When Is There Reasonable Suspicion to Make a Terry Stop?

In United States v. Lowe, -- F.3d --, 2015 WL 4032921 (3d Cir. 2015), the third Circuit ruled that police did not have reasonable suspicion to conduct a Terry stop and suppressed the evidence found as a result.

On September 19, 2010, at 4.00 a.m., the police received an alert about an individual in a “grey hoodie” with a “gun in his waistband” at 914 North Markoe St. Earlier that night, police received reports of gunshots in that area. Three officers immediately responded. When they arrived at the address, they saw Shawn Lowe, who wore a grey hoodie and had his hands in his pockets. The officers then approached Lowe and made multiple commands that Lowe remove his hands from his pockets. He stayed put with his hands in his pockets. The officers placed Lowe against a wall, frisked him, and uncovered a weapon.

Lowe was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Lowe pled conditionally guilty and appealed the legality of the Terry stop. Coming before the Third Circuit for the second time—the first appeal was remanded for additional fact-finding—the Court ruled that the officers lacked reasonable suspicion for the Terry stop.

A Terry stop is valid under the Fourth Amendment if police, at the time of the seizure, had a reasonable suspicion that the suspect was engaged in criminal activity. Here, the time of Lowe’s seizure was when he “submi[tted] to a show of authority ... by staying put in front of 914 North Markoe Street,” albeit with his hands still in his pockets. At that point in time, the only justifications for the seizure were: Lowe’s grey hoodie, the late hour, the high-crime area, and Lowe’s failure to take his hands out of his pockets. The Court ruled that the police lacked a reasonable suspicion that Lowe was engaged in criminal activity and, therefore, suppressed the gun that was subsequently found as a “fruit of the poisonous tree.”