Case: 17-12397 Date Filed: 02/12/2018 Page: 1 of 24
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12397 ________________________
D.C. Docket No. 1:15-cr-00245-WSD-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK HEARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 12, 2018)
Before ROSENBAUM, JILL PRYOR and RIPPLE, * Circuit Judges.
JILL PRYOR, Circuit Judge:
* Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation. Case: 17-12397 Date Filed: 02/12/2018 Page: 2 of 24
Patrick Heard appeals his conviction for possession of a firearm by a
convicted felon under 18 U.S.C. §§ 922(g) and 924(a)(2). After careful review,
with the benefit of oral argument, we conclude that the officers who arrested Heard
lacked reasonable suspicion to conduct a Terry 1 stop. Because his motion to
suppress should have been granted, we vacate Heard’s conviction and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
A. Heard’s Arrest
The following facts were elicited at two hearings on Heard’s motion to
suppress, one before a magistrate judge and one before the district court.2
One evening in early March, just after 6:30 p.m., Frank Sanders was
working as a security guard at an apartment complex in Marietta, Georgia. While
on duty, he saw a group of young men walk toward a wooded area behind some of
the apartment buildings. Soon after, he heard gunshots coming from the woods.
After approaching the woods, where he could not see anyone, Sanders called 911
1 Terry v. Ohio, 392 U.S. 1 (1968). 2 The first hearing took place almost two years after Heard’s arrest, and the second took place nearly three years afterward. The witnesses’ testimony contained a lot of inconsistencies. The district court resolved some of these inconsistencies in its findings of fact, which we review only for clear error. See infra Part II.B.1. We recite the facts consistently with the district court’s findings, unless otherwise noted. Citations to “Doc. #” refer to the numbered entry on the district court’s docket. The magistrate judge’s hearing is at Doc. 35; the district court’s hearing is at Doc. 69.
2 Case: 17-12397 Date Filed: 02/12/2018 Page: 3 of 24
and reported the gunshots. Sanders placed the 911 call approximately five to eight
minutes after hearing shots fired.
Marietta Police Department patrol officer John Bisker was dispatched in
response to Sanders’s call. The dispatcher, who spoke to Bisker at approximately
6:45 p.m., told Bisker only that someone had reported gunshots at the apartment
complex. The dispatcher did not describe any suspects. Bisker, who had been on
the force as a patrol officer for approximately six months, was familiar with the
apartment complex as a high crime area. Bisker arrived at the complex
approximately five to seven minutes after he spoke with the dispatcher.
After entering the gated complex, Bisker spoke to Sanders. Sanders told
Bisker that he had heard gunshots near the woods but had been unable to locate the
shooter. Sanders pointed toward the woods to indicate where the gunshots had
originated. The two spoke for three to four minutes.3 At this point, somewhere
between 13 and 19 minutes had elapsed since Sanders reported hearing the
gunshots, based on the time frames Sanders and Bisker described.
Bisker began to patrol in his marked police car through the apartment
complex, heading toward the wooded area. After driving around for “a couple of
3 Aside from his testimony about reporting the gunshots and the approximate timing of Bisker’s arrival, the district court found Sanders not credible. We are in no position to disturb that finding; so we, like the district court, do not rely on his testimony beyond this point. See United States v. Holt, 777 F.3d 1234, 1255 (11th Cir. 2015) (“We accept the factfinder's choice of whom to believe unless it is contrary to the laws of nature, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it.” (internal quotation marks omitted)).
3 Case: 17-12397 Date Filed: 02/12/2018 Page: 4 of 24
minutes,” maybe “five or ten minutes,” and not seeing anyone or any additional
evidence of criminal activity, Bisker saw Heard standing in the grass walking a
small dog. Doc. 35 at 46; Doc. 69 at 14. Heard was standing “near the front of” an
apartment building, Doc. 35 at 15, by the woods Sanders had pointed out. At this
point, approximately 15 to 29 minutes had passed since Sanders had heard the
gunshots.
