[Mr.] Lewis patted his right hip when [Officer] Oliver first approached, there was a bulge in his waistband at his right hip, and Lewis stood with his right hip angled away from [Officer] Oliver. Based on his training and experience, [Officer] Oliver recognized all three of these behaviors as indicators that [Mr.] Lewis was armed. Thus, [Officer] Oliver was entitled to conduct a brief pat-down search of [Mr.] Lewis to check for weapons.


United States v. Lewis

No. 19 – 2389

United States Courts of Appeal for the Sixth Circuit

January 26, 2021

On Tuesday October 9, 2018 at 10:50 p.m. Kalamazoo Police Officer Nick Oliver was patrolling a high-crime area in a marked police vehicle. Officer Oliver spotted two people walking in a public alley that Officer Oliver knew was commonly used to evade police detection and trespass on neighboring properties. He decided to investigate and drove into the alley, approaching the individuals. Officer Oliver parked his patrol car several feet away from the two individuals and got out. According to Officer Oliver, his vehicle was parked parallel to the alleyway, and there was enough room on either side for a person to walk past. Officer Oliver did not activate the light bar on top of his vehicle, but he did direct his headlights and shone a flashlight towards the individuals. He was in full police uniform and was carrying a firearm, but he did not draw his weapon.

As he got out of his vehicle, Officer Oliver recognized one of the individuals in the alley as Ms. Amber French. Officer Oliver, from prior experiences with Ms. French, knew that she had used drugs in the past and had stolen items from houses and trashcans. The other individual was later identified as Mr. Devin Lewis. Officer Oliver’s interaction with Mr. Lewis and Ms. French was captured by his body camera, and, thus, the following sequence of events is largely undisputed. Officer Oliver greeted Ms. French and Mr. Lewis and asked if he could talk to them for a minute. He approached Ms. French, who was standing several feet in front of Mr. Lewis. Shortly after, Officer Oliver asked Mr. Lewis to take his hand out of his pocket, explaining that he did not know whether Mr. Lewis was armed. Actually, Mr. Lewis was concealing a firearm but at this moment Officer Oliver was unaware. As Mr. Lewis removed his hand from his pocket, he patted his waistband, which Officer Oliver took as an indication that Mr. Lewis might be carrying a weapon.

After asking Mr. Lewis to keep his hands visible, Officer Oliver turned his attention back to Ms. French and began talking to her about an altercation he had had with her boyfriend the week before. Officer Oliver offered to run a warrant check on Ms. French and told her that he would let her go as long as she did not have any outstanding felony warrants. Ms. French agreed. While Officer Oliver was talking to Ms. French, he noticed Mr. Lewis brush something small and white from behind his left ear and onto the ground. Officer Oliver testified that based on his experience as a police officer, he believed that Lewis was discarding some sort of contraband. Officer Oliver noticed that Mr. Lewis was standing at an angle with his right hip away from Officer Oliver, a position Officer Oliver described as “bladed.” He testified that this was “a common stance for people to use who are carrying guns.” Officer Oliver also observed that Mr. Lewis had an “abnormally large bulge” around his right hip, which Officer Oliver believed could be a gun. Based on these observations, when Officer Oliver used his radio to ask a dispatcher whether Ms. French had any outstanding warrants, he also requested backup because he believed that Mr. Lewis was armed.

Officer Oliver then asked Ms. French who her friend (co-conspirator would have been a more accurate adjective) was and gestured towards Mr. Lewis. Ms. French said Mr. Lewis was her friend, and then Officer Oliver asked Mr. Lewis directly what his name was. Mr. Lewis responded that his name was “Duke,” and Officer Oliver followed up, asking him “Duke what?” trying to get Mr. Lewis to give him a full name. Officer Oliver testified that he thought Mr. Lewis was being evasive by giving him a nickname instead of his full name. Officer Oliver asked if Mr. Lewis was the same person whom he had given a ride to earlier, but Ms. French told him that he had given a ride to her other friend.  Evidently, Ms. French has a lot of car-less friends.

After talking to Ms. French for a few more minutes, Officer Oliver turned to Mr. Lewis again and asked “what’s your name bud? What’s your real name?”. Instead of answering, Mr. Lewis asked Officer Oliver why this matter concerned him since Officer Oliver was primarily talking to Ms. French. Officer Oliver explained that he liked to know the people in his patrol area and said that he had let Ms. French and others go before when they only had petty warrants outstanding. He again asked Mr. Lewis for his real name. At this point Officer Oliver also moved closer to Mr. Lewis, so he was standing in between Mr. French and Mr. Lewis instead of just in front of Ms. French. After some back and forth, Mr. Lewis told Officer Oliver that his name was Devin Moore – his nickname would soon be ‘defendant’. Officer Oliver asked Mr. Lewis if he had any outstanding warrants, and Mr. Lewis said that he did not. Officer Oliver told Mr. Lewis that he would search the name ‘Devin Moore’ to confirm that there were no outstanding warrants but that he was not concerned with “minor” warrants like traffic violations or failure to pay child support.

