United States v. Fausto Lopez ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAUSTO LOPEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-CR-169 — Manish S. Shah, Judge.
____________________
ARGUED JANUARY 16, 2018 — DECIDED OCTOBER 18, 2018
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Law enforcement officers de-
tained and frisked defendant-appellant Fausto Lopez after
observing him and his brother load paper bags into Lopez’s
garage. The officer who ordered the stop had a “hunch” that
the bags contained drug-trafficking contraband. That hunch
was wrong. It had been based on a tip the officers had ob-
2 No. 17-2517
tained the previous night from an informant detained for sus-
pected drug trafficking. The informant stopped cooperating
with the officers as soon as he was out of their sight.
After finding no contraband, the officer who had ordered
the stop realized that his hunch had been mistaken. Neverthe-
less, eight officers continued to detain Lopez. At one point
during this detention, the lead officer told Lopez that he was
“free to go.” Yet the officers kept possession of Lopez’s cell-
phone and keys, effectively restraining his liberty to leave and
stripping the assurance of meaning. While Lopez was still de-
tained, the officers eventually obtained his permission to
search his house based on another hunch that Lopez kept
drugs there. This second hunch proved correct. Officers re-
covered drugs and a gun from the home. A grand jury in-
dicted Lopez for illegal possession of the heroin and illegal
possession of a firearm. Lopez moved to suppress the evi-
dence, arguing that it had been obtained by violating his
Fourth Amendment right to be free from unreasonable
searches and seizures. The district court denied his motion,
and Lopez then pleaded guilty to both charges while reserv-
ing the right to appeal the denial of his motion to suppress.
We reverse the denial of the motion to suppress for two
independent reasons. First, when the officers seized and
searched Lopez, they did not have a reasonable suspicion that
he was engaged in crime. Second, even if the original stop had
been justified, the officers continued detaining Lopez beyond
the original justification for the stop. Either violation was suf-
ficient here to undermine the validity of Lopez’s eventual con-
sent to the search of his house.
No. 17-2517 3
I. Factual and Procedural Background
A. The Tip
On February 10, 2016, law enforcement officers were con-
ducting surveillance in a narcotics investigation in Chicago.
They stopped a man whom they observed enter a business.
The officers searched his car and apartment but found no
drugs or paraphernalia. Only after officers found drugs in a
neighboring apartment did the man confess that he trans-
ported drugs for a trafficking organization. The man drove
with the officers to a house on South Laflin Street in Chicago
where he said he had previously received drugs, and he ex-
plained the mechanics of the typical transaction.
He told the officers he would receive a telephone call and
then pick up a white Chevrolet Malibu from a parking lot. The
informant said he would then drive that car into a residential
garage located on South Laflin. In the garage, a man named
“Fausto” would take money out of the Malibu and replace it
with cocaine. The informant would then drive the car back to
the parking lot and leave it there. Although he claimed to have
run this operation about five times, the informant did not pro-
vide the police with information about the most recent trans-
action or any information about the frequency or schedule of
these exchanges.
After the informant provided this information, the officers
let him go. He then stopped communicating with law enforce-
ment and rebuffed their efforts to contact him. Even without
further cooperation, the officers acted on the tip immediately.
4 No. 17-2517
B. The Stop, Frisk, and Eventual Search
By the next day, the police confirmed that a man named
Fausto Lopez lived at the South Laflin address, obtained a pic-
ture of Lopez, and put his home and garage under surveil-
lance. Later that same day, the officers saw a white van pull
up to Lopez’s garage and saw two men get out of the van with
paper shopping bags. An officer recognized Lopez from the
photograph and had a “hunch” that the bags contained con-
traband. The officers watched Lopez get back inside the van
and drive out of the garage and down the alley. The other
man, who turned out to be Lopez’s brother, stayed in the gar-
age. Lopez was seized on the basis of only the information
described thus far. As Lopez drove his van down the alley,
two vehicles blocked him in with their emergency lights acti-
vated. An officer ordered Lopez out of the van and immedi-
ately frisked him. Finding no weapons, the officer asked
Lopez for permission to search his vehicle. Lopez consented.
The officers found no drugs, drug paraphernalia, or weapons.
Despite finding no contraband, the police took possession
of Lopez’s van, car keys, and cellphone. Two officers escorted
Lopez back to the garage on foot. By the time Lopez arrived
at his garage, another group of officers had stopped his
brother there for questioning. All told, at least eight law en-
forcement officers had crowded into or around Lopez’s gar-
age by the time police began to question him there.
