USA v. Pickett

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
VERSUS NO. 23-52
TERRANCE PICKETT SECTION “O”
ORDER AND REASONS
Before the Court is a motion1 to suppress evidence filed by defendant Terrance
Pickett (“Pickett” or “Defendant”). Defendant seeks to suppress a firearm seized
pursuant to a Terry stop. The Court held a hearing on the motion.2 For the following
reasons, the motion is GRANTED.
I. BACKGROUND
On Saturday, November 26, 2022, the Bayou Classic Football Game took place
in New Orleans.3 The weekend of the Bayou Classic draws large crowds and has
historically seen an uptick in violent crime, including shootings, on Bourbon Street.4
To ensure the safety of visitors to the French Quarter, the New Orleans Police
Department (“NOPD”) deployed additional officers to the area to conduct patrols
throughout the evening.5 NOPD’s general goal was to “look for any agitators” and
“people violating the law.”6 The “primary focus,” however, was to “locat[e] firearms
1 ECF No. 27.
2 ECF No. 42 (July 30, 2024 Suppression Hearing Transcript).
3 Id. at 5:19-6:1.
4 Id. at 5:19-6:15.
5 Id. at 5:19-6:25; 12:10-25.
6 Id. at 33:25-34:1-4.
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on Bourbon street.”7 Six officers were assigned to the 400-block of Bourbon Street:
Officers Tillery, Jones, Singleton, Norman, Antoine, and Collins.8
At approximately 10:45 p.m., Officer Antoine alerted Officer Tillery that she
observed a man (defendant Pickett) walking down Bourbon Street with the outline of
a firearm visible inside his front right pants pocket.9 As Officer Antoine later
admitted at the suppression hearing, there was nothing about Pickett’s behavior that
caused the officers concern or suspicion “other than the weapon” in his pocket.10
According to Officer Antoine, Pickett was “walking calmly” and did not “appear
nervous in any way” to her.11 She agreed that he did not appear to be “drinking” or
“smoking dope” or “out of control”—rather, he was “glued to his phone texting” with
hands that were not “near his pocket.”12
The interaction between the NOPD officers and Pickett was recorded via body
camera footage from three officers.13 As the footage shows, a bulge was visible in
Pickett’s right pants pocket as he casually walked down a crowded block of Bourbon
Street, texting on his phone.14 As Pickett moved to pass the officers, Officer Antoine
suddenly reached out and grabbed Pickett’s arms from behind, turning his body
towards the other officers.15 As two officers moved to restrain Pickett, Officer Antoine
7 Id. at 34:3-4.
8 ECF No. 27-2 at 3 (NOPD Incident Report).
9 Id.; ECF No. 42 at 8:9-19 (Testimony of Officer Antoine).
10 Id. at 17:4-8.
11 ECF No. 42 at 14:24-16:3 (agreeing with defense counsel’s cross-examination).
12 Id.
13 Id. at 27-3 (Exhibits A and B); ECF No. 42 at 37:12-15 (admitting Exhibit C).
14 ECF No. 27-3 (Ex. A at 00:41-46).
15 Id. (Ex. B at 00:50-52); ECF No. 42 at 8:22-25.
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said, “in his pocket.”16 Officer Tillery and Officer Jones removed the gun from
Pickett’s right pocket.17 As the footage shows—and as Officer Antoine later testified—
Pickett did not resist or back away when he was grabbed and restrained by the
officers; rather, he appeared “shocked.”18
After removing the gun from Pickett’s pocket, the officers placed handcuffs on
him.19 As officers were securing the handcuffs, Officer Norman read Pickett his
Miranda rights and placed him under arrest.20 Throughout this interaction, the
officers never asked Pickett if he had a permit for his concealed weapon or any other
investigatory questions.21 They also did not tell him why he had been arrested.22
Without providing any explanation to Pickett, three officers proceeded to walk
him in handcuffs down Bourbon Street.23 They were heading to the Eighth District
station, which is approximately two-and-a-half minutes away on Royal Street.24 After
walking with the officers for almost a full minute, Pickett can be heard asking Officer