Bisker parked his car and approached Heard. Bisker asked Heard whether
he had heard gunshots; Heard said that he had and indicated that the gunshots came
from the woods behind him. Bisker asked Heard for identification, and Heard
provided him with ID. Heard’s identification did not confirm that he lived within
the apartment complex, 4 so Bisker asked where Heard lived. Heard said that his
mother lived there and pointed to the apartment building closest to where he was
standing with his small dog. Bisker believed this response to be “a little defensive”
and an indirect answer to his question. Doc. 69 at 20. Bisker then asked Heard for
his mother’s apartment number, and Heard did not provide a number. 5 Bisker
observed that Heard was swaying slightly. Based on his swaying and “overall
demeanor,” Bisker thought “possibly [Heard] . . . wasn’t supposed to be there.” Id.
4 It is unclear from the record whether Heard’s ID listed no address or whether it listed an address different from that of the apartment complex. 5 Bisker did not testify to how Heard responded to his question, if at all. All we know from his testimony is that Heard did not provide an apartment number.
4 Case: 17-12397 Date Filed: 02/12/2018 Page: 5 of 24
at 20-21. At some point during the brief conversation Heard told Bisker he was
there to walk his dog.
At this point, Marietta Police officer Daniel Dilworth arrived on the scene in
uniform and in a marked police car. Dilworth also knew the apartment complex as
a high crime area. Dilworth parked his car near Bisker’s, got out, and approached
Heard and Bisker. As he approached, Dilworth observed an unoccupied vehicle,
approximately 15 or 20 feet away, with a smashed windshield and a stick holding
the trunk open. Dilworth took note of the vehicle as “an area of responsibility,”
but decided that he and Bisker “could address the car when we concluded this
interview with Mr. Heard.” Id. at 84. Dilworth then formed a “safety L” with
Bisker: Bisker stood in front of Heard and Dilworth stood slightly behind and to
Heard’s side. Doc. 35 at 48. The officers used this tactical stance so they could
“see all angles” of Heard “in case [he] would pull a weapon.” Id. at 19.
Upon his arrival, Dilworth observed that Heard’s conversation with Bisker
was “low-key” and “amicable,” “very much a normal conversation [that] you
might have, albeit [with] a stranger.” Doc. 69 at 78. Soon after Dilworth’s arrival,
Bisker asked Heard for permission to search him because he wanted to make sure
Heard was not carrying a weapon. Heard responded that “he had not done
anything wrong.” Doc. 35 at 29. At that point, only one of the officers, Dilworth,
observed a change in Heard’s demeanor; Heard’s “voice [became] more
5 Case: 17-12397 Date Filed: 02/12/2018 Page: 6 of 24
animated,” which indicated to Dilworth that Heard “was opposed to answering any
more questions” although “[b]y no means were [Heard’s statements] explosive.”
Doc. 69 at 79, 95. Heard’s hands became animated “as a gesture of I don’t agree
with this.” Id. at 81.
Dilworth testified that he instructed Heard to keep his hands by his side.
Bisker testified that Dilworth directed Heard to raise his hands so the officers could
pat him down for weapons. Heard again stated that he had done nothing wrong.
Bisker—but not Dilworth—testified that Heard raised his hands and lowered them
several times. 6 This caused Bisker to think Heard “may have had a weapon or that
he wanted to get his hands towards his waist to hold a weapon from maybe
moving.” Id. at 65. But Bisker took no action. Dilworth testified that he observed
that Heard was “rigid in his stance” or “[t]ense” and believed based on “instinct”
that Heard had a weapon. Id. at 79, 82, 90. Acting on this instinct, Dilworth
approached Heard and searched him.
While he was searching Heard’s person, Dilworth recognized a gun and said
“gun.” Id. at 27. Bisker drew his gun and held it in a “low ready” position while
Dilworth recovered Heard’s gun, then the officers took Heard into custody. Id.
Bisker searched police records and found that Heard was a convicted felon.
6 The officers were unaware at the time that Heard was wearing a colostomy bag because of a previous injury.
6 Case: 17-12397 Date Filed: 02/12/2018 Page: 7 of 24
B. Procedural History
Heard was charged with possession of a firearm as a convicted felon. He
moved to suppress the gun, arguing that the officers lacked sufficient cause to
Terry stop and search him.
A magistrate judge held an evidentiary hearing on the motion to suppress, at
which Bisker and Sanders testified. 7 After Bisker’s testimony, the government
invoked the rule of sequestration. The magistrate judge issued a report and
recommendation (“R&R”) recommending that Heard’s motion to suppress be
granted. The government objected to the R&R, and the district court held a second
evidentiary hearing at which Bisker, Sanders, and Dilworth testified.
