Facts
On March 16, 2022, federal agents stopped Damion Wilson pursuant to SCOTUS Terry v. Ohio, 392 U.S. 1 (1968). As he was approaching Wilson, Deputy U.S. Marshal Michael Atkins noticed a bulge in Wilson’s waist area that seemed like a hard object. Based on his training, Deputy Atkins believed the object was a concealed firearm. Atkins and other federal agents then ordered Wilson to stop and put his hands up. Wilson complied. The agents asked Wilson if he was armed, and he replied that he was. The agents ordered Wilson to drop the backpack he was wearing, to turn around, and to place his hands behind his back. The agents handcuffed him. While Wilson was being cuffed, Deputy Atkins asked him if he had a concealed weapons permit. Wilson admitted that he did not. The agents took the gun—which was loaded with an extended magazine—from
Wilson.
Deputy Atkins told Wilson that he was not under arrest and that agents wanted to talk to him about Wilson’s friend—a federal fugitive named Malik Fernandez. Wilson denied having seen or spoken to Fernandez in six
years. However, on Wilson’s public Instagram account, officers found a photo of Wilson and Fernandez together that had been posted approximately four months earlier. Local police then arrested Wilson for carrying a firearm without a permit. Incident to that arrest, officers searched Wilson’s backpack and found marijuana. Officers then obtained a search warrant for Wilson’s apartment and found more marijuana, drug paraphernalia, and approximately $1,700.
Wilson moved to suppress all physical evidence and statements arising from the March 2022 Terry stop and subsequent arrest. The district court denied the motion. The court found that the agents had reasonable suspicion to stop Wilson based on Deputy Atkins’ observation of a bulge that appeared to be a concealed firearm. The 5th affirmed the conviction but noted that the reasonable suspicion to stop Wilson did not come from the observation of a bulge.
Analysis
The district court’s approach is inconsistent with the Constitution’s history and tradition. It reasoned that carrying a firearm is “presumptively illegal” in Louisiana. Thus, officers can presume that every firearm is being carried illegally—and Terry stop every gun owner without any suspicion that any particular gun owner is doing anything wrong. But an officer cannot search or seize a person simply because he is keeping or bearing a firearm—any more than an officer can search or seize a person simply because he is keeping or bearing a piece of paper.
In this case, officers had ample reasonable suspicion to stop Wilson— separate and apart from the fact that he was a gun owner. Officers did not approach or stop Wilson only because they suspected him of carrying a gun. They approached and stopped him because they wanted to interview him about his friend Fernandez, who was a federal fugitive involved in a marijuana-trafficking-related shootout. So Wilson’s “proximity to known or reported criminal activity” was a factor supporting reasonable suspicion. And it is well established that a suspect’s companionship with or propinquity to an individual independently suspected of criminal activity is a factor to be considered in assessing the reasonableness of a seizure. See Thomas.
Many facts known to the officers connected Wilson to Fernandez at the moment of the Terry stop: Fernandez’s last known address was a home that belonged to a member of Wilson’s family. Three people living there told Deputy Atkins that Fernandez’s last known location was with Wilson and that if Deputy Atkins wanted to find Fernandez, he needed to find Wilson because “they’re always known to be together” and the two were “like
brothers.” Once officers arrived at Wilson’s apartment complex, Deputy Atkins showed pictures of Fernandez to neighbors and complex employees. And, critically, they told Deputy Atkins that they had seen Fernandez in and around Wilson’s apartment often, including within the last week.
All of that alone would give officers reasonable suspicion to Terry stop Wilson for, at a minimum, his potential involvement in drug trafficking or harboring a federal fugitive. Moreover, when officers approached Wilson,
they were aware of his criminal history. Deputy Atkins and the other officers knew that Wilson had recently been charged with (1) possession with the intent to distribute drugs and (2) possession of a firearm in furtherance of a drug trafficking crime.
Thus, this is not a case of officers stopping someone simply because they presumed he was a criminal based solely on the fact he was carrying a gun in Louisiana. The officers had ample grounds to think criminal activity
was afoot—even before Deputy Atkins saw the bulge in Wilson’s waistband.
Under such circumstances, precedent plainly allowed the officers to conduct a Terry stop.
https://www.ca5.uscourts.gov/opinions/pub/23/23-30777-CR0.pdf