The lead officer told Lopez that the police were doing an
investigation but cautioned that he was not under arrest and
did not have to answer the officers’ questions. The officer also
told Lopez he was free to go. Still, since Lopez was already at
home and the officers had taken possession of his van, his car
keys, and his cellphone, it is hard to see what practical effect
No. 17-2517 5
this assurance might have had. The officer then asked Lopez
if the garage contained drugs, guns, or large amounts of
money. Lopez said no. The officer then asked Lopez for per-
mission to search the garage. Lopez consented, and the offic-
ers searched the garage, including the paper shopping bags
that the brothers had just carried in. The search turned up
nothing—no drugs, no guns, no money, and no related para-
phernalia.
Yet the lead officer continued to question Lopez, and the
officers still kept his car keys, cellphone, and van. The same
lead officer repeated the bland assurance that Lopez was not
under arrest before asking him if he had guns, drugs, or large
amounts of money in his house. Lopez again said no. The of-
ficer then asked Lopez “if it was okay if [the officers] went into
the house and searched for those items that [Lopez] said he
didn’t have.” Lopez said yes, and the officers escorted him to
his home before searching it. Once inside, the officers
searched the house. They found a large amount of cash in
Lopez’s bedroom. An officer questioned Lopez about the
money, and he directed the officers to heroin stored in his
kitchen and basement and to a gun in his bedroom.
C. The Prosecution
A grand jury indicted Lopez for possession of heroin with
intent to distribute under 21 U.S.C. § 841(a)(1) and under 18
U.S.C. § 922(g)(5)(A) for possession of a firearm by an alien in
the United States unlawfully. Lopez moved to suppress the
evidence found in the search. After an evidentiary hearing,
the district court determined that the search of Lopez’s house
did not violate the Fourth Amendment. The district court
found first that the officers had reasonable suspicion that au-
thorized their investigative stop of Lopez and then that the
6 No. 17-2517
officers’ searches of Lopez’s garage and house were lawful be-
cause Lopez had voluntarily consented to them. The court
found that the officers had not read Lopez his Miranda rights
but that the warnings were not necessary since Lopez was not
in custody. The court based this finding primarily on the lead
officer’s statements that Lopez was not under arrest, could
leave at any time, and need not answer questions. The court
found that the officers’ frisk of Lopez was unlawful, but the
court determined that the unlawful frisk did not taint Lopez’s
later consent to search the house.
After the district court denied his motion to suppress,
Lopez pleaded guilty under a conditional plea agreement that
reserved his right to appeal the court’s ruling on suppression.
Lopez was sentenced to 120 months in prison.
II. Analysis
We review de novo the district court’s determination of rea-
sonable suspicion. Ornelas v. United States, 517 U.S. 690, 699
(1996). We review for clear error the court’s underlying factual
findings. Id.; United States v. Johnson, 867 F.3d 737, 741 (7th Cir.
2017). The finding that Lopez voluntarily consented to the
search is a factual finding that we review for clear error.
United States v. Thurman, 889 F.3d 356, 367 (7th Cir. 2018), cit-
ing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
The Fourth Amendment to the Constitution prohibits un-
reasonable searches and seizures. Lopez was seized without a
warrant or probable cause, but he could have been seized
briefly but lawfully under Terry v. Ohio, 392 U.S. 1, 27 (1968),
if the officers had a reasonable suspicion that he was engaged
in criminal activity. The search of Lopez’s house was carried
out without a warrant, but if he voluntarily gave consent to
No. 17-2517 7
the search, the search would also have been lawful. Florida v.
Jimeno, 500 U.S. 248, 250–51 (1991), citing Schneckloth, 412 U.S.
at 219.
Because Terry stops are made without warrants, they are
subject to limits. Two are important here. First, officers may
carry out a Terry stop only when they “have a reasonable sus-
picion, grounded in specific and articulable facts” that an in-
dividual has committed a felony or is about to commit a
crime. United States v. Hensley, 469 U.S. 221, 229 (1985). The
reasonable suspicion standard is a lower bar than the proba-
ble cause standard necessary for an arrest, see United States v.
Arvizu, 534 U.S. 266, 273–74 (2002), but the police are not en-
titled to detain a person for questioning based on only a
hunch. Terry, 392 U.S. at 22; United States v. Wimbush, 337 F.3d
947, 949–50 (7th Cir. 2003).
Second, since the “Fourth Amendment proceeds as much
by limitations upon the scope of governmental action as by
imposing preconditions upon its initiation,” the lower bar
governing Terry stops requires that the scope of these stops be
narrower than situations justified by probable cause. Terry,
392 U.S. at 28–29. More specifically, a Terry stop violates the
Constitution when an officer “prolongs the stop, absent the
reasonable suspicion ordinarily demanded” by the Fourth
Amendment. Rodriguez v. United States, 135 S. Ct. 1609, 1615
(2015). When the reasonable suspicion justifying the stop
evaporates, the stop must end.
What we blandly call “Terry stops” can be highly intrusive.