At the start of the second hearing, the government again invoked the rule of
sequestration. Dilworth testified that in preparing for the second hearing, he had
reviewed a portion of the transcript of Bisker’s testimony from the first hearing.
Bisker testified that he had reviewed his own “case notes from the last hearing.”
Doc. 69 at 32. In post-hearing briefing, Heard argued that Dilworth’s and Bisker’s
testimony should be stricken from the record because the officers violated the rule
of sequestration. He also maintained that the officers lacked reasonable suspicion
that he was engaged in criminal conduct at the time he was stopped.
7 Betty Benning, Heard’s mother, also testified at the hearing, confirming that at the time of his arrest Heard lived with her at the apartment complex.
7 Case: 17-12397 Date Filed: 02/12/2018 Page: 8 of 24
The district court declined to adopt the R&R and denied Heard’s motion to
suppress. With respect to Dilworth’s testimony, the district court determined that
although the rule of sequestration had been invoked at both hearings, neither party
had requested sequestration between the two hearings; therefore, there was no
violation.8 The district court alternatively found that even if there was a violation,
Heard suffered no prejudice. Even if Dilworth reviewed the first few pages of
Bisker’s testimony from the first hearing, that testimony concerned events that
occurred before Dilworth arrived at the complex, and naturally Dilworth did not
testify about those events. Moreover, the court found “Dilworth credible and
uninfluenced by his limited review of Bisker’s prior testimony.” Doc. 74 at 18.
As to Bisker’s testimony, the district court rejected Heard’s claim that Bisker’s
reference in the second hearing to “case notes from the last hearing” meant that
Bisker had reviewed the transcript from the first hearing. Id. at 18 n.16. Thus, the
district court concluded, Heard failed to show “that Bisker violated the
sequestration rule, that he or the Government ‘connived’ to violate the rule, or that
the claimed violation resulted in ‘actual prejudice’” to him. Id.
Proceeding to the merits of the motion to suppress, the district court found
that the interaction between Bisker and Heard was consensual “at least until Bisker
asked [Heard] for permission to pat him down for weapons.” Id. at 23. The
8 We note that, at the time the first hearing concluded, the parties were unaware that the district court would hold a second hearing.
8 Case: 17-12397 Date Filed: 02/12/2018 Page: 9 of 24
district court assumed that at that point the encounter became an investigatory
Terry stop and determined that the officers had reasonable suspicion at this
moment to conduct the stop. The court found the following facts supportive of
reasonable suspicion: the officers knew the apartment complex was a high crime
area; it was dark outside; Bisker encountered Heard near the location of reported
gunfire “shortly after the shots were reported,” id. at 24; the officers had no
description of any suspect and saw no one else in the immediate area; Heard was
standing in “probably the most remote” part of the complex, id.; there was a nearby
vehicle with a smashed windshield; Heard’s ID did not verify that he lived in the
complex; Heard pointed to rather than verbally identifying his mother’s apartment,
which Bisker understood to be “defensive”; Heard failed to provide an apartment
number when asked; and Heard was swaying.
The district court also found that the officers’ pat down was supported by
reasonable suspicion. Because the officers reasonably suspected that Heard was
involved in the reported gunfire, the officers’ belief that Heard was armed and
dangerous necessarily was reasonable.
Heard entered a conditional guilty plea in which he reserved his right to
challenge the denial of his motion to suppress on appeal. The district court
sentenced Heard to 10 months’ imprisonment followed by two years of supervised
9 Case: 17-12397 Date Filed: 02/12/2018 Page: 10 of 24
release. This is his appeal. We note that Heard is scheduled for release on April
30, 2018.
