                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1752
                         ___________________________

                              United States of America

                                        Plaintiff - Appellee

                                          v.

                                    Darnell Polite

                                      Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                            Submitted: October 24, 2018
                              Filed: December 6, 2018
                                   ____________

Before ERICKSON, BEAM, and GRASZ, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

      Darnell Polite pled guilty in district court1 to being an unlawful user of a
controlled substance in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3).

      1
       The Honorable John M. Gerrard, United States District Court Judge for the
District of Nebraska, adopting the Report and Recommendation of the Honorable
Michael D. Nelson, United States Magistrate Judge for the District of Nebraska.
As a condition of his guilty plea, Polite reserved the right to argue on appeal that law
enforcement officers violated his Fourth Amendment rights by performing a Terry
stop without reasonable suspicion and arresting him without probable cause, and that
all evidence obtained and statements made by Polite following his detention should
be suppressed. We find law enforcement officers had reasonable suspicion to
conduct a Terry stop and Polite’s arrest was supported by probable cause. We affirm.

      I.     Background

       At 10:30 p.m. on Halloween in 2016, while on routine patrol, two City of
Omaha Police Department gang-unit officers saw a group of approximately 20
individuals standing in a parking lot and the adjacent sidewalk next to an apartment
building. Officers were aware of the increasing presence of Crips gang members,
including the 40th Ave., Hilltop, and 44th Ave. Crips, in this area. The apartment
manager had requested increased police presence because of crime and gang activity
occurring around the apartment complex. This area had been the location of narcotics
and firearms investigations as well as homicides.

       Upon seeing this group of people loitering about, City of Omaha police officers
Mike Sundermeier (“Officer Sundermeier”) and David Preston, Jr. (“Officer
Preston”) stopped the unmarked Dodge Magnum that they were driving while on
patrol. They recognized some of those present as 40th Ave. and 44th Ave. Crips gang
members. The officers were dressed in jeans and tactical vests marked with “Police”
on both sides. The Dodge’s red and blue lights were activated, at which point the
group began to head in different directions, some fleeing and some stopping to talk
to Officer Preston.

       Officer Sundermeier, from a distance of about 30 feet away, saw Polite kneel
down for approximately one second behind a parked blue Chevrolet Impala. As
Polite knelt behind the Impala, Officer Sundermeier testified that he heard an object

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hit the ground, which he described as a “metallic thump . . . metal-on-metal.” Almost
immediately after hearing the first sound, Officer Sundermeier testified that he heard
another object hit the ground a short distance away from where four other group
members were standing. He estimated that distance as about 40 feet away and
described the second sound as metal or something heavy hitting the ground.

       Officer Sundermeier detained Polite, believing he had just discarded a firearm.
He handcuffed Polite and confiscated a cell phone that had been in Polite’s
possession. Officer Sundermeier then moved to the front of the Impala where Officer
Sundermeier had seen Polite kneeling. Officer Sundermeier found a Makarov 9mm
semi-automatic pistol in the grass between the sidewalk and the building. A second
firearm wrapped in a blue bandana, which was not part of the charge in this case, was
found in the location where Officer Sundermeier had testified that he heard the
second sound of something hitting the ground. Thus, two firearms were recovered
at the scene and Officer Sundermeier testified he heard both of them hit the ground.
Officer Preston, 10 to 20 feet closer to Polite, heard neither of the firearms hit the
ground.

       Officer Sundermeier testified that on the night in question he recognized Polite
from prior contacts. He testified that he knew Polite was under the age of 21 and that
Polite had previously told him that he was a 40th Ave. Crips gang member.

       Polite was transported to Central Headquarters to be interviewed. Once at the
station, Polite was placed in an interrogation room and informed of his Miranda
rights. Officer Preston questioned Polite for less than an hour. During questioning,
Polite denied possession and knowledge of the 9mm handgun. He consented in
writing to the collection of a DNA sample and to a search of his cell phone. Polite
voluntarily provided the passcode for his cell phone. Among the phone’s contents
were photographs of the recovered 9mm handgun and marijuana. Polite eventually
admitted to being a gang member and a marijuana user.

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       Polite was charged with possession of a firearm while being an unlawful user
of, or addicted to, a controlled substance, in violation of 18 U.S.C. § 922(g)(3).
Polite moved to suppress any statements he made and any evidence obtained from a
buccal swab and the search of his cell phone on the grounds that he had been
unlawfully detained without reasonable suspicion and arrested without probable
cause. The magistrate judge held an evidentiary hearing and issued findings and a
recommendation that Polite’s motion be denied. The district judge overruled Polite’s
objections, adopted the magistrate judge’s findings, and denied Polite’s motion to
suppress. Following the district court’s denial of his motion to suppress, Polite
entered a conditional guilty plea, reserving a right to appeal the denial of his motion
to suppress. The court sentenced Polite to time served. This appeal followed.

       II.    Discussion

       We review de novo the district court’s denial of a motion to suppress evidence
and “the factual determinations underlying the district court’s decision for clear
error.” United States v. Harris, 747 F.3d 1013, 1016 (8th Cir. 2014). “We affirm
unless the denial of the motion is unsupported by substantial evidence, based on an
erroneous interpretation of the law, or, based on the entire record, it is clear that a
mistake was made.” United States v. Gunnell, 775 F.3d 1079, 1083 (8th Cir. 2015)
(quoting United States v. Douglas, 744 F.3d 1065, 1068 (8th Cir. 2014)).

