It was a chilly Halloween night in Omaha, Nebraska when at about 2230 police in an unmarked car were monitoring an apartment parking lot at the request of the manager.  The apartment complex was known for narcotics, firearms, and even homicides.  The officers observed a group of about 20 people in the parking lot.  The area had seen an increased gang presence recently and one of the officers recognized one of the individuals named Polite (the defendant in this case) as a person who he knew was a member of the local Crips gang and was under the age of 21.  When the officers turned on the lights and got out of the car, many in the group scattered and ran away. The officer who recognized Polite saw Polite kneel momentarily behind a car and then heard a “metallic thump” that sounded like a firearm hitting the ground. He then heard another metallic thump from another direction.  The officer detained Polite thinking he had just discarded a firearm.  He confiscated a cell phone from Polite and then two firearms were recovered from the places where the officer heard them drop.  Polite was Mirandized and gave officers the pass code to his cellphone. Cell phone images showed Polite in possession of the firearm and marijuana. Polite was charged with being in possession of a firearm while being an unlawful drug user.

Polite sought to suppress statements he made and any evidence found as a result of the search of his cell phone on the basis that he was unlawfully detained without reasonable suspicion and was unlawfully arrested without probable cause.  The District Court denied his motion and the Eighth Circuit affirmed.  The Eight Circuit held that the officer had a reasonable suspicion to conduct a Terry Stop of Polite.  Furthermore, since he was not over the age of 21, it was a crime under Nebraska law for Polite to be in possession of a concealed weapon.  As a result, officers had probable cause to arrest Polite for that Nebraska offense, although he was later charged with a more serious federal firearm offense.

To read or download the full decision CLICK HERE