II. DISCUSSION
A. Alleged Violation of the Rule of Sequestration
Heard asserts that the officers’ testimony at the suppression hearing before
the district court should be stricken from the record because the government
intentionally violated the rule of sequestration by giving Dilworth a transcript of
Bisker’s testimony from the magistrate judge’s suppression hearing. He argues,
too, that Bisker’s reference in the second hearing to reviewing “case notes from the
last hearing” was an admission that he reviewed the transcript of his prior
testimony, so that his testimony also should have been stricken. We review for an
abuse of discretion the district court’s decision whether to impose sanctions for a
violation of the rule of sequestration. See United States v. Jimenez, 780 F.2d 975,
980 (11th Cir. 1986) (holding that the district court did not abuse its discretion in
declining to grant a mistrial or strike testimony due to a violation of a sequestration
order). Even assuming the officers violated the rule of sequestration, the district
court was within its discretion to decline to strike their testimony.
Once a party invokes the rule of sequestration, the district court must
exclude witnesses from court proceedings to prevent them from hearing one
another’s testimony. Fed. R. Evid. 615. “The rule of sequestration prohibits
10 Case: 17-12397 Date Filed: 02/12/2018 Page: 11 of 24
witnesses from conversing with one another during the entire course of the trial.”
United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983). “The purpose of
the sequestration rule is to prevent the shaping of testimony by one witness to
match that of another, and to discourage fabrication and collusion.” Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. July 23, 1981). 9
Reading the transcript of another witness’s testimony constitutes a violation of the
rule of sequestration. Jimenez, 780 F.2d at 980 n.7. Indeed, “[t]he harm may be
even more pronounced with a witness who reads trial transcript than with one who
hears the testimony in open court, because the former need not rely on his memory
of the testimony but can thoroughly review and study the transcript in formulating
his own testimony.” Miller, 650 F.2d at 1373.
When a witness violates the rule of sequestration, the district court may
impose sanctions, including citing the violator for contempt, allowing cross-
examination regarding the nature of the violation, or, when a party has “suffered
actual prejudice, and there has been connivance by the witness or counsel to
violate the rule, the court may strike testimony already given or disallow further
testimony.” Blasco, 702 F.2d at 1327. Absent such misconduct, however,
allowing cross-examination ordinarily has the “curative aspect” of equipping the
9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit Court of Appeals handed down before October 1, 1981.
11 Case: 17-12397 Date Filed: 02/12/2018 Page: 12 of 24
fact-finder to evaluate the violating witness’s credibility. United States v. Eyster,
948 F.2d 1196, 1211 (11th Cir. 1991).
On this record, we cannot say the district court abused its discretion by
declining to strike Dilworth’s testimony. Defense counsel learned of the possible
violation during the hearing before the district court and had an opportunity to
cross-examine Dilworth on the subject. The district court, with the benefit of
briefing on the sequestration issue, concluded that any violation was not prejudicial
based on two determinations: (1) any testimony Dilworth reviewed related only to
events about which he did not—and could not—testify; and (2) Dilworth was
credible, in part “because the officers’ testimonies were not entirely consistent.”
Doc. 74 at 18. Heard has failed to offer us sufficient reason why, in light of these
findings, the district court’s consideration of Dilworth’s testimony was an abuse of
discretion.
Nor can we say the district court abused its discretion in declining to strike
Bisker’s testimony. Bisker’s reference to reviewing “case notes from the last
hearing” is ambiguous. Heard urges us to infer from this statement that Bisker
admitted to reviewing the transcript of his own prior testimony. 10 But Bisker could
just as easily have been referring to a review of his police report of the encounter
with Heard, which he and the parties referenced repeatedly during the hearing
10 Heard seems to assume that a witness’s review of his own prior testimony would violate the rule of sequestration, but he cites no case in support.
12 Case: 17-12397 Date Filed: 02/12/2018 Page: 13 of 24
before the magistrate judge. Moreover, as with Dilworth, defense counsel had an
opportunity to cross-examine Bisker on the facts relevant to the sequestration
issue, and the district court was able to evaluate Bisker’s credibility following his
live testimony and the parties’ briefing on the issue. On these facts, the district
court was well within its discretion to consider Bisker’s testimony.
For these reasons, we will not disturb the district court’s consideration of the
officers’ testimony. We now consider whether, taking their testimony into
account, Heard’s motion to suppress should have been granted.
B. Motion to Suppress
We first provide the legal framework for our analysis under Terry v. Ohio,
392 U.S. 1 (1968). Second, we explain why we conclude that the Terry stop was
initiated when Dilworth ordered Heard to keep his hands at his side or raise them.