Antoine, “what did I do, though?”25 She responded, “you carried a concealed
firearm.”26
16 ECF No. 27-3 (Ex. B at 00:52-54); ECF No. 42 at 19:10-11.
17 ECF No. 27-3 (Ex. B at 00:54-57); ECF No. 42 at 38:21-22
18 ECF No. 27-3 (Ex. B at 00:54-1:30); ECF No. 42 at 16:20-22.
19 ECF No. 27-3 (Ex. A at 00:55-01:15).
20 Id. (Ex. A at 01:10-01:51); ECF No. 27-2 at 3.
21 ECF No. 42 at 27:16-28:5.
22 ECF No. 27-3 (Ex. A 00:50-02:00).
23 Id. (Ex. A at 01:55-02:50).
24 Id. (Ex. A at 01:55-04:32); ECF No. 42 at 35:2-8.
25 Id. (Ex. A at 02:48-02:50).
26 Id. (Ex. A at 02:50-53). Though the audio is unclear, Pickett may have replied, “I thought
that was legal?” Id. (Ex. A at 02:53-54).
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Once at the police station, the officers determined that Pickett did not have a
carry and conceal permit for the firearm in his pocket, as was required by Louisiana
law at that time.27 After discovering that Pickett also had a prior felony conviction,
Pickett was booked on state charges of illegal carrying of a concealed firearm by a
felon. See La. R.S. §§ 14:95, 95.1.
Pickett was later indicted in federal court for possession of a firearm as a felon,
18 U.S.C. § 922(g)(1).28 Pickett filed a motion29 to dismiss the indictment, arguing
that 18 U.S.C. § 922(g)(1) is unconstitutional. The government opposed the motion.30
Pickett also filed a motion31 to suppress the evidence discovered through the
stop and search. Pickett argues that the officers’ search and seizure of his person
violated his Fourth Amendment rights and that the evidence obtained by the officers
should be suppressed for several reasons. First, Pickett contends that the officers did
not have sufficient grounds to conduct the initial stop of him on Bourbon Street
because reasonable suspicion that a person is carrying a concealed firearm does not
equate to reasonable suspicion of criminal activity as required for a stop pursuant to
Terry v. Ohio, 392 U.S. 1, 19-20 (1968). Second, Pickett argues that even if the stop
was initially constitutional, the officers subsequently exceeded their justifiable scope
when they grabbed Pickett’s arms and searched his pocket while handcuffing him
without questioning him first or conducting a patdown. Third, Pickett asserts that
27 Louisiana has since adopted a permitless concealed carry scheme. See La. Rev. Stat. §
14:95(M).
28 ECF No. 1.
29 ECF No. 26.
30 ECF No. 33.
31 ECF No. 27.
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even if the officers had conducted a proper frisk before discovering his firearm, they
lacked reasonable suspicion to do so because there was no evidence that he was armed
and dangerous; accordingly, the officers lacked probable cause to subsequently search
his pocket and remove his firearm. Fourth, Pickett argues that the officers did not
have probable cause that he had committed a crime before he was arrested. And
finally, Pickett contends that upholding a search and seizure on these facts would
create a conflict with his rights under the Second Amendment.
The Government opposed32 the motion. The Government argues that the
outline of a concealed firearm in the pocket of a person walking in a crowded and high
crime area provides reasonable suspicion for a Terry stop and subsequent frisk. The
Government further contends that the officers’ brief frisk of Pickett immediately
confirmed the presence of a gun, which provided additional basis to justify the
subsequent detention of Pickett while the officers determined if he had a valid permit
for the concealed weapon under Louisiana law.
The Court held an evidentiary hearing on the motion to suppress.33 At that
hearing, the Court heard evidence from Officers Antoine and Tillery as to the
sequence of events surrounding Pickett’s detention and arrest, and the NOPD’s
contemporaneous policy regarding Terry stops for concealed weapons.34
At the close of the hearing, the Court asked the parties whether they had any
objection to waiting to resolve the motion to suppress, given the defendant was out
32 ECF No. 32.
33 ECF No. 38 (Minute Entry); ECF No. 42 (Transcript).
34 See generally ECF No. 42.
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on bond, until after the Fifth Circuit ruled on the appeal filed in United States v.
Wilson, 2023 WL 3601590 (E.D. La. May 23, 2023), which presented a similar set of
facts. Both parties indicated they had no objection.35 Following the Fifth Circuit’s
publication of United States v. Wilson, 143 F.4th 647, 651 (5th Cir. 2025), the Court
ordered36 the parties to each file a memorandum addressing the impact of that case
on the motion to suppress, and the parties obliged.37
II. ANALYSIS
A. The Terry Stop Exception to the Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV. It provides that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” Id.
