                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2213
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Roy T. Hughes,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 11, 2007
                                 Filed: February 25, 2008 (Corrected 2/29/08)
                                 ___________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Roy T. Hughes was charged with being a felon in possession of ammunition.
He moved to suppress evidence, asserting the police lacked reasonable suspicion to
stop and frisk him. The district court, adopting the report and recommendation of the
magistrate, denied the motion. After a conditional guilty plea, Hughes now appeals
the denial of the motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this
court reverses.
                                          I.

       On August 11, 2005, at about 9:31 a.m., a Kansas City police officer was
dispatched to an apartment complex on a call of “suspicious parties on the property,”
in response to an anonymous complaint. The complex is in a high crime area, due to
reputed narcotics trafficking. Dispatch described the parties as two black males, one
without a shirt, the other wearing a brown shirt and having braids. Dispatch also
mentioned a red bicycle. When the officer arrived, he observed Hughes, another male,
and a female standing a few feet from a bus stop across the street from the apartment
complex. The officer did not recall seeing a bicycle. Hughes and the other male fit
the description given by dispatch. The officer stopped all three, questioned what they
were doing in the area, then frisked them. The officer felt hard cylindrical objects in
one of Hughes’s pockets, which he removed and determined were live rounds of
ammunition.

       At some point the officer did a computer check indicating that Hughes had no
warrants, but was under supervision for domestic assault and affiliated with a gang in
Omaha, Nebraska. There was conflicting evidence about when the check occurred.
The officer prepared two reports, one stating that the check occurred before the frisk,
and the other that it occurred after. The officer testified he had no specific
recollection of the sequence of events. The district court did not make a finding as to
the time of the check, explicitly noting that the “timing of the computer check is not
clear.”

       Hughes was indicted on one count of being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). In the report and recommendation
on Hughes’s motion to suppress, the magistrate found that because Hughes matched
the description given by dispatch, the officer had “reasonable, articulable suspicion
that defendant Hughes may have been engaged in criminal activity.” The magistrate
ruled that the frisk was “reasonable under the circumstances” because the officer was

                                         -2-
in a high crime area on a call of suspicious parties trespassing, and at some point
became aware of Hughes’s gang affiliation and domestic assault supervision. The
magistrate concluded that the officer was “justified in removing the objects from
Hughes’s pocket to ensure his personal safety.” The district court adopted the
magistrate’s report and recommendation.

                                          II.

       This court reviews the factual findings underlying the denial of a motion to
suppress for clear error, and the determination that the Fourth Amendment was not
violated de novo. See United States v. Janis, 387 F.3d 682, 686 (8th Cir. 2004).

       The Fourth Amendment protects against unreasonable searches and seizures by
the government. United States v. Arvizu, 534 U.S. 266, 273 (2002). Where a police
officer has reasonable suspicion that criminal activity may be afoot, the officer may
briefly stop an individual and make reasonable inquiries aimed at confirming or
dispelling the suspicion. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993), citing
Terry v. Ohio, 392 U.S. 1, 30 (1968). A Terry stop may also be justified if an officer
has reasonable suspicion that a crime has previously been committed by an individual.
See United States v. Hensley, 469 U.S. 221, 229 (1985) (Terry stop permitted where
police have reasonable suspicion that individual was involved in a completed felony).
Reasonable suspicion must be supported by “specific and articulable facts.” Terry,
392 U.S. at 21. In determining whether an officer had a “‘particularized and
objective basis’ for suspecting legal wrongdoing,” this court must look at the totality
of the circumstances, allowing officers to draw on their experience and training. See
Arvizu, 534 U.S. at 273.

       “‘When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the
officer or to others,’ the officer may conduct a patdown search ‘to determine whether

                                         -3-
the person is in fact carrying a weapon.’” Dickerson, 508 U.S. at 373, quoting Terry,
392 U.S. at 24. There must be articulable and specific facts as to dangerousness. See
Sibron v. New York, 392 U.S. 40, 64 (1968) (“In the case of the self-protective search
for weapons, [the officer] must be able to point to particular facts from which he
reasonably inferred that the individual was armed and dangerous.”). In determining
whether the frisk was justified, this court must look to the totality of the
circumstances. See United States v. Hanlon, 401 F.3d 926, 929 (8th Cir. 2005).

