                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 20a0088p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                  ┐
                                  Plaintiff-Appellant,      │
                                                            │
                                                             >        No. 19-5633
        v.                                                  │
                                                            │
                                                            │
 JERMAINE TYRONE JONES,                                     │
                                 Defendant-Appellee.        │
                                                            ┘

                         Appeal from the United States District Court
                       for the Western District of Kentucky at Paducah.
                   No. 5:17-cr-00039-1—Thomas B. Russell, District Judge.

                                   Argued: March 12, 2020

                             Decided and Filed: March 23, 2020

               Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.
                                _________________

                                           COUNSEL

ARGUED: Amanda B. Harris, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Frank W. Heft, Jr., FEDERAL PUBLIC DEFENDER, Louisville,
Kentucky, for Appellee. ON BRIEF: Amanda B. Harris, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellant. Frank W. Heft, Jr., Scott T. Wendelsdorf,
FEDERAL PUBLIC DEFENDER, Louisville, Kentucky, for Appellee.
                                     _________________

                                            OPINION
                                     _________________

       SUTTON, Circuit Judge.       Officers stopped Jermaine Jones’ vehicle to investigate
allegations that he committed fourth-degree assault, a misdemeanor in Kentucky. During the
stop, they discovered a weapon on Jones, a convicted felon. Indicted for unlawful possession of
 No. 19-5633                           United States v. Jones                             Page 2


a firearm, Jones moved to suppress the evidence recovered from the stop on the theory that the
Fourth Amendment bars investigatory stops prompted by a completed misdemeanor. The district
court reluctantly agreed. Because the Fourth Amendment contains no such rule, we reverse.

                                                I.

        On April 30, 2017, Ti’Erica McKinney called the Paducah police department to report a
domestic violence incident. Several officers, including Andrew Parrish, arrived at the scene.
McKinney told Parrish that she had come home from work to find her ex-boyfriend, Jermaine
Jones, inside her house. She asked Jones to leave. When he refused, they began arguing.
Matters got out of hand. Jones poured dish detergent over her couch, then chased her out of the
home. Once outside, Jones threw Sprite cans and a bottle of dish soap at McKinney as she ran
for help. McKinney dodged the cans but did not evade the bottle of dish soap. McKinney
eventually returned to see William Snipes, Jones’ friend, driving Jones away in a white “Tahoe-
like vehicle with a long body.” R.37 at 2.

        Officer Parrish took steps to corroborate McKinney’s story. He questioned her about
reports that other people had come to her aid. McKinney admitted that her brothers had arrived
before the police but left when Jones fled to avoid dealing with the authorities. Around the
house, Officer Parrish saw items consistent with McKinney’s account. He found a soap-stained
couch and a bottle of detergent on the floor. He also spotted Sprite cans near McKinney’s
vehicle and noticed damage to the car. In her front yard, he located the bottle of dish soap that
had hit McKinney’s back. When McKinney showed Officer Parrish her injury, he pointed out
that he could not see any bruising but acknowledged it might take a few days for the harm to
show.

        Consistent with department policy, Officer Parrish and McKinney filled out a “Domestic
Violence Lethality Screen,” a questionnaire to determine if an officer should refer a victim to
domestic violence resources. She told Officer Parrish that Jones had threatened to kill her in the
past, might try to kill her in the future, and could easily obtain a gun. McKinney elaborated that
Jones had strangled her and kicked in her front door. She repeatedly told Parrish, without
 No. 19-5633                             United States v. Jones                          Page 3


prompting, that she planned to get an emergency protective order against Jones and that she
feared he would return to attack her once the officers left.

       To allay McKinney’s concerns, Officer Parrish stayed in his car next to the house and
finished up some paperwork. The caution paid off. Shortly after Officer Parrish finished up with
McKinney, he saw two black males in a white Chevy Suburban sitting at the intersection near
McKinney’s home. Parrish pulled the Suburban over and approached the passenger side, where
Jones sat. After a brief discussion, Parrish asked Jones to exit the vehicle and escorted him to
Parrish’s car. A quick pat-down of Jones revealed nothing. Asked about the incident, Jones
denied everything: the detergent, the Sprite cans, the dish soap. Parrish did not believe him and
arrested him for the assault. He cuffed Jones, conducted a second, more thorough, search, and
placed him in the back of his squad car.

