Monday, February 19, 2018

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Jill Pryor wrote this unpublished opinion (United States v. Heard) last week, holding that the motion to suppress should have been granted because being "a little defensive" in response to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Why is this opinion unpublished?

11 comments:

Anonymous said...

Democrats, remember that Rubio withheld blue slips for two qualified state judges. Demand that Nelson does not return blue slips for Trumps nominees.

Anonymous said...

7:19 - wrong wrong wrong.

1) wrong because it would justify/forgive Rubio's wrongful conduct
2) wrong because obstructionism for obstructionism's sake is guaranteed to lead to ineffective government
3) wrong because eventually we have to right this ship, and that will mean taking one for the team.

Anonymous said...

Not only was the opinion unpublished, the defendant has been sitting in prison and only has two months left on his sentence. After rehearing and mandate issuance the upshot of this is he'll get out maybe a couple of weeks early for a crime he was ultimately not convicted of. At least he won't have any supervised release.

Anonymous said...

9:12,

I used to be in your camp. But then I realized the other side doesn't play fair. They do not respect reasonableness. Only fighting fire with fire will change the balance.

Anonymous said...

It wasn't the Republicans that introduced the filibuster for circuit court nominees. Not only that, the Democrats did it to Estrada expressly because he was Hispanic and conservative.

Anonymous said...

@4:17 and 2:02 and and 7:19

See, there it is - finger pointing.

Do what's right regardless of whether others do what's right. Always. Otherwise, no one ever will.

Anonymous said...

1. We were talking about district court nominees;

2. Estrada can be blamed on one person: Bill Frist. Incompetent majority leader. Liddle' Mitch would have got him confirmed. And he'd probably be on Supreme right now.

3. Also did Dems ever pull stunt like what MM did to Garland?

#noblueslips

Anonymous said...

Decent points Mr. Anonymous. Although I think the dems likely would have pulled the same thing had the roles been reversed. And it only worked because Hillary somehow managed to lose to Trump.
Wasn't one of the blue slips Judge Gayles, who ended up on the bench anyway? Or were there two others?

Anonymous said...

The Dems would have pulled the Garland maneuver? What's the evidence of that?

And no Judge Gayles was not blue slipped. He was nominated to the position where Sen. Rubio had blue slipped his state court colleague.

Anonymous said...

Harry Reid.

Anonymous said...

MM is no Reid. Remember Obama when to MM about a joint condemnation of Russian interference in the election. MM said no. Cared more about party than country.