Being "a little defensive" is not enough for a Terry Stop.

Jill Pryor wrote this unpublished opinion (United States v. Heard) last week, holding that the motion to suppress should have been granted because being "a little defensive" in response to questioning isn't enough to conduct a Terry stop:

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 Terry1 stop. Because his motion to suppress should have been granted, we vacate Heard’s conviction and remand for further proceedings consistent with this opinion.
***
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. at 20-21. At some point during the brief conversation Heard told Bisker he was there to walk his dog.

Why is this opinion unpublished?

You're invited

 Please RSVP to: FLSD_Program@flsd.uscourts.gov and seating in the ceremonial courtroom will be on a first-come first-served basis.  

"Respected blog"

"Respected blog"

That's how awesome Sun-Sentinel reporter Paula McMahon described the blog, giving this site credit for breaking the news about Trump's 3 judicial picks, Rudy Ruiz, Rodney Smith, and Roy Altman:

All three have strong links to Miami-Dade County: They are Circuit Judges Rodolfo “Rudy” Ruiz and Rodney Smith, who are serving state judges in Miami-Dade County, and former federal prosecutor Roy Altman, who is now in private practice.
This is the president’s first opportunity to shape the bench in South Florida for decades to come. But none of the three men, or the other seven candidates, are considered controversial selections, local judges and attorneys said.
White House officials have indicated the president wants to schedule Senate confirmation hearings for the trio. They are not technically nominees yet and will have to pass an extensive background check before they could be formally nominated. All three received official phone calls notifying them they had made the cut, several sources said.

The president had been expected to name all of his choices for five vacancies but has not done so yet. It is unclear why.

It's definitely a changing of the guard here in South Florida, where the new wave of judges, both from Obama and now from Trump, are changing the feel of this Court.  Lee Stapleton talks about this a little bit in her beautiful tribute to Magistrate Judge Bill Turnoff:

From 1982 to 1986, Bill Turnoff presided over the major crimes unit in the U.S. Attorney’s Office for the Southern District of Florida — the busiest section in the busiest office in the country. Every day, full-tilt boogie.

In 1984, after few years as an associate at a big firm, I decided I needed more adventure and more experience — after all, that’s why I’d come to Miami in the first place despite dire warnings from classmates and others that Miami was a dangerous place. U.S. District Judge Kathleen Williams, then just Kathy Williams, and I started at “The Office” in June 1984.

After a mandatory stint in appeals, I went to major crimes. My chief, Bill Turnoff, was from Philadelphia. You only need to hear one sentence out of his mouth to pick up the accent. A Cornell law school grad, he sat in a smallish corner office on the seventh floor. Mr. Potato Head sat on his desk. The air was redolent of pipe tobacco, and his door was always open.

BT ran his crew with military precision. He had to — every day brought new waves of events and new waves of arrests. There weren’t many of us, and the Department of Justice had to send extra pairs of hands, known as “Bucket Brigaders.”

Despite the chaos outside our doors, major crimes was run as a quality operation, with standards as exacting as any white-shoe law firm. Bill worked long hours, reading our indictments, affidavits for search warrants, pleadings, sentencing memos — most pieces of paper that were filed with the court. He was exacting. No editor at a national newspaper or magazine could have had higher standards than Bill. If he found a comma out of place, a typo or a grammatical error, he circled it in red and brought it back to the assistant U.S. attorney who had presented the defective document to him. No comment, just handed back to the person for as many drafts as necessary for perfection. I was a former newspaper reporter used to editors and editing, but because I so adored the guy and didn’t want to disappoint him, I proofed everything multiple times before presenting it to Bill.

Federal prosecutors go to court. In those days, pretty much every day we made the trek from 155 S. Miami Ave. to the federal courthouse. It was a bitch to do that in the summer, especially in a suit and panty hose. Bill expected his prosecutors, even rookies, to be TV-quality lawyers. It was up to the more senior AUSAs to keep an eye on the newbies. That being said, with so many cases, there was only so much time to babysit junior AUSAs. There was a strong on-the-job-training element to learning how to try a case. We were supposed to have a senior person with us for our first two trials. I got through my first one thanks to Mark Schnapp, But an hour into my second trial, the senior AUSA had to leave to go to another courtroom. I have come to believe that “training” is no substitute for “doing.”

BREAKING—RUDY RUIZ TO BE NOMINATED FOR DISTRICT JUDGESHIP — UPDATED

BREAKING — RUDY RUIZ TO BE NOMINATED FOR DISTRICT JUDGESHIP; UPDATED: RODNEY SMITH AND ROY ALTMAN ALSO TO BE NOMINATED

Multiple sources have confirmed that Rudy Ruiz has been informed that he will be nominated by President Trump for one of the 5 open district court seats for the Southern District of Florida. Congrats to Judge Ruiz, who currently sits as a state trial judge in Miami-Dade County. Ruiz went to Georgetown Law and then clerked for Judge Moreno. Like Moreno, Ruiz started as a County Court judge, then became a Circuit Court Judge and now moves over to the federal bench.

UPDATE — I have heard that Trump has also informed two others that they will be nominated and that he will “hold over” the last two spots. I do not know whether that means that 2 people from the current list will get those slots or whether they will be opened back up.

SECOND UPDATE — I have heard that the other two names are Roy Altman and Rodney Smith. This is not confirmed yet. If you have any information on this, please email me. dmarkus at markuslaw dot coM

THIRD UPDATE — Two sources have confirmed these other two names. I feel pretty good that these are the three names.

Tick Tock...

President Trump unveiled another wave of judicial selections today, but still nothing for the 5 open slots here in the Southern District of Florida.

Who was Justice Ginsburg talking about here?

Who was Justice Ginsburg talking about here?

"I respect all my colleagues and genuinely like most of them."

Hahaha. That was her speaking at Columbia this weekend.

In a very different Colombia, the Miami Herald had this news about the prison barring American lawyers from entering:

In effect, all foreign lawyers, including U.S. attorneys, cannot enter La Picota anymore as lawyers — only as social visitors. After the [Joaquin] Perez scandal, it’s probably going to get worse. Colombia’s prison spokesman insisted no foreign lawyers were being barred from La Picota.

What prompted the change in La Picota’s policy? About a year ago, a scandal erupted when an American attorney entered the prison, bribed guards and negotiated a huge payment to have a client put on a list that gives amnesty to members of a left-wing guerrilla group, the FARC, as part of its peace accord with the government.

Other Miami lawyers who compete with Perez for high-profile drug trafficking clients said Colombian prison officials have made visiting their clients intolerable.

Great American William Turnoff to be honored

The United States District Court for the Southern District of Florida is hosting a reception honoring Magistrate Judge William C. Turnoff for his 32 years of distinguished judicial service. The reception will be held at the Wilkie D. Ferguson, Jr. United States Courthouse, Miami, on Thursday, February 8, 2018, from 4:00 - 6:00 p.m.

Judge Turnoff is a great American.

Judicial candidates being interviewed this week in DC

A number of sources have told me that all 10 judicial candidates for the 5 slots will be interviewed by the White House this week.  Hopefully we will have an answer shortly on who will be selected.  As a reminder, the 10 candidates are:

Miami-Dade Circuit Judges Antonio Arzola, Peter Lopez, Rodolfo ‘Rudy’ Ruiz, Rodney Smith and John Thornton;
Acting U.S. Attorney Benjamin Greenberg;
Broward Circuit Judges David Haimes and Raag Singhal; and
private attorneys Roy Altman and Melissa Visconti.