### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 10357

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. MARCELO MONSIVAIS, also known as Marcelo Monsivais

- Castro,

Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas

Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges

. JAMES L. DENNIS, Circuit Judge: The events leading to the arrest and conviction of Marcelo Monsivais occurred on the side of Interstate 20 roughly midway between Abilene and Fort Worth, in Palo Pinto County, Texas

. On September 22 , 2014, during daylight hours , Deputy John Baker of the Palo Pinto County Sheriff’s Office and City Marshal Abel Saldana of Strawn, Texas, were on patrol in a marked sheriff’s

car traveling east on I

- 20 when they saw Monsivais walking east on the opposite side of the Interstate away from an apparently disabled truck. Baker drove the squad car across the median and head ed back toward Monsivais to of fer him roadside assistance , or as they put it, to do a “welfare check

. ” United States Court of Appeals Fifth Circuit 

### FILED February 2, 2017

Lyle W. Cayce Clerk Case: 15-10357 Document: 00513861299 Page: 1 Date Filed: 02/02/2017No. 15

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2 Baker stopped the squad car on the side of the highway facing Monsiv ai s as he approached and activated the car’s emergency lights as a traffic safety precaution. Monsivais, however , did not stop but continued w alking past the squad car in his eastbound direction (toward Fort Worth). About the time Monsivais pass ed the back of the squad car, the officers exited and Baker began ask ing Monsivais questions

. Baker could not remember exactly what he said but th ought his questions were about where Monsivais was headed, where he had been, and if he needed any help. The officers testified that Monsivais sa id he was heading to Fort Worth; that he appeared nervous and j ittery , but was polite in responding to the questions ; and that he repeatedly put his hands in his pockets , but took them out each time at Baker’s request. Baker testified that after approximately four minutes, he told Monsivais that he was going to pat Mo nsivais down for weapons “because of his behavior” and “for officer safety reasons

. ” After being so informed, Monsivais told the officer s that he had a firearm in his waistband

. Saldana grabbed Monsivais’s right hand, bent his arm behind him, and seize d the firearm. B oth officers then restrained and handcuffed Monsivais

. When asked for identification, Monsivais directed the officers to his wallet in his pocket , where they found an expired Mexican pa ssport

. Their continu ed search es of his clothing revealed a pipe and two small bag gie s of methamphetamine

. Monsivais was arrested and later charged with possession of a firearm while being unlawfully present in the United States

. See 18 U.S.C. § 922(g)(5). Monsivais filed a motion to suppress the evide nce obtained as a result of the seizure and the searches

. After a hearing at which the officers testified (but Monsivais did not) , t he district court denied Monsivais’s motion to

suppress , stating only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s dem eanor, remarks, and for officer

safety reasons.” Monsivais ple a d ed guilty but reserved his right to appeal the Case: 15-10357 Document: 00513861299 Page: 2 Date Filed: 02/02/2017No. 15

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3 denial of his motion to suppress

. He timely appealed , arguing that the district
court judge erred in failing to exclude the firearm and other evidence because the officers did not have reason to suspect him of a crime as a basis for an investigatory detention, or reason to suspect him of being armed and dangerous as a basis for a protective frisk for weapons. W e agree that the district court’s failure to exclude the firearm and other evidence was in error because the officers lack ed a basis to reasonably suspect him of a criminal act before seizing him; therefore, we need not determine whether the officers also lacked reasonable suspicion that Monsivais was armed and dangerous. 1
I While the Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual, u nder the “very narrow exception ” announced in Terry v. Ohio , 392 U.S. 1 (1968), p olice officers may briefly detain a person for investigative purposes if they can point to “ specific and articulable facts ” that give rise to reasonabl e suspicion that a particular

person has committed, is co mmitting, or is about to commit a crime

. United States v. Hill , 752 F.3d 1029, 1033 (5th Cir. 2014)

. Although “ reasonable suspicion ” is more than a “mere hunch,” it “need not rise to the level of pr obable cause.” United States v. Zavala , 541 F.3d 562, 574 (5th Cir. 2008) (quoting United States v. Lopez

- Moreno , 420 F.3d 420, 430 (5th Cir. 2005)). An “officer must be able to point to specific and articulable facts which, taken together

