Kentucky declines to adopt a per se rule that a completed misdemeanor is not subject to a stop-and-frisk because it is too difficult to apply in the field. K.H. v. Commonwealth, 2020 Ky. App. LEXIS 86 (July 24, 2020):
Among the earliest courts to adopt the per se rule was the Minnesota Court of Appeals. Blaisdell v. Commissioner of Public Safety, 375 N.W.2d 880 (Minn. Ct. App. 1985) (Blaisdell I). Blaisdell I held that “stops to investigate completed misdemeanors violate the fourth amendment of the United States Constitution.” Id. at 884. Several state and federal courts have cited Blaisdell I but rarely have they followed it. The Minnesota Supreme Court itself affirmed Blaisdell I but did so on other grounds and was skeptical of the “per se” rule saying, “[I]t was … unnecessary for the Court of Appeals to decide the broader issue of whether all stops to investigate completed misdemeanors are impermissible” and expressing “no opinion as to the correctness of the Court of Appeals’ holding.” Blaisdell v. Commissioner of Public Safety, 381 N.W.2d 849, 849, 850 (Minn. 1986) (Blaisdell II). Since then, the Minnesota Court of Appeals has “repeatedly held that a stop to investigate a misdemeanor committed in ‘the very recent past’ is lawful.” State v. Voss, No. A16-1753, 2017 WL 1833320, at *4 (Minn. Ct. App. May 8, 2017) (citing State v. Stich, 399 N.W.2d 198, 199 (Minn. Ct. App. 1987) (“No precedent holds that it is unlawful to make an immediate pursuit and stop of a person who has committed a misdemeanor in the very recent past, and we accordingly find no error in the trial court’s ruling.”)). “Accordingly,” as said by the federal district court in Arizona, “it would appear that Blaisdell [I] no longer constitutes a bright line rule, even in Minnesota.” United States v. Cheek, 586 F. Supp. 2d 1099, 1105 (D. Ariz. 2008).
A similar evolution away from the per se rule occurred among the federal circuits. The Sixth Circuit was first to consider the question. In Gaddis ex rel. Gaddis v. Redford Township, the court described a bright-line prohibition against stops based on the reasonable suspicion of a “mere completed misdemeanor.” 364 F.3d 763, 771 n.6 (6th Cir. 2004). Subsequent state and federal jurisprudence “prompted every other circuit to follow the Hensley facts-and-circumstances test in considering the misdemeanor side of the problem.” United States v. Jones, 953 F.3d 433, 436 (6th Cir. 2020) (citations omitted).
In 2007, the Ninth Circuit declined to adopt the Sixth Circuit’s per se rule. United States v. Grigg, 498 F.3d 1070 (9th Cir. 2007). That court said “a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger …, and any risk of escalation ….” Id. at 1081. Other circuits followed in rejecting the per se rule. United States v. Moran, 503 F.3d 1135, 1141 (10th Cir. 2007); United States v. Hughes, 517 F.3d 1013, 1017-18 (8th Cir. 2008). Others found it unnecessary to decide the issue. SeeUnited States v. Fields, 823 F.3d 20, 26 (1st Cir. 2016) (“we need not decide that question … because we affirm the District Court’s conclusion that no show of authority-and thus no seizure-had occurred”); United States v. King, 764 F. App’x 266, 269 n.2 (3d Cir. 2019) (“we need not decide that issue because we conclude that the Trooper justifiably stopped King on suspicion of imminent or ongoing criminal activity”).
Very recently, the outlier Sixth Circuit clarified that it no longer embraces the per se rule, if it ever did. In United States v. Jones, supra, the Sixth Circuit said the misdemeanor, bright-line “language in … Gaddis is dicta, unnecessary to [the] outcome. Later decisions of ours confirm the point.” 953 F.3d at 438 (citing United States v. Collazo, 818 F.3d 247, 253-54 (6th Cir. 2016); United States v. Simpson, 520 F.3d 531, 541 (6th Cir. 2008)). Jones, a case that originates in Kentucky, is worth considering closely.
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An across-the-board prohibition on stops to investigate completed non-felonies runs into other problems, including the elusive and evolving nature of the felony-misdemeanor distinction and its disappearance in some instances. While “in earlier times the gulf between the felonies and the minor offences was broad and deep, … today the distinction is minor and often arbitrary.” Tennessee v. Garner, 471 U.S. 1, 14, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (quoting 2 F. Pollock & F. Maitland, The History of English Law 467 n.3 (2d ed. 1909)). Once upon a time, “felony” described the most severe crimes. “No crime was considered a felony which did not occasion a total forfeiture of the offender’s lands or goods or both.” Kurtz v. Moffitt, 115 U.S. 487, 499, 6 S. Ct. 148, 29 L. Ed. 458 (1885); see also Garner, 471 U.S. at 13 n.11, 105 S. Ct. 1694. Today, serious crimes are usually felonies, but not always. In Kentucky, where Jones’ arrest occurred, it is a misdemeanor to incite a riot, possess burglar’s tools, stalk someone, or flee the police. Ky. Rev. Stat. Ann. §§ 508.150, 511.050, 520.100, 525.040. And the Commonwealth treats stealing mail, driving a car without permission (for the second time), and receiving deposits at an insolvent financial institution as felonies. Id. §§ 514.100, 514.140, 517.100. … If our touchstone is reasonableness, it’s odd to say that police could stop a suspect on reports he had stolen mail but not on reports he had incited a riot (or assaulted someone)-or that a valid stop to investigate a felony becomes invalid if the prosecutor charges it as a misdemeanor. All of this confirms the danger of using misdemeanor labels alone to define the coverage of the Fourth Amendment. Id. at 436-37. We cannot improve upon this analysis, and from it we conclude the Kentucky Supreme Court would not be inclined to adopt the per se rule K.H. urges. We decline to reverse the suppression order based on that argument.