEARCH & SEIZURE, REASONABLE SUSPICION,
definition of that word. STOP & FRISK
Pizarro Thomas appeals from his conviction for being a
Consistent with our discussion of the common sense of felon in possession of a firearm. He challenges the
the word, we have repeatedly emphasized that district court’s denial of his motion to suppress evidence
possession requires something more than touching. of a firearm discovered during a stop and frisk. This
Moreover, we have endorsed jury instructions that case requires us to analyze the reasonableness of
prevent a jury from convicting on a possession charge officers’ suspicions as to a particular individual when
for mere touching alone. the uncertainty is not whether a crime has occurred but
……………. who within a group committed it. We AFFIRM.
We therefore need not decide every interaction with an
item that could qualify as possession. We simply On June 18, 2018, around 5:30 p.m., Officers Alan
conclude that the level of interaction here (which, as we Hovis and Benito Garcia were patrolling the “Five
have discussed, begins and ends with “touching”), Points” area of Dallas, an area known for
without more, is not enough. The dissenting pervasive crime involving drugs and violence. Earlier
opinion’s various questions—“grip it? Brandish it? that day, the officers were informed that a vehicle stolen
Hold it[?]”—are not at issue in this case. in an aggravated robbery had been identified in the area
by an automatic license plate reader (“ALPR”). The
The bottom line: our case law, like the plain text itself, officers were driving through the area in a marked
confirms that merely touching an item is not enough to patrol vehicle specifically for the purpose of locating
possess it. At bottom, the dissenting opinion’s primary the stolen vehicle, a silver Toyota Camry. The
argument to the contrary boils down to the relatively aggravated robbery occurred on June 8, ten days before
uncontroversial proposition that the length of these events. The record does not make clear whether
possession is irrelevant under § 922(g). We agree, but the officers were aware that the crime happened ten
the problem is not whether Smith possessed the firearm days earlier, though they knew it had not occurred in
for a long enough period of time, it is whether Smith the last few hours. Information about the date of the
possessed the firearm at all. crime was available to the officers and included in the
National Crime Information Center (“NCIC”) database
Thus, given § 922(g)’s plain text and the overwhelming that they accessed before making the stop. The record
weight of case law on the subject, we conclude that the shows the robbery was committed by two black males.
district court committed a clear and At the time, though, the officers did not have a
obvious error in treating Smith’s admission to touching description of the people involved in the crime, and
the .38 revolver as a sufficient factual basis for his there is no indication that they knew how many
guilty plea on that charge. individuals had been involved. What they knew was the
description of the vehicle, its license plate number, the
In sum, we hold that the district court plainly erred in location where it was spotted by the ALPR, and that it
accepting Smith’s guilty plea to possessing the .38 was stolen in an aggravated robbery involving a
revolver on the sole basis that he had touched the firearm. With that information, the officers drove to the
firearm. As that error affected the fairness and integrity apartment complex where the ALPR identified the
of Smith’s conviction, we VACATE Smith’s guilty plea, stolen vehicle. As they drove through the
conviction, and sentence and REMAND for entry of a complex, they saw the stolen vehicle backed into a
new plea and necessary proceedings thereafter. covered parking spot near the entrance to one of the
apartment buildings. They kept driving past the vehicle
th
U.S. v. Smith, No. 20-50304, Fifth Circuit, May 05 , and, at that time, one of the officers confirmed via the
2021. NCIC database that the license plate matched that of the
vehicle reported stolen. During that initial pass, the
officers observed two people sitting inside the stolen
vehicle, while another four people — including Thomas
— were standing in the immediate vicinity of and

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