1 When a reviewing court determines that an initial investigatory stop wa s lawful, it must apply a different , more onerous standard to determine whether an ensuing frisk for weapons was lawful. This separate standard is more burdensome, in recognition that a frisk or pat down is “ a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly .” Terry v. Ohio , 392 U.S. 1, 17 (1968). “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Arizona v. Johnson , 555 U.S. 323, 326

– 27 (2009); Terry , 392 U.S. at 27. Thus, becau se the stop or detention of Monsivais was unlawful in the first place, the officers could not constitutionally proceed to frisk him or pat him down. Case: 15-10357 Document: 00513861299 Page: 3 Date Filed: 02/02/2017No. 15

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4 with rational inferences from those facts, reasonably warrant” an intrusion into the privacy of the detained individual. Terry , 392 U.S. at 21. To find that reasonable suspicion existed to justify a stop, a c ourt must examine the

“ totality of the circumstances ” in the situation at hand, in light of the individual officers’ own training and experience, and should uphold the stop only if it finds that “the detaining officer ha[d] a ‘par ticularized and objective basis’ for suspecting legal wrongdoing.” United States v. A rvizu , 534 U.S. 266,
273 (2002) ( quoting United States v. Cortez , 449 U.S. 411, 417

– 18 (1981) ).
T he standard for appellate review of reasonable

- suspicion determinations is de novo

. Id. at 275 ( citing Ornelas v. United States , 517 U.S. 690, 691 (1996))

. “ The g overnment bears the burden of showing the reasonableness of a warrantless search or seizure. ” United States v. Jaquez , 421 F.3d 338, 341 (5th Cir. 2005 ) (citing United States v. Chavis , 48 F.3d 871, 872 (5th Cir. 1995) )

. In reviewing the denial of t he motion to suppress, “ [w] e view the evidence in the light most favorable to the party that p revailed in the district court,” in this case, the Government

. United States v. Solis , 299 F.3d 420, 435

– 36 (5th Cir. 2002) (quoting United States v. Hunt , 253 F .3d 227, 2 30 (5th Cir. 2001) )

. Under the principles established by the Supreme Court, it is undisputed that Deputy Baker effectively seized Monsivais when he announced that he was going to pat him down; Deputy Baker thereby clearly asserted his authority a s a peace office r to seize Monsivais so that any reasonable person in Monsivais’s position would have know n that he had been detained at that
moment and was no longer free to walk away. See Florida v. Royer , 460 U.S. 491, 501

– 02 (1983) (citing Un ited States v. Mendenhall , 446 U.S. 544, 554 (1980) ( o pinion of Stewart, J.) ); s ee also 4 W AYNE R. L A F AVE , S EARCH AND S EIZURE : A T REATISE ON THE F OURTH A MENDMENT § 9.4(a) (5th ed. 2012) (discussing Mendenhall

- Royer “free to leave” test)

. In so doing, Deputy Ba ker Case: 15-10357 Document: 00513861299 Page: 4 Date Filed: 02/02/2017No. 15

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5 converted the officers’ roadside assistance or “welfare check” into an investigatory stop or detention of Monsivais. The Government agrees that Deputy Baker’s seizure and frisk of Monsivais commenced when Baker announced that he was going to pat Monsivais down. Therefore, the focal point of our analysis is whether the totality of the relevant circumstances that transpir ed before Deputy Baker’s announcement of the pat

- down revealed articulable facts from which an officer could reasonably suspect that Monsivais had committed, was committing, or was about to commit a criminal offense. If the totality of circumstances did n ot , we must conclude that Deputy Baker’s seizure of Monsivais did not fit within Terry or any other exception to the warrant requirement and was a violat ion of the Fourth Amendment

. II The police officers testified that prior to Monsivais’s seizure they did not suspect Monsivais of any criminal activity. Deputy Baker, who at the time had made more than 100 traffic stops in his career, testified that when he got out of the patrol car to speak to Monsivais he did not plac e his hand on his weapon

or disconn ect its clip a s he would have in a traffic violation stop situation

. Deputy Baker further testified that when he first encountered Monsivais he did not suspect him of any criminal act ; when he bega n to question Monsivais he did no t suspect him of any criminal act; and when he told Monsivais he was going to pat him down, he did no t suspect him of a criminal act, saying, “I wouldn’t say a criminal act, no. He was just acting suspicious.” Baker also testified that if he encountered a stranded motorist who ran away from him and his car’s flashing lights, he would not pursue such a person, and that if Monsivais had not taken his hands out of his pockets as requested, Baker would have continued to request that Monsivais do so and “told him to keep walking” if he did not comply. He testified that he would not have tried to detain Monsivais further or pat him down and that he believed Monsivais was Case: 15-10357 Document: 00513861299 Page: 5 Date Filed: 02/02/2017No. 15

