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United States v. Hagood, 2023 WL 5597832 (2nd Cir. 2023)
Two uniformed officers patrolling in an unmarked police car drove through a high-crime area associated with gang-related criminal activity including shootings, homicides, assaults and robberies. The officers saw Michael Hagood and two other men standing in the street next to an SUV double-parked in a bus lane at approximately 0100 hours. A third man was inside the SUV. The patrol car headlights, streetlights and lights from stores across the street illuminated the scene.
The officers observed Hagood for about two or three seconds as they drove past. Hagood was wearing a blue sweatshirt and had a fanny pack strapped over his shoulder and across his chest. One officer noted the fanny pack was “very tight across Hagood’s chest, with about a quarter to a third of it under his armpit.” The officers thought the manner in which Hagood wore the fanny pack was unusual. One of the officers thought wearing the fanny pack in this way kept it “steady in one spot” so he could more easily reach inside. One officer testified the fanny pack “appeared heavy like there was a weighted object inside of it.” The other officer noted “a bulge in the fanny pack” and thought the fanny pack “looked like it was heavy.” He saw “an elongated, rigid, solid object within the fanny pack” that appeared “to be potentially the top slide of a handgun.”
An officer stated Hagood “looked really nervous when he saw us”—with a “deer-in-the-headlights” look—and “almost jumped,” “shuttered a little bit,” and looked “visibly agitated.” The officers decided to perform a Terry stop based on the officers’ belief Hagood’s fanny pack contained a firearm. The officers notified two other officers who were also patrolling in an unmarked patrol car, just a few car lengths behind.
The first two officers turned their vehicle around, parked and approached Hagood from the north while the second two officers approached Hagood from the south. Hagood “turned his body and bent his knees as if he was going to take flight away from” the officers. Two officers handcuffed Hagood, and another officer removed and searched Hagood’s fanny pack, where they found a loaded handgun. The officers arrested Hagood, who was indicted for possession of a firearm as a convicted felon.
Hagood asked the trial judge to suppress the firearm, claiming the officers lacked reasonable suspicion he was engaged in criminal activity. The court denied the motion. Hagood appealed.
Hagood argued the “generic line” the officer saw in his fanny pack could have been consistent with something other than a gun, such as a phone, wallet or eyeglass case. But the appellate court noted a “determination that reasonable suspicion exists need not rule out the possibility of innocent conduct” (United States v. Arvizu, 534 U.S. 266 (2002)).
The appellate court affirmed the denial of the suppression motion. The court cited the following factors:
- The officer’s observations of the fanny pack (as informed by his experience recovering firearms from fanny packs)
- Hagood’s unusual manner of wearing the fanny pack
- An officer’s testimony that he was able to see the outline of an object he believed was consistent with “the top slide of a handgun”
- Hagood’s nervous appearance
- The late hour in a high-crime neighborhood with few people around
The trial court also ruled, “The same facts that supplied reasonable suspicion that Hagood was committing a crime necessarily supplied reasonable suspicion to justify a frisk for a weapon.”
The dissent, written by a highly regarded academic jurist, challenged the majority’s assessment of the totality of the circumstances. The dissent opined, “The record, at best, merely supports that the officer had a hunch that turned out right.” The majority countered, “This is not a case involving dubious justifications of police playing hunches that turn out right.” Despite the sharp disagreement between the three judges’ opinions, this case encourages officers to accurately and painstakingly report all factors relied upon to conclude there was reasonable suspicion to detain and reasonable suspicion to frisk.
