United States v. Andre Williams

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3864
UNITED STATE OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12-CR-00054 — William M. Conley, Judge.
ARGUED APRIL 23, 2013 — DECIDED SEPTEMBER 24, 2013
Before RIPPLE and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge.*
STADTMUELLER, District Judge. On the night of March 21,
2012, City of Fitchburg police officers responded to an anony-
mous 911 call reporting a group of twenty-five individuals
*
The Honorable J.P. Stadtmueller of the Eastern District of Wisconsin,
sitting by designation.
2 No. 12-3864
acting loudly and displaying hand guns in a parking lot. Upon
arriving at the scene, the officers observed something different:
a smaller group of individuals, none of whom appeared to be
acting inappropriately. The officers approached this group,
which had begun to disperse slowly. For no apparent reason,
one of the officers singled out the appellant, Andre Williams,
and performed a frisk. Mr. Williams began to resist the frisk
and tried to escape, but was ultimately restrained. Thereafter,
the officers searched his body and found both a handgun and
several ‘ecstasy’ pills. Mr. Williams was arrested and charged
with being a felon in possession of a firearm. He moved to
suppress the evidence seized from him, but the district judge
ultimately denied his motion. Thereafter, Mr. Williams pled
guilty to possession of a firearm as a convicted felon, but
reserved his right to appeal. At sentencing, the district judge
applied two sentencing enhancements, which significantly
increased William’s offense level and applicable range of
imprisonment under the advisory sentencing guidelines.
Following sentencing, Mr. Williams appealed his conviction
and sentence to this court, arguing that the evidence used to
obtain the conviction should have been suppressed, and, in the
alternative, that the district judge erred in applying the
sentencing enhancements. We find that the search was unlaw-
ful, and accordingly reverse the denial of his suppression
motion, vacate his judgment of conviction, and remand the
matter for additional proceedings consistent with this opinion.
Because we reverse the underlying judgment of conviction, we
need not reach the sentencing enhancement issue.
No. 12-3864 3
I. Background
On the night of March 21, 2012, at 11:25 p.m., a woman
called 911 to report the presence of a large group of individuals
in a parking lot outside of a bar in Fitchburg, Wisconsin. The
woman refused to provide her name, but explained that there
were approximately twenty-five people, three or four of whom
she had observed with “guns out.” She did not report any
fighting or threatening behavior, instead only informing the
911 dispatcher that the people were being loud while loitering
in the parking lot of Schneid’s, a local bar (to which the police
apparently respond quite often due to reports of violence, gang
activity, drugs, and weapons).
As a result of receiving this tip, the dispatcher sounded a
tone at the City of Fitchburg Police Department’s (“the
Department”) headquarters indicating a weapons call. That
tone issued during the Department’s nightly briefing, and a
number of officers immediately suited up to respond to the
call.
The officers drove to Schneid’s parking lot, arriving three
to five minutes after the call, and observed a much different
scene than that reported by the anonymous caller. Instead of
seeing a group of twenty-five belligerent men, the officers
discovered only eight to ten individuals standing around a
group of cars in the parking lot. At the time the officers
approached the group, the individuals were not loud or
otherwise acting disruptively, nor were they displaying their
firearms. In fact, one of the officers, Ryan Jesberger, testified
that he and the other officers from his department were not
4 No. 12-3864
even sure that this smaller group was the same one that had
been reported by the anonymous caller.
The officers approached the group anyway. As they
approached, the group apparently began to disperse, but no
one attempted to flee the scene. Each member of the group
appeared to act in the same manner, avoiding eye contact with
the officers and walking slowly away from the area.
For reasons that are entirely unclear from the record, the
officers began to perform pat-downs on the members of the
group. Officer Jesberger singled out Mr. Williams, in particu-
lar, and requested that Mr. Williams step forward and display
his hands. At the evidentiary hearing on this issue, Officer
Jesberger stated that he started to “zero in” on Mr. Williams
“once [Officer Jesberger] saw the way [Mr. Williams] was
acting.” However, Officer Jesberger did not provide any
further detail on what, precisely, piqued his interest in Mr.
Williams, as opposed to the other members of the group.
While, apparently, Mr. Williams was not making eye contact
with the officers and was attempting to slowly move away
from the scene, all of the evidence indicates that every other
member of the group was doing exactly the same thing.
After Officer Jesberger requested that Mr. Williams step
forward, Mr. Williams asked “Why?,” but was compliant in
every other respect. At Officer Jesberger’s request, Mr. Wil-
liams stepped out from his position between two cars, showed
his hands, and then placed his hands on his head.
Officer Jesberger then began to pat down Mr. Williams. At
that point, Mr. Williams began to move his hands toward his
waist. Officer Jesberger warned Mr. Williams not to do so, but
No. 12-3864 5
Mr. Williams continued to move his hands. Accordingly,
Officer Jesberger attempted to handcuff Mr. Williams, who
instead pulled away and tried to run from the scene. He did
not get very far before other officers took him down to the
ground. The officers held Mr. Williams to the ground and
directed that he pull his hands out from underneath him, but
Mr. Williams did not (or perhaps could not) comply. They then
attempted to get him to comply by striking him with their knee
and taser-ing him. This worked, and Officer Jesberger was
finally able to handcuff Mr. Williams. However, during this
scuffle, another officer injured his knee when he moved it in an
unnatural way.
With Mr. Williams successfully detained, the officers
performed a pat-down search of his person and recovered a
handgun, several ecstasy pills, and approximately $600.00 in
cash. They immediately placed Mr. Williams under arrest.
On April 18, 2012, Mr. Williams was indicted in the
Western District of Wisconsin, and charged with being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
He then moved to suppress the gun recovered from him
during Officer Jesberger’s frisk. Mr. Williams argued that
suppression was appropriate, because the officers did not have
a reasonable suspicion on which to base either their initial
investigatory stop or to perform the frisk of Mr. Williams.
Magistrate Judge Stephen Crocker held an evidentiary hearing
on the motion approximately one week later, after which time
he recommended that Mr. Williams’ motion be denied. The
magistrate judge suggested that the frisk was unconstitutional
but was sufficiently deliberate to require exclusion of the gun,
6 No. 12-3864
by proposing an extension of the logic of Herring v. United
States, 555 U.S. 135 (2009), to a warrantless frisk in a Terry stop.
Both Mr. Williams and the government objected to that
ruling. Mr. Williams objected to the final determination that
the gun should not be suppressed; the government objected to
the magistrate’s finding that the frisk was unconstitutional.
While the objections were pending before District Judge
William Conley, Mr. Williams entered into a plea agreement
with the government. He agreed to plead guilty, but reserved
his right to appeal if the district judge determined that the gun
should not be suppressed.