The Supreme Court has recognized certain exceptions to the Fourth
Amendment’s requirement that the government obtain a probable cause warrant
before searches or seizures.38 See United States v. Hill, 752 F.3d 1029, 1033 (5th Cir.
2014). One such exception is the brief investigative stop first articulated in Terry v.
Ohio, 392 U.S. 1 (1968). Under Terry and its progeny, an officer may briefly detain—
that is, “seize”—a person for investigative purposes if the officer has a “reasonable
35 Id. at 56:18-57:25.
36 ECF No. 58.
37 ECF Nos. 62, 63.
38 When the government has not obtained a warrant, “the burden shifts to the government to
justify the warrantless search” or seizure. United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993)
(citation omitted).
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suspicion” that the person is committing, or is about to commit, a crime. Alexander v.
City of Round Rock, 854 F.3d 298, 303 (5th Cir. 2017).
Reasonable suspicion requires the officer to justify the stop with “articulable
facts that criminal activity ‘may be afoot.’” United States v. Sokolow, 490 U.S. 1, 7
(1989) (quoting Terry, 392 U.S. at 30). In other words, there must be “some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity.” United States v. Cortez, 449 U.S. 411, 417 (1981). “Relevant facts and
considerations may include a description of a suspect, a suspect’s location and
proximity to known or reported criminal activity, the timeliness of information or the
stop, a suspect’s behavior, and the officer’s experience.” United States v. Alvarez, 40
F.4th 339, 346 (5th Cir. 2022). Other factors can include a “suspect’s presence in a
high crime area” or “the time of day.” Alexander, 854 F.3d at 304 (citations omitted).
However, “a court may not consider the relevant factors in isolation from each other.”
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005); see also United
States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (“The reasonable suspicion
analysis is a fact intensive test in which the court looks at all circumstances together
to weigh not the individual layers, but the laminated total.”).
Importantly, “[t]here is nothing in the Constitution which prevents a
policeman from addressing questions to anyone on the streets.” Terry, 392 U.S. at 34
(White, J., concurring). But “when an officer, without reasonable suspicion or
probable cause, approaches an individual, the individual has a right to ignore the
police and go about his business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). Thus,
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“an encounter [with police] is ‘consensual’ so long as the civilian would feel free to
either terminate the encounter or disregard the questioning.” United States v. Wise,
877 F.3d 209, 219 (5th Cir. 2017) (citation omitted).
A legal Terry stop, therefore, is a temporary detention because it is not an
interaction that the individual is free to ignore, but it is also not a formal arrest or
search. See Sokolow, 490 U.S. at 7. An arrest or search requires probable cause, which
is “‘a fair probability that contraband or evidence of a crime will be found.’” Id.
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The reasonable suspicion
standard for a Terry stop is “less demanding” than the probable cause standard, while
still requiring the officer to “articulate something more than an inchoate and
unparticularized suspicion or hunch.” Id. (citing Terry, 392 U.S. at 27) (internal
quotation marks omitted).
To determine whether a Terry stop is constitutional, courts must examine (1)
“whether the officer’s action was justified at its inception,” and then (2) “whether the
officer’s subsequent actions were reasonably related in scope to the circumstances
that justified the stop.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)
(en banc). Therefore, even if the officer has sufficient reasonable suspicion to stop the
suspect initially, the suspect’s ensuing “detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop, unless further
reasonable suspicion, supported by articulable facts, emerges.” Id. at 507. “In
assessing whether a detention is too long in duration to be justified as an
investigative stop, we consider it appropriate to examine whether the police diligently
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pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant.” United States
v. Sharpe, 470 U.S. 675, 686 (1985). In other words, for the scope of a stop to be
justified, officers must investigate “in a diligent and reasonable manner.” Id. at 687.
B. The Officers Did Not Have Reasonable Suspicion for the Initial
Stop
In its briefing before the suppression hearing, the Government argued that
Louisiana’s statutory scheme for concealed carry of firearms—which, at the time,
prohibited concealed carry unless the person had a valid permit39—meant police
officers were “justified in stopping the Defendant based on nothing but a reasonable
suspicion he was carrying a concealed weapon.”40 At the suppression hearing, the
Government reiterated that the officers had reasonable suspicion to perform a Terry
stop and temporarily detain Pickett because they “had seen the gun in his pocket”
and “it was obvious to them that it was a gun.”41
After the suppression hearing, the Fifth Circuit published its opinion in
Wilson, discussing whether officers may conduct a Terry stop based solely on the
suspicion that an individual is carrying a concealed firearm. See United States v.
