Is “acting suspicious” sufficient to warrant a stop-and-frisk? The U.S. Court of Appeals for the Fifth Circuit does not think so. In U.S. v. Monsivais, 848 F.3d 353 (5th Cir.2017), the court overturned a district-court decision that denied a motion to suppress evidence based on the ground that the officer who patted down the defendant violated the Fourth Amendment. The defendant argued that the officer did not have reasonable suspicion to believe that he was involved in criminal activity when detained. The court held that the defendant’s nervous behavior, placing his hands in his pockets, and not greeting the officers were not enough to reasonably suspect the defendant of a criminal act.
The court summarized Fourth Amendment law surrounding such stop-and-frisk stops as follows:
While the Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual, under the “very narrow exception” announced in Terry v. Ohio, 392 U.S. 1 (1968), police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. Although “reasonable suspicion” is more than a “mere hunch,” it “need not rise to the level of probable cause.” An “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” an intrusion into the privacy of the detained individual.
When the police officers saw him, Marcelo Monsivais was walking away from his disabled truck on the side of an interstate highway between Abilene and Fort Worth. For the purpose of a “welfare check,” the officers headed back towards Monsivais and stopped the squad car on the side of the highway facing him as he approached, also activating the car’s emergency lights. Monsivais, however, walked past the squad car, and then the officers exited the vehicle to question him. Although Monsivais was polite in responding to the questions, he appeared nervous and jittery; he also told officers he was heading to Fort Worth when his car was pointed the opposite way. Monsivais repeatedly put his hands in his pockets during the conversation but took them out each time at the officers’ request. Minutes later, one of the officers told Monsivais that he was going to pat him down for weapons “because of his behavior” and “for officer safety reasons.” Monsivais then told the officer that he had a firearm on him, and the other officer seized the firearm. Later the officers discovered that Monsivais’s identification document—a Mexican passport—was expired, and that he had a pipe and two small baggies of methamphetamine in his possession. Monsivais was arrested and later charged with possession of a firearm while being unlawfully present in the United States.
Monsivais filed a motion to suppress the evidence obtained as a result of the seizure and searches. After a hearing, the district court denied the motion, stating that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer safety reasons.” Monsivais appealed, arguing that the district court erred because “the officers did not have reason to suspect him of a crime as a basis for an investigatory detention, or reason to suspect him of being armed and dangerous as a basis for a protective frisk for weapons.”
The Fifth Circuit Court of Appeals sided with Monsivais in a split decision, ruling that the officers lacked a reasonable basis to suspect him of a criminal act before seizing him. The court examined whether, based on the totality of the relevant circumstances existing before the officer’s announcement of the pat-down, the officer could reasonably suspect that Monsivais had committed, was committing, or was about to commit a criminal offense. The officer who conducted the pat-down testified that he never suspected Monsivais to be involved in any criminal activity, but rather that Monsivais was “just acting suspicious.”
The court held:
On the facts of this case, we can see no objectively logical path of deduction that leads to reasonable suspicion of criminal activity at the time of Monsivais’s seizure and detention. [N]either the Government nor the arresting officers have pointed to an objective fact that is contextually or inherently suggestive of criminal activity by Monsivais prior to the pat-down. And of course, where an articulable deductive relationship or connection between facts taken as premises does not form part of an officer’s conclusion of criminal suspicion, then that conclusion cannot be objectively logical and can only be based on an impermissible intuitive sense or feeling—i.e., a hunch
On examination of the relevant facts the court found: Monsivais was free to walk past the police car; the fact of Monsivais placing his hands in his pockets while talking to the officers had little weight under the particular facts of the case; and finally, nervousness alone was not sufficient to create reasonable suspicion. Thus, the court concluded that the facts offered by the prosecution, considered all together, did not support a finding of reasonable suspicion. As a result, the court ruled that the seizure of Monsivais violated the Fourth Amendment.
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 U.S. v. Monsivais, No. 15-10357, slip op. at 3-4 (5th Cir. Feb. 2, 2017) (citations omitted).
 Id. at 1.
 Id. at 1-2.
 Id. at 2.
 Id. at 8.
 Id. at 7
 Id. at 2.
 Id. at 3.
 Id. at 2. See 18 U.S.C. §922(g)(5).
 Monsivais, slip op. at 2.
 Id. at 3.
 See id. at 13-14.
 See id. at 5.
 Id. at 13.