The district judge eventually determined that the gun
should not be suppressed, and Mr. Williams pled guilty. The
matter progressed toward sentencing. The probation officer
prepared a presentence report, determining Mr. William’
guideline range of imprisonment to be thirty-seven to forty-six
months. The sentencing judge applied two sentencing enhance-
ments, and ultimately imposed a 70-month sentence.
Mr. Williams appealed, arguing that the district judge erred
in failing to exclude the firearm and in applying both of the
sentencing enhancements. Because we agree that the failure to
exclude the firearm was in error, we need not reach the
sentencing issues.
II. Discussion
If we determine that the district judge should have sup-
pressed the firearm, then we must vacate Mr. Williams’
judgment of conviction. In such a case, we need not review the
sentencing enhancement issue.
No. 12-3864 7
There are two grounds upon which we can find that the
gun should have been suppressed. First, if we determine that
the initial stop of Williams, when Officer Jesberger asked him
to step out from the group and submit to a frisk, was unconsti-
tutional, then we must also determine that all of the later
occurrences, including the frisk and recovery of the firearm,
were similarly unconstitutional, and likely warrant suppres-
sion. Second, even if we were to determine that the initial stop
was permissible, then we must ask whether the frisk itself was
constitutional. If we find that it was not, then the later recovery
of the firearm was also unconstitutional, likely warranting
suppression of the firearm.
For the reasons that follow, we find that the frisk was
unconstitutional, and therefore hold that the district judge
erred in denying Mr. Williams’ motion to suppress. Accord-
ingly, we do not reach the sentencing enhancement issue.
A. Standard of Review
We review the district judge’s denial of Mr. Williams’
suppression motion, reviewing factual findings for clear error
and both legal conclusions and mixed questions of law and fact
de novo. United States v. Freeman, 691 F.3d 893, 899 (7th Cir.
2012) (citing United States v. Huebner, 356 F.3d 807, 812–13 (7th
Cir. 2004)); United States v. Burnside, 588 F.3d 511, 516–17 (7th
Cir. 2009) (citing United States v. Mosby, 541 F.3d 764, 767 (7th
Cir. 2008); United States v. Groves, 530 F.3d 506, 509 (7th Cir.
2008); United States v. McIntire, 516 F.3d 576, 578–79 (7th Cir.
2008); United States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008)).
In this case, we are called upon to examine the district
court’s legal determination that Officer Jesberger’s stop and
8 No. 12-3864
frisk of Mr. Williams was constitutional. The parties do not
disagree over the factual record, as set forth by the district
judge. Rather, their dispute is solely over the application of the
relevant law to those facts. Accordingly, our review of the
district judge’s determination on the stop and frisk must be de
novo—particularly because “‘what happened’ is not an issue,”
in this case. United States v. Carlisle, 614 F.3d 750, 754 (7th Cir.
2010) (citing Burnside, 588 F.3d at 516).
B. Discussion
As we have already mentioned, there are two junctures at
which we could find the search leading to the recovery of the
firearm to be unconstitutional: at the moment that Mr. Wil-
liams was singled out and stopped, or at the moment that Mr.
Williams was frisked. Slightly different legal standards apply
to each of those situations, so we address them separately. See,
e.g., Ybarra v. Illinois, 444 U.S. 85, 94 (1975) (pointing out that,
even if an initial stop is lawful, a subsequent frisk must be
separately supported to be constitutional); United States v.
McKoy, 428 F.3d 38, 39 (7th Cir. 2005) (“It is insufficient that the
stop itself is valid; there must be a separate analysis of whether
the standard for pat-frisks has been met.”).
1. Initial Stop
In this portion of my opinion, I disagree with Judge
Hamilton, and find that the police officers’ initial stop of the
group of individuals was lawful.
Police officers may detain a suspect for a brief investigatory
stop if they have a “reasonable suspicion based on articulable
facts that a crime is about to be or has been committed.”
No. 12-3864 9
Carlisle, 614 F.3d at 754–55 (citing United States v. Wimbush, 337
F.3d 947, 949 (7th Cir. 2003)); Terry v. Ohio, 392 U.S. 1, 21 (1968).
This requires “more than a hunch but less than probable
cause.” Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008) (citing
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v.
Lenoir, 318 F.3d 725, 729 (7th Cir. 2003)). To find that reasonable
suspicion existed to justify as stop, the Court must examine the
totality of the circumstances in the situation at hand, in light of
the individual officers’ own training and experience, and
should uphold the stop if it finds that “the detaining officer
ha[d] a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citing United States v. Cortez, 449 U.S. 411, 417–18 (1981);
Ornelas v. United States, 517 U.S. 690, 699 (1996)).
The first question I must ask is what, precisely, Officer
Jesberger relied upon in deciding to stop Mr. Williams. The
Government points, almost exclusively, to the anonymous 911
call, itself, arguing that the call was an emergency report,
which can support an officer’s reasonable suspicion with less
objective evidence to corroborate the report. See United States
v. Hicks, 531 F.3d 555, 559–60 (citing Alabama v. White, 496 U.S.
325, 332 (1990); New York v. Quarles, 467 U.S. 649 (1984)).
However, in passing, the government also mentions that this
stop occurred at night in a high-crime area.
Do those facts, taken in conjunction with one another,
support a finding that Officer Jesberger had a reasonable
suspicion to stop Mr. Williams? Yes, but this is a very close
call.
10 No. 12-3864
The 911 call, in and of itself (and despite being anonymous),
provided Officer Jesberger with a reasonable suspicion to stop
Mr. Williams. When responding to an emergency report,
officers may use the report, itself, to justify a Terry stop,
provided that the report describes an ongoing emergency, as
opposed to general criminality. See Hicks, 531 F.3d at 558–59
(distinguishing Florida v. J.L., 529 U.S. 266, 268 (2000) on the
basis that the report in Hicks provided details of an ongoing
emergency situation, whereas the tip in J.L. reported only
general criminality). In Hicks, we found that an individual’s
911 call reporting that “There’s a guy beating a woman up in
my house,” was an emergency report justifying a Terry stop.
Hicks, 531 F.3d at 557, 560. Here, the 911 call was arguably even
more specific in reporting an emergency situation. The caller
stated that there was a large group of people being loud and
waving guns (R. 41, at 3–4) in a location at which violent crime
and drug activity is regularly reported.1 An officer responding
to that scene would certainly be justified in believing that a
volatile emergency situation was underway, and stopping
members of a nearby group of individuals upon arrival at the
scene. Therefore, I find that the 911 call supported a reasonable
1
Indeed, this situation is much more egregious than that presented in J.L.
In that case, the Supreme Court examined a tip reporting the mere
possession of a firearm. J.L., 529 U.S. at 273–74. Here, on the other hand, the
caller reported far more: that guns were being openly displayed in a bar
parking lot, to which police frequently reported in response to crime and
gang activity, by a large group of people who were acting very loud.