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6 free to walk away before he began the pat

- down by announcing it to Monsivais

. Marshal Sa ldana, who had over thirty years of experience as a peace officer, testified consistently with Deputy Baker that prior to Baker’s announcement that he was going to pat Monsivais down and Monsivais’s statement that he had a firearm in his waist, the officer s had observed nothing that made them reasonably suspect that Monsivais had committed, was committing , or was about to commit a criminal act.
T he Government argues , however, that t he following facts , when considered together , support a reasonable articu lable suspicion that justified the detention and frisk of Monsivais: (1) Monsivais’s jittery demeanor and habit during questioning of putting his hands in his pockets; (2) his confusion as to where he had been and his allegedly inconsistent statement that he was headed to Fort Worth when his apparently disabled truck was pointed toward Abilene ; and (3) the fact that he walked past and away from the squad car after the officers stopped and turned on their flashing lights

. To evaluate the G overnment ’s argumen t , we begin by assessing the value associated with each of the individual facts forming part of the relevant circumstances. We then evaluate these facts together, in logical relation to one another, in order to discern whether the totality of the circumst ances prior to the seizure of Monsivais supports a reasonable suspicion of criminal activity. A The Supreme Court has said that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow , 528 U.S. 119, 124 (2000) (emphasis added)

. But, in the present case, there is no evidence that Monsivais acted evasively

. “ We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity. In fact, we often give li ttle or no we ight to an officer’ s conclusional statement that a suspect appeared nervous. ” United States v. Portillo

- Aguirre , Case: 15-10357 Document: 00513861299 Page: 6 Date Filed: 02/02/2017No. 15

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7 311 F.3d 647, 656 n.49 (5th Cir. 2002)

. Many other courts look skeptically upon the probative value of an individual’s nervousness in assessi ng whether reasonable suspicion of criminal activity exists

. See United States v. Chavez

Val en zuela , 268 F.3d 719, 7 2 5

– 2 6 (9th Cir. 2001) (collecting cases)

. There are sound and compelling reasons for such skepticism

. Nervousness is an “entirely natural reaction to police presence.” United States v. McKoy , 428 F.3d 38, 40 (1st Cir. 2005)

. And therefore “ it is common for most people ‘ to exhibit signs of nervousness when confronted by a law enforcement officer ’ whether or not the person is currently enga ged in cri minal activity. ” United States v. Salzano , 158 F.3d 1107, 1113 ( 10th Cir. 1998) (quoting United States v. Wood , 106 F.3d 942, 948 (10th Cir. 1997))

. Accordingly, nervousness per se carries with it no readily discernible connection to criminal a ctivity

. Cf. United States v. Macias , 658 F.3d 509, 520 (5th Cir. 2011) (“Nervousness, standing alone, generally is not sufficient to support reasonable suspicion.”). The evidence that Monsivais placed his hands in his pockets deserves equally little weight under the particular facts of this case for similar reasons

. See, e.g. , U nited States v. Williams , 731 F.3d 678, 689 (7th Cir. 2013) (“ [T] he simple fact that one’s h ands are in one’ s pockets is

. . . . of little value. If one were to drive down any given street, it is likely that an uncountable number of citizens would have their hands in their pockets. ”)

. T o begin, Monsivais complied each time Deputy Baker asked hi m to remove his hands from his pockets. Deputy Baker testified that he made this request during every citizen encounter. Thus, Baker made this request purely as a standard precaution he took when addressing citizens in traffic stops or other occasions , not only when he suspected that a person was guilty of a crime or was dangerous. Both officers testified that if Monsivais had refused to take his hands out of his pockets, or had walked or run away, they would not have pursued him or arrested him, becaus e they didn’t suspect him of any criminal activity. The Case: 15-10357 Document: 00513861299 Page: 7 Date Filed: 02/02/2017No. 15

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8 officers did not testify that Monsivais appeared to be holding something suspicious or dangerous in his pockets

