OFFICERS HAD REASONABLE SUSPICION TO BELIEVE THAT SUSPECT WAS ENGAGED IN CRIMINAL ACTIVITY UNDER THE TOTALITY OF THE CIRCUMSTANCES

Courtesy of: James R. Touchstone, Esq.

In a decision entitled United States v. Luckett, 2018 U.S. App. LEXIS 18456 (9th Cir. July 6, 2018), the Ninth Circuit Court of Appeals affirmed the denial of a defendant’s motion to suppress evidence because police had reasonable suspicion under the totality of the circumstances that defendant was engaged in criminal conduct.  Though each of three factors, standing alone, may not have been sufficient to comprise reasonable suspicion, the Court found that they did so when considered together.

Background

In March 2016, San Francisco Police Department officers Michael Cunnie and Steve Orengo were on patrol in a marked police car near Turk and Leavenworth Streets in San Francisco.  Having made dozens of narcotics arrests in the location, Officer Cunnie considered it to be a high crime area.  Cunnie saw Darrell Luckett, whom Cunnie knew from “multiple Police interactions.”  Cunnie also knew that Luckett was on probation, and was aware of Luckett’s criminal history.

In March 2013, Luckett had been arrested on charges of domestic violence, aggravated assault, and resisting arrest.  As a result of the incident, in August 2013, Luckett pleaded guilty to robbery and was sentenced to three years of probation.  Since that incident, Luckett had been arrested on the following charges, battery on a police officer (June 2013); second degree burglary (July 2013); inflicting corporal injury on a spouse or cohabitant (October 2013); second degree burglary (February 2014); second degree burglary (May 2014); first degree burglary (November 2014); second degree burglary (February 2015); assault with a deadly weapon (May 2015); and corporal injury on a spouse or cohabitant (July 2015). There was no evidence that Luckett was convicted on any of those charges.  However, in light of those arrests, Luckett had his terms of probation altered four times.

Cunnie had made over a hundred arrests in the area since April 2015. He first encountered Luckett in the summer of 2015 and learned then that Luckett was on probation with a suspicionless-search condition. Cunnie had also reviewed Luckett’s criminal history at that time, and remembered that Luckett had a large number of convictions and had been arrested for carrying a concealed weapon.  Cunnie had conducted probation searches of Luckett at least four times before, and had never found Luckett uncooperative, evasive, or jumpy. Cunnie had found traces of heroin residue in Luckett’s possession once or twice, although the amounts did not “justify” arrest.

Cunnie had often seen Luckett “loitering” near Turk and Leavenworth.  According to Cunnie, that specific area is “infamous” for its narcotics trade and is referred to as “Pill Hill,” as well as being known for a high degree of violent crimes, including crimes involving firearms.

When Cunnie and Luckett made eye contact, Luckett suddenly stopped walking, turned around, walked in the other direction at a faster rate than before, and turned into a liquor store.  Based on these actions, Cunnie believed Luckett had entered the store in an attempt to evade police contact or dispose of contraband.  The officers drove around the block and, as they came back to the intersection of Turk and Leavenworth, they saw Luckett walking on Turk Street and pulled their vehicle up alongside him.

Cunnie reported that as Luckett noticed the officers’ car, he began to walk faster, and twisted the right side of his body away from the officers “as though he was trying to conceal the right side of his body in order to hide something.” Cunnie suspected, based on his training and Luckett’s behavior, that Luckett possessed contraband.  Cunnie asked Luckett “what he was up to” and Luckett responded that he was on his way to the store.  When Cunnie responded that he had just seen Luckett leave a store, Luckett began walking at a faster rate of speed. Cunnie asked Luckett to stop walking because he had to talk with him, but Luckett continued to walk away.

The officers exited the car and Cunnie informed Luckett that he was being detained.  Luckett continued to walk away and Cunnie grabbed him by the arm.  Luckett was told to place his hands on his head so he could be searched for weapons. Luckett began to raise his hands but as Cunnie reached toward Luckett’s waistline, Luckett pulled his arms down, began to crouch, and pulled away from the officers’ grasps.  The officers, fearing he might be reaching for a gun, pushed Luckett to the ground, and when Luckett raised himself up on his hands, Orengo used a forearm strike to force Luckett back to the ground.  Luckett was handcuffed, although still struggling.  A search of Luckett disclosed that Luckett was carrying a pistol in a black canvas bag under his sweatshirt.  Luckett was arrested and charged with possession of a loaded firearm and resisting arrest.

Luckett moved to suppress the evidence discovered during the search and seizure, but the District Court denied his motion. Luckett appealed.

Discussion

Luckett contended that officers lacked reasonable suspicion of criminal activity in violation of the Fourth Amendment when they stopped him.  The District Court had found that the police officers involved had reasonable suspicion that Luckett was engaged in criminal activity based on a combination of three factors: (1) Luckett was in a high-crime area at the time of the stop; (2) one officer’s knowledge of Luckett’s criminal background; and (3) Luckett’s nervous and evasive behavior.

The Ninth Circuit Court of Appeals first explained that courts must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing.[1]  Although an individual observation viewed in isolation could have an innocent explanation, the evaluation of reasonable suspicion could not be “done in the abstract by divorcing factors from their context in the stop at issue.”[2]

The Court noted that its de novo review of the motion to suppress and reasonable suspicion issue required reviewing findings of fact only for “clear error” and also required that it must “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”[3]

The Court found the District Court committed no clear error in finding that the area was a high-crime one because Luckett provided “insufficiently granular” evidence to counter the government’s specific evidence showing that the area was a high-crime area.

Considering the second factor above, the Court found that an officer’s knowledge of Luckett’s criminal history was part of the totality of circumstances that officers could use in their reasonable suspicion assessment, though the Court acknowledged that criminal history alone was insufficient to establish reasonable suspicion.  Moreover, the Court found that it was reasonable for an officer to suspect that an illegal drug dealer was armed.  Further, one officer knew that Luckett had multiple criminal convictions, including one arrest for carrying a loaded firearm.  The other two factors added to that officer’s suspicion.  Given the area and Luckett’s nervous behavior, the Ninth Circuit found that the District Court did not clearly err in deciding Luckett’s criminal past was validly included in the reasonable suspicion assessment.

Finally, the Ninth Circuit deferred to the inferences made by the officer on the scene who had several prior interactions with Luckett that Luckett was acting atypically nervous and evasive.  The Court thus found that Luckett’s behavior could be considered part of the totality of the circumstances.

The Court concluded that the above three factors taken together provided a “particularized and objective basis” for the officers’ reasonable suspicion. The Court accordingly affirmed the District Court’s denial of Luckett’s motion to suppress.

HOW THIS AFFECTS YOUR AGENCY

This case clarifies the concept that courts must consider factors in aggregate in order to evaluate whether or not a law enforcement officer possesses reasonable suspicion to believe that criminal activity may be occurring, though each factor viewed in isolation may fail to meet the reasonable suspicion standard.  The totality of the circumstances, upon such a review, requires that courts defer to officer inferences at the scene, if reasonably supported by the facts.  This decision should be helpful to agencies when challenged concerning the existence of reasonable suspicion sufficient to justify a detention. Agencies should note how the Ninth Circuit referenced the other factors as it explained the last two individual factors; the combination of the factors was the Court’s focus in assessing the sufficiency threshold for reasonable suspicion.  Accordingly, it is important to properly document each factor that leads to a determination that reasonable suspicion exists for an investigatory detention of an individual.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] United States v. Arvizu, 534 U.S. 266 (1981).

[2] United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc).

[3] Ornelas v. United States, 517 U.S. 690, 699 (1996).





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