Whereas the J.L. caller reported a situation in which an individual was
merely possessing a gun in public, the caller in this case reported the much
more dangerous situation of multiple individuals displaying guns in a
situation that may have been construed as a fight.
No. 12-3864 11
suspicion that a crime was in progress or about to be commit-
ted, making the stop a permissible Terry stop. See, e.g., id.;
Terry, 392 U.S. at 30.
Moreover, that conclusion is not changed by the fact that
the 911 call was made anonymously. Mr. Williams argues that
the 911 call could not support a reasonable suspicion, under
J.L., because it was made anonymously. That is incorrect. The
mere fact that the caller was anonymous is not enough, under
J.L. to make the 911 call per se unreliable. Hicks, 531 U.S. at
558–59 (citing United States v. Brown, 496 F.3d 1070, 1077 (10th
Cir. 2007); United States v. Elston, 479 F.3d 314, 319 (4th Cir.
2007); United States v. Drake, 456 F.3d 771, 775 (7th Cir. 2006);
United States v. Terry–Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004);
Anthony v. City of New York, 339 F.3d 129, 136–37 (2d Cir. 2003);
United States v. Holloway, 290 F.3d 1331, 1338–39 (11th Cir.
2002); United States v. Valentine, 232 F.3d 350, 354 (3d Cir.
2000)); see also United States v. Wooden, 551 F.3d 647 (“Doubtless
greater confidence can be achieved when police know a caller’s
identity . . . yet, as a practical matter a name given by a caller
does not make a tip any less anonymous … it would under-
mine the goal of the 911 system to require a caller to prove his
identity.”). So long as the call reported an ongoing emergency,
J.L. may be distinguished. Hicks, 531 U.S. at 558–59 (“Every
circuit to consider the question has distinguished J.L. when the
tip is not one of general criminality, but of an ongoing emer-
gency … or very recent criminal activity.”) Here, where the
caller also provided information regarding how she obtained
the information on which she based her report, I find it
appropriate to hold that Officer Jesberger had a reasonable
suspicion for the stop. Wooden, 551 F.3d at 649 (“The caller in
12 No. 12-3864
this case told us how he knew that Wooden had a gun …
[c]orroboration of other information would not make this claim
more plausible.”).
Mr. Williams also asserts that the changed circumstances
between the time of the 911 report and the officers’ arrival on
the scene undermined the credibility and emergency nature of
that report, thus depriving it of its ability to provide Officer
Jesberger with a reasonable suspicion to conduct the Terry
stop; again, he is incorrect, though this is a much closer
question. As Mr. Williams points out, the 911 caller reported
that there was a group of 25 or more individuals in the parking
lot being very loud. When the officers arrived, only eight to ten
individuals remained, and apparently none of them were
acting in a loud or threatening manner. But I find that those
facts are not enough to strip the 911 report of either its credibil-
ity or of its emergency nature.
This does not undermine the report’s credibility. As to that
issue, I look again to Hicks, which noted that “a lower level of
corroboration is required before conducting a stop on the basis
of an emergency report.” 531 F.3d at 559 (citing Quarles, 467
U.S. 649). Thus, here, where the caller remained anonymous,
but provided very specific details about the location and
activities of a group of men, I believe that low level of corrobo-
ration is satisfied. Additionally, while the group was smaller,
by approximately one-half to two-thirds, upon the arrival of
police, that fact should not undermine the credibility of the
call. The officers arrived within three to five minutes, which is
more than enough time for some participants to have left
(especially if they were frightened by an escalating violent
situation) but not likely enough time for an entire group of 25
No. 12-3864 13
people to have left and been replaced by a new group of eight
to ten. Accordingly, I find that the low threshold of corrobora-
tion required to rely on an emergency call was satisfied.
Relatedly, the fact that the officers found a much smaller
group of men who were not acting loudly or brandishing
weapons, did not suddenly strip the report of its emergency
nature. Wooden, 551 F.3d 647, is instructive. In that case, an
anonymous caller provided a description of an individual, who
he said had drawn a weapon from his holster during a fight
with his girlfriend. Id. Police responded and found a couple
near the reported scene, who were no longer arguing. Id.Despite that change in circumstances, we nonetheless upheld
a stop of the armed individual. Id., at 649–50. The same should
be the case here. Any change in the number of people present
and their activity could very well have been attributable to the
arrival of the police and the time between the call and the
officers’ arrival. That change from volatile to stable, which
happened very quickly, was not guaranteed to be permanent.
Indeed, in a previously-volatile situation in which guns have
recently been reported, officers can (and likely should) proceed
with a reasonable suspicion that violence may break out again
in a short time. Moreover, the situation had not changed so
drastically that the officers should have assumed that the
emergency potential had entirely passed without possibility of
return. Eight to ten individuals still remained in a parking lot
known for the occurrence of previous violent and criminal
activity. This fact supported a belief that the threat of the
reported emergency continued, even after officers arrived at
the scene and discovered a different situation than was initially
reported.
14 No. 12-3864
For these reasons I find that Officer Jesberger’s stop of Mr.
Williams was supported by a reasonable suspicion. Accord-
ingly, the district court properly found that the stop was
permissible.
2. Subsequent Frisk
Both Judge Hamilton and I agree, on the other hand, that
the district court’s decision on the frisk issue was in error.
A reviewing court must analyze a frisk separately from an
initial stop, applying a slightly different standard to determine
whether the frisk was lawful. See, e.g., Ybarra, 444 U.S. at 94;
McKoy, 428 F.3d at 39. This separate standard is necessary to
protect the public from frisks, which are “a serious intrusion
upon the sanctity of the person, which may inflict great
indignity and arouse strong resentment.” Terry, 392 U.S. at 17.
Thus, given the more burdensome intrusion of a frisk, such
action should only be allowed when the officer can point to
articulable facts that would establish the separate and specific
condition that the detainee has a weapon or poses some
danger. Id., at 27. In other words, an officer performing a Terry
stop may not automatically frisk the individual subject to the
stop; rather, to do so, the officer must have some articulable
suspicion that the subject is “armed and dangerous.” Arizona
v. Johnson, 555 U.S. 323, 323 (2009); United States v. Pedroza, 269
F.3d 821, 827 (2001) (citing Terry, 392 U.S. at 27). This more
specific analysis, requiring the officer to hold a reasonable
suspicion that the subject is “armed and dangerous” as
opposed to being generally suspicious, allows courts to
distinguish between legitimate and illegitimate frisks, the latter
No. 12-3864 15
of which constitute severe intrusions upon individual liberty.
Terry, 392 U.S. at 27.
Again, we begin our analysis by examining the circum-
stances that Officer Jesberger may have relied upon in deciding
to frisk Mr. Williams. The government asserts that the follow-
ing facts supported Officer Jesberger’s decision to frisk Mr.