About thirty seconds after Officer Oliver asked the radio dispatcher to check whether Mr. Devin Moore had outstanding warrants, headlights appeared down the other side of the alley approaching the area where Officer Oliver, Mr. Lewis, and Ms. French were standing. As the headlights approached, Officer Oliver moved closer to Mr. Lewis and asked whether he was carrying any weapons or tools, telling him that he noticed Mr. Lewis had something bulky in his waistband. Mr. Lewis replied that he was not armed, but Officer Oliver still told Mr. Lewis not to reach towards his waistband. Officer Oliver then asked Mr. Lewis if he could search him, but Mr. Lewis refused. Around the same time, it became clear that the approaching headlights were from a second marked police vehicle. The second vehicle parked, blocking what had been an unobstructed path down the other end of the alley. Officer Greg Day, the backup that Officer Oliver had requested, exited the vehicle in full uniform and stood next to his patrol car, several feet from where Mr. Lewis and Officer Oliver were.

At this point, Officer Oliver’s attention was focused on Mr. Lewis. Officer Oliver asked Mr. Lewis again whether he was armed, and Mr. Lewis put his hands up. Officer Oliver asked Mr. Lewis to take his backpack off, and Mr. Lewis complied. Officer Oliver asked Mr. Lewis if he was afraid of something and told him to relax. Officer Oliver then grabbed Mr. Lewis’s right wrist as Officer Day grabbed his left wrist. Mr. Lewis tried to break free of the officers’ holds and, according to Officer Oliver, attempted to punch him. The officers pinned Mr. Lewis to a fence and waited for more officers to arrive before handcuffing and searching him. The officers found a loaded handgun in Mr. Lewis’s waistband at his right hip and drugs and drug paraphernalia in his backpack. Officers also found a partially smoked marijuana joint on the ground where Mr. Lewis was standing when he brushed something from behind his left ear.

On November 7, 2018, Lewis was indicted on charges of possession of a firearm as a felon, possession of methamphetamine with intent to distribute, and possession of a firearm in furtherance of drug trafficking.  Mr. Lewis filed a Motion to Suppress the firearm.  He reasoned that Officer Oliver did not meet the two-part Terry test that Reasonable Suspicion Criminal Activity was Afoot and that he was presently armed and dangerous.  The district [trial] court denied the motion and plead guilty and was sentenced to 135 months in prison or 11 years.

Mr. Lewis appealed to the Sixth Circuit Court of Appeals which held “Based on the totality of the circumstances, Oliver had a reasonable suspicion that Lewis was engaged in criminal activity at the time of the seizure. Lewis was in a high-crime area and his behavior during the encounter with Oliver was evasive and consistent with a person carrying a weapon and concealing drug evidence. Thus, Oliver had reasonable suspicion to conduct a Terry stop by the time that Lewis was seized and did not infringe on Lewis’s Fourth Amendment rights … Here, for the reasons detailed above, Oliver had reasonable suspicion that Lewis was carrying a firearm. Lewis patted his right hip when Oliver first approached, there was a bulge in his waistband at his right hip, and Lewis stood with his right hip angled away from Oliver. Based on his training and experience, Oliver recognized all three of these behaviors as indicators that Lewis was armed. Thus, Oliver was entitled to conduct a brief pat-down search of Lewis to check for weapons.”.

Information for this article was obtained from U.S. v. Lewis, No. 19 – 2389 (January 26, 2021).

This case was issued by the Sixth Circuit Court of Appeals which is binding in Kentucky, Michigan, Tennessee and Ohio.

Lessons Learned:

  1. Consensual encounters that begin with high quality law enforcement can develop in to probable cause and lawful arrests. Officer Oliver certainly knew his recidivists and also understood that recidivists often troll with other recidivists. Here, Officer Oliver had previous criminal contact with Ms. French but did not know Mr. Lewis with whom she was trolling.  As he began his consensual encounter, Mr. Lewis unwittingly touched his concealed firearm then bladed his body.  These factors were quickly observed and analyzed by Officer Oliver. These factors changed the encounter from consensual to investigative detention.   Officer Oliver was smart to wait for backup before increasing his encounter as his initial gut feeling was that Mr. Lewis was armed.
  1. Suspects will often resist upon first touch by law enforcement and Mr. Lewis did just that – resist upon first touch. With the assistance Officer Day, both he and Officer Oliver worked in concert to handcuff Mr. Lewis.   At that point the two-part Terry test was met; 1) Criminal Activity was Afoot and 2) Mr. Lewis was likely to be presently armed and dangerous.  For more on the Terry doctrine see Objectively Reasonable Launches.
  1. Each Circuit Court decision is decided by three judges. This case was decided 2-1.  The dissenting Judge, Eric Clay, determined that the firearm and methamphetamine should have been suppressed. Officer Oliver asked Mr. Lewis to take his hand out of his pocket that request transformed the consensual encounter into a seizure.  At that moment, Mr. Lewis had not touched the bulge in his waistband or bladed his body.  Therefore, in Judge Clay’s opinion, Officer Oliver did not have reasonable suspicion to detain Mr. Lewis.  I would agree that Officer Oliver, in that moment, did not have enough to detain Mr. Lewis.  However, I strongly disagree that Officer Oliver’s request for Mr. Lewis to remove his hand from his pocket was an order.  This entire encounter was recorded on a body camera and reviewed by the court.  Even Judge Clay in his recitation of that part of the interaction states that Officer Oliver ‘requested’ Mr. Lewis remove his hand.  Judge Clay represents how many jurists, politicians and community members see and hear what they want – even when law enforcement encounters are on video.  Judge Clay’s analysis also demonstrates the very thin line between consensual encounters and investigative detention stops.  Well done Officer Oliver and Officer Day!

Does your agency train on the difference between Consensual Encounters and Investigative Detention stops?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.