Judge Gould accomplishes the rare double-play, with last week's great decision in Yida (featured here) and this week's excellent opinion in United States v. Grigg, __ F.3d. __, 2007 WL 2379615 (9th Cir. Aug. 22, 2007), decision available here. In Grigg, Judge Gould articulates a new rule for the Ninth (and apparently, the first such rule in any circuit): Despite the Supreme Court's decision in Hensley, being wanted for a misdemeanor is not necessarily grounds for a Terry stop.
Players: Great win by AFPD Thomas Monaghan, Fed. Def. E. Wa. & Idaho.
Facts: A citizen complained to the cops that Grigg was “booming” music out of his car. Id. at *1. As the citizen filled out a complaint, Grigg drove by with no music blaring. Id. The police nonetheless pulled Grigg over, blocked the car, ordered him to stay inside, then saw a rifle in the car. Id. at *2. Officers had made no effort to call the car in to dispatch, or identify the driver. Id. at *2. Grigg was charged with possession of an unregistered machine gun and convicted after a trial. Id. at *1.
Issue(s): “[I]n Hensley, the . . . Supreme Court held that ‘if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.’ The Hensley court explicitly confined its analysis to the felony context, leaving open the question whether the rule could be extended to ‘all past crimes, however serious,’ i.e., misdemeanors. . . . Grigg’s challenge to the district court's extension of Hensley raises an issue of first impression for us.” Id. at *4 (citation omitted) (emphasis added).
Held: “[O]ur evaluation of a Terry stop in the context of a completed misdemeanor should tend to give primary weight to a suspect’s interests in personal security, while considering the law enforcement's interest in the immediate detention of a suspect is not paramount.” Id. at *9.
“Despite the misdemeanor-felony distinction . . . we decline to adopt a per se standard that police may not conduct a Terry stop to investigate a person in connection with a past completed misdemeanor simply because of the formal classification of the offense. We think it depends on the nature of the misdemeanor.” Id. at *9.
“We hold that under the balancing test set forth in Hensley, a court reviewing the reasonableness of a stop to investigate a past misdemeanor (or other minor infraction) must assess the potential risk to public safety associated with the nature of the offense. Under the circumstances here, it was unreasonable for the Nampa police to pull over Grigg on suspicion of having played his music too loudly where they did not duly consider the lack of any threat to public safety, especially given the untested alternative means of ascertaining Grigg’s identity. The motion to suppress was erroneously denied.” Id. at *11.
Of Note: This new Ninth rule is an important limitation of Hensley. Hold your breath ‘till the en banc and cert. twins pass by.
How to Use: Is your client’s misdemeanor sufficient to trigger a Hensley stop? Here’s the test:
“”[A] court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation. A practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety. Conversely, the absence of a public safety risk reasonably inferred from an innocuous past misdemeanor suggests the primacy of a suspect’s Fourth Amendment interest in personal security.” Id. at *8.
For Further Reading: Here’s the back story. The trial defense was that Grigg didn’t know the gun was automatic. At trial, Grigg called the gun-seller who testified that it was broken and fired sporadically. See Appellant Brief, 2006 WL 3368590. ATF Agents – unhappy with that exonerating testimony – offered the witness immunity to change his story. Id. at *24-*25. When the witness refused an agent threatened, “someone is going to have to drink from that trough” – meaning the exonerating would be prosecuted if he didn’t play along with the government's theory. Id. At trial, an agent conceded this statement took place. Id.
Stellar investigation by Alcohol Tobacco and Firearms, the crown jewel of federal law enforcement agencies. Think these equities (not mentioned in the decision) weighed in favor of this Fourth Amendment victory?
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org