Williams: the fact that the group, in general, avoided eye
contact with the officers and started to move away from the
area upon the officers’ arrival; the fact that Mr. Williams, in
particular, had his hands in his pocket or near his waistband,
avoided eye contact, and began to move away from the area;
the fact that this all occurred in a high crime area; and the fact
that the police were responding to a 911 call reporting weap-
ons.
None of those facts, alone or together, could have sup-
ported a reasonable suspicion that Mr. Williams was armed
and dangerous. To begin, the Court cannot see how the
group’s general behavior could possibly support a reasonable
suspicion that Mr. Williams, himself, was armed and danger-
ous. Moreover, neither the group behavior nor Mr. Williams’
own personal behavior could support a reasonable suspicion
that he was armed and dangerous. Most people, when con-
fronted by a police officer, are likely to act nervous, avoid eye
contact, and even potentially shift their bodies as if to move
away from the area, thus making such behaviors of very little
import to a reasonable suspicion determination. See, e.g., United
States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (noting that
importance of eye contact is purely subjective and easily
skewed by police officers to support their view of a situation);
United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010);
16 No. 12-3864
United States v. Urrieta, 520 F.3d 569, 577 (6th Cir. 2008); McKoy,
428 F.3d at 40; United States v. Portillo–Aguirre, 311 F.3d 647, 656
n. 49 (5th Cir. 2002); United States v. Jones, 269 F.3d 919, 928 (8th
Cir. 2001); and United States v. Richardson, 385 F.3d 625, 630–31
(6th Cir. 2004).
Additionally, while we understand that the fact that a stop
occurs in a high-crime area may be a factor under Terry, we
believe that the rest of the case for a frisk, here, was so weak
that this factor cannot save the frisk. “Even in high crime areas,
where the possibility that any given individual is armed is
significant, Terry requires reasonable, individualized suspicion
before a frisk for weapons can be conducted.” Maryland v. Buie,
494 U.S. 325, 342 n.2 (1990) (applying Terry’s principles to
protective sweep of a house). In fact, even when police have a
warrant to search the premises of an area, they must have
separate, particularized cause to search the people who are
coincidentally therein. Ybarra v. Illinois, 444 U.S. at 91. Just as
“[e]ach patron who walked into the” searched premises in
Ybarra was “clothed with constitutional protection against an
unreasonable search an seizure,” so was Mr. Williams when he
stood in the parking lot on the night in question. Id. Thus, here,
where the officers knew of the high crime nature of the area,
but had no other basis for reasonable, individualized suspicion
of Mr. Williams, the frisk was still inappropriate.
Finally, while officers were responding to a weapons call,
that fact could not give rise to a reasonable belief that Mr.
Williams, personally, was armed and dangerous. By the time
the officers arrived, the situation looked much different than
had been reported during the 911 call. Considerably fewer
people were present, and the individuals who were present
No. 12-3864 17
were not acting loudly or displaying their weapons. Thus,
upon their arrival, the officers had practically no reason to
believe that any of the remaining individuals were armed and
dangerous. Indeed, the individuals with guns may have been
among the 15 to 20 individuals who had left the group between
the time of the call and the officers’ arrival. Moreover, the 911
caller did not provide any information that would have
identified Mr. Williams as one of the individuals in possession
of a weapon. In sum, the 911 call was vague, circumstances
had changed, and therefore we cannot envision that the call
support a reasonable belief Mr. Williams was armed and
dangerous.
Even taking every one of those facts in conjunction with
one another, we must conclude that, together, they do not
support a reasonable belief that Mr. Williams was armed and
dangerous. The government is required to show that Officer
Jesberger’s frisk was supported by articulable facts that could
establish specifically that Mr. Williams was armed and
dangerous. The facts, here, are much more general, and could
be applied to practically any person that had been around the
area when the officers showed up that night. Indeed, similar
facts could support a search of practically anyone who hap-
pens to be near a high-crime area at night when police are
called. That is the very evil that the Terry court was concerned
with unleashing, and the reason that the Terry court restrained
the ability to frisk. See Terry, 392 U.S. at 17–18. Accordingly, we
18 No. 12-3864
are obliged to conclude that Officer Jesberger’s frisk of Mr.
Williams was unconstitutional.2
The Government argues that our recent decision in United
States v. Patton, 705 F.3d 734 (7th Cir. 2013), compels an
opposite conclusion, but we disagree. Patton is distinguishable.
In that case, officers responded to a report of seven to eight
men drinking alcohol on a public sidewalk. Id., at 735. The
report came at 1:30 a.m. from a high-crime neighborhood,
where there had been recent shootings. Id. When they arrived
on the scene, the officers saw several men with open beer cans,
but Mr. Patton, himself, did not have a beer can. Id. The officers
instructed all of the men, including Mr. Patton, to step toward
a nearby Cadillac. Id. Patton began to back away from the
group, stepping backwards by approximately five and fifteen
feet onto the lawn behind the sidewalk he had previously been
standing on. Id., at 736. At an evidentiary hearing, the arresting
officer stated that when a suspect backs away in that manner,
it typically means that the individual has a gun or is subject to
an outstanding warrant. Id. The officer was eventually able to
bring Mr. Patton toward the Cadillac, where he frisked Mr.
Patton and discovered a firearm. Id. The district court held that
2
Certainly, it must be noted that Mr. Williams resisted officers' attempts to
frisk him. But we must disregard that fact, because that noncompliance
occurred only after the frisk began. For purposes of our analysis, we must
look to what Officer Jesberger knew at the moment he began to frisk Mr.
Williams. The frisk is permissible only if, at that point, Officer Jesberger had
some reasonable suspicion that Mr. Williams was armed and dangerous.
See, e.g., United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995); Michigan
v. Chesternut, 486 U.S. 567, 573 (1988); Terry, 392 U.S. at 27. He did not, and
therefore his frisk of Mr. Williams was unconstitutional.
No. 12-3864 19
the frisk was permissible and we affirmed. But, there are a
number of distinguishing factors in that case. To begin, in
Patton, the defendant was part of a group that was openly
violating the law, even if he, himself, did not have a beer in his
hand. Here, on the other hand, neither Mr. Williams nor the
group as a whole was acting illegally in any way—indeed, they
were not even loud or belligerent when the police arrived.
Additionally, Mr. Patton exhibited behavior that was much
more apparent and concerning than Mr. Williams’ behavior,
here. Mr. Patton backed up by at least five feet after being told
to step forward, leaving the sidewalk and moving onto the lawn
behind it; here, on the other hand, Officer Jesberger reported
only that Mr. Williams (as well as the rest of the group) seemed
to move away and act nervously. Officer Jesberger did not
identify any specific movement or act by Mr. Williams that
caused him concern, but rather pointed to a general sense of
nervousness and backward movement, all of which occurred
before Mr. Williams was asked to step forward. In fact, Mr.
Williams was generally compliant with all of the officers’
commands until the frisk began, and did nothing whatsoever
that would have singled himself out from the other members
of the group. Therefore, we believe that Patton is distinguish-
able and does not apply in this case.