Wilson, 143 F.4th 647 (5th Cir. 2025). Though the panel ultimately upheld the Terry
39 When Pickett was arrested in 2022, Louisiana law prohibited “[t]he intentional concealment
of any firearm . . . on one’s person.” La. Rev. Stat. § 14:95(A)(1)(a). That prohibition, however, did “not
apply to a person with a valid concealed handgun permit.” Id. § 14:95(A)(1)(b). The statute required
that permits for concealed handguns “shall issue . . . to any Louisiana resident” who met the statutory
requirements. Id. § 40:1379.3(A)(1). Any valid permit-holder armed with a concealed handgun was
required to “notify any police officer who approaches the individual in an official manner or with an
identified official purpose that the individual has a weapon on his person, submit to a pat down, and
allow the officer to temporarily disarm him.” Id. § 40:1379.3(I)(2).
40 ECF No. 32 at 10.
41 ECF No. 42 at 47:6-12.
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stop in that case on other grounds and affirmed the district court’s denial of the
motion to suppress, the court opined that “[t]he mere fact that a citizen carries a
firearm does not create reasonable suspicion that he committed a crime.” Id. at 653.
Examining the same Louisiana statutory scheme as was relevant in this case, the
Fifth Circuit expressly rejected a “categorical rule that presumes Louisiana gun
owners are committing crimes” simply by carrying a concealed weapon, explaining
that such a rule is “inconsistent with our Constitution’s history and tradition,” “the
Terry doctrine,” and “Fourth Amendment doctrine more generally.” Id. at 655-59.
Pickett argues Wilson is dispositive in this case, asserting that “as firearm
possession was the only basis for the stop here, Mr. Pickett’s motion to suppress
should be granted.”42 The Government disagrees. It contends the Wilson court’s
rule—that suspicion of a concealed firearm alone cannot support a Terry stop—was
unnecessary to the court’s holding, which affirmed the Terry stop on other grounds,
and is therefore non-binding dictum.43 Further, argues the Government, even if the
Wilson court’s rule regarding Terry stops for concealed firearms were binding, this
Court should still deny the motion to suppress because the totality of the
circumstances—including carrying a concealed weapon “in a potentially toxic
environment”—created sufficient reasonable suspicion to support the Terry stop in
this specific case.44
42 ECF No. 62 at 2.
43 ECF No. 63 at 1-4.
44 Id. at 5-8.
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This Court rejects the Government’s argument that as a lower court it is free
to ignore the Fifth Circuit’s guidance in Wilson as merely non-binding dictum. “A
statement is dictum if it could have been deleted without seriously impairing the
analytical foundations of the holding and being peripheral, may not have received the
full and careful consideration of the court that uttered it.” United States v. Segura,
747 F.3d 323, 328 (5th Cir. 2014) (quoting Int’l Truck & Engine Corp. v. Bray, 372
F.3d 717, 721 (5th Cir. 2004)). Fifth Circuit panels are “free to disregard” dictum from
“prior panel opinions when [they] find it unpersuasive.” Id. (citation omitted). A
statement is not dictum, however, if it is “necessary to the result or constitutes an
explication of the governing rules of law.” Id. (citation omitted).
The Wilson court’s extensive discussion of its concealed weapon/reasonable
suspicion rule indicates the decision was intended to have the force of precedent,
rather than be non-binding dictum. See Wilson, 143 F.4th at 652-60. The court’s
extensive analysis of the history and tradition of the Fourth Amendment
demonstrates the issue “received the full and careful consideration of the court that
uttered it” and “constitute[d] an explication of the governing rules of law.” Segura,
747 F.3d at 328 (citation omitted). Moreover, even if Wilson’s rule were mere dictum,
this lower Court would consider such emphatic guidance from the Fifth Circuit to be
a highly persuasive, if not a binding, directive. See also McRorey v. Garland, 99 F.4th
831, 837 (5th Cir. 2024) (explaining that appellate courts “‘are generally bound by
Supreme Court dicta, especially when it is recent and detailed’”) (citation omitted);
United States v. Rice, 719 F. Supp. 3d 618, 624 (W.D. Tex. 2024) (“[Dictum from an
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appellate court] should be treated with respectful consideration, not only because it
proceeds from the appellate court, but also as furnishing a suggestion of the decision
which that court might be expected to make if the point should come fairly before it
for determination.”) (citing HENRY CAMPBELL BLACK, HANDBOOK ON THE LAW OF
JUDICIAL PRECEDENTS OR THE SCIENCE OF CASE LAW 166, at 179 (West Publishing
Company 1912)).
