United States v Hernandez

The government appealed the grant of Hernandez’s motion to suppress. The panel, 2-1, affirmed. The majority held that, while a close case, under the totality of the circumstances, namely two uniformed officers following Hernandez in their car, requesting he stop walking, there was no one else around, it was dark and the officers did not tell Hernandez he could terminate the encounter, Hernandez was seized by the officers and they lacked reasonable suspicion because being by a construction site in a high crime area instead of walking on a sidewalk across the street while wearing black and carrying two backpacks did not create anything beyond hunches in the officers. It rejected the dissents arguments noting the cases relied upon by the dissent involved public places with people around or public transportation. It also held that the government forfeited its argument about Hernandez not knowing his grandmother’s address by failing to raise it below and in any event circuit precedent has held this kind of fact nonsuspicious and even the offers here did not believe it was suspicious. The dissent argued that under United States Supreme court precedent, the encounter here was consensual and thus no seizure took place before the officers learned there was a warrant for Hernandez’s arrest and alternatively, Hernandez behavior at the time of the encounter provided reasonable suspicion that Hernandez was casing the construction site when viewed as a whole particularly in light of Hernandez’s evasiveness on where his grandmother lived.