An Adams County sheriff’s deputy caught Marvin Clever jaywalking late one night and stopped him. Clever indicated he would be more careful in the future. 

But after talking for a few minutes more, Deputy Steffen Hileman decided to search Clever for weapons, ultimately discovering methamphetamine. A jury convicted Clever of drug possession and a judge sentenced him to 18 months in community corrections.

Now, the state’s second-highest court has overturned Clever’s conviction, ruling Hileman performed an illegal pat-down search in violation of U.S. Supreme Court precedent, which requires officers having reason to believe a suspect is armed and dangerous. In Clever’s case, a three-judge panel decided Hileman’s belief was unreasonable.

“I don’t think anyone could rightfully regard this as some egregious constitutional violation and I’m certainly not here to say that it was,” public defender Joseph P. Hough told the Court of Appeals. “It was, however, a constitutional violation, and one I suspect happens all the time without any sort of recourse.”

Clever and the government disputed whether Hileman’s actions during the jaywalking encounter would have satisfied the Supreme Court’s 1968 Terry v. Ohio decision, which held officers have the authority during investigatory stops to search for weapons only by believing someone is armed and dangerous. The court cautioned that an officer’s “hunch” alone is inadequate.

Heilman witnessed Clever jaywalking late at night in January 2019. Clever allegedly caused cars to slow down to avoid striking him. Heilman turned on his patrol car’s spotlight, approached Clever and asked to speak with him.

The deputy later described Clever as respectful and cooperative, and Clever admitted he should have been more cautious.

Heilman continued to question Clever about what he was doing that night, and there were several signs that made the deputy suspicious. Clever said he was walking home from buying cigarettes at a discount store, but then said he was unsure where he had bought them. He lived in an apartment complex that Hileman knew to be a “high crime area” for drugs. Hileman saw Clever “blinking rapidly,” becoming nervous and sticking his hands in the pockets of his “bulky clothes.”

For “officer safety reasons,” Hileman told Clever, he needed to pat Clever for weapons. The deputy did not find a weapon, but a container fell out of Clever’s pocket and Hileman reportedly could see a baggie containing narcotics poking out. He arrested Clever for methamphetamine possession.

District Court Judge Sean Finn refused the defense’s request to suppress the drug evidence from the pat-down search. Finn concluded Hileman reasonably believed Clever might be armed, and the deputy’s actions did not violate the Fourth Amendment’s protection against unreasonable searches and seizures.

During oral arguments before the appellate panel, Judge Neeti Vasant Pawar pushed back against the factors that led Hileman to believe he was dealing with an armed and dangerous person, including Clever’s residence in an allegedly “high crime area.”

“Judging a person, whether they’re armed and dangerous in a context of crossing the street not in a crosswalk, and saying, ‘Where do you live,’ – that to me just smacks of profiling,” she said. “That I’m going to take all these judgements and expectations about what might occur in a given neighborhood where somebody lives and say, ‘Right now, standing in front of me, I have reasonable suspicion that you’re armed and dangerous’.”

Assistant Attorney General Frank R. Lawson countered that the totality of the circumstances, starting with Clever’s initial jaywalking, were appropriate grounds for suspicion.

“Imagine you’re an officer. It’s 10 o’clock at night,” Lawson said. “You see a man walking slowly in front of oncoming traffic. That’s not normal.”

“Well, if he was sprinting across oncoming traffic, wouldn’t that be the same argument? ‘What’s he running away from?'” Pawar interjected.

Hough reiterated to the panel that the Terry decision set a standard for police of suspecting someone is armed and dangerous, and not whether they are “acting a little strange.” He did not believe Hileman acted unreasonably in continuing the interaction after talking to Clever about jaywalking. However, he added the deputy did not possess sufficient information to satisfy the Terry standard based on Clever’s conduct leading up to the pat-down.

“We’re talking about jaywalking, probably the least of all offenses known to man,” Hough said.

Pawar, who authored the panel’s June 16 opinion, agreed Hileman’s investigatory stop of Clever began lawfully but that the combination of Clever’s behaviors did not amount to the suspicion needed for a pat-down.

“(I)t is unreasonable to believe that every person who lives in a high crime area, jaywalks, and changes their story when talking to police while acting nervous and putting their hands in their pockets is both armed with a weapon and dangerous,” she wrote. “We might reach a different conclusion had Hileman testified that he was familiar with Clever from prior contacts and knew him to be armed. But Hileman gave no such testimony.”

Because the prosecution relied overwhelmingly on evidence from the illegal pat-down search to obtain its conviction, the panel determined Finn’s failure to suppress the evidence warranted a reversal of Clever’s conviction.

The case is People v. Clever.