This Court thus applies the guidance from Wilson to the facts of this case.
Wilson unambiguously stated that “an officer cannot search or seize a person simply
because he is keeping or bearing a firearm” and “[t]he mere fact that a citizen carries
a firearm does not create reasonable suspicion that he committed a crime.” Wilson,
143 F.4th at 653, 655. The Court accordingly rejects the Government’s argument that
the “police were justified in stopping the Defendant based on nothing but reasonable
suspicion he was carrying a concealed weapon.”45
The Government also argues, however, that the officers didn’t stop Pickett
solely because he was suspected of carrying a concealed firearm, but rather that the
concealed weapon plus the setting—nighttime, on a crowded Bourbon Street, during
a weekend that historically sees a crime spike—created sufficient “reasonable
suspicion” to conduct a Terry stop.
45 ECF No. 32 at 10; see also id. at 8 (citing United States v. Wilson, No. CR 22-92, 2023 WL
3601590 (E.D. La. May 23, 2023)); see ECF No. 42 at 47:6-50:21 (Government asserting that issue is
“straightforward” and that officers have reasonable suspicion to detain based on a concealed firearm).
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On the one hand, much of the testimony from the suppression hearing suggests
that the officers stopped Pickett solely due to his concealed firearm. For example, in
the following exchange, Officer Antoine admitted:
Q. My point is, other than this bulge in his pocket, is there anything that Mr.
Pickett is doing that looks like he is about to commit a crime, other than the
gun in his pocket?
A. Not other than the weapon.46
See also, e.g., ECF No. 42 at 34:3-4 (“[O]ur primary focus was locating firearms on
Bourbon Street.”); 27:11-12 (“At that point in time, our specific job was to look for
illegally concealed weapons.”); 23:5-6 (“I observed him in possession of a firearm
concealed. That was the danger.”); 14:25-16:3 (agreeing that Pickett was “walking
calmly,” “texting on his phone,” was not “nervous” or “out of control” with hands that
were not “near his pocket”).
Other testimony emphasizes, however, that the context of the crowds on
Bourbon Street and the anticipated crime spike over the holiday weekend were also
at the forefront of the officers’ minds when they stopped Pickett. As the Wilson court
explained, courts must “consider ‘the totality of the circumstances—the whole
picture’” when assessing if there is reasonable suspicion to stop a suspect, and officers
may “‘draw on their own experience and specialized training to make inferences from
and deductions about the cumulative information available to them that might well
elude an untrained person.’” Wilson, 143 F.4th at 659 (citation omitted). “‘Relevant
facts and considerations may include a description of a suspect, a suspect’s location
46 ECF No. 42 at 17:4-8.
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and proximity to known or reported criminal activity, the timeliness of information
or the stop, a suspect’s behavior, and the officer’s experience.’” Id. (citation omitted).
Officer Antoine testified that she stopped Pickett because he was “[c]oncealing
a weapon on Bourbon Street,”47 explaining that her unit was “assigned to Bourbon
Street to combat the illegal carrying of firearms and due to a crime spike in that area
for the holiday weekend”48 as the Bayou Classic weekend had previously seen “some
shootings, some violent crimes along the Bourbon strip.”49 Officer Tillery similarly
testified that he had worked the Bayou Classic weekend in previous years, and “there
is an uptick of a crowd during that weekend as well as there being an uptick in crowd,
there’s usually an uptick in fighting, disturbances, as well as there have been several
shootings in the past as well.”50
Even assuming the officers stopped Pickett not only because of his concealed
weapon but also because of the potentially high-crime setting, however, the
Government’s argument still fails. “An individual’s presence in an area of expected
criminal activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime.” Wardlow, 528 U.S.
at 124. Accordingly, the Fifth Circuit has held there still must be something more—
the individual must be committing suspicious behavior such as fleeing the premises,
47 Id. at 16:16-18 (emphasis added).
48 Id. at 5:19-21.
49 Id. at 5:25-6:5. She further noted that “Bourbon Street is -- is a strip of bars in which you
cannot bring a firearm,” and that in her experience, past incidents had happened with those who
possessed firearms on Bourbon Street that were concealed “whether they were [acting] wild or reckless
or calmly walking down the street.” Id. at 17:18-23.
