CA8: RS on totality to frisk a gang member in the middle of a rival gang’s territory

Gang officers had reasonable suspicion to frisk defendant when they encountered him outside an apartment building occupied by rival gang members in the middle of another gang’s territory. He was standing between two illegally parked cars talking to occupants of one when the gang unit approached him. There was reasonable suspicion on the totality. United States v. Dortch, 2017 U.S. App. LEXIS 15639 (8th Cir. Aug. 18, 2017):

Notwithstanding the broad similarities, we discern several factual differences between this case and Jones that together call for a different result. First, unlike in Jones, the location where Officer Sundermeier encountered Dortch was not just a neighborhood generally associated with violence and high crime rates. Cf. id. at 966. It was a specific building known to be the subject of an active territorial dispute between two gangs. The police knew shots had been fired (or at least reported fired) nearby recently. In the same time frame, there had been three gun arrests outside the building. In all three cases the guns were found in vehicles doing just what the officers observed when they arrived on the scene here—violating traffic laws on the block in front of the contested apartment building. Those circumstances provided a significantly stronger and more particularized basis for Officer Sundermeier to be concerned about the presence of a gun when he approached Dortch.

The details of the ensuing interaction, too, added to and reinforced Officer Sundermeier’s suspicion. Start with Dortch’s coat. In Omaha at least, a winter coat worn in June is significantly stranger—that is, significantly less likely to be “shared by countless, wholly innocent persons,” id. at 967—than a hoodie in September. We think it was entirely reasonable for Officer Sundermeier to wonder why Dortch was wearing something so conspicuously inappropriate for the weather. Particularly given Officer Sundermeier’s knowledge that he was at the location of an ongoing gang conflict and guns had recently been found in markedly similar situations, Officer Sundermeier could reasonably draw on his training and experience to suspect Dortch might be using the coat’s bulk to hide a weapon. Additional support for that suspicion, also not present in Jones, came from the fact Dortch did not just happen to be wearing something that made it hard to see if he was armed. Dortch responded to the sight of an approaching police officer by actively moving in such a way—pressing the front of his body against the minivan—as to further conceal what, if anything, he had in his coat. Finally, we do not think it was unreasonable for Officer Sundermeier, already justifiably concerned Dortch could be armed, to attribute some potential significance to the fact Dortch’s other response to seeing him approach was to put down his phone, thereby freeing his hands to reach for any weapon he might be carrying.