       Jones began yelling that Parrish had cuffed him too tightly. When Parrish checked the
cuffs, he spotted a firearm in the back of his cruiser that he had not seen before. That led to a
charge of unlawful possession of a firearm.

       Jones moved to suppress the gun. Officer Parrish violated the Fourth Amendment, Jones
claimed, because he stopped the vehicle on the suspicion Jones had committed a crime. To make
a valid stop, Jones asserted, Parrish needed a reasonable suspicion of ongoing or imminent
criminal activity. At the hearing, Parrish confirmed that he had stopped Jones’ vehicle solely to
“further investigate” McKinney’s allegations of assault. R.30 at 7. In Kentucky, her accusation
amounted to fourth-degree assault, a misdemeanor. Ky. Rev. Stat. Ann. § 508.030(1)(a).

       Relying on dicta from two of our decisions, the court “reluctantly” suppressed the
evidence. R.37 at 6–7. The government appealed.

                                                 II.

       The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
When an officer stops a vehicle and questions the occupants, even for a brief moment, that
counts as a “seizure” of “persons.” Whren v. United States, 517 U.S. 806, 809 (1996). Officers
 No. 19-5633                            United States v. Jones                              Page 4


may conduct these stops if, among other justifications, “specific and articulable facts,” Terry v.
Ohio, 392 U.S. 1, 21 (1968), support a reasonable suspicion that the car’s “occupants are
involved in criminal activity,” United States v. Hensley, 469 U.S. 221, 226 (1985). But what
happens if the officer stops a vehicle to investigate criminal activity that already occurred? We
know the answer in part. If the activity qualifies as a felony, the Fourth Amendment does not bar
the stop. Id. at 229.

       What about non-felony crimes? Does the Fourth Amendment prohibit officers from
making a Terry stop to investigate a misdemeanor? Attentive readers of Fourth Amendment
caselaw should be skeptical of such a standard. “[T]he touchstone of the Fourth Amendment is
reasonableness,” not “bright-line rules.” Ohio v. Robinette, 519 U.S. 33, 39 (1996). And the
Supreme Court has consistently rejected lower courts’ attempts to avoid dealing with “endless
variations in the facts and circumstances implicating the Fourth Amendment” by crafting
“litmus-paper” tests or “single sentence or paragraph” rules. Id. (quotation omitted); see also
Hensley, 469 U.S. at 226–27.

       The Court has given us some of the tools to answer the question already. Hensley
explained that the “proper way” to identify the “precise limits on investigatory stops to
investigate past criminal activity” is to “apply the same test already used to identify the proper
bounds of intrusions that further investigations of imminent or ongoing crimes.” Hensley,
469 U.S. at 228. Courts must balance “the nature and quality of the intrusion on personal
security against the importance of the governmental interests alleged to justify the intrusion.” Id.

       True, Hensley left open whether “Terry stops to investigate all past crimes, however
serious, are permitted.” Id. at 229. But it did not erect an “automatic barrier” to investigating
completed misdemeanors either. Id. The Court left it to the lower courts to apply the traditional
Fourth Amendment considerations, rather than create an “inflexible rule” if and when the
question of investigating a completed misdemeanor (or other non-felony crime) came up. Id. at
227.

       The Court’s guidance has prompted every other circuit to follow the Hensley facts-and-
circumstances test in considering the misdemeanor side of the problem. United States v. Hughes,
 No. 19-5633                           United States v. Jones                             Page 5


517 F.3d 1013, 1017–18 (8th Cir. 2008); United States v. Grigg, 498 F.3d 1070, 1076–77, 1081
(9th Cir. 2007); United States v. Moran, 503 F.3d 1135, 1141–43 (10th Cir. 2007). In doing so,
the circuit cases sometimes come out on the side of the government, Moran, 503 F.3d at 1143,
sometimes on the side of the defendant, Grigg, 498 F.3d at 1081–83; Hughes, 517 F.3d at 1018–
19.