50 Id. at 32:15-19.
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or ignoring an officer’s commands, or have been the subject of a plausible tip, for
example—to justify a Terry stop in a high-crime area. See, e.g., United States v.
Jordan, 232 F.3d 447, 448 (5th Cir. 2000) (affirming Terry stop where the defendant,
who was stopped while sprinting away from a grocery store in a high-crime area, was
behaving “erratically” and “refused” officers’ instructions); United States v. Bass, 996
F.3d 729, 734-35(5th Cir. 2021) (affirming Terry stop where the officers received a tip
about the suspect selling bootleg items from his vehicle in an area known for drug
dealing). Conversely, individuals in a high-crime area who do not engage in otherwise
suspicious behavior do not arouse sufficient suspicion for a Terry stop. See, e.g., Hill,
752 F.3d at 1031, 1035-36 (holding that the passenger’s “quick” exit of a car and
“brisk[]” walk to an apartment complex at night in a high-crime area did not justify
a Terry stop of the car’s driver); United States v. McKinney, 980 F.3d 485, 488-89 (5th
Cir. 2020) (holding that officers lacked reasonable suspicion to stop a group of people
merely standing near a gas station that had very recently been the subject of several
drive-by shootings).
Here, Officer Antoine expressly confirmed there was nothing specific about
Pickett’s behavior to arouse suspicion other than the outline of the firearm in his
pocket—he was “walking calmly” and “texting on his phone” with hands that were
not “near his pocket.”51 In other words, the officers in this case had no information to
suggest that Pickett specifically lacked a concealed carry permit or was about to
commit any other crime. Rather, their only reasons to stop and temporarily detain
51 Id. at 14:25-16:7.
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Pickett were (1) the outline of a suspected concealed weapon in his pocket; and (2) his
presence in a crowded, high-crime neighborhood at night. But if officers “cannot
assume that citizens engaging in an activity subject to licensing are unlicensed,”
Wilson, 143 F.4th at 658, and the only other factor supporting the stop was the
defendant’s “presence in an area of expected criminal activity,” Wardlow, 528 U.S. at
124, these two factors together are not enough to generate reasonable suspicion that
Pickett was an unlicensed concealed carrier.52
Thus, even considering “the whole picture” of the officers’ “own experience and
specialized training” and the “suspect’s location and proximity to known or reported
criminal activity,” Wilson, 143 F.4th at 659 (citations and internal quotations
omitted), the officers were not justified in conducting a Terry stop on Pickett.
Carrying a concealed weapon in a high-crime area, without any independently
suspicious behavior from the suspect or an informative tip, is insufficient to create
reasonable suspicion for a Terry stop.
C. The Scope of the Terry Stop and the Subsequent Arrest Were
Unconstitutional
52 The chief cases on which the Government relies are not to the contrary. In each, the suspects
exhibited suspicious behavior in the high-crime area. In United States v. Rideau, the Fifth Circuit
upheld the police officers’ Terry stop-and-frisk of the defendant because the defendant was not only in
a “high crime area” at night, but was also “standing in the road” as the officers drove by; moreover, he
“stumbled,” appeared drunk, “seemed nervous,” and “began to back away” when the officers exited
their vehicle and approached him. 969 F.2d 1572, 1573-75 (5th Cir. 1992) (“[T]his detention did not
rest solely on Rideau’s presence in a bad part of town.”). Similarly, in United States v. Michelletti, the
court upheld a Terry stop-and-frisk of a defendant who, at 2:00 a.m. in a “high crime” neighborhood,
“barged out the back door of a bar,” while “holding an open beer can in his left hand” (a violation of
local alcohol laws), with “his right hand in his pants pocket,” which contained a concealed firearm. 13
F.3d 838, 839-41 (5th Cir. 1994) (en banc) (“Two aspects of Michelletti’s behavior led Officer Perry to
investigate him[.]”).
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Even if there was reasonable suspicion to support the initial stop of Pickett,
the officers’ actions during the stop would require the suppression of the evidence
seized from Pickett during his seizure, search, and arrest.
Where an officer has sufficient reasonable suspicion to stop the suspect
initially, the suspect’s ensuing “detention must be temporary and last no longer than
is necessary to effectuate the purpose of the stop, unless further reasonable suspicion,
supported by articulable facts, emerges.” Brigham, 382 F.3d at 507. Courts examine
whether the police “diligently pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which time it was necessary to
detain the defendant.” Sharpe, 470 U.S. at 686. The court must ask whether the
officer’s actions were “reasonably related in scope to the circumstances that justified
the stop.” Brigham, 382 F.3d at 507. A court’s analysis of the “[r]easonableness” of
the officers’ actions during the stop “‘eschew[s] bright-line rules, instead emphasizing
the fact-specific nature of the . . . inquiry.’” Id. (quoting Ohio v. Robinette, 519 U.S.