When combined with a frisk—as happened here—a Terry stop
first deprives a person of liberty and then involves “a careful
exploration of the outer surfaces of a person’s clothing all over
his or her body in an attempt to find weapons … performed
8 No. 17-2517
in public by a policemen while the citizen stands helpless,
perhaps facing a wall with his hands raised.” Terry, 392 U.S.
at 16–17. That’s not just “a ‘petty indignity,’” wrote the Su-
preme Court, but “a serious intrusion upon the sanctity of the
person, which may inflict great indignity and arouse strong
resentment, and it is not to be undertaken lightly.” Id. at 17.
With the authority to stop comes the authority to require
the subject to submit to the stop, and to use reasonable force
to make him submit. United States v. Place, 462 U.S. 696, 702
(1983) (Terry implicitly acknowledged authority of police to
make forcible stop based on reasonable suspicion); Adams v.
Williams, 407 U.S. 143, 146 (1972) (upholding forcible stop
based on tip from reliable informant). Such situations can es-
calate quickly to violence and even death. See, e.g., Tom v.
Voida, 963 F.2d 952, 954 (7th Cir. 1992) (no constitutional vio-
lation where attempt to make justified Terry stop led to officer
fatally shooting subject); Brown v. City of Milwaukee, 288 F.
Supp. 2d 962 (E.D. Wis. 2003) (Terry stop based on mistaken
identification resulted in permanent injuries and pain).
We analyze the stop, frisk, and searches here in three steps.
We first find in Part II-A that the officers did not have a rea-
sonable suspicion to support the initial stop of Lopez. In Part
II-B, we explain why we agree with the district court that the
officers did not have grounds to frisk Lopez. In Part II-C, we
conclude that even if the initial stop had been justified, the
officers prolonged the stop beyond any justification. The orig-
inal unjustified stop and the prolonged detention, together or
independently, were enough to undermine the claim that
Lopez’s consent to the search of his house was voluntary.
No. 17-2517 9
A. The Basis for the Initial Stop
The “central inquiry” in determining whether a Terry stop
is legal focuses on “the reasonableness in all the circum-
stances of the particular governmental invasion” of a person’s
“personal security.” Terry, 392 U.S. at 19. Courts must con-
sider the “‘totality of the circumstances’ of each case. . . .”
Arvizu, 534 U.S. at 273. In practice, the totality-of-the-circum-
stances test for reasonable suspicion operates in much the
same way as the test for probable cause, though adjusted to
the less demanding standard. See Terry, 392 U.S. at 20–21 (ex-
plaining the facets of the reasonable suspicion inquiry and
noting that “the notions which underlie both the warrant pro-
cedure and the requirement of probable cause remain fully
relevant in this context”). The Supreme Court has cautioned
against creating any “rigid demand” based on “relevant con-
siderations in the totality-of-the-circumstances analysis,” not-
ing that “a deficiency in one may be compensated for … by a
strong showing as to the other.” Illinois v. Gates, 462 U.S. 213,
231, 233 (1983). The many cases applying Terry to police stops
provide substantial guidance in deciding when informants’
tips and police efforts to corroborate the tips do or do not sup-
port reasonable suspicion.
In this case, the officers stopped Lopez based on infor-
mation from the disappearing informant and their observa-
tion of Lopez and his brother as they unloaded paper bags
into Lopez’s garage. Our analysis, therefore, begins with the
tip. When courts review Terry stops based on tips, they must
consider the identity of the informant. See Florida v. J.L., 529
U.S. 266, 271 (2000) (anonymous tip cited as justification for a
Terry stop lacked sufficient “indicia of reliability”—it “pro-
vided no predictive information and therefore left the police
10 No. 17-2517
without means to test the informant’s knowledge or credibil-
ity”); Adams v. Williams, 407 U.S. 143, 146–47 (1972) (tip from
known informant “carried enough indicia of reliability” to jus-
tify an “officer’s forcible stop”). In the run of cases, informant
identities exist along a spectrum of knowledge and reliability
that affects the reasonableness of police action taken pursuant
to the tip. At one end of that spectrum, officers receive a tip
from a known, trusted, and reliable source. At the other end,
officers receive an anonymous tip without signs of reliability.
The Supreme Court’s decisions in this area “have consist-
ently recognized the value of corroboration of details of an in-
formant’s tip by independent police work.” Gates, 462 U.S. at
241. The degree of corroboration required before police may
deprive a person of liberty, even briefly, depends on the reli-
ability of the tip’s source. See J.L., 529 U.S. at 271 (“The tip in
the instant case lacked the moderate indicia of reliability pre-
sent in … and essential to the Court’s decision” in Alabama v.
White, 496 U.S. 325 (1990), which held that the anonymous tip
in question “exhibited sufficient indicia of reliability to pro-
vide reasonable suspicion to make the [relevant] investigatory
stop.”). We begin by comparing cases with tips from reliable
sources and cases with tips from anonymous sources. We then
examine the tip in this case, where the police knew the iden-
tity of the informant but had no information indicating he was
reliable or truthful.