       An across-the-board prohibition on stops to investigate completed non-felonies runs into
other problems, including the elusive and evolving nature of the felony-misdemeanor distinction
and its disappearance in some instances. While “in earlier times the gulf between the felonies
and the minor offences was broad and deep, . . . today the distinction is minor and often
arbitrary.” Tennessee v. Garner, 471 U.S. 1, 14 (1985) (quoting 2 F. Pollock & F. Maitland, The
History of English Law 467 n.3 (2d ed. 1909)). Once upon a time, “felony” described the most
severe crimes. “No crime was considered a felony which did not occasion a total forfeiture of
the offender’s lands or goods or both.” Kurtz v. Moffitt, 115 U.S. 487, 499 (1885); see also
Garner, 471 U.S. at 13 n.11. Today, serious crimes are usually felonies, but not always. In
Kentucky, where Jones’ arrest occurred, it is a misdemeanor to incite a riot, possess burglar’s
tools, stalk someone, or flee the police. Ky. Rev. Stat. Ann. §§ 508.150, 511.050, 520.100,
525.040. And the Commonwealth treats stealing mail, driving a car without permission (for the
second time), and receiving deposits at an insolvent financial institution as felonies.        Id.
§§ 514.100, 514.140, 517.100. Some States leave the classification to prosecutors and judges.
See Ewing v. California, 538 U.S. 11, 17 (2003). The status of these “wobbler” crimes thus may
not be known until the crime is charged or the offender sentenced. Id. If our touchstone is
reasonableness, it’s odd to say that police could stop a suspect on reports he had stolen mail but
not on reports he had incited a riot (or assaulted someone)—or that a valid stop to investigate a
felony becomes invalid if the prosecutor charges it as a misdemeanor. All of this confirms the
danger of using misdemeanor labels alone to define the coverage of the Fourth Amendment.

       Treating the offense’s misdemeanor label as an idée fixe and ignoring the interests at
stake also would not work for the States that have eliminated these distinctions. Take Maine,
which divides crimes into five classes. Me. Rev. Stat. Ann. tit. 17-A § 4. The only way to
decide how the Fourth Amendment applies to stops investigating a “Class A” or a “Class B”
 No. 19-5633                             United States v. Jones                                Page 6


crime is to fall back on other principles—the risks to the community of the crime. And though
most States continue to use words like “felony” and “misdemeanor,” many have added
new variants. Minnesota     and    Washington      criminalize     “misdemeanor[s]”      and    “gross
misdemeanor[s].” Minn. Stat. § 609.02; Wash. Rev. Code Ann. § 9A.04.040. And Pennsylvania
separates out murders from felonies and misdemeanors.             18 Pa. Stat. & Cons. Stat. Ann.
§ 106(a)(1). A per se rule against investigating a certain class of crime offers no help in deciding
whether seizures related to these bottomless variations are reasonable.

       The better rule in this setting is not bright in either direction. It does not say that officers
always may make a Terry stop of an individual known to have completed a misdemeanor, as
Hensley permits for completed felonies. And it does not say that officers never may make a
Terry stop of an individual known to have completed a misdemeanor. It instead falls back on
reasonableness, balancing the interests in public safety and personal liberty. The inquiry turns
not on whether the suspect already completed a crime. It turns on the nature of the crime, how
long ago the suspect committed it, and the ongoing risk of the individual to the public safety.
Under this approach, the Fourth Amendment correctly appreciates the distinction between
officers who illegitimately invoke Terry to stop someone who ran a red light sixth months ago
and legitimately use it to stop someone who assaulted a spouse in the past half hour.

       These dynamics are captured in two questions.              Did an officer stop a suspect to
investigate a completed felony? If yes, we move on to consider the reasonableness of the
officer’s suspicion. If the offense goes by another name, we ask whether this stop for this
offense violates the Fourth Amendment. See Hughes, 517 F.3d at 1017; Grigg 498 F.3d at 1081;
Moran, 503 F.3d at 1142. Hensley tells us to consider several factors in balancing the security
and liberty interests. Does the stop “promote the interest of crime prevention”? Hensley, 469
U.S. at 228. Does it further “[p]ublic safety”? Id. How strong is the government’s interest in
“solving crimes and bringing offenders to justice” in this case?           Id. at 229.    And would
“[r]estraining police action until after probable cause is obtained” unnecessarily hinder the
investigation or allow a suspect to “flee in the interim”? Id.