33, 39 (1996)).
At the time of Pickett’s arrest, Louisiana law prohibited “[t]he intentional
concealment of any firearm . . . on one’s person.” La. Rev. Stat. § 14:95(A)(1)(a). But
that prohibition did “not apply to a person with a valid concealed handgun permit.”
Id. § 14:95(A)(1)(b). The statute further required that any valid permit-holder armed
with a concealed handgun must “notify any police officer who approaches the
individual in an official manner or with an identified official purpose that the
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individual has a weapon on his person, submit to a pat down, and allow the officer to
temporarily disarm him.” La. Rev. Stat. § 40:1379.3(I)(2).
According to Officer Antoine, the officers’ “specific job” that night was to look
for “illegally concealed weapons” on Bourbon Street.53 Officer Antoine testified that
she stopped Pickett because he was “[c]oncealing a weapon on Bourbon Street.”54 She
confirmed that Pickett was not stopped for any reason “other than the weapon” in his
pocket.55 Officer Antoine further admitted that before she stopped Pickett, she “did
not know” whether or not Pickett had a valid concealed carry permit.56 The “purpose
of the stop,” therefore, was to determine whether Pickett was illegally carrying a
concealed weapon. Brigham, 382 F.3d at 507.
The officers’ actions here, however, did not ensure that Pickett’s detention was
“temporary” and lasted “no longer than [] necessary to effectuate the purpose of the
stop,” which was to confirm whether Pickett had a valid concealed carry permit. Id.
The body-camera footage shows—and Officers Antoine and Tillery confirmed in their
testimony57—that the officers did not ask any investigatory questions of Pickett
during his temporary detention—let alone before he was searched, handcuffed, read
his Miranda rights, arrested, and escorted to the police station. In other words, the
officers did not ask Pickett if he had a concealed carry permit. They did not ask if he
was a convicted felon. They did not ask for identification, or whether he had been
53 ECF No. 42 at 27:11-12.
54 Id. at 16:16.
55 Id. at 17:8.
56 Id. at 26:5-14.
57 Id. at 23:23-24:7; 27:11-27:6; ECF No. 27-3 (Ex. A at 00:41-04:32).
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drinking, or whether he had used any other substances that evening. What’s more,
they failed to even tell Pickett why he was being detained or arrested until he asked,
“what did I do, though?” after the officers had walked him in handcuffs down Bourbon
Street.58 These were not “reasonable[]” actions by officers who were “diligently
pursu[ing] a means of investigation that was likely to confirm or dispel their
suspicions quickly” about whether Pickett had a permit. Sharpe, 470 U.S. at 686.59
At the suppression hearing, the Government argued that the Louisiana
concealed carry permit scheme allowed the officers to stop, frisk, and arrest Pickett
for illegally carrying a concealed firearm without asking or verifying whether he had
a permit.60 The Government pointed to the statute’s directive that any valid permit-
holder armed with a concealed handgun must “notify any police officer who
approaches the individual in an official manner or with an identified official purpose
that the individual has a weapon on his person, submit to a pat down, and allow the
officer to temporarily disarm him.” La. Rev. Stat. § 40:1379.3(I)(2). According to the
Government, “[t]he statute puts the burden on the defendant . . . to tell the police at
58 ECF No. 27-3 (Ex. A at 02:48-53).
59 To be sure, if an individual acts in a threatening or erratic manner during a Terry stop,
officers can “take steps for their own safety . . . handcuffing, for example—as long as they are not
‘unreasonable in failing to use less intrusive procedures to conduct their investigation.’” United States
v. Scroggins, 599 F.3d 433, 443 (5th Cir. 2010) (quoting Jordan, 232 F.3d at, 448). Similarly, an officer
can frisk the individual, so long as there are “specific and articulable facts indicating that [the officers’]
safety is in danger.” Rideau, 969 F.2d at 1576; see also Scroggins, 599 F.3d at 441 (“The purpose of the
frisk is to afford an officer ‘the opportunity to protect himself from attack by a hostile suspect.’”)