Third, we discuss why the officers lacked reasonable suspicion at that point in
time. Because the officers lacked reasonable suspicion when they initiated the
Terry stop, the stop and the search both were unlawful.
1. The Fourth Amendment and Terry Stops
“The principal components of a determination of reasonable suspicion . . .
will be the events which occurred leading up to the stop or search, and then the
decision whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable suspicion.” Ornelas v.
13 Case: 17-12397 Date Filed: 02/12/2018 Page: 14 of 24
United States, 517 U.S. 690, 696 (1996). “The first part of the analysis involves
only a determination of historical facts.” Id. We review these fact findings for
clear error. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007); see
also United States v. Newsome, 475 F.3d 1221, 1223-24 (11th Cir. 2007)
(explaining that, when considering a motion to suppress, we construe the district
court’s factual determinations in the light most favorable to the prevailing party).
And “we afford substantial deference to the factfinder’s credibility determinations,
both explicit and implicit.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir.
2012). “[T]he second [part of the reasonable suspicion analysis] is a mixed
question of law and fact” that we review de novo. Ornelas, 517 U.S. at 696-97.
The Fourth Amendment guarantees protection against “unreasonable
searches and seizures.” U.S. Const. amend. IV. “A seizure takes place whenever a
police officer accosts an individual and restrains his freedom to walk away.”
United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003) (internal quotation
marks omitted). Yet not every encounter with the police constitutes a seizure. A
“brief, consensual and non-coercive interaction[ ]” is not a seizure. Id.
Conversely, when a police officer “by means of physical force or show of authority
. . . has in some way restrained the liberty of a citizen,” a seizure has occurred.
Terry, 392 U.S. at 19 n.16. The line between the two is marked by whether “a
14 Case: 17-12397 Date Filed: 02/12/2018 Page: 15 of 24
reasonable person would not feel free to terminate the encounter.” United States v.
Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (internal quotation marks omitted).
Officers may conduct a brief investigatory stop, a so-called Terry stop,
“where (1) the officers have a reasonable suspicion that the suspect was involved
in, or is about to be involved in, criminal activity, and (2) the stop ‘was reasonably
related in scope to the circumstances which justified the interference in the first
place.’” Id. (quoting Terry, 392 U.S. at 19-20). “While reasonable suspicion is a
less demanding standard than probable cause and requires a showing considerably
less than preponderance of the evidence, the Fourth Amendment requires at least a
minimal level of objective justification for making the stop.” Illinois v. Wardlow,
528 U.S. 119, 123 (2000) (internal quotation marks omitted). “The reasonable
suspicion that is required must be more than a mere hunch; we must focus on ‘the
specific reasonable inferences which (the officer) is entitled to draw from the facts
in light of his experience.’” United States v. Ballard, 573 F.2d 913, 915 (5th Cir.
1978) (quoting Terry, 392 U.S. at 27). “Unless, at the time of the stop, the officers
could point to ‘specific articulable facts . . . that reasonably warrant suspicion . . . ,’
the stop cannot be justified.” Id. (quoting United States v. Brignoni-Ponce, 422
U.S. 837, 884 (1975)).
When considering whether officers had reasonable suspicion to conduct a
Terry stop, a court cannot single out particular factors; rather, it “must examine the
15 Case: 17-12397 Date Filed: 02/12/2018 Page: 16 of 24
totality of the circumstances.” Lewis, 674 F.3d at 1303; Cf. District of Columbia v.
Wesby, No. 15-1485, 2018 WL 491521, at *6, 9-10 (U.S. Jan. 22, 2018). “Based
upon that whole picture the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity.”
United States v. Cortez, 449 U.S. 411, 417-18 (1981). And “[t]he question . . . is
not whether a specific arresting officer . . . actually and subjectively had the
pertinent reasonable suspicion, but whether, given the circumstances, reasonable
suspicion objectively existed.” United States v. Nunez, 455 F.3d 1223, 1226 (11th
Cir. 2006) (internal quotation marks omitted).
“Under the exclusionary rule, evidence obtained in an encounter that is in
violation of the Fourth Amendment . . . cannot be used in a criminal trial against
the victim of the illegal search and seizure.” Perkins, 348 F.3d at 969.
