Innocent explanations just don’t matter.

 

In United States v. McCallister, the Sixth Circuit affirmed the district court’s denial of a motion to suppress based on an unlawful search and seizure. The Court found there was reasonable suspicion to conduct the Terry stop and frisk of Dazhan McCallister.  

Akron police received an anonymous tip about a group of men smoking marijuana in a city park. Akron police view this particular park as a “high-crime area.” Over the next several hours, the police drove by the park on two separate occasions and confirmed a group of men were still gathered there. Officers later stopped at the park to investigate. As the officers approached the group of 15 men, they smelled marijuana. Several of the men, including McCallister tried to walk away. An officer ordered them all to stop and place their hands on their heads. McCallister complied. Officers saw a “little bump out” on McCallister’s shirt and concluded it was a gun, which was confirmed when McCallister raised his hands and his shirt lifted. Officers then frisked him.

McCallister moved to suppress the firearm arguing it was found after an unlawful search and seizure. Specifically, he argued the smell of marijuana could have been hemp, a legal substance, and even if it was an illegal substance there was no evidence he was smoking marijuana versus “merely standing near other wrongdoers.” The Sixth Circuit rejected those arguments concluding “[r]easonable suspicion, remember, does not require proof that the suspect committed a crime.” Slip Op. at p. 7. In determining whether reasonable suspicion exists courts “view the totality of the circumstances through an objective lens, asking whether there was a moderate chance, arising from articulable facts and inferences, that the person stopped was engaged in criminal activity (Terry stop) and was armed and dangerous (Terry frisk).” Slip Op. at p. 6. The Court found reasonable suspicion for the Terry stop existed based on the anonymous tip, the confirmation by police the group was still present in the park, the smell of the marijuana when officers arrived, the known high-crime area, and the fact that McCallister tried to walk away from the officers.

The Court also upheld the frisk of McCallister. McCallister argued the officers did not have reasonable suspicion to search him because Ohio is an open carry state, meaning it may have been legal for him to have the firearm. That, the Court concludes, makes no difference. “Under Terry, after all, officers may frisk a suspect who legally carries a firearm under state law if they reasonably suspect that he is armed and dangerous.” Slip Op. at p. 9. The officer’s observance of the “bump out” in McCallister’s shirt was enough reasonable suspicion to support the frisk. This was further supported by McCallister’s attempt to hide the weapon and the high-crime location.