(citation omitted). But as both officers testified at the suppression hearing, Pickett did not exhibit any
arguably dangerous traits as he walked calmly by, texting on his phone—other than carrying a
suspected concealed weapon in his pocket. ECF No. 42 at 40:24-41:2; 16:12-18. Moreover, even after
the officers “grabbed” him, Pickett did not confront the officers or resist in any way; rather, Officer
Antoine described Pickett’s reaction as “shocked.” Id. at 16:20. In other words, there were no “specific
and articulable facts indicating that [the officers’] safety [was] in danger” to justify immediately
grabbing Pickett and forcibly removing the firearm from his pocket. Rideau, 969 F.2d at 1576.
60 ECF No. 42 at 58:1-59:25.
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some point” that they have a concealed carry permit and Pickett “could have told [the
officers], wait a second, I got a permit.”61 Therefore, argued the Government, when
the officers “found a gun fully concealed in [Pickett’s] pocket,” they had “probable
cause to believe that he had committed this crime” of concealed carry without a
permit.62 Indeed, this interpretation of the Louisiana statute was the basis of NOPD’s
policy:
THE COURT: Okay. And what was he under arrest for?
THE WITNESS: Illegal carrying of a concealed firearm.
THE COURT: And under NOPD policy, he can be arrested for illegal carrying
of a concealed firearm without NOPD having done its own review of whether
or not he has a permit to carry a firearm?
THE WITNESS: Yes.63
But it is axiomatic that an arrest must be supported by probable cause. United
States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999). The probable cause standard is
more demanding than the reasonable suspicion standard. See Kansas v. Glover, 589
U.S. 376, 380 (2020) (“the level of suspicion the [reasonable suspicion] standard
requires is . . . obviously less than is necessary for probable cause.”). “Probable cause
exists ‘when the facts and circumstances within the arresting officer’s personal
knowledge, or of which he has reasonably trustworthy information, are sufficient to
occasion a person of reasonable prudence to believe an offense has been committed.’”
Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988) (citation omitted).
61 Id. at 59:23-24.
62 ECF No. 32 at 7.
63 ECF No. 42 at 43:12-20.
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When the officers placed Pickett under arrest, they knew only that he
possessed a concealed firearm. The officers had no additional facts supporting
probable cause that Pickett had committed a criminal offense, either because he
lacked a concealed carry permit or because he was otherwise prohibited from
possessing a firearm. As the Wilson court explained, the Louisiana statutory scheme
for concealed carry permits could not create a “per se presumption of illegality” for
gun owners as a class. 143 F.4th at 656-58. In other words, the officers could not
assume that Pickett was illegally carrying a concealed weapon simply because such
an activity requires a permit. See id. The court specifically rejected the argument that
the procedural requirements of Louisiana’s state law—i.e., the requirement that the
individual “notify any police officer . . . that the individual has a weapon on his
person”—would allow the police to “presume that entire classes of citizens are
criminals” to preemptively justify their detention. Id. And in any event, the officers
here did not even give Pickett the opportunity to inform them whether he had a
permit—as evidenced by Pickett’s bewildered question, “what did I do, though?” only
after his arrest and while officers were escorting him from Bourbon Street to the
police station.64
Accordingly, the scope of the officers’ Terry stop and the subsequent arrest
were not justified. Stopping, searching, arresting, and transporting an individual
64 ECF No. 27-3 (Ex. A at 02:48-53). Moreover, the Louisiana statute required permit-holders
to “notify” police officers of their weapon and “submit to a pat down” when an officer “approaches the
individual in an official manner or with an identified official purpose[.]” La. Rev. Stat. § 40:1379.3(I)(2)
(emphases added). Here, the officers failed to “approach[]” Pickett in an official manner or with any
“identified” purpose—instead, they simply grabbed him, removed his concealed weapon, and
handcuffed him.
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based on nothing more than the fact that he is undertaking an activity that requires
a license—without first confirming whether he has a license—exceeded the officers’
lawful authority. See Wilson, 143 F.4th at 658 (“Based solely on the observation that
someone is driving a car, does an officer have reasonable suspicion that the driver is
unlicensed?”). In this case, Pickett was not engaging in any behavior that would
arouse reasonable suspicion he was committing a crime—let alone rise to the level of
probable cause justifying arrest.
Accordingly,
IT IS ORDERED that Pickett’s motion to suppress65 is GRANTED.
New Orleans, Louisiana, this 10th day of November, 2025.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
65 ECF No. 27.
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