Get Your Hands Out of Your Pants! . . . Or The Police Can Stop and Frisk You

Edward Morgan, Jr. v. United States (decided August 6, 2015)

Players: Judges Thompson, Easterly, and McLeese. Opinion by Judge McLeese. Dissent by Judge Easterly. Stephanie L. Johnson for Mr. Morgan. Trial judge: J. Michael Ryan.

Facts: Police received a phone tip about potential drug activity from a caller who had just seen a man on a red bicycle exchange small objects with another man. The tipster said that during the transaction, the man on the bicycle “reach[ed] into the back of [his] pants and pull[ed] something out [and] put it back in.” Shortly thereafter, the tipster called again, this time reporting that the man on the bicycle was at a particular intersection. Police arrived at the intersection to find Mr. Morgan, who had a red bicycle and fit the physical description provided by the tipster. They initiated a Terry stop, which led to the discovery of cocaine in Mr. Morgan’s waistband and a conviction for possession of same.

Issue: Did the police have reasonable articulable suspicion (RAS) to stop Mr. Morgan?

Holding: Yes. The majority held that “a person’s removal and replacement of an object from inside the waistband of the back of his pants during an exchange will typically create reasonable articulable suspicion to believe the suspect was involved in criminal wrongdoing,” and it was “natural[]” to interpret the tip about Mr. Morgan reaching into “the back of [his] pants” to mean he reached into his waistband. The tipster thus gave police reason to believe the person he described was involved in unlawful activity, and Mr. Morgan sufficiently matched the suspect's physical description to be stopped.

Of Note:

• Despite the broad language of the majority’s ruling that reaching into a waistband gives rise to RAS, the modifying phrase “during an exchange” is an important limitation. The majority distinguished a New Jersey case that found no RAS arose from the suspect placing a paper bag inside his pants on grounds that “there were no other indications of a drug transaction, whereas the present case involves an exchange of small objects out on a street.” (emphasis added)

• Judge Easterly dissented, highlighting the rule that when a police officer does not observe suspicious activity first-hand, RAS can only arise if the tipster gives a specific description of suspicious activity rather than reporting a “hunch.” She concluded that the description of Mr. Morgan reaching into “the back of [his] pants” was vague and could well have referred to all manner of innocent activity, such as reaching into a back pocket for a wallet. The police ought to have asked for more detail, and the prosecution ought to have presented more detail, to develop and show RAS. FT

Read full opinion here.