. To the contrary, the officers testified that Monsivais was polite and cooperative , an d although he appeared to be nervous and jittery, he did not appear threatening “in any sort of way.” Regarding Monsivais’s statement as to his destination, it is not clear that there was any inconsistency in his story. Ac cording to the officers, Monsivais told them that he “was headed” to Fort Worth , although his stalled vehicle was pointed in the opposite direction

. However, Monsivais was in fact walking eastbound towards Fort Worth when he was stopped

. T he officers did not testify whether they asked Monsivais if Fort Worth was his ultimate destination or only the nearest place he thought he could find gasoline or whatever he may have needed for his vehicle. Moreover, e ven if Monsivais spoke inconsistently about his ultimate destination, rather than consistently with the direction he was walking after leaving his disabled vehicle, that in consistency did not link Monsiv a i s with any reasonably suspected unlawful conduct

. The Government mistakenly relies on United States v. Fishel , 467 F

. 3d 855 (5th Cir. 2006 ) , and United States v. Jones , 185 F

. 3d 459 (5th Cir. 1999), two cases involving the permissible scope of questioning and search es after valid automobile traffic violation stops

. In th o se cases, unlike in the seizure and detention in the present case, the investigatory detentions were based on officers’ probable cause ( i.e., more than reasonable suspicion) that the motorists had violated t raffic laws

. Fishel , 467 F.3d at 857 ( improper lane usage, weaving, expired license ); Jones , 185 F.3d at
463

- 64 (improper lane usage); s ee generally 4 L A F AVE § 9.3(a) (“[M]ost traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer. That is, in most of the cases the stopping will have been made on full probable cause .” (footnote omitted)). Although the courts in traffic violation cases purport to apply a version of Terry to determine Case: 15-10357 Document: 00513861299 Page: 8 Date Filed: 02/02/2017No. 15

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9 whether the length and intensity of the detention was unreasonable , the question of whether the initial tra ffic stop was constitutional is usually not at issue. In the present case, on the other hand, whether Deput y Baker’s initial seizure of M onsivais was constitutional is the crucial issue. In deciding this issue, the basic principles of Terry must be applied with full force and effect. Consequently, traffic violation cases have little or no bearing on whether Deputy Baker and Marshal Saldana violated the Fourth Amendment by detaining and frisking Monsivais

— a pedestrian

— without reasonable

susp icion that he had committed or was committing a violation of the law while walking along the side of the interstate highway after his truck became disabled

. Finally , the Government argues that Monsivais’s walking past the officers’ patrol car without asking for their assistance supports a reasonable suspicion that he was somehow involved in criminal activity

. While it may be true that many individuals would gladly welcome police presence during an automobile malfunction, the Constitution does not comm and individuals to enthusiastically greet law enforcement under such circumstances

. To the contrary, the Supreme Court has made it abundantly clear that unless a police officer has reasonable suspicion to conduct an investigatory stop, an “individual has a right to ignore the police and go about his business.” Wardlow , 528 U.S. at 125. The context in which a person seeks to avoid contact with a peace officer is important

. Reasonable suspicion may arise when an individual flees fr om police in a high

- crime area, id . at 124

– 25; when the officers are already patrolling the area in response to a specific report of criminal activity, United States v. Tuggle , 284 F. App’x 218, 225

– 26 (5th Cir. 2008); or when the police have received a tip that the fleeing in dividual had committed a crime, United States v. Holloway , 962 F.2d 451, 460 (5th Cir. 1 992)

. But these situations Case: 15-10357 Document: 00513861299 Page: 9 Date Filed: 02/02/2017No. 15

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10 involve discernable facts or combination of facts specific ally linking the fleeing individual to reasonably suspected criminality

— e.g., flight in a high

- crime

area or flight after receipt of a tip indicating criminality

. Unlike the facts in the se situations, Monsivais’s exercise of his right to avoid contact with the police and to go about his business of fers no such linkage to reasonably suspected criminal activity. Moreover, Monsivais did not “flee” the officers, but merely w aked past them.
B We turn now to assess ing whether criminal activity by Monsivais c ould have been reasonably inferred or deduced once all of the facts are considered together in their totality

. W e conclude that, although Monsivais’s behavior might not have been typical of all stranded motorists, the totality of the circumstances prior to Deput y Baker’s announcement of a pat

- down did not point to any reason to suspect Monsivais of criminal activity. Our decision in Hill helps to illumine why the facts offered by the Government, considered all together, do not support a finding of reasonable suspicion in this case