2. Initiation of the Terry Stop
Initially, we agree with the district court that at least up to the point when
Bisker asked for permission to pat Heard down for weapons, the interaction
between Bisker and Heard was consensual and did not implicate the Fourth
Amendment. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[A] seizure does
not occur simply because a police officer approaches an individual and asks a few
questions.”). In this initial interaction, the conversation between Bisker and Heard
was “amicable” and “low-key . . . very much a normal conversation.” Doc. 69 at
16 Case: 17-12397 Date Filed: 02/12/2018 Page: 17 of 24
78. Heard answered Bisker’s questions, and Bisker did not “‘by means of physical
force or show of authority . . . restrain[] [Heard’s] liberty.’” Bostick, 501 U.S. at
434 (quoting Terry, 392 U.S. at 19 n.16).
The district court assumed that the officers had seized Heard such that their
encounter became a Terry stop when Bisker asked Heard for permission to search
him. Although Heard asks us to adopt this assumption, we note that it is in tension
with the undisputed fact that Bisker sought Heard’s consent. By asking for
permission to search Heard,11 Bisker apparently accepted that he lacked
particularized, articulable facts suggesting that Heard was involved in the gunshots
or posed an immediate threat to the officers. See id. at 434-35 (explaining that an
officer may “generally ask questions” of an individual, “ask to examine the
individual’s identification,” and request permission to search the individual’s
belongings without transforming an encounter into a seizure). We need not resolve
this tension, however, because even if a reasonable person would have felt free to
terminate the encounter, Jordan, 635 F.3d at 1186, when Bisker asked for
permission to search Heard, no reasonable person would have felt free to refuse
once Dilworth began giving Heard orders. Dilworth’s orders to Heard to keep his
hands at his side or to raise his hands were not requests but rather commands that
clearly “convey[ed] a message that compliance . . . [was] required.” Bostick, 501
11 The record contains no evidence suggesting that Bisker’s request was not a genuine request but was instead a command clothed as a request.
17 Case: 17-12397 Date Filed: 02/12/2018 Page: 18 of 24
U.S. at 435. Thus, we analyze whether the officers had reasonable suspicion at
this moment in time, not the moment when the district court assumed the stop
began. To do so, however, we must examine the circumstances leading up to the
stop, including what occurred before Bisker asked Heard for consent to search him.
3. Reasonable Suspicion
In concluding that the officers had reasonable suspicion for the stop and the
search, the district court considered many of the circumstances of Heard’s
encounter with Bisker and Dilworth. But the court failed to consider the “totality
of the circumstances—the whole picture” that the officers observed when they
encountered Heard—including those facts objectively indicating that Heard had no
involvement in the gunshots. Cortez, 449 U.S. at 417. When we view the totality
of the circumstances of the encounter, we conclude that reasonable suspicion was
lacking at the time Dilworth began giving Heard orders. And, because the stop
was unlawful at its inception, we need not address the scope of the search.
The district court failed to consider the fact that when the officers
encountered Heard, he was walking his small dog in the grass in front of an
apartment building inside a gated apartment complex. 12 The court also failed to
consider the fact that Heard behaved like a cooperative witness: he did not flee or
12 Dilworth testified that the area in which Heard was standing was remote by comparison to the rest of the apartment complex, but Heard was in front of the apartment building where he indicated his mother lived.
