Search & seizure; Motion to suppress firearm evidence; United States v Terry; Whether there was “reasonable suspicion” defendant had been smoking marijuana

The court held that because there was at least “a moderate chance” defendant-McCallister had smoked marijuana, and because a police officer saw a “bump out” from his shirt and a firearm magazine in his waistband, the stop and the frisk were constitutional under Terry. Thus, the district court did not err by denying his motion to suppress the firearm evidence. McCallister, along with a group of others, was stopped for smoking marijuana in a park. An officer discovered a modified Glock in McCallister’s waistband. He was charged with illegal possession of a machine gun and possessing an unregistered firearm. He unsuccessfully moved to suppress the Glock and eventually pled guilty, preserving his right to appeal the suppression decision. As to his challenges to the district court’s factual findings, the court saw no error in its determination that he was part of the gathering at the park where two officers and body-cam footage supported this. Secondly, it held that there was sufficient evidence the smell of marijuana was emanating from the group. McCallister argued it could have come from hemp, a legal material. But this was “an insufficient basis upon which to reverse a district court’s factual finding.” As to his challenges to the search itself, the court held that there was reasonable suspicion supporting a lawful Terry stop and a lawful Terry frisk. Under the totality of the circumstances, which “includes the officer’s own observations as well as information the officer receives from police reports, dispatch, and fellow officers[,]” it upheld the stop. The police department received an anonymous tip that a group of men in the park were smoking marijuana, and two officers drove by the scene and confirmed a group had gathered. Officers then went to the scene and smelled marijuana. The park was also a known drug-crime location, and McCallister, along with some others, tried to leave the scene. “All things considered, there was at least a moderate chance that McCallister had smoked marijuana.” The court noted it was not necessary that the officers could say with certainty one particular person in the group had been smoking marijuana. Turning to the frisk, an officer testified he “saw both a ‘bump out’ from McCallister’s shirt and a firearm magazine in his waistband, leaving ‘little question [that] the officer was justified’ in frisking McCallister.” He also turned his body away from the police and refused to answer when asked if he had a weapon. Finally, the officers were aware of “frequent shootings in the park and that, days earlier, several men had brought firearms into the park.” Affirmed.