. In Hill , while on an investigative patrol, the police approached Regon Hill while he was sitting with his girlfriend in his car, which

was p arked in her apartment complex

. 752 F.3d at 103 1

– 3 2

. An officer demanded to know where Hill’s gun and his driver’s license were

. Id. at 1032. When Hill replied that he had neither a gun nor his driver’s license , the police officer ordered him out of his car and conducted a frisk, during which the officer recovered a firearm

. Id

. To justify the stop and frisk, the Government emphasized that Hill’s car was parked at an apartment complex in a “high

crime area”; th at “he was there at night”; that he “was backed into [a] parking space, which

. . . is sometimes how people park when they want to conceal their license plate and, by extension, their identity”; and that Hill’s girlfriend exited Case: 15-10357 Document: 00513861299 Page: 10 Date Filed: 02/02/2017No. 15

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11 the car in a “hurrying” fas hion when the officers began to approach

. Id . at
1035

– 36

. This court held that Hill’s detention was not supported by reasonable suspicion and was therefore unconstitutional

. Id . at 1034

. We observed that the Government, r ather than pointing to specific and articulable facts that would support a reasonable suspicion of criminal activity, “ attempt[ed] to put an ominous gloss on what appears almost entirely ordinary.” Id

. Dismissing the Government’s argument that these facts gave rise to a reasonable

susp icion, we concluded that “[r]easonable officers in such circumstances would have very little cause to suspect criminal activity rather than, say, a couple who just arrived home on a weekend night and were preparing to go inside.” Id . at 1038. A f undament al principle

— derived from Terry and underlying our decision in Hill

— provides critical instruction in the instant case

. “[T]he essence of all that has been written is that t he totality of the circumstances

— the whole picture

— must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particu lar person stopped of criminal activity.” Cortez , 449 U.S.
at 417

– 18 (citing Brown v. Texas , 443 U.S. 47, 51 (1979) ; United States v. Brignoni

- Ponce , 422 U.S. 873, 884 (1975)). Thus, if the totality of the circumstances prior to the seizure of the defendant does not provide a particularized and objective basis for suspecting the particular person seized of criminal acti vity, the seizure violates the Fourth Amendment

. Hill ’s reasoning recognizes that drawing a reasonable inference is a logical process of reasoning from known facts

. See Terry , 392 U.S. at 21

– 22 (emphasizing the need for facts and “rational inferences” dr awn from those facts, and distinguishing the latter from “inarticulate hunches”); Arvizu , 534 U.S. at 273 (emphasizing the importance of “mak[ing] inferences and deductions ” from Case: 15-10357 Document: 00513861299 Page: 11 Date Filed: 02/02/2017No. 15

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12 “ cumula tive information ” ) (emphasis added)

. T here must be some articulable premise

— some fact l inking that behavior to reasonably suspected criminality

. Without that premise, there can be no objectively logical reason to impute criminality to a lawful range of behavior. 2 Keeping these words and the need for an objectively logica l step or path
to criminality in mind, consider , by way of contrast, Professor LaFave’s incisive discussion of the situation in Cortez , which he views as an “excellent illustration” of what would constitute a “reasonably specific statement by an officer of the circums tances underlying his action” : [In Cortez ] . . . , an otherwise innocent

- seeming vehicle was stopped by Border Patrol agents because of a series of inferences drawn by those agents. Piecing together the limited information at their disposal, primarily what was learned from previously discovered tracks indicating the crossing of aliens from Mexico, they deduced: what night another group of aliens likely would be guided by the same person; what time the aliens were likely to arrive; the point on the highway at which they were likely to be picked up ; the direction from which the pickup vehicle would likely come; the direction the pickup vehicle would then take; the likely number of aliens which would be brought; and the likely type of vehicle needed to pick up that number of aliens. In holding that a vehicle of that type moving at the predicted time in the predicted directions was lawfully stopped, a unanimous Court quite correctly relied upon the proposition that this result was supported by the fact that trained law enforcement officers are permitt ed to make ‘inferences and deductions that might well elude an untrained person.’ This is because in Cortez the inferences and deductions had been fully explained at the suppr ession hearing, and

2 In this vein consider the following passage from Hill : The point is, because the officers did not observe the scene for more than a few seconds and they had no other reasons to reasonably suspect criminal activity , such as a tip, they lacked a reasonable basis to infer much of anything about the girlfriend exi ting the car and taking a few steps towards the apartment during the same time as their arrival. 752 F.3d at 1037 (emphasis added). Case: 15-10357 Document: 00513861299 Page: 12 Date Filed: 02/02/2017No. 15

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13 therefore

. . . ‘a particularized and objective basis’ for th e stop was established.