18 Case: 17-12397 Date Filed: 02/12/2018 Page: 19 of 24
try to avoid Bisker, but instead willingly told Bisker that he had heard gunshots
and pointed in the direction where the shots originated; he provided Bisker with
identification when asked; he explained what he was doing there, walking his dog;
and he told Bisker that his mother lived in the complex, pointing toward her
building, the one closest to where he was standing. When these facts are added to
the circumstances the district court considered, the picture looks very different. 13
We begin our review of the totality of circumstances with the facts that
Bisker encountered Heard in a high crime area, at night, near where gunshots had
been reported. Although undoubtedly “relevant contextual considerations” for our
analysis, Wardlow, 528 U.S. at 124, these facts only very generally linked Heard to
13 The district court erred in considering two facts as contributing to reasonable suspicion that must be excluded from the totality of the circumstances we consider here. First, based on the evidence elicited at the hearings, the district court erred in concluding that the car with a smashed windshield was probative of reasonable suspicion. The district court did not find, nor did any of the witnesses testify, that the car’s windshield appeared to have been recently broken, that there was reason to believe the broken windshield was related to the gunshots heard that evening, or that Heard had anything whatsoever to do with the car. Indeed, Dilworth testified that the car was an area of concern that he noted and intended to address separately from the encounter with Heard. The government also conceded at oral argument that the officers observed no connection between the car and Heard. Thus, the car provided no additional support for a finding of reasonable suspicion. Second, we cannot agree with the district court that the officers’ lack of a description of a suspect contributed to reasonable suspicion. The former Fifth Circuit, applying the “specific and articulable facts” standard from Terry, held that an officer may not stop an individual “on the basis of an incomplete and stale description of a suspect that could, plainly, have fit many people.” United States v. Jones, 619 F.2d 494, 498 (5th Cir. 1980). Here, the officers acted with no description of a suspect, so any person who happened to be at the scene could be implicated. If, under Jones, an incomplete and stale description is inadequate, then the lack of a description of a suspect cannot be a “specific and articulable fact” that may contribute to a finding of reasonable suspicion.
19 Case: 17-12397 Date Filed: 02/12/2018 Page: 20 of 24
the gunshots: he was the only person present around the time and near the place
where the shots were heard. The temporal link is a weak one because Bisker
encountered Heard approximately a quarter to half an hour after the shots
reportedly were fired, rather than mere minutes. And the fact that Heard was
found inside a gated apartment complex, walking his small dog in front of the
building where his mother lived, ran counter to any reasonable suspicion that
Heard was not supposed to be in that area or was there to engage in criminal
activity. All told, these circumstances in no way “operate[d] to distinguish” Heard
in any way that gave rise to objective, particularized suspicion toward him.
Ballard, 573 F.2d at 916.
The other facts the district court considered, although particular to Heard—
signs of nervousness and an apparent refusal to cooperate—are insufficient to tip
the balance to reasonable suspicion. Bisker testified that Heard became “a little
defensive” when asked where his mother lived, although the conversation
remained “amicable” by all accounts, and the officers described Heard as swaying,
rigid, or tense. But we have been “most reluctant to hold that the police can stop
anyone” based simply on his exhibiting nervousness. Id.; see Perkins, 348 F.3d at
971 (“In this circuit, we have required more than the innocuous characteristics of
nervousness, a habit of repeating questions, and an out-of-state license for giving
rise to reasonable suspicion.”). Bisker also testified that Heard failed to provide
20 Case: 17-12397 Date Filed: 02/12/2018 Page: 21 of 24
his mother’s apartment number when asked directly for it, 14 and Dilworth testified
that after Bisker asked for permission to search Heard, Heard said he had done
nothing wrong. Dilworth testified that Heard’s words and tone of voice indicated
that he “was opposed to answering any more questions.” Doc. 69 at 79. His hands
indicated that he “d[id]n’t agree with this.” Id. at 81. By the officers’ own
testimony, Heard’s statements and mannerisms conveyed only that he did not wish
to cooperate. We must credit the officers’ “common sense conclusions about
[Heard’s] behavior.” Cortez, 449 U.S. at 418. Yet “[w]e have consistently held
that a refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.” Bostick, 501 U.S. at 437;
see Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion) (“The person
approached . . . need not answer any question put to him; indeed, he may decline to
listen to the questions at all and may go on his way. He may not be detained even
momentarily without reasonable, objective grounds for doing so, and his refusal to
14 The district court considered the fact that Heard pointed at his mother’s building rather than giving an apartment number to be probative of reasonable suspicion. The record established that after obtaining Heard’s identification and determining that Heard’s identification did not list an address in the apartment building, Bisker asked where Heard lived. Heard responded by pointing at the building closest to him and telling Bisker that his mother lived there. Although we allow officers to draw inferences based on their training and experience, see United States v. Lindsey, 482 F.3d 1285, 1290-91 (11th Cir. 2007), it is difficult to see how responding to that question by pointing to a particular building rather than by giving an apartment number properly contributed to the officers’ reasonable suspicion. Considering Bisker’s testimony that he then asked Heard for an apartment number and Heard did not provide one, however, our disagreement with the district court’s conclusion drawn from these facts makes no meaningful difference in the reasonable suspicion analysis.
