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United States v. Lowry

United States Court of Appeals, Eighth Circuit

August 30, 2019

United States of America Plaintiff- Appellee
v.
Michael B. Lowry Defendant-Appellant

          Submitted: April 18, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.

          KOBES, CIRCUIT JUDGE.

         Michael Lowry entered a conditional guilty plea to being a felon in possession of a firearm violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals, arguing that the district court[1] erred in denying his motion to suppress evidence recovered from a stop not supported by reasonable suspicion. Although we agree that the officer who stopped Lowry lacked reasonable suspicion, suppression of the evidence is inappropriate under the attenuation doctrine. We therefore affirm.

         I.

         On a cold and windy January night, Michael Lowry was waiting at a bus stop near U.S. Highway 40 and I-70 in Independence, Missouri. The bus stop had two shelters, separated by about 25 yards, and was located in a high crime area. Lowry was wearing heavy clothes and seated inside one of the two shelters. Tyson Parks was inside the other shelter. Law enforcement had previously banned Parks from the bus stop.

         Shortly after 9 p.m., Officer Joseph Thomas Hand of the Independence Police Department (Independence) arrived at the bus stop on a routine patrol. Independence proactively patrolled the bus stop and Officer Hand tried to visit it five or six times a night. He was accompanied by a ride-along officer from another police department who was in the process of being hired by Independence. The ride-along officer had not been deputized and therefore could not assist Officer Hand with any police activities. Officer Hand was responsible for the ride-along officer's safety.

         Officer Hand immediately noticed Parks and approached him. He later admitted that he was frustrated because he knew that Parks was banned from the bus stop and he had previously found Parks intoxicated and causing disturbances there. As he approached, he yelled that Parks needed to leave. At the same time, he noticed Lowry looking in his direction and then getting up to walk behind the other shelter, out of his sight. Lowry remained behind the shelter a short time and then returned to the front side, while Officer Hand was still talking with Parks. He remained there until Officer Hand looked in his direction again and they made eye contact. When Lowry turned away and started to walk behind the shelter for a second time, Officer Hand shined his flashlight on him and ordered him to come over. Normally, Officer Hand testified, he would have approached Lowry and talked with him, but because he had a ride-along in his car and was busy with Parks in the other shelter he directed Lowry to come to him.

         Officer Hand testified that he suspected Lowry was engaged in some sort of criminal activity and might have been hiding weapons, drugs or alcohol. He also believed that Lowry was attempting to avoid contact. Lowry's bulky clothing, his backpack, and his presence at a bus stop in a high crime area amplified Officer Hand's suspicions.

         Lowry obeyed the directive and Officer Hand asked him to provide identification, which he also did. Lowry then waited by the patrol car while Officer Hand ran a warrant check. The warrant check revealed outstanding warrants and warned that Lowry was known to be violent. Officer Hand approached Lowry and asked him to place his hands behind his back, at which point Lowry informed Officer Hand that he had a gun in his waistband, a clip in his back pocket, and a collapsible baton in his backpack. He also told Officer Hand that he was a convicted felon. Officer Hand placed him under arrest and searched him, recovering the gun, the clip, and the baton.

         Lowry was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a motion to suppress the evidence as the fruit of an unlawful stop. The motion, including whether or not the attenuation doctrine should apply to prevent suppression, was briefed and a hearing was conducted before the magistrate. At the hearing, Lowry's attorney cross-examined Officer Hand.

         The magistrate recommended that the motion be denied because Officer Hand had reasonable suspicion to stop Lowry, and the district court adopted the recommendation. Neither the magistrate nor the district court addressed the attenuation issue. Lowry entered a ...


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