4 L A F AVE § 9.5(a) (citing Cortez , 449 U.S. 411 ) (footnotes omitted). 3 On the facts of this case, we can see no objectively l ogical path of deduction that leads to reasonable suspicion of criminal activity at the time of Monsivais’s seizure and detention. Unlike in Cortez , neither the Government nor the arresting officers have pointed to a n objective fact that is contextually or inherently suggestive of criminal activity by Monsivais prior to the pat

down. And of course, where an ar ticulable deductive relationship or connection between facts taken as premises does not form part of an officer’s conclusion of criminal suspicion, then that conclusion cannot be objectively logical and can only be based on an impermissible intuitive sense or feeling

— i.e. , a hunch. 4
III
T he Government has failed to satisfy its burden under Terry of pointing to specific and articulable facts warranting reasonable suspicion that

3 The dissent erroneously cites United States v. Michelletti , 13 F.3d 838 (5th Cir. 1994) (en banc) , as supporting the se izure of Monsivais. It clearly does not. In Michelletti , which is clearly distinguishable, before the officer stopped and frisked the defendant, the officer saw him walk out of a bar a t 2 o’clock in the morning after closing time with an open can of beer , thereby committing alcoholic beverage offenses under the Texas Alcoholic Beverage Commission regulations , i d. at 841 ; and the officer observed that “Michelletti, a large and imposing man, was heading straight toward him with a ‘cocky,’ perhaps defiant at titude and his right hand concealed precisely where a weapon could be located, ” i d. at 842. Thus, the officer in Michelletti pointed to specific and articulable facts warranting suspicion that Michelletti had committed, was committing , or was about to commit criminal acts before the officer stopped Michelletti and patted him down. In stark contrast, the officers here, prior to seizing Monsivais, pointed to no specific or articulable facts warranting suspicion of criminality by Monsiva is, and in fact testified that they did not suspect him of any criminal act before Deputy Baker began the seizure of Monsivais by announcing that he was going to pat him down.
4 Compare Inference , T HE N EW S HORTER O XFORD E NGLISH D ICTIONARY ( 4 th ed. 1993) (“1 The action or process of inferring; Logic the drawing of a conclusion from data or premises; illation. . . . 2 A conclusion drawn from data or premises; an implication; the conclusion that is intended to be drawn.”) with Hunch , id. (“5 An intuitive fe eling. Colloq. (orig. US ).”). See also Deduce , id. (“2 Infer, draw as a logical conclusion ( from something already known or assumed); derive by a process of reasoning.”). Case: 15-10357 Document: 00513861299 Page: 13 Date Filed: 02/02/2017No. 15

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14 Monsivais had committed, was committing or was about to commit a criminal
act prior to his seizure . Looking at the totality of the circumstances without sacrificing the rational inferences that Terry demands, we can see no objectively logical process that justifies interpreting the range of Monsivais’s behavior as reasonably suspected criminal conduct . Therefore, the seizure violated his rights under the Fourth Amendment, and the evidence obtained therefrom must be suppressed. For these reasons, the district court ’s denial of the motion to suppress the evidence is REVERSED and Monsivais’s conv iction and sentence are VACATED. Case: 15-10357 Document: 00513861299 Page: 14 Date Filed: 02/02/2017No. 15

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15 JONES , Circuit Judge, dissenting: The question the majority decide is whethe r officers formed a sufficient “reasonable suspicion” to attempt p atting down a suspect walking away from an apparently broken down truck beside a major highway. Unusual facts imbue this police