Tips that come from more trustworthy sources will re-
quire less independent corroboration than those obtained
from more questionable sources. For example, in Adams v.
Williams, the Supreme Court held that a Terry stop based on
an informant’s tip was justified with little verification because
the officer received the tip from an informant who “was
No. 17-2517 11
known to him personally and had provided him with infor-
mation in the past.” 407 U.S. at 146. The informant ap-
proached the officer and told him that “an individual seated
in a nearby vehicle was carrying narcotics and had a gun at
his waist” id. at 145, while “in a high-crime area at 2:15 in the
morning.” Id. at 147. Acting on the tip, the officer approached
and ordered Williams to exit the car. Williams disobeyed the
order, and the officer reached inside the car and grabbed a
gun from Williams’s waistband. Given the specific infor-
mation from a reliable informant and the potential danger to
the officer, the Supreme Court found that the seizure was jus-
tified, and that it simultaneously corroborated the tip. Id. at
147–48. The Supreme Court found no Fourth Amendment vi-
olation. Id. at 149.
Anonymous tips, by contrast, require more verification be-
fore police may execute a stop and deprive a person of liberty.
“Some tips, completely lacking in indicia of reliability, would
either warrant no police response or require further investi-
gation before a forcible stop of a suspect would be author-
ized.” Adams, 407 U.S. at 147. Before law enforcement may
stop a person based on an anonymous tip, reasonable suspi-
cion typically “requires that [the] tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate
person.” J.L., 529 U.S. at 272. Absent verification of illegal con-
duct alleged in a tip, police acting on anonymous tips must
verify details not easily ascertained by public observation or
“future actions of third parties ordinarily not easily pre-
dicted.” Gates, 462 U.S. at 245. Prediction of future behavior
without corroboration will not alone render an anonymous
tip reliable. See, e.g., White, 496 U.S. at 332 (upholding Terry
stop based on detailed anonymous tip about future drug
12 No. 17-2517
transaction, but taking care to distinguish between infor-
mation, on one hand, that “[a]nyone could have ‘predicted’”
based on public observation, like the location of a vehicle in a
parking lot, and information, on the other hand, showing the
informant’s “ability to predict” White’s “future behavior”).
In Illinois v. Gates, the Supreme Court emphasized the im-
portance of corroborating an anonymous tip’s prediction of
future behavior. In Gates, the Supreme Court found no Fourth
Amendment violation where the police verified details in a tip
before stopping a husband and wife and searching their
house and car on the belief that they trafficked drugs between
Florida and Illinois. 462 U.S. at 246. Although Gates involved
probable cause as opposed to reasonable suspicion (the offic-
ers obtained a warrant), its guidance on anonymous tips is
useful when considering Terry stops as well. In Gates, an anon-
ymous informant had told police that Sue Gates would drive
to Florida on May 3 to have her car loaded with drugs and
that her husband Lance would fly to Florida soon afterward
to drive the car back to the couple’s home in Illinois. Id. at 225.
Police obtained a warrant to search the Gateses’ home and ve-
hicle after verifying that Lance Gates would fly to Florida on
May 5 and observing him enter a motel room registered to his
wife before driving his car to a highway bound for Illinois. Id.
at 226.
The Supreme Court found no Fourth Amendment viola-
tion because “the modus operandi of the Gateses had been sub-
stantially corroborated” by independent police work, id., and
because the police had corroborated that the tip accurately de-
scribed the Gateses’ future actions that were “not easily pre-
dicted.” Id. at 245. The Court reasoned that “if the informant
No. 17-2517 13
could predict with considerable accuracy the somewhat unu-
sual travel plans of the Gateses,” then the law was justified in
detaining them and searching their house and car. Id. at 245–
46 n.14.
In contrast to these cases allowing stops and searches
based on tips, Florida v. J.L. held that a Terry stop violated the
Fourth Amendment because police had not sufficiently veri-
fied an anonymous tip. J.L., 529 U.S. at 274. The informant
called police and said that a black youth wearing a plaid shirt
and standing at a particular bus stop was carrying a gun. Id.
at 268. Police officers matched J.L.’s appearance to the infor-
mation in the tip and stopped and frisked him and found a
gun. Id. The Court rejected Florida’s contention that “the tip
was reliable because its description of the suspect’s visible at-
tributes proved accurate[.]” Id. at 271. Instead, the Court held
that the Fourth Amendment required the police to investigate
“predictive information … to test the informant’s knowledge
or credibility[,]” id., to determine that the tip is “reliable in its
assertion of illegality, not just in its tendency to identify a de-
terminate person” before police may intrude on a person’s lib-
erty. Id. at 272.