21 Case: 17-12397 Date Filed: 02/12/2018 Page: 22 of 24
listen or answer does not, without more, furnish those grounds.” (citation
omitted)).
Contrary to the government’s suggestion, this case is readily distinguishable
from Illinois v. Wardlow. There, officers patrolling “an area known for heavy
narcotics trafficking” for drug related activity observed someone standing next to a
building holding an opaque bag. 528 U.S. at 121-22. The individual “looked in
the direction of the officers and fled.” Id. at 122. The officers gave chase and then
conducted a Terry stop, recovering a firearm from the bag. Id. The Supreme
Court held that the officers had reasonable suspicion for the stop and search,
emphasizing the weight in the reasonable suspicion analysis of the individual’s
“unprovoked flight upon noticing the police”: “Headlong flight—wherever it
occurs—is the consummate act of evasion” that is “certainly suggestive” of
wrongdoing. Id. at 124. The Court rejected the argument that flight was akin to a
refusal to cooperate by “going about one’s business.” Id. at 125.
Here, though, Heard did not flee. He was cooperative with the officers until
he was asked for consent to search his person, then he protested his innocence of
any wrongdoing and indicated with gestures that he did not wish to consent. To
hold under these circumstances that Heard’s conduct supplied reasonable suspicion
would be to unreasonably narrow the ways in which an individual can indicate his
refusal to cooperate during a consensual encounter with police. Neither Supreme
22 Case: 17-12397 Date Filed: 02/12/2018 Page: 23 of 24
Court caselaw nor our circuit precedent supports such a narrowing. Indeed, to give
proper effect to Bostick and Royer, we must allow individuals some meaningful
opportunity to voice their objections through words and gestures.
Factors like known criminal activity in an area; time of day; proximity, both
temporal and geographic, to reported suspicious activity; unusual nervousness; and
refusal to cooperate can certainly contribute to reasonable suspicion. Here, though,
the district court failed to consider factors that objectively cut against suspicion of
criminal activity; namely, that Heard was walking his small dog in a grassy area in
front of an apartment building inside a gated complex and, when approached by a
uniformed police officer, remained calm, provided identification, and willingly
answered questions about the gunshots, his residence, and his reason for being
there. These facts—which objectively indicated that Heard was uninvolved in the
reported gunshots—considered alongside the other relevant facts, preclude a
finding of reasonable suspicion in this case. Thus, the stop was unlawful at its
inception. 15
15 The government asks us to consider Bisker’s testimony that after Dilworth ordered Heard to lower and/or raise his hands, Heard suspiciously raised and lowered his hands several times. But by that point, the Terry stop had already begun. Even assuming Heard’s conduct was suspicious—rather than simply an attempt to deal with apparently conflicting commands—any suspicious actions by Heard after the moment he was stopped are immaterial to the question of whether the stop was justified at its inception. See Lewis, 674 F.3d at 1305 (“[I]t is by now well- settled law that the reasonable suspicion inquiry focuses on the information available to the officers at the time of the stop . . . not information that the officers might later discover.”). Allowing officers to move the stop’s inception, and thus the reasonable suspicion inquiry, to the point when they observed something suspicious or discovered something criminal, would
23 Case: 17-12397 Date Filed: 02/12/2018 Page: 24 of 24
Because we conclude that articulable reasonable suspicion did not exist at
the inception of the Terry stop, the stop violated the Fourth Amendment, and we
need not analyze whether the scope of the stop or search was reasonable. See
United States v. Griffin, 696 F.3d 1354, 1358 (11th Cir. 2012). The gun seized
from Heard must therefore be suppressed, see Perkins, 348 F.3d at 969, and
because possessing a gun was a necessary element of Heard’s crime of conviction,
we must vacate his conviction.
III. CONCLUSION
For the foregoing reasons, we vacate Heard’s conviction and remand for
VACATED and REMANDED.
eviscerate Terry and the exclusionary rule. See Perkins, 348 F.3d at 969-71 (applying the exclusionary rule). In any event, Dilworth—who conducted the pat down—never testified that Heard raised and lowered his hands. Instead, Dilworth testified that based on his “instinct” he believed Heard to be armed. Such an “inarticulate hunch[]” clearly is insufficient justification for a search. Terry, 392 U.S. at 22.