It is important to note, here, that all three members of this
panel reject the Government’s view that the officers were
entitled to frisk every person present on the scene. It is cer-
tainly clear that they lacked the requisite individualized
suspicion to do so. Nonetheless, at the evidentiary hearing it
became clear that, when the officers arrived on the scene, they
each stopped a separate member or members of the group. See
20 No. 12-3864
R. 30, at 19–22 (“Other officers were arriving on scene and
contacting various subjects within that group and attempting
to obviously deem the scene safe.”). Thus, Officer Jesberger
likely would have stopped and frisked Mr. Williams regardless
of the placement of his hands. The fact of where he had placed
his hands was simply a convenient reason for doing so,
afterwards.
Nonetheless, that single fact, even taken in conjunction with
all of the other facts surrounding the frisk, still does not
support a reasonable suspicion. To begin, Mr. Williams
immediately removed his hands from his pockets at Officer
Jesberger’s request. It was only after Mr. Williams had re-
moved his hands that Officer Jesberger decided to frisk him.
Furthermore, the simple fact that one’s hands are in one’s
pockets is of a similar nature to one’s avoiding eye contact. In
other words, it is of little value. If one were to drive down any
given street, it is likely that an uncountable number of citizens
would have their hands in their pockets. This does not change
in high crime neighborhoods. Certain people prefer their hands
to be pocketed—and why not? It can often be more comfort-
able. But, under the dissent’s view, if Mr. Williams had simply
decided not to avail himself of that comfort, he would not have
been subject to a frisk. On this, we should note that we do not
believe that pocketed hands are entirely irrelevant nor do we
create a categorical rule finding them so. Indeed, if one’s hands
are pocketed in an awkward way or if it seems that the
individual is holding a larger-than-average item in his or her
pocket, those facts could lead a reasonable officer to believe
that a gun was contained therein, and support a frisk. But, the
simple act of holding one’s hands in should not be grounds for
No. 12-3864 21
a search, even if it occurs at night in a high-crime area. We
cannot support a rule that seemingly would allow those people
who typically spend time in “low crime” areas (read: more
affluent areas of town) to walk around with hands pocketed at
night while not being subject to search, while depriving people
in higher crime areas of that same ability.
3. Herring v. United States
The final question we must ask is whether Officer
Jesberger’s frisk of Mr. Williams was so deliberate that the
exclusionary rule should apply. Herring v. United States, 555
U.S. 135 (2009); see also Hudson v. Michigan, 547 U.S. 586, 591
(2006) (exclusion is a “last resort, not our first impulse”); United
States v. Leon, 468 U.S. 897, 923 (1984); Illinois v. Gates, 462 U.S.
213, 223 (1983). In Herring, the Supreme Court noted that
courts should not exclude evidence unless the actions in
question were “sufficiently deliberate that exclusion can
meaningfully deter” similar actions in the future, and that the
actions were “sufficiently culpable that such deterrence is
worth the price paid by the judicial system.”Herring, 555 U.S.
at 144. The magistrate judge, below, relied upon this rule in
recommending that the firearm should not have been sup-
pressed, and therefore we think it appropriate to address the
issue.
Officer Jesberger’s action, here, was both deliberate and
culpable to an extent that warrants suppression under Herring.
As we stated above, Officer Jesberger had little articulable
reason to suspect that Mr. Williams was armed and dangerous.
In fact, the reasons he did articulate could have been used as
pretext to search practically any person who was near the scene
22 No. 12-3864
on the night of the arrest. For no apparent reason, Officer
Jesberger singled out Mr. Williams, and proceeded to search
him. It is entirely unclear from the record what, precisely,
about Mr. Williams set off Officer Jesberger’s sense that he
should be searched. But, in reaching our conclusion in this
case, we hope that other officers will be deterred from engag-
ing in the arbitrary, almost random, search of individuals who
happen to be near the scene of a crime. Therefore, suppression
in this case is appropriate under Herring.
III. Conclusion
Last, we feel it appropriate to address several additional
points raised in the dissent. First, Judge Ripple overstates the
fact that Mr. Williams “approached” Officer Jesberger with his
hands in his pockets. Dissenting Op. at 36. While that may,
technically, be true, it should be clarified that Mr. Williams
approached Officer Jesberger at the officer’s request and
immediately removed his hands from his pockets at the
officer’s request. This sort of compliant behavior is not the
makings of reasonable suspicion that a person is armed and
dangerous. Moreover, this is a much different picture than that
painted by Judge Ripple: Mr. Williams never walked toward
Officer Jesberger with his hands pocketed. In fact, Mr. Wil-
liams “tried to kind of walk away from the area.” R. 11.
Second, Judge Ripple asks for a more concrete rule, wondering
what more a subject must “do before an officer can conduct a
protective frisk?” Dissenting Op. at 42. But we do not believe
any new concrete rule is necessary. Indeed, the rule remains
the same: the police officer must have reasonable suspicion
that the subject is armed and dangerous. That reasonable
suspicion was simply not present, here.
No. 12-3864 23
For all of these reasons, we hold that Officer Jesberger
lacked a reasonable suspicion to conduct a frisk of Mr. Wil-
liams at the time the frisk began, in violation of Mr. Williams’
Fourth Amendment rights. Accordingly, we must REVERSE the
denial of Mr. Williams’ motion to suppress, VACATE his
judgment of conviction, and REMAND this matter with instruc-
tions to the district judge to grant his suppression motion and
for additional proceedings consistent with this decision. As
already stated, because we determine that Mr. Williams’
conviction must be vacated, we do not reach the sentencing
issues raised by the parties.
24 No. 12-3864
HAMILTON, Circuit Judge, concurring in part and concurring
in the judgment. I join the portions of Judge Stadtmueller’s
opinion holding that the frisk of defendant Williams violated
his constitutional rights and that no good-faith exception is
available to avoid the exclusionary rule. I also therefore join in
the judgment to reverse the judgment of the district court and
to remand for further proceedings.
I do not join the portion of the opinion (Part II-B-1) holding
that the police officers could lawfully carry out a Terry stop of
Mr. Williams. That portion of the opinion is not actually
necessary to the judgment, and the question is a close one,
especially as state law and federal constitutional law have been
evolving to provide expanded protection for individual
possession of firearms in public. See Rabin v. Flynn, — F.3d —,
—, 2013 WL 3455689, at *8–*10 (7th Cir. July 9, 2013) (Rovner,
J., concurring); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir.
2012) (striking down Illinois law prohibiting most people from
carrying firearms in public), reh’g en banc denied, 708 F.3d 901(7th Cir. 2013); State v. Hamdan, 665 N.W.2d 785, 811–12 (Wis.