In this case, officers knew the informant’s identity but
nothing else. Without corroborating any incriminating or pre-
dicted information, and without knowing anything about the
informant’s reliability, they seized Lopez and deprived him
of his liberty. When officers know the bare identity but little
else about an informant, they still must conduct and rely upon
independent investigation to corroborate a tip before seizing
a person. In this case, police corroborated only the name-and-
address match for Fausto Lopez—“easily obtained facts” that
“[a]nyone could have ‘predicted.’” White, 496 U.S. at 332.
14 No. 17-2517
They verified no facts that would indicate the tip was “reliable
in its allegation of illegality,” as required by Florida v. J.L. 529
U.S. at 272.
In evaluating this case, we must not blur the distinction
between an anonymous informant and one whose bare iden-
tity is known to law enforcement. But we also must avoid
blurring the distinction between a known, trustworthy in-
formant and the informant in this case. On the spectrum of
tipster reliability, this informant’s disappearance and ulti-
mate refusal to cooperate with law enforcement place him
closer to the unverified anonymous caller than to the known,
trustworthy source. In this situation, the reasonable-suspicion
standard requires police to verify at least some facts support-
ing the informant’s allegation of criminal activity before seiz-
ing the subject of the tip. See Thompson v. Wagner, 319 F.3d 931,
935–36 (7th Cir. 2003); United States v. Ienco, 182 F.3d 517, 524
(7th Cir. 1999). The officers here did not do such verification
before they detained Lopez against his will.
This approach finds support in our cases involving identi-
fied but unproven informants. See, e.g., Thompson, 319 F.3d at
936; Ienco, 182 F.3d at 521 (finding no reasonable suspicion for
a Terry stop where “the very officer whose reasonable suspi-
cion, if extant, could have permitted a Terry stop acknowl-
edged that he had no basis other than a hunch to suspect”
criminal conduct by the men stopped). In particular, in
Thompson v. Wagner, police investigated stolen diamond rings.
A co-conspirator in the case told police that a diamond from
one of the stolen rings could be found in the wedding ring
worn on the left hand of Beverly Thompson. 319 F.3d at 933.
This fact came wrapped in a story detailing a series of ex-
changes and trades for the diamond, including one exchange
No. 17-2517 15
where Thompson’s husband obtained the gem by trading his
car to his sister, who had received the original diamond ring
from the informant, who was her boyfriend. Id.
The officers visited Thompson in the grocery store where
she worked “without any additional investigation on their
part” into any other aspects of the story, including whether
Thompson’s sister-in-law had recently received a car or
whether any of the traded rings matched the stolen ring. Id. at
934. The officers corroborated from the detailed tip only that
Beverly Thompson worked at the grocery store and that she
wore a ring on her left hand. Approaching Thompson, the of-
ficers told her “she was not under arrest but that the officers
believed that she was in possession of a ‘stolen’ diamond.” Id.
Thompson told the officers she wanted to talk to her hus-
band and rose to make a call. The officers then detained and
arrested her because they believed that she “was committing,
or was about to commit, the crime of obstruction” and be-
cause they “suspected the diamond on her left hand was sto-
len and that she was going to conceal or destroy it if she left.”
Id. Based on the officers’ failure to undertake “even a modi-
cum of additional investigation” to corroborate the inform-
ant’s story, however, we held that the officers had violated
Thompson’s Fourth Amendment rights and were not justified
under Terry. Id. at 936.
The initial seizure of Lopez fell short of the Fourth Amend-
ment’s requirements for Terry stops. Remember the facts in
the tip: The informant said that during a typical transaction
he drove a white Chevrolet Malibu into the garage, and the
exchange of drugs for money took place inside the garage af-
ter closing the door. On the day of the seizure, however, the
police observed a white van pull up next to the garage while
16 No. 17-2517
the brothers exited the vehicle and unloaded paper bags into
the garage from the alley. No courier; no white Malibu or sim-
ilar vehicle; no concealing the vehicle inside the garage to
avoid witnesses. The officers’ observations that day simply
did not corroborate, even roughly, the informant’s story. The
officer who decided to stop Lopez could only guess what was
in the bags Lopez carried—he operated on no more than a
hunch. He and his fellow officers failed to undertake “even a
modicum of additional investigation” to see if the Lopezes’ or
others’ actions matched the informant’s tale or to wait for
Lopez’s actions to create an independent basis for reasonable
suspicion.
Instead of doing the police work required to substantiate
the tip, the officers pounced as soon as they saw Lopez leave
his garage. They had seen conduct that did not corroborate
the tip or provide an independent source of reasonable suspi-
cion. The officer who observed Lopez himself agreed that
Lopez and his brother did not do “anything at all to secrete
the activity” and “[d]idn’t try to hide it in any way.”
