W.D.Tex.: Stop for jaywalking in high crime area didn’t provide RS to detain to ask about drugs; removing key fob from pocket was 4A violation

Reasonable suspicion for jaywalking didn’t permit questioning about drugs just because defendant was in a high crime area. The use of defendant’s key fob in his pocket violated the Fourth Amendment, following United States v. Craddock, 841 F.3d 756, 760 (8th Cir. 2016). United States v. Fennell, 2018 U.S. Dist. LEXIS 83857 (W.D. Tex. May 17, 2018):

Once they were aware that the Defendant had outstanding warrants, they were authorized to take him into custody or they could have exercised their discretion, not take the Defendant into custody and release him. However, the scope of their questions (directed at suspicious ties to a drug house) was not reasonably related in scope to the circumstances that justified the stop in the first instance (jaywalking). The officers had no specific and articulable facts that the Defendant had or was about to commit any other crime. “Such a belief must be founded on specific and articulable facts rather than on a mere suspicion or ‘hunch.'” United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).

The Government appears to assert that because the Defendant was walking in a high crime area, this justified prolonging the stop and searching the Defendant’s pocket, and pressing on the key Fob to further its investigative fact-gathering. First, the Court concludes that the Defendant did not consent to a search of his pocket after the frisk had been conducted.

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A recent Eighth Circuit opinion has approached the question slightly differently. In finding that the officer’s use of the key Fob exceeded the scope of a Terry stop and required suppression, the Court concluded that a defendant has a reasonable expectation of privacy in the contents of his pants pockets. United States v. Craddock, 841 F.3d 756, 760 (8th Cir. 2016).

This Court agrees with the Craddock decision that a person has a reasonable expectation of privacy in the contents of his pants pockets. In sum, without the Defendant’s consent, Officer Villanueva should not have removed the contents of the Defendant’s pocket and pressed the key Fob. Even assuming there was consent to search the pocket for a weapon, there was no consent to the removal of the key from the Defendant’s pocket and the pressing of the key Fob. The notation of the license plate number and the knowledge of what car the Defendant was driving require suppression.