      Under Terry v. Ohio, an officer may stop an individual if the officer has
reasonable suspicion that “criminal activity may be afoot.” 39 U.S. 1, 30 (1968). A
Terry stop is justified when a police officer is “able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry, 392 U.S. at 21; United States v. Davison, 808 F.3d
325, 329 (8th Cir. 2015). We determine whether reasonable suspicion exists based
on “the totality of the circumstances, in light of the officer’s experience.” United



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States v. Stigler, 574 F.3d 1008, 1010 (8th Cir. 2009) (quoting United States v.
Banks, 553 F.3d 1101, 1104 (8th Cir. 2009)).

       We find Officer Sundermeier had reasonable suspicion to conduct a Terry stop
on Polite. Polite was loitering around on Halloween night among a group of 20 other
people, some of whom were known Crips gang members. Polite and the others were
in an area where criminal activity was occurring frequently. When the officers
activated the patrol vehicle’s emergency lights, the group headed in different
directions, some to the east and some to the west. Some leaving the area and some
stopping to talk to Officer Preston. Polite did not act in a manner consistent with the
others. Officer Sundermeier saw Polite kneel in front of a parked car and then stand
back up a second later. Polite’s conduct was sufficient to give an officer reasonable
suspicion that something criminal might be afoot.

       In finding the existence of reasonable suspicion to support a Terry stop of
Polite, we have purposefully disregarded Officer Sundermeier’s testimony that he
heard what he believed were two firearms hit the ground as well as his testimony that
he knew Polite. Officer Sundermeier’s testimony is incredible and implausible when
considered along with the other undisputed evidence.

       Officer Preston was 10 to 20 feet closer to Polite and he did not hear the sound
of metal hitting the ground. Officer Preston described the scene of 20 people
loitering and dispersing as somewhat chaotic. People were moving in different
directions. People were talking. The notion that, under these circumstances, an
officer could hear from 30 feet away a 9mm handgun fall on the grass, or be placed
on the grass when Polite knelt down, is simply not credible or plausible. It is even
more implausible that under the same circumstances an officer could hear a firearm
wrapped in a bandana fall to the ground from approximately 40 feet away. Crediting
this testimony was clearly erroneous.



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       Additionally, on the night of the incident, Polite was walking in the dark with
his head down while wearing a hooded sweatshirt. After Officer Sundermeier
handcuffed Polite, he said to a detective at the scene: “this guy over here dropped a
gun.” Officer Sundermeier neither identified Polite by name nor made an indication
that he was familiar with Polite. It was not until an hour after the arrest when a crime
lab technician asked Officer Sundermeier for the suspect’s name that the officers
made any effort to identify Polite. A video recording captured Officer Preston
obtaining Polite’s name from Polite while Officer Sundermeier was standing nearby.
Officer Sundermeier asked Polite for his date of birth and the spelling of his last
name. This recorded evidence is plainly inconsistent with Officer Sundermeier’s
testimony that at the time of the arrest, he knew Polite from prior contacts. The
district court’s reliance on Officer Sundermeier’s testimony that he knew Polite, while
clearly erroneous, does not make Polite’s arrest unlawful.

      In less than a minute after Polite was detained, a handgun was located where
Officer Sundermeier saw Polite kneel down. The photographs of the firearm are
consistent with Officer Sundermeier’s testimony that the firearm did not appear to
have been in the grass for very long. Polite was 18 years old. Section 20-204(a) of
the Omaha Municipal Code provides, in relevant part: “Any person who has not
reached the age of 21 who possesses a concealable firearm . . . commits the offense
of unlawful possession of a concealable firearm.” Officer Sundermeier could
reasonably believe Polite looked under the age of 21.

      Furthermore, Nebraska law prohibits the carrying of a concealed weapon unless
the individual is a valid permit holder under the Concealed Handgun Permit Act.
Neb. Rev. Stat. § 28-1202. Applicants for a permit under the Concealed Handgun
Permit Act must be at least 21 years old. Neb. Rev. Stat. § 69-2433. Officer
Sundermeier testified that prior to Polite ducking down below the vehicle, he did not
appear to have anything in his hands. Officer Sundermeier could reasonably believe
the gun had been concealed prior to Polite discarding it as he approached. In light of

                                          -6-
these facts, Officer Sundermeier had probable cause to arrest Polite for illegally
possessing a firearm.

      III.   Conclusion

       After setting aside the testimony from Officer Sundermeier that was clearly
incredible and implausible, we find there remains sufficient evidence to support a
conclusion that the Terry stop was justified and that Polite’s arrest was lawful. The
district court did not err in denying Polite’s motion to suppress his statements and all
evidence obtained following the detention. See United States v. Cotter, 701 F.3d 544,
548 (8th Cir. 2012) (“Because the Terry stop was proper, the district court also did
not err in refusing to suppress . . . [the] confession, as it was not the fruit of the
poisonous tree.”). We affirm the district court.
                        ______________________________




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