       Gauged by these considerations, this stop passes. At the time he pulled Jones over,
Parrish had a reasonable suspicion that Jones had assaulted McKinney. He had corroborated
 No. 19-5633                              United States v. Jones                             Page 7


almost every part of her account, and the car he saw matched her description. Stopping the
vehicle directly promoted the interest of preventing crime. McKinney credibly alleged that Jones
intended to harm her or her home.

          The stop also promoted public safety. McKinney told the officer that Jones could get a
firearm easily, attacked her before, and recently fought with her brothers. Hailing down the
vehicle gave Parrish the chance to stop Jones from further violence and threats. By stopping
Jones’ car to investigate McKinney’s allegations of assault, misdemeanor or not, felony or not,
Parrish used common sense and acted in eminently reasonable fashion.

          Jones resists this conclusion on two grounds.

          He points us to three cases that say an officer may not conduct a Terry stop to investigate
a completed misdemeanor. Gaddis v. Redford Township, 364 F.3d 763, 771 n.6 (6th Cir. 2004);
United States v. Roberts, 986 F.2d 1026, 1030 (6th Cir. 1993); United States v. Halliburton, 966
F.2d 1454, 1992 WL 138433, at *4 (6th Cir. 1992) (table). But Halliburton is an unpublished
decision, which does not bind later panels. United States v. Sanford, 476 F.3d 391, 396 (6th Cir.
2007). And the cited language in Roberts and Gaddis is dicta, unnecessary to either outcome.
Later decisions of ours confirm the point. United States v. Collazo, 818 F.3d 247, 253–54 (6th
Cir. 2016); United States v. Simpson, 520 F.3d 531, 541 (6th Cir. 2008).

          Tacking in a different direction, Jones says we should adopt a per se rule because it
accords with Kentucky law. True, Kentucky affords greater protections for its citizens when
officers investigate past crimes. See Ky. Rev. Stat. Ann. § 431.005(1). But its prerogative to
experiment with greater constitutional protections does not require the Fourth Amendment to do
the same. Virginia v. Moore, 553 U.S. 164, 171 (2008); see Kansas v. Carr, 136 S. Ct. 633, 641
(2016).

          That leaves Jones’ alternative argument—that we should affirm the district court because
Officer Parrish lacked probable cause to arrest him for assaulting McKinney. But probable cause
“is not a high bar.” District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018) (quoting Kaley v.
United States, 571 U.S. 320, 338 (2014)). And Parrish cleared it. McKinney told Parrish that
Jones assaulted her. “Unless, at the time of the arrest, there is an apparent reason for [an] officer
 No. 19-5633                           United States v. Jones                           Page 8


to believe [an] eyewitness was lying, did not accurately describe what he had seen, or was in
some fashion mistaken regarding his recollection of the confrontation,” that accusation is
sufficient to establish probable cause. Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999)
(quoting United States v. Amerson, No. 93-6360, 1994 WL 589626, at *3 (6th Cir. Oct. 21,
1994). In this instance, Parrish had more than just McKinney’s accusation. He had all of the
evidence around him corroborating her story. On top of that, the white Suburban pulled up to the
intersection at McKinney’s home, just as she had predicted. Once Officer Parrish identified
Jones as the passenger, if not before then, his reasonable suspicion “developed into probable
cause” to make the arrest. United States v. Harflinger, 436 F.2d 928, 934 (8th Cir. 1970); see
Hoover v. Walsh, 682 F.3d 481, 500 n.53 (6th Cir. 2012).

       Jones counters that Officer Parrish lacked probable cause because “it was not shown” that
McKinney had sustained a “physical injury”—an essential element of fourth-degree assault.
Appellee Br. 31. Jones is getting ahead of himself. Prosecutors, not arresting officers, must
prove elements of the offense. See Thacker v. City of Columbus, 328 F.3d 244, 256 (6th Cir.
2003). Parrish knew enough facts to conclude Jones had probably assaulted McKinney. She
described the pain she experienced and showed him plenty of evidence that confirmed the
incident. Although he did not see any bruising on her back, he reasonably inferred that it might
take time for bruises to show given how recently the attack occurred. Perhaps at trial, Jones
could show that McKinney had not suffered “physical injury” significant enough to satisfy
Kentucky’s requirements. But at the point of arrest, the facts showed that Jones probably
engaged in criminal activity. Wesby, 138 S. Ct. at 586.

       We reverse.