Requiring police to corroborate tips from identified but
unproven informants is an important protection of individual
liberty, and it finds support in other circuits. In United States
v. Roch, a known informant told police that a suspected man
named Frank had two guns, drove a white and orange pickup
truck, was staying at a specific motel, and “planned to pass
some forged checks and [had] threatened to kill the next cop
he saw.” 5 F.3d 894, 896 (5th Cir. 1993). The officers watched
the motel until the truck exited the parking lot. They stopped
the defendant at a nearby gas station and discovered firearms
in his truck. The government charged the defendant with be-
ing a felon in possession of a firearm. The Fifth Circuit held
No. 17-2517 17
that the Terry stop leading to Roch’s arrest violated the Fourth
Amendment. Id. at 899. The court explained that the “agents
did not see Roch commit a criminal offense, engage in any
questionable behavior, or break any traffic laws. The only ac-
tivity the agents observed was a man and woman leaving a
motel parking lot in a[] white and orange pickup truck, and
driving to a filling station.” Id. at 897–88. The officers “could
corroborate that a white man was driving a white and orange
truck” from the identified motel, but in their investigation
they did not observe “sufficient details that corroborate the
informant’s tip.” Id. at 899. Based on this failure to substanti-
ate the informant’s story, the court found that the tip lacked
“sufficient indicia of reliability” even though the police “knew
the informant personally[.]” Id. at 898.
In United States v. Martinez, the Fifth Circuit again found a
Fourth Amendment violation based on the inadequacies of a
tip from a confidential informant relied upon to justify a Terry
stop. 486 F.3d 855, 861 (5th Cir. 2007). Other circuits have
come to similar conclusions. See, e.g., Bazzi v. City of Dearborn,
658 F.3d 598, 605 (6th Cir. 2011) (no reasonable suspicion
where known informant alleged target of Terry stop had guns
and drugs and “accurately described [target’s] vehicle and its
location,” but “there was no corroborating evidence of the
otherwise unreliable assertion that [the target] possessed
guns and drugs.”); United States v. Brown, 448 F.3d 239, 249
(3d Cir. 2006) (“borrow[ing] underlying principles from the
anonymous tip context to evaluate the reliability of … tip”
from a known but unproven informant to find no reasonable
suspicion where tip identified robbery suspects but lacked
sufficient indicia of reliability).
18 No. 17-2517
To counter this authority and reasoning, the government
relies on the fact that in this case, the identified informant’s
statements were against his penal interest. The government
argues that the incriminating nature of the informant’s tip
provided strong, or at least sufficient, evidence that the tip
was reliable. The government is right that our cases and a plu-
rality of the Supreme Court in United States v. Harris have
acknowledged that statements against penal interest “carry
their own indicia of credibility” because people are unlikely
to fabricate information that puts them at legal jeopardy. 403
U.S. 573, 583 (1971) (plurality opinion). At the same time,
however, the Harris plurality cautioned, in terms that apply
here, that “admissions of crime do not always lend credibility
to … accusations of another.” Id. at 584. A participant in a
criminal enterprise may well have incentives to misdirect the
police away from his real confederates. Instead, the fact that
an informant’s statement is against his penal interest merely
serves as one factor in the totality of the circumstances analy-
sis. See Gates, 462 U.S. at 233-34 (rejecting rigid rules in that
analysis, including treating reliability and basis of knowledge
as independent criteria).
In this case, the informant’s statement against his own pe-
nal interest does not outweigh our other concerns about the
officers’ too-hasty actions to seize the person who was the
subject of the tip. Turning to other factors in the totality-of-
the-circumstances analysis, the informant here ceased coop-
erating with police the moment he left their presence. That
turn of events provided ample reason to think the informant
was not standing behind the story he told police and thus un-
dermined his reliability.
No. 17-2517 19
The police here strayed from the hallmark justifications of
Terry stops. No urgent circumstances excused the officers
from abandoning the Fourth Amendment’s warrant require-
ment, which must be observed “whenever practicable.” Terry,
392 U.S. at 20. Neither the officers’ observations nor the infor-
mation in the tip called for “necessarily swift action … which
historically has not been, and as a practical matter could not
be, subjected to the warrant procedure.” Id. And the officers
did not confront a situation “where police have been unable
to locate a person suspected of involvement in a past crime”—
they identified Lopez the day after receiving the tip. Hensley,
469 U.S. at 229. Instead, these facts fall squarely within those
situations where the Fourth Amendment demands that police
either try to obtain a warrant or wait until they observe con-
duct requiring, or at least suggesting a need for, immediate
action.
To allow the stop of Lopez to withstand Fourth Amend-
ment scrutiny would enable police to use the unsubstantiated
statement of almost anyone to justify a Terry stop of any per-
son whose mere name and address are known to the tipster.