       The district court found reasonable suspicion to justify a Terry stop because:
(1) the area was a high crime area, and (2) Hughes matched the description given by
dispatch. The officer testified that before he approached, Hughes and the others were
standing near a bus stop, and were not engaged in any suspicious activity. Neither the
district court nor the government points to any facts that support a reasonable
suspicion that a crime was currently taking, or about to take, place. See Brown v.
Texas, 443 U.S. 47, 52 (1979) (presence in a high crime area, without more, does not
create reasonable suspicion for a Terry stop); United States v. Bailey, 417 F.3d 873,
877 (8th Cir. 2005), cert. denied, 547 U.S. 1104 (2006) (presence in a high crime area,
plus officer's observation of suspicious behavior, creates reasonable suspicion for a
Terry stop). Therefore, to justify this stop, the officer must have been investigating
a past crime. The district court found that dispatch “did not provide any details
regarding what was suspicious about these parties other than that they were
trespassing.”1 This court will thus analyze this case as if the officer was investigating
a trespass.




      1
        In a footnote, Hughes objects that the district court implicitly found that “they
were trespassing,” arguing that dispatch told the officer only that there were
“suspicious parties on the property.” This court need not resolve this issue,
particularly in light of the deference due findings of fact by the district court. See
Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573-76 (1985).

                                          -4-
      In Missouri, trespass in the first degree is a misdemeanor, and trespass in the
second degree is an infraction.2 See Mo. Rev. Stat. §§ 569.140, 569.150. Terry stops
are permitted to investigate previous felonies, but the Supreme Court has never
decided whether Terry stops are justified by a need to investigate previous
misdemeanors (or lesser violations). See Hensley, 469 U.S. at 229 (“We need not and
do not decide today whether Terry stops to investigate all past crimes, however
serious, are permitted.”). Cf. McFadden v. United States, 814 F.2d 144,147 (3rd Cir.
1987) (Terry stop to investigate a previous trespass, a felony in Pennsylvania, was not
unreasonable under the circumstances).

       Three other circuit courts have addressed this issue. The Sixth Circuit states
that police may not make a stop on reasonable suspicion of a “mere completed
misdemeanor.” See Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004).
The Ninth and Tenth Circuits refuse a per se standard, and following Hensley,
balance the individual’s interest with the governmental interest on a case-by-case
basis. See United States v. Grigg, 498 F.3d 1070, 1081 (9th Cir. 2007); United States
v. Moran, 503 F.3d 1135, 1141 (10th Cir. 2007).

       The Supreme Court has “consistently eschewed bright-line rules [under the
Fourth Amendment], instead emphasizing the fact-specific nature of the
reasonableness inquiry.” See Ohio v. Robinette, 519 U.S. 33, 39 (1996). Like the
Ninth and Tenth Circuits, this court declines to adopt a per se rule that police may
never stop an individual to investigate a completed misdemeanor. To determine
whether a stop is constitutional, this court must balance the “nature and quality of the
intrusion on personal security against the importance of the governmental interests
alleged to justify the intrusion.” See Hensley, 469 U.S. at 228; United States v.


      2
       An infraction is not a “crime,” but an officer may arrest an individual upon
reasonable belief that the individual committed an infraction. See Mo. Rev. Stat. §§
544.216, 556.021.

                                          -5-
Brignoni-Ponce, 422 U.S. 873, 878 (1975) (“[T]he reasonableness of such seizures
depends on a balance between the public interest and the individual’s right to personal
security free from arbitrary interference by law officers.”). Under this test, the nature
of the misdemeanor and potential threats to citizens' safety are important factors. See
Grigg, 498 F.3d at 1081 (courts must pay particular attention to the potential for
ongoing or repeated danger, and risk of escalation); Moran, 503 F.3d at 1141 (the
governmental interest is particularly strong when the criminal activity involves a
threat to public safety).


       On the facts here, the governmental interest in investigating a previous trespass
does not outweigh Hughes’s personal interest. Being stopped and frisked on the street
is a substantial invasion of an individual’s interest to be free from arbitrary
interference by police. See Florida v. J.L., 529 U.S. 266, 272 (2000) (describing a
stop and frisk at a bus stop as intrusive and embarrassing); United States v. Wheat,
278 F.3d 722, 737 (8th Cir. 2001) (Terry stops of vehicles along public roads are
intrusions on an individuals liberty interest, but are considerably less invasive than a
“frisk on a public corner”). True, a criminal trespass inherently involves some risk of
confrontation with a property owner or lessee, implicating public safety concerns. See
Moran, 503 F.3d at 1142. Standing alone, this risk is not enough to outweigh the
individual’s strong security interests. Cf. id. at 1143 (finding it important that the risk
of confrontation was not hypothetical because the property owner had previously
confronted the trespasser, and “not suggest[ing] that . . . any stop based on a
completed criminal trespass is per se reasonable”).


