Author: Jim Chapman
In United States v. Lemon, 2023 WL 6857244 (8th Cir. Oct. 18, 2023), the United States Court of Appeals for the Eight Circuit was asked to resolve a case of mistaken identity. In this case, Defendant/Appellant Lorenzo Devon Lemons, Sr., was charged with possessing a firearm by a prohibited person, in violation of federal law, after law enforcement officers discovered a gun in his possession during an investigatory stop. Lemons moved to suppress the evidence of the firearm, claiming that the officers’ mistaken belief that he was a wanted fugitive nine inches taller than him rendered the stop unreasonable. The United States District Court for the Northern District of Iowa denied Lemons’ motion to suppress and, after his conviction, sentenced him to a term of 37 months of imprisonment. On appeal, the Eighth Circuit affirmed Lemons’ conviction and sentence because a reasonable suspicion of criminal activity independent of the mistaken identification justified Lemons’ detention. The relevant facts are as follows.
On September 13, 2021, Dubuque, Iowa police officers Benjamin Goerdt and Calvin Harridge (“the Officers”) conducted surveillance of an apartment belonging to the girlfriend of a wanted fugitive: Christopher Williams. Williams, who had outstanding arrest warrants, had led police on a high-speed chase the day before and had crashed his vehicle. Williams later escaped from the hospital in a car registered to his girlfriend. Police records described Williams as a six-foot-tall African-American male in his twenties with a stocky build, full head of hair, and a beard that wrapped around his face.
At 12:30 a.m., the Officers parked their unmarked police vehicle half a block away from Williams’s girlfriend’s apartment. The apartment was located on the second floor of the building and was accessible by an outside staircase. At the beginning of their ninety-minute surveillance, the Officers noticed multiple men standing on a porch at the top of the staircase, including Lemons. Lemons is a five-foot-three African-American male in his twenties with a stocky build, full head of hair, and a goatee. The Officers immediately focused on Lemons due to his build and facial hair and because he was “acting as if he didn’t want to be noticed.”
Around 12:47 a.m., a marked squad car drove past the apartment. Lemons reacted by going inside the apartment and turning off the lights. When the squad car left, Lemons came back outside. The Officers surveilled Lemons for another hour, watching him and his colleagues move between the porch, staircase, sidewalk, and a neighboring residence. Despite their use of binoculars, the Officers testified that their surveillance was partially obscured by the apartment porch’s railing, parked cars, and the darkness of the early morning.
At 1:48 a.m., the Officers drove past Lemons and his colleagues on the sidewalk in order to get a better look. As they passed, Lemons peeked his head over the top of a parked van and stared at the Officers. The Officers drove around the block and, after some discussion, decided that Lemons was Williams. Accordingly, the Officers approached Lemons in their vehicle intending to detain him.
At 1:50 a.m., Officer Harridge activated the police car’s emergency lights in front of the apartment, and Officer Goerdt exited the vehicle. Lemons immediately began to run across the street. Officer Goerdt ran after Lemons, shouting for him to stop and to get on the ground. Officer Harridge followed close behind. Lemons soon yielded and dropped to his stomach in a grassy area across from the apartment. As the Officers struggled to apprehend him, Lemons repeatedly yelled that he was not Williams and resisted being handcuffed. Lemons also pushed his waist into the ground causing the Officers to suspect that he might be hiding a weapon.
By this time, Officer Gary Pape (also a Dubuque police officer) arrived at the scene. A bystander who had been with Lemons approached Officer Pape and told him that Lemons had the bystander’s legally registered gun on him. Officer Pape then pulled a handgun from the front of Lemons’ waistband. The Officers finally handcuffed Lemons and got him to his feet at 1:54 a.m. Once Lemons was on his feet, the Officers were able to determine that he was not Williams. Lemons was arrested for interference with official acts.
After he was indicted for being a felon in possession of a firearm, Lemons moved to suppress the evidence of his possession of the firearm. Following a hearing, a magistrate judge issued a report and recommendation denying the motion, which the District Court adopted with minor modifications. Thereafter, Lemons pled guilty pursuant to a conditional plea preserving his right to appeal the District Court’s denial of his suppression motion, and Lemons timely filed an appeal.
On appeal, Lemons argued that the Officers’ mistaken identification of him as Williams was unreasonable, thereby rendering the stop invalid. However, the Eighth Circuit opined that the court need not decide whether the Officers had reasonable suspicion that Lemons was Williams because the Officers had sufficient, independent reasonable suspicion of criminal activity to detain Lemons. The Eighth Circuit explained that, if a law enforcement officer has reasonable and articulable suspicion that criminal activity is afoot, the officer may conduct a brief investigatory stop. The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.
In evaluating whether an officer has a reasonable suspicion, courts consider the totality of the circumstances in light of the officer’s experience. Relevant factors include the time of day or night, the location of the suspect parties, and the parties’ behavior when they become aware of the officer’s presence. Nervous, evasive behavior, or unprovoked flight are also highly pertinent.
Here, the Eighth Circuit determined that the Officers had sufficient evidence to establish a reasonable suspicion justifying Lemons’ detention. The Eighth Circuit first noted the time of the encounter. It was 12:30 a.m. when the Officers began their surveillance, and they detained Lemons at approximately 1:50 a.m. Second, the encounter took place in a high-crime area. The Officers were aware of multiple reports of subjects in that neighborhood with firearms, and the apartment that Lemons freely entered was associated with an armed and dangerous fugitive. Third, Lemons’ behavior when he became aware of law enforcement’s presence established a reasonable suspicion. Upon noticing another police car, Lemons disappeared into Williams’s girlfriend’s apartment, extinguished the lights, and only returned when the police vehicle left. Officer Goerdt testified at the suppression hearing to the suspicious nature of this behavior.
Moreover, Officer Harridge described Lemons’ action of staring at the Officers when they conducted their own drive-by as “hypervigilant” and indicative that Lemons was “watching his back.” Most important, according to the Eighth Circuit, was Lemons’ unprovoked flight when the Officers approached on foot. The Eighth Circuit explained that, even if it only lasted a few seconds, such flight constituted the consummate act of evasion, and Lemons provided no innocent explanation for it.
In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States Supreme Court decided that unprovoked flight and presence in a high-crime area alone were sufficient to establish reasonable suspicion. Here, the Eighth Circuit noted that the same facts as were present in Wardlow were present in this case, plus Lemons’ additional furtive behavior. Accordingly, the Eighth Circuit found that the totality of the circumstances established a reasonable suspicion of criminal activity sufficient to detain Lemons.
Lemons also argued that his continued detention was unreasonable once he was on the ground and once it was obvious that he was not Williams. However, the Eighth Circuit held that, because Lemons’ initial detention was based on an independent, reasonable suspicion of criminal activity, the Officers’ mistaken identification did not invalidate Lemons’ continued detention. Furthermore, once he was on his stomach, Lemons’ evasive action of pushing his waist into the ground to hide the firearm and his continued failure to cooperate with the Officers justified prolonging the stop. Accordingly, the Eighth Circuit affirmed the District Court’s denial of Lemons’ motion to suppress the firearm.