People under police investigation themselves could too easily
deflect suspicion by redirecting law enforcement’s attention
to others. If an unreliable and uncorroborated tip were
enough to justify an immediate move to seize and question
the subject, we would be restricting everyone’s liberty based
on the optimistic hope that those who name names during in-
terrogation do so in good faith. The reasonable-suspicion
threshold sets a lower bar for state action than probable cause,
but that bar has not slipped so low as to allow unreliable tips
like this one to trigger the humiliating, involuntary seizures
and sometimes violent encounters that we justify under the
bland and familiar phrase “Terry stops.”
20 No. 17-2517
The government has marshaled several of our cases to
support the initial seizure of Lopez here. Most are inapposite
because they involved an officer’s own observations, ongoing
emergencies, or ongoing crimes. United States v. Ruiz, 785 F.3d
1134, 1141–42 (7th Cir. 2015) (“officers had observed a series
of suspicious encounters” consistent with drug trafficking);
United States v. Hicks, 531 F.3d 555, 558 (7th Cir. 2008) (“ongo-
ing emergency” in domestic disturbance); United States v.
Brown, 366 F.3d 456, 460 (7th Cir. 2004) (defendant’s “partici-
pation in the crime” of robbery “was still ongoing”).
The Supreme Court has instructed that investigative stops
related to completed crimes must be distinguished from in-
vestigative stops related to ongoing or imminent crimes be-
cause the governmental interest in preventing and stopping
crimes and threats to public safety is more attenuated once a
crime has been completed. Because Fourth Amendment law
“balances the nature and quality of the intrusion on personal
security against the importance of the governmental interests
alleged to justify the intrusion . . . [t]he factors in the balance
may be somewhat different when a stop to investigate past
criminal activity is involved rather than a stop to investigate
ongoing criminal conduct.” Hensley, 469 U.S. at 228. Conse-
quently, we reject the application of those cases involving ur-
gent situations to the cold surveillance involved here. Al-
though this case apparently involved an ongoing conspiracy,
it did not involve moment-to-moment or hour-to-hour crimi-
nal acts by Lopez. Under the government’s theory, however,
police could have seized Lopez anytime and anywhere, based
on this unreliable and uncorroborated tip.
No. 17-2517 21
In citing United States v. Lake, the government presents a
case with superficially similar facts. In that case, the police re-
ceived a tip from a known informant. 500 F.3d 629, 631 (7th
Cir. 2007). Acting on the tip, the police found drugs and a gun
at the defendant’s apartment. At the suppression hearing, the
informant refused to cooperate, though the government pre-
sented evidence that the informant’s reluctance came after he
was beaten for providing the initial tip. Id. at 631–32. Never-
theless, we found law enforcement had probable cause to
search the apartment. Id. at 633.
The key distinguishing fact is that the officers in Lake fol-
lowed the proper warrant procedure after receiving the tip.
Id. at 631. The state-court judge who issued the warrant lis-
tened to testimony under oath from the reluctant informant
as well as the three officers. Id. As we have stressed, the offic-
ers who stopped Lopez acted without a warrant, and there
were no exigent circumstances. If Lake has any relevance to
this case at all, it is to emphasize the importance of following
the warrant procedure whenever practicable.
B. The Frisk
Even when a Terry stop is justified, whether a frisk is also
justified is a separate question. Arizona v. Johnson, 555 U.S. 323,
326–27 (2009); United States v. Thompson, 842 F.3d 1002, 1007
(7th Cir. 2016). We agree with the district court that the offic-
ers violated the Fourth Amendment here by frisking Lopez as
part of the stop, even if the stop itself had been justified. The
government contests this holding in a footnote by pointing to
cases where we have found frisks of suspected drug dealers
constitutional because “guns are known tools of the drug
trade.” U.S. Brief at 22 n.3, citing Thompson, 842 F.3d at 1007;
22 No. 17-2517
accord, United States v. Askew, 403 F.3d 496, 507-08 (7th Cir.
2005).
The authority to frisk is not automatic in a drug investiga-
tion. For a frisk to be lawful, it must be based on reasonable
suspicion that “criminal activity may be afoot and that the
persons with whom [the officer] is dealing may be armed and
presently dangerous.” Terry, 392 U.S. at 30. Those conditions
were not present in this case, where police observed nothing
indicating a potentially dangerous drug transaction. But more
fundamentally, since the stop was improper, the frisk was
too. 1
C. Length of the Stop
Even if the initial stop had been justified, it lasted too long.
A Terry stop may “last no longer than is necessary to effectu-
ate” its purpose. Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015), quoting Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion). “A person stopped on reasonable suspi-
cion must be released as soon as the officers have assured
themselves that no skullduggery is afoot. Probable cause, by
contrast, justifies a custodial arrest and prosecution, and ar-
rests are fundamentally different from Terry stops.” United
States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002) (en banc).