2003) (reversing conviction for carrying concealed weapon;
store owner carried concealed weapon in his store for his
security in high crime neighborhood). In essence, as public
possession and display of firearms become lawful under more
circumstances, Fourth Amendment jurisprudence and police
practices must adapt. 1
1
To describe federal constitutional law as “evolving” is to use a loaded
term these days. There can be little doubt, though, that District of Columbia
v. Heller, 554 U.S. 570 (2008), overturned the established federal constitu-
tional understanding that the Second Amendment did not provide an
(continued...)
No. 12-3864 25
A Terry stop requires reasonable suspicion that the individ-
ual subject has committed or is about to commit a crime. Terry
v. Ohio, 392 U.S. 1, 22–23 (1968); see also United States v. Place,
462 U.S. 696, 702 (1983). To focus on the facts of this case, the
911 caller here reported that three or four people in a group of
approximately twenty-five had “guns out” outside a trouble-
some bar. When asked by the 911 operator, she said they were
not fighting, taunting, or threatening each other. She also said
she did not see anyone pointing guns at anyone else.
When the 911 call came in shortly after 11:00 p.m., the entire
night shift of the Fitchburg Police Department, six or seven
officers, was at headquarters for the nightly briefing. All the
officers responded immediately. Within five minutes, they
arrived outside the bar with their own “guns out.” The officers
found eight to ten people remaining outside the bar. But by the
time of the officers’ arrival, no guns were visible, nor was
anyone in the remaining group acting in a suspicious way that
officers could later identify at the suppression hearing, except
that the people did not make eye contact with officers and they
began to walk slowly away from each other. Cf. Illinois v.
Wardlow, 528 U.S. 119, 124–25 (2000) (subject’s unprovoked
flight from police arriving in high-crime area supported Terry
1
(...continued)
individual right to bear arms independent of a State militia, or that
McDonald v. City of Chicago, — U.S. —, 130 S. Ct. 3020 (2010), reinterpreted
an amendment intended to protect the powers of States and made it
applicable against States. See, e.g., United States v. Cruikshank, 92 U.S. 542, 553
(1875) (Second Amendment applied only to Congress; States remained free
to restrict or protect the right to bear arms under their police powers).
26 No. 12-3864
stop). The police officers moved in. They stopped and started
to frisk everyone on the scene, including Williams.
Did the police have reasonable suspicion to justify a Terry
stop of everyone, or of Williams in particular? I doubt it, but
the question is close enough that the better course would be to
bypass the question and reverse because the frisk of Williams
was not justified, as Judge Stadtmueller has explained.
Let’s start by asking what crime was suspected or feared
here? The government does not specify, but the best candidate
for an actual crime is disorderly conduct, with or without
Wisconsin’s enhancement for disorderly conduct with a
dangerous weapon. See Wis. St. §947.01(1) (disorderly con-
duct); §939.63 (enhanced penalties for committing crimes while
armed with dangerous weapon). The disorderly conduct
statute outlaws “violent, abusive, indecent, profane, boister-
ous, unreasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke
a disturbance,” but with a new and important qualification
discussed below.
Without the mention of the guns, there was just a gathering
of people talking loudly outside a bar, so my colleagues’
conclusion about the authority for a Terry stop here stands or
falls on the significance of the 911 caller’s report that three or
four individuals had “guns out.”2 From the 911 call, it’s clear
2
The facts here do not support the conclusion that the police were
responding to an ordinary disorderly conduct call. They were responding
to a 911 call about guns, and the guns were the reason the situation was
treated as an emergency calling for the entire shift to respond. The
(continued...)
No. 12-3864 27
that the visible guns frightened the caller. They also gave the
police officers good reason to be cautious, but that is not
necessarily enough to justify the intrusion of a Terry stop. Even
a Terry stop alone, without a frisk, still requires a “particular-
ized and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Cortez, 449 U.S.
411, 417–18 (1981).
The qualification about disorderly conduct is based on a
new Wisconsin law. The incident here occurred on March 21,
2012. Some months earlier, Wisconsin had amended its
disorderly conduct statute to protect civilians’ rights to possess
and even display loaded firearms in public places. Before July
2011, the disorderly conduct statute had provided:
Whoever, in a public or private place, engages in
violent, abusive, indecent, profane, boisterous,
unreasonably loud or otherwise disorderly
conduct under circumstances in which the
conduct tends to cause or provoke a disturbance
is guilty of a Class B misdemeanor.
Wis. Stat. §947.01 (2010). In 2011, as part of a comprehensive
rewrite of firearm laws in Act 35, Wisconsin added the follow-
ing paragraph to the disorderly conduct statute to protect the
rights to possess and carry firearms openly in public:
2
(...continued)
government does not argue that the group outside the bar—either the
original group of twenty-five or the remaining group of eight to ten—or any
individual within the group was “unreasonably loud” or “boisterous,”
possibly triggering the disorderly conduct statute without considering
whether or not individuals in the group were also armed.
28 No. 12-3864
(2) Unless other facts and circumstances indicate
a criminal or malicious intent on the part of the
person apply, a person is not in violation of, and
may not be charged with a violation of, this
section for loading, carrying, or going armed
with a firearm, without regard to whether the
firearm is loaded or is concealed or openly
carried.
Wis. Stat. §947.01(2) (2012).
The new Wisconsin statute makes it clear that the persons
on the scene could not have been arrested for disorderly
conduct for displaying guns, for there was no indication of
“criminal or malicious intent.” The 911 caller said first that
several people had “guns out” and later that they were
“waving” the guns but not threatening anyone. Visible guns
may be disturbing to those nearby, but that’s the point of the
new Wisconsin statute. Merely possessing or displaying a gun
without criminal or malicious intent does not violate the law,
even if the display is disturbing or frightening to others. A
Terry stop does not require probable cause for an arrest, of
course, but it still requires reasonable suspicion of genuinely
criminal conduct. Based on the new Wisconsin law, that is hard
to find on this record.
In questioning the authority for a Terry stop here, I do not
mean to suggest that the police could not or should not have
responded to the 911 call. The caller reported what might have
been a dangerous mixture of alcohol and guns late at night
outside a bar known to the police as a trouble spot. I recognize
that the blend of firearms and alcohol late at night could have
No. 12-3864 29
become dangerous and/or criminal within a split-second. It
was appropriate to respond to the 911 call with a strong and
visible police presence, one that involved talking with people
on the scene when they arrived. Such police actions do not
raise Fourth Amendment issues and may do a great deal to
prevent trouble. See Florida v. Rodriguez, 469 U.S. 1, 5–6 (1984)
(initial contact when officers asked civilian if he would step
aside and talk with them was “the sort of consensual encounter
that implicates no Fourth Amendment interest”), citing United
States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J.), and Florida v. Royer, 460 U.S. 491, 497 (1983)
(plurality); 4 Wayne R. LaFave, Search and Seizure § 9.4, at 560
(5th ed. 2012). (In fact, that visible presence is the sort of police
response the 911 caller asked for, not the much more aggres-
sive response that occurred.)