- suspect encounter, which should have warranted a narrow, fact

- bound decision. Instead, my colleagues have chosen to engage in a broad analysis that departs from established Fifth Circuit authority and even from Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968), the interpretive root of Fourth Amendment precedent. I dissent. This conviction should be upheld and, more importantly , the right of peace officers to act for their own safety on facts that would raise suspicion in the minds of any reasonable observer (including judges) should also be vindicated. Consider first the facts. The patrol officers saw Monsivais walking eastbo und on Interstate Highway 20 at dusk, in a rural area, and sto pped to offer him assistance. Monsivais fluffed them off, walking directly by t heir car without saying a word. What kind of person, unless perhaps inebriated, mentally ill, or engaged in criminal behavior, would go around the patrol car to avoid the officers who are the only humans around and who could have helped him? When accosted, his answers to their polite ques tions made no sense. He couldn’ t tell them where he came from. He said he was headed to Ft. Worth, but his car was pointing in the opposite direction. He kept placing his hands in his pockets (where a weapon might be concealed) and had to be remind ed multiple times to remove them. He acted extremely nervous and jittery, although the officers were in no way aggressive or threatening. Who would not have regarded the totality of this bizarre behavior as suspicious? And why give no deference to Dep uty Sheriff Baker, who frequently encountered people walking along the highway and never found Case: 15-10357 Document: 00513861299 Page: 15 Date Filed: 02/02/2017No. 15

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16 them nervous in talking with him? Officer Baker had conducted more than a hundred traffic stops, and Officer Saldana had over thirty years of law enforcement ex perience. The majority concede that Monsivais’s behavior

“ might not have been typical of all stranded motori sts.” This is a clever but misleading judicial understatement. The officers were not harassing a guy on a city street. Law

- abiding or sober peo ple whose cars are stuck on the side of a highway, far out in the country, at dusk may fear to seek assistance from

non
- uniformed good Samaritans. But it is i mpossible to conceive that they’ d flaunt their libertarian instincts to avoid contact with helpfu l law enforcement officers. The facts cry out reasonable suspicion. Consider next the majority’ s application of long

- settled law to the facts. The law is clear that a reviewing court examines the “totality of the circumstances,” in light of the officers ’ training and experience, and should uphold the stop only if “the detaining officer ha[d] a ‘ par ticularized and objective basis’ f or suspecting legal wrongdoing.” United States v. Arvizu , 534 U.S. 266, 273, 122 S. Ct. 744, 750 ( 2002) (internal quotation o mitted). Equally important, this court holds that the district court’s denial of a motion to suppress must be upheld “if there is any reasonable view of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc ) (emphasis added). The majority’s application of these standards is incomprehensible.
T he majority ignore the officers’ training and experience. The majority then deconstruct each item referenced in the officers’ t estimony, and finding each one “alone” i nsufficient to establish reasonable suspicion, stretch to the conclusion that, taken as a whole, they had no reasonable suspicion that Monsivais had violated or was about to violate the law. The majority conclude that “ if the totality of the circumstance s prior to the seizure of the defendant Case: 15-10357 Document: 00513861299 Page: 16 Date Filed: 02/02/2017No. 15

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17 does not provide a particularized and objective basis for suspecting the particular person seized of criminal activity, the seizure violates the Fourth Amendment.” They add that, “ [t]here mu st be some articulable pr emise

— some fact linking that behavior to reasonably suspected crimina lity.” They characteri ze the legal requirement as an “ objectively logical path of deduction” that is “ contextually or inherently s uggestive of criminal activity.” Wha t does the majority ’s reasoning mean? Exactly what additional fact s were necessary to imply a “context or suggestion” of cr iminal activity by Monsivais? Did they have to see a bulge in his breast pocket, drug paraphernalia dangling from his pants, smudges of white powder o n his clothes? The majority emphasize that the officers had no suspicion of exactly what crime Monsivais might have perpetrated or contemplated, but “reasonable suspicion” is a much lower sta ndard than “probable cause.”
Arvizu , 534 U.S. at 274, 122 S. Ct . at 751. Even less does Terry demand

“ particularized suspicion of a particular, specific crime. ” United States v. Pack,
622 F.3d 383, 383 (5th Cir. 2010). In Terry , the offic er patdown was approved by the Supreme Court simply on “reasonable suspicion” that the defendants, seen hanging around a jewelry shop, might be casing the establishment for a robbery. 392 U.S. at 28, 88 S. Ct. at 1883. The Supreme Court recently reiterated these bare facts and approvingly summarized the holding of Terry : Terry es tablished the legit imacy of an investigative stop “ in situations where [the police] may lac k probable cause for an arrest.” Id.
, at 24, 88 S. Ct. 1868. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that crimin al activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous. Ibid. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the Case: 15-10357 Document: 00513861299 Page: 17 Date Filed: 02/02/2017No. 15

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18 patdown reasonable under the Fourth Amendment. Id. at 23

– 24, 27, 30

– 31, 88 S. Ct. 1868.

Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 786 (2009). In Terry, the Supreme Court relied heavily on the officers ’ seasoned judgment. 392 U.S.
at 22

– 23, 88 S. Ct. at 1880

– 81. Yet under the majority’ s reasoning here, bereft of deference to the law enforcement officers, how could the Terry defendants’ walking back and forth in front of t he jewelry store constitute an “ articulable premise ” and a “ fact linking [the defendants ’ ] behavior to reasonably suspected criminal activity ” ? This court long ago relied on Terry in an en banc decision that upheld an office r’ s patdown of a suspect who barged out the back door of a bar at closing time. Michelletti , 13 F.3d at 839. The officer’ s suspicions were aroused principally b y the aggressiveness of the man’ s stride toward a group of men and by his holding a beer in the left hand while his right hand remained in his pants pocket. (A convicted felon, the man illegally possessed a hand gun in that pocket.) The majority fail to mention, much less distinguish Michelletti, which has been frequently cited and remains controlling in this court. See, e.g., Allen v. Cisneros , 815 F.3d 239, 245 (5th Cir. 2016) ; Estep v. Dallas Cty., Tex ., 310 F.3d 353, 36 3

– 6 4 (5th Cir. 2002) ; United States v. Baker , 47 F.3d 691, 694 (5th Cir. 1995) ; United States v. Scroggins , 599 F.3d 433, 441 (5th Cir. 20 10)

. Under the majority’ s reasoning, what additional facts would ha ve been necessary to create an “ object ively logical path of deduction” and uph old the patdown of Michelletti ? The majority cite only one case from this cir cuit to support suppression of t he evidence incriminating Monsivais , and they stretch that case well beyond its facts. In Hill, this court concluded that officers incorrectly insisted Case: 15-10357 Document: 00513861299 Page: 18 Date Filed: 02/02/2017No. 15

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19 on doing a patdown on the basis of nothing more than “ almost entirely ordinary ” behavior b y the defenda nt and a woman who’ d been sitting in his car
in apartment complex parking lot. United States v. Hill , 752 F.3d 1029, 1034 (5th Cir. 2014). This court ’ s c ommonsense conclusion was that “ [r]easonable officers in such circumstances would have very little cause to suspect criminal activity rather than, say, a couple who just arrived home on a weekend night

a nd were preparing to go inside.” 752 F.3d at 1058. In contrast to Hill, there is nothing “almos t entirely ordinary” about Mon sivais’ s conduct in his

e ncounter with these officers. Hill is readily distinguishable. It is relevant to the Fourth Amendment inquiry that the officers ’ seizure of Monsivais involved only the level of intrusion nec essary to assure their safety. Scroggins , 599 F.3d at 441. That is to say, the handcuffing and actual frisk occurred only after he had voluntarily reveale d a handgun in his waistband. (The record contains no suggestion that Monsivais tried to claim possession of a concealed handgun permit). Recall as well this defendant’s repeatedly reaching into his pockets where weapons might also be concealed. Under such circumstances, officers conducting a Terry stop may pat down and even handcuff a subject to ensure their p ersonal safety. United States v. Webster , 162 F.3d 308, 332 (5th Cir. 1998); see also United States v. Hurd , 785 F.3d 311, 315 (8th Cir. 2015) (frisk justified where the person refused to remove hands from pockets when walking toward police). The majori ty opinion, in my view, conflicts with Terry and this court’s precedent and may create great confusion for officers on the beat. Over twenty years ago, this court noted in Michelletti that since Terry had been d ecided,

“ the number of police officers kille d annually in the line of duty has tripled

. . . [and] the numbers of those assaulted and wounded h as risen by a factor of twenty.” 13 F. 3d at 844 (citation omitted). The dangers inherent in Case: 15-10357 Document: 00513861299 Page: 19 Date Filed: 02/02/2017No. 15

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20 law enforcement to officers and the public has, if anything, i ntensified in recent years. “ Surely the constitutional legitimacy of a brief patdown such as occurred here may and should reflect the horrendously more violent society in which we live, [forty

- nine] years after Terry. ” Id . I respectfully dissent. Case: 15-10357 Document: 00513861299 Page: 20 Date Filed: 02/02/2017