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Heavy load in pocket (and other factors) did not justify frisk

The court rules that the officers had no reasonable suspicion to conduct a Terry frisk in this recent case

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Person is holding hand in denim jacket's pocket

A dissenting judge quipped that reasonable suspicion is a “low hump” to get over.

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UNITED STATES V. CRITCHFIELD, 2023 WL 5618951 (4th Cir. 2023)

A federal agent on his way to work saw Daniel Porter Critchfield walking out of the alley near a house the agent believed was vacant. Critchfield made eye contact with the agent, who perceived Critchfield had an “Oh, no, I’m caught” look on his face. The agent watched Critchfield, who repeatedly looked over his shoulder; the agent got into his car and followed Critchfield. He saw Critchfield doubling back toward the alley and noticed the front pocket of Critchfield’s hooded sweatshirt “had what appeared to be something very heavy in it, so heavy that it was falling down below his crotch.”

The agent called a local officer, his friend, and reported he had seen “a suspicious subject” in his neighborhood, describing Critchfield’s appearance and location. Two officers responded and found Critchfield walking away from the area. They stopped Critchfield and discovered his sweatshirt pocket held a gun, a flashlight and a small silver container with a variety of controlled substances.

Critchfield was indicted for possessing a firearm while being an unlawful user of a controlled substance. He asked the trial court to suppress the gun and other physical evidence, arguing the officers lacked reasonable suspicion for the stop. The court denied the motion and Critchfield entered a conditional guilty plea that preserved his right to appeal the suppression denial.

The prosecution argued Critchfield was suspected of theft, not of the drug and gun crimes with which he was ultimately charged, and that there was reasonable suspicion for investigating whether he was involved in a theft. The appellate court disagreed and vacated Critchfield’s conviction. The court listed the facts known to the officers at the time of the stop as follows: They knew Critchfield had a weighed-down sweatshirt pocket, he had walked through a residential neighborhood past an occasionally unoccupied home next to a commercial area in broad daylight, and he had behaved evasively when a resident (the federal agent) watched and followed him. The court held these circumstances, without more, do not give rise to reasonable suspicion of theft.

The appellate court opined that “Critchfield’s nervous and arguably evasive reaction was not in response to an identifiable member of law enforcement.” The federal agent was not in uniform or recognizable as a federal agent when Critchfield saw him: “Depending on the circumstances, it may be significantly less indicative of criminal activity for a person to evade a stranger on the street than to evade the police.” Nor did the federal agent report that Critchfield had been in the vacant house or on the property, or that he came from behind it or appeared to be casing it. The weighted sweatshirt pocket did not create reasonable suspicion that Critchfield held a weapon or burglary tools. The officer testified “that a hooded sweatshirt with a bulge in these circumstances could be any number of things.” The court also noted it was not necessarily illegal for a citizen to carry a concealed weapon.

A dissenting judge quipped that reasonable suspicion is a “low hump” to get over: “‘To be reasonable is not to be perfect’ (Heien v. North Carolina, 574 U.S. 54 (2014)) … Don’t let the majority’s positive spin on Critchfield’s behavior fool you; if you scratch off the rose-colored tint, the officer’s concerns come into view.” That there was a split in the judges’ views illustrates the close calls in assessing reasonable suspicion. I’m not sure there was much the officers could have done differently, with one exception. Consistent with the theme I’ve preached for decades (talk nice, think mean), there might have been a different outcome if officers had asked Critchfield for consent to frisk him, then asked for consent to reach into the sweatshirt pocket, assuming, of course, that Critchfield would have consented. Hindsight is generally 20/20. I think most officers would have done just what the two officers did in this case. Obviously, two judges disagreed.

Read more Ken Wallentine case reviews here.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.