Dec. 6, 2011 10:44 a.m. |(3) Comments
Demonte Miller was attending a candlight vigil for his murdered best friend in 2009 when the police drove by.
They saw Miller, 24, walk away from the group and reach for his right side, which officers interpreted as "a weapon retention" check because the “majority of people on the streets don’t have holsters.”
They stopped Miller, frisked him and a found a 9mm handgun in his back pocket. Miller was arrested and charged with carrying a concealed weapon. He argued the stop was illegal, and that evidence should be suppressed, but Circuit Judge Clare Fiorenza found police had good reason to stop him. Miller pleaded guilty, but appealed Fiorenza's denial of his motion to dismiss.
On Tuesday, the state Court of Appeals reversed Miller's conviction, finding that police did not have probable cause to stop and frisk him.
"All we have here is that Miller was peaceably at a peaceful candlelight vigil near the place where the person whom he testified was his best friend was killed the night before. That the police saw only him leave the group is not, by any stretch of the imagination, “suspicious” activity. That he, as Officer Cline testified, looked at the group of police cars passing the vigil is not, by any stretch of the imagination, “suspicious” activity. That he felt his pants or pants pocket as he walked away from the group also is not, in light of everything else, “suspicious” activity; he could have just as realistically been feeling for his keys, cell phone, or wallet (especially given the officers’ assessment of the locale as a high-crime area)
"Under the facts here, the officers’ assessment that Miller may have been armed with a gun or other weapon was no more than a 'hunch,' and Terry tells us that a 'hunch' is not enough," the court wrote.