      There may be cases where a Terry stop is justified to investigate completed
trespass, such as where there is a strong threat to public safety. See id. at 1142-43
(Terry stop justified where there were multiple reports of the same individual
trespassing (two on that particular day), the individual was likely armed as he was
trespassing to reach hunting grounds, there were previous confrontations between the


                                           -6-
trespasser and the property owner, and the trespasser had threatened other local
property owners). Cf. Bates v. Chesterfield County, Va., 216 F.3d 367, 371 (4th Cir.
2000) (Terry stop justified where property owner reported juvenile trespassing, acting
weird as if on drugs or drunk, and then running into the woods). There are no facts
here, however, indicating such a threat. As the officer testified, Hughes and the other
two were not acting suspiciously, and there was no report of any property crime,
personal crime, or any weapons. The officer agreed that there was “nothing in
Dispatch . . . to imply that this may be a dangerous situation.”


       This court recognizes “that the police have a manifest interest in identifying the
perpetrators of crime, whether the offense be minor or major.” See Grigg, 498 F.3d
at 1083. The alternatives available to the police also factor in the balance of interests,
however. See id. Here, the officer had “two less invasive options.” See Wheat, 278
F.3d at 736. The officer could have “observe[d] the suspect for a considerable length
of time, watching for other indications of incipient criminality that would give [him]
reasonable suspicion to make an investigatory stop.” See id. He also could have
“initiate[d] a simple consensual encounter, for which no articulable suspicion is
required.” See id. (the practicality of conducting a consensual interview is to be
considered in weighing the government’s interest).3


        The government cites United States v. Arvizu, claiming that the stop was
justified under the totality of the circumstances. See Arvizu, 534 U.S. at 274. Arvizu
does not control because it dealt with a possible ongoing crime, not a previous crime.
See id. at 277 (holding officer had reasonable suspicion to believe an individual


      3
        As there was nothing to corroborate the anonymous call that Hughes had been
trespassing, the officer could not have arrested Hughes upon a reasonable belief that
he had committed a misdemeanor or an infraction under Mo. Rev. Stat. § 544.216.
See Beck v. Ohio, 379 U.S. 89, 91-96 (1964) (mere allegation of criminal behavior by
unknown informant not sufficient to establish probable cause for warrantless arrest).

                                           -7-
driving a van “was engaged in illegal activity”). To the extent Arvizu is instructive,
it does not support the government’s contention that there was reasonable suspicion
for a Terry stop here. Arvizu directed courts to consider the totality of the
circumstances, not whether each fact is individually indicative of criminal behavior.
See id at 274. Unlike this case, however, the facts in Arvizu, taken together, strongly
indicated criminal behavior: (1) an alarm was tripped near where the van was traveling
(usually indicating an attempt to evade a border crossing); (2) the driver of the van
stiffened up and avoided looking at the officer; (3) the van slowed from about 50 mph
to about 25 mph; (4) the children in the van waived at the officer “mechanically,” for
about four minutes, as if told to do so; (5) the driver turned the indicator on, then off,
then back on before making a quick turn; and (6) there was a report the previous week
of bricks of marijuana being thrown from a van. See id. at 269-71.


        The government invokes United States v. Roggeman, 279 F.3d 573, 578 (8th
Cir. 2002), to show that the frisk was justified under the totality of the circumstances.
In Roggeman, the initial Terry stop was justified. There was reasonable suspicion for
a frisk because the stop was late at night, in a poorly lit area, and the officer observed
a bulge in the individual’s front pants pocket. Id. In this case, however, the initial stop
was not justified, occurring at 9:30 in the morning, near a public bus stop, with no
indication that any of the three individuals were armed.


        The government also argues that the frisk was justified because the officer was
alone and the call was vague, leaving open the possibility of dangerous situations.
Being outnumbered does not justify a frisk where the initial Terry stop is not justified.
See Sibron, 392 U.S. at 64 (“The police officer is not entitled to seize and search every
person whom he sees on the street or of whom he makes inquiries.”). Additionally, the
vagueness of the call defeats, rather than supports, a reasonable suspicion that Hughes
was armed and dangerous. See Terry, 392 U.S. at 21 (police officers must be able to
point to specific and articulable facts).

                                            -8-
         The district court ruled that the frisk was justified because the officer became
aware that Hughes was on supervision and affiliated with a gang. This information can
support reasonable suspicion to frisk only if it were received before the frisk. As the
timing of the computer check is “not clear,” it cannot form the basis of reasonable
suspicion. See Carter v. United States, 729 F.2d 935, 940 (8th Cir. 1984) (burden is
on the government to justify warrantless search). Further, the officer testified that the
first thing he normally does when he stops individuals is to “have the person place their
hands on the vehicle and I pat them down and I frisk them.”


                                          III.


       The judgment is reversed, and the case remanded for further proceedings
consistent with this opinion.


                        ______________________________




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