In this case, the officers clearly extended the stop beyond
the time necessary to complete any investigation based on the
1 The district court found that any taint from this violation did not
affect Lopez’s ability to consent voluntarily to the search of his home. We
need not consider the effects of the frisk in isolation since we find also that
the initial stop and, as we explain next, the prolonged detention of Lopez
contributed to an inherently coercive setting. But we are confident that the
unjustified frisk contributed to the coercive setting.
No. 17-2517 23
claimed reasonable suspicion. There was not a sufficient jus-
tification for the Terry stop in the first place, but even that in-
adequate justification evaporated when the officers looked in-
side the paper bags in the garage. Even if the officers had spec-
ulated that Lopez’s brother might have replaced drugs in the
bags with car parts, that suspicion would have disappeared
when they searched the garage. The officers stopped Lopez
and his brother immediately after his brother entered the gar-
age and Lopez began to drive away. Because the elapsed time
between observation and detention was so short, it would
have been impossible for the Lopez brothers or anyone else to
have spirited drugs from the shopping bags into the house.
This case presents a wrinkle not present in Rodriguez v.
United States, where the police search occurred after the de-
fendant had refused the officers’ request to conduct the
search. 135 S. Ct. at 1613. Here, by contrast, Lopez consented
to the search. So one might think that a person’s consent to a
search might absolve the officers’ illegal extension of the
search. To the contrary, “[q]uestioning that prolongs the de-
tention, yet cannot be justified by the purpose of such an in-
vestigatory stop, is unreasonable under the fourth amend-
ment.” Childs, 277 F.3d at 952, citing United States v. Sharpe,
470 U.S. 675, 685 (1985).
The question does not depend on exactly how many
minutes the stop lasts. It depends on whether law enforce-
ment has detained the person longer than needed to carry out
the investigation that was justified by the reasonable suspi-
cion. See United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir.
2005) (“the unlawful seizure was ongoing when Johnson
voiced his consent, foreclosing the possibility that the consent
was sufficiently attenuated from the unlawful conduct as to
24 No. 17-2517
purge the taint”); Childs, 277 F.3d at 952. So when an officer
acts expeditiously but is delayed waiting for the arrival of a
drug-sniffing dog or other investigative resources, a 20-mi-
nute stop could be justifiable. At the same time, a 15-minute
stop would be too long if the investigation justifying the stop
finished at the 14-minute mark.
The government argues that the stop here was not exces-
sively long because, when the officer asked Lopez for permis-
sion to search his house, he was no longer being detained by
police and was free to leave. The officer had told Lopez “that
he was not under arrest, that he didn’t have to speak” to offic-
ers, and that “he was free to go.” In assessing whether a per-
son has been seized, we look to the totality of the circum-
stances and ask whether “a reasonable person would feel free
to terminate the encounter.” United States v. Drayton, 536 U.S.
194, 201 (2002). Similar facts were present in Florida v. Royer,
where the Supreme Court held that the defendant’s consent
to search his luggage was obtained impermissibly because the
officers had unreasonably detained him beyond the scope of
the initial stop by keeping him in an enclosed space while re-
taining his identification and plane ticket. 460 U.S. at 503–04.
Similarly here, while one officer was assuring Lopez that
he was free to go, the other officers still had Lopez’s keys, van,
and cellphone. At least eight officers remained on the scene
at his garage and house. In this case, no reasonable person in
Lopez’s shoes would conclude that one officer’s words meant
more than all eight officers’ actions. Lopez remained in police
detention for as long as officers functionally blocked his exit
by the overwhelming physical presence of eight officers and
by retaining his van, car keys, and cellphone. This detention
violated the limited scope of intrusion that would have been
No. 17-2517 25
permissible even if there had been reasonable suspicion for a
Terry stop.
Since Lopez was being detained in violation of the Fourth
Amendment, his consent to search the house cannot be
deemed voluntary. No time had elapsed, there were no inter-
vening circumstances, and the detention was not even argua-
bly justified after the search of the garage turned up nothing
incriminating. See Royer, 460 U.S. at 501; Brown v. Illinois, 422
U.S. 590, 603–04 (1975) (considering voluntariness of state-
ments provided after an arrest made without warrant or prob-
able cause); Johnson, 427 F.3d at 1056–57; United States v. Jerez,
108 F.3d 684, 695 (7th Cir. 1997) (“Because the seizure was not
supported by reasonable suspicion . . . [it] therefore vitiated
the subsequent consent to search”). The evidence obtained
pursuant to the search of the house may not be admitted as
evidence against Lopez.
We REVERSE the denial of Lopez’s motion to suppress
and REMAND the case for further proceedings where Lopez
may withdraw his guilty plea that was conditioned on the ad-
missibility of the evidence against him obtained through the
unlawful seizure and searches.