Going beyond a strong and visible police presence, to Terry
stops, however, is a significant step with important conse-
quences. When courts say that a Terry stop is authorized, they
are authorizing what Terry itself recognized is a “seizure” of
the person that could involve substantial infringement on
personal liberty. 392 U.S. at 16–17. When a Terry stop is
authorized, the subject of the stop is not free to walk away. The
officer is authorized to use reasonable force to require the
subject to submit to the stop. Place, 462 U.S. at 702; Adams v.
Williams, 407 U.S. 143, 146 (1972); 4 LaFave, Search and Seizure
§ 9.2(d), at 413.
What was it about this situation that could lead us to
conclude that it was reasonable to stop Mr. Williams from
simply walking away from the officers? There was no individ-
ualized suspicion concerning him. And the entire group, which
30 No. 12-3864
had dwindled from about twenty-five to eight or ten people,
was peaceful and, for all the officers knew, law-abiding. There
was nothing like the suspicious casing of a store window that
provided reasonable suspicion in Terry. Nor was there any
conduct like that in the principal cases relied upon by my
colleagues. In United States v. Hicks, 531 F.3d 555, 557 (7th Cir.
2008), the emergency caller reported, “There’s a guy beating a
woman up in my house,” and that the man had a pistol and
was threatening to shoot the woman. That was a report of a
crime and a real emergency. There was nothing comparable
reported here. Or in United States v. Wooden, 551 F.3d 647, 648
(7th Cir. 2008), the 911 call said that an armed man was
arguing with his girlfriend, had a gun in a holster, and had
pulled out the gun. That was not as volatile as the report in
Hicks but was still closer to criminal conduct than was reported
here.
The amended Wisconsin disorderly conduct statute
requires some indication of criminal or malicious intent before
a person’s possession of a firearm in public, whether concealed
or visible, can contribute to a violation. Moreover, we have
held that the Second Amendment includes at least some
individual right to carry a gun in public, subject to restrictions
that remain to be tested in court. Moore, 702 F.3d at 942. After
Heller and McDonald, all of us involved in law enforcement,
including judges, prosecutors, defense attorneys, and police
officers, will need to reevaluate our thinking about these
Fourth Amendment issues and how private possession of
firearms figures into our thinking. See Rabin, —F.3d at —, 2013
WL 3455689, at *7 (Rovner, J., concurring) (noting that private
citizens in Illinois may soon be carrying firearms in public,
No. 12-3864 31
resulting in more investigatory stops and a need to define and
respect limits for such stops). As we work our way through
those issues case by case, we also need to recognize genuine
safety concerns of police officers and citizens, as well as the
potential for intentional or unintentional discrimination based
on neighborhood, class, race, or ethnicity.
Five or six years ago, I would have had little trouble
agreeing with my colleagues that the police here faced a
potential emergency and that a Terry stop was justified. But the
combination of Heller, McDonald, and Moore under the federal
Constitution, and Wisconsin’s laws, including the 2011
amendment to its disorderly conduct statute and adoption of
Article I, section 25 of its Constitution, together convince me
that the calculus is now quite different. I have no doubt that
these changes in the law make the work of police officers more
difficult and more dangerous. I also fear that human and
institutional responses to those dangers may increase the risk
of profiling based on race, ethnicity, dress, class or neighbor-
hood. The new constitutional and statutory rights for individu-
als to bear arms at home and in public apply to all. The courts
have an obligation to protect those rights for people in bad
neighborhoods as well as good ones. See McDonald v. City of
Chicago, 130 S. Ct. 3020, 3087–88 (2010) (Thomas, J., concurring
in the judgment) (explaining historical importance of individ-
ual right to bear arms for black citizens in defending them-
selves from racially-motivated violence by whites).
For these reasons, I concur in only part of Judge
Stadtmueller’s opinion and in the judgment to reverse and
remand the case.
32 No. 12-3864
RIPPLE, Circuit Judge, concurring in part and dissenting in
part. I agree with Judge Stadtmueller that Officer Jesberger’s
stop of Mr. Williams was justified. It is clear that, in order to
perform a constitutional “stop,” circumstances must lead an
officer “reasonably to conclude in light of his experience that
criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30
(1972). As one commentator has noted, “reference to when
‘criminal activity may be afoot’ strongly suggests that though
the arrest standard may sometimes require that guilt be more
probable than not, this is never the case as to a stopping for
investigation, where the very purpose is to clarify an ambigu-
ous situation.” Wayne R. LaFave et al., Criminal Procedure
§ 3.8(d) (5th ed. 2009), (footnote omitted). Consequently,
although an officer may have discovered, upon investigation,
that the reported display of weapons was without criminal or
malicious intent, see Judge Hamilton’s Op. at 4 (quoting Wis.
Stat. § 947.01(2)), the fact that weapons were (1) being bran-
dished by individuals, (2) who were part of a boisterous crowd
of twenty-five, (3) outside of a bar, (4) which previously had
been identified as a high-crime location, (5) late at night, and
(6) in such a manner as to cause passers-by to leave the area
and contact authorities, justified police investigation. No
protections for gun owners set forth in the Wisconsin Statutes
negate the constitutional and salutary efforts of police to look
into the possibility that weapons were being used to escalate
an argument or to engender intimidation, or were being
waived recklessly by intoxicated individuals in a way that
might endanger the public. The fact that any of the circum-
stances described by the caller “may have been independently
susceptible to innocent explanation does not negate their
collective contribution to Officer [Jesberger’s] reasonable
No. 12-3864 33
suspicion under the totality of the circumstances.” United
States v. Richmond, 641 F.3d 260, 262 (7th Cir. 2011).
Unlike my colleagues, however, I believe that the frisk
performed by Officer Jesberger also was supported by reason-
able suspicion. I therefore respectfully dissent.
A.
The Supreme Court in Terry, 392 U.S. at 24, recognized “the
need for law enforcement officers to protect themselves and
other prospective victims of violence in situations where they
may lack probable cause for an arrest.” Thus, “[w]hen an
officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed
and presently dangerous to the officer or to others,” he is
permitted to take reasonable steps to assure the safety of
himself and others. Id. This includes conducting “a reasonable
search for weapons.” Id. at 27.
However, once an officer has lawfully stopped a suspect, he
is not automatically entitled to conduct a protective pat-down
or frisk. “[T]here must be a separate analysis of whether the
standard for pat-frisks has been met.” United States v. McKoy,
428 F.3d 38, 39 (1st Cir. 2005); see also United States v. Brown, 188
F.3d 860, 864 (7th Cir. 1999). “The officer need not be abso-
lutely certain that the individual is armed”; rather he must
have a reasonable suspicion that his “safety or that of others
[i]s in danger.” Terry, 392 U.S. at 27. The Court has explained
that the necessary quantum of proof to establish reasonable
suspicion “is considerably less than proof of wrongdoing by a
preponderance of the evidence.” United States v. Sokolow, 490
34 No. 12-3864
U.S. 1, 7 (1989). “[T]he reasonable suspicion standard is an
objective one,” which asks “whether a reasonable police
officer, faced with the circumstances confronting [the officer in
the case], would believe that [the suspect] posed a danger to
those in the immediate vicinity.” United States v. Patton, 705
F.3d 734, 738 (7th Cir. 2013) (citing Terry, 392 U.S. at 27). Thus,
whether an officer has reasonable suspicion “turns on the
totality of the circumstances confronting the officer.” Id.The Supreme Court has explained that the totality of the
circumstances requires “tak[ing] into account” “the whole
picture.” United States v. Cortez, 449 U.S. 411, 417 (1981). The
Court elaborated:
[T]he assessment must be based upon all the circum-
stances. The analysis proceeds with various objec-
tive observations, information from police reports,
if such are available, and consideration of the modes
or patterns of operation of certain kinds of law-
breakers. From these data, a trained officer draws
inferences and makes deductions—inferences and deduc-
tions that might well elude an untrained person.
The process does not deal with hard certainties,
but with probabilities. Long before the law of proba-
bilities was articulated as such, practical people
formulated certain common sense conclusions about
human behavior; jurors as factfinders are permitted
to do the same—and so are law enforcement offi-
cers. Finally, the evidence thus collected must be
seen and weighed not in terms of library analysis by
No. 12-3864 35
scholars, but as understood by those versed in the
field of law enforcement.
Id. at 418 (emphasis added). Circumstances to be considered as
part of the reasonable suspicion analysis include: the officer’s
experience and training, United States v. Arvizu, 534 U.S. 266,
273 (2002); the stop’s location, United States v. Tinnie, 629 F.3d
749, 752 (7th Cir. 2011) (noting that the stop occurred in a high-
crime area); when the stop occurred, Patton, 705 F.3d at 738
(noting that the stop occurred in “essentially the middle of the
night”); and the suspect’s demeanor and behavior, United
States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir. 1989). Frequently
“[a]ny one of these factors [identified by the officer] is not by
itself proof of any illegal conduct and is quite consistent with
innocent [conduct]. But … taken together they amount to
reasonable suspicion.” Sokolow, 490 U.S. at 9.
B.
Applying these well-established principles, I would hold
the frisk of Mr. Williams to be within the bounds delineated by
Terry and supported by reasonable suspicion.
I begin by recalling the circumstances facing Officer
Jesberger when Mr. Williams approached him because these
circumstances must support a reasonable suspicion that
Mr. Williams specifically was armed and dangerous. See Tinnie,
629 F.3d at 751 (“In determining whether an officer had
reasonable suspicion, courts consider the circumstances known
to the officer at the time of the [frisk].” (internal quotation
marks omitted)). Officer Jesberger knew that Mr. Williams and
the other members of the group were in a high-crime area,
36 No. 12-3864
relatively late at night, that the 911 call reported the presence
of several firearms and that Mr. Williams and other members
of the group refused to make eye contact with the police and
attempted to move away from the scene upon the officers’
arrival.
As the majority notes, the Supreme Court has emphasized
that reasonable suspicion is “a suspicion [about] the particular
individual being stopped.” Cortez, 449 U.S. at 418. However,
officers are not required to ignore facts that, by themselves, are
insufficient to create a reasonable suspicion. Indeed, these facts
are part of the totality of the circumstances and must be
considered when assessing reasonable suspicion. See, e.g.,
Ocampo, 890 F.2d at 1368 (holding that although insufficient by
itself, “[t]he information supplied by [an] informant [i]s just
one factor among many” to consider when determining
whether officers had “a reasonable and articulable suspicion”).
Moreover, we consistently have found reasonable suspicion
sufficient to justify frisks based on generalized, background
facts in conjunction with particular facts about the suspect. See,
e.g., Patton, 705 F.3d at 738-39 (considering factors “beginning
with the general and moving toward the specific” that justified
the officers’ reasonable suspicion, such as the “high-crime area
of the city” where the frisk occurred, the time of night of the
frisk, as well as the suspect’s “evasive behavior” and “nervous
demeanor”); United States v. Oglesby, 597 F.3d 891, 894 (7th Cir.
2010) (finding reasonable suspicion based on the suspect’s
“behavior, coupled with the other circumstances,” such as the
fact that the encounter with the suspect “occurred at night in
a location that was known to the officers to be a high-crime
area”); Brown, 188 F.3d at 865 (finding “reasonable suspicion
No. 12-3864 37
that [the suspect] might be armed and dangerous which was
sufficient to support [the officer’s] decision to conduct the
pat-down search” when the suspect’s individual behavior was
considered “[a]gainst th[e] background” of the stop’s location).
The generalized facts outlined above were not the only
circumstances confronting Officer Jesberger when he decided
to frisk Mr. Williams. Rather, Mr. Williams did something that
distinguished him from the rest of the group and that caused
the officer to conclude that a frisk was necessary. The
magistrate judge and the district court both credited Officer
Jesberger’s testimony at the suppression hearing:
[T]he thing that drew me to Mr. Williams was
that his hands were in his pockets and he was
kind of avoiding—everyone was avoiding eye
contact with us and that’s usually, based on my
training and experience when people are avoid-
ing eye contact and kind of trying to walk away
from us, that’s a pretty good sign that something
is up.[1]
He also testified that, upon his request to Mr. Williams “to
come over and speak with me,” Mr. Williams initially replied
“why”; Officer Jesberger then repeated his request, and
Mr. Williams complied.2 As Mr. Williams approached Officer
Jesberger, however, he kept his hands in his pockets.
Observing the placement of Mr. Williams’s hands, Officer
Jesberger requested that Mr. Williams “to place both of his
1
R.20 at 20.
2
Id. at 12.
38 No. 12-3864
hands—take both of his hands out of his pocket … .”3 He also
decided “to conduct a pat-down for my safety and for the
safety of everyone there due to the [weapons nature of the] call
and due to him having his hands in a weapon area.”4 Officer
Jesberger explained that the location of Mr. Williams’s hands
was his “first and foremost … concern,” because
with a weapons call, if people have a gun, it’s
typically not going to be a place where I’m going to
be able to see it. So it’s either going to be in their
pockets, their waistband, and that’s where
[Mr. Williams’s] hands were, so that’s why the
concern was there.[5]
When asked if he was “concerned about officers’ safety,”
Officer Jesberger responded that he was concerned “[f]irst and
foremost [with the safety of] the community and everyone else
around there, as well as officer safety” based on the attendant
circumstances and Mr. Williams’s behavior.6
Courts since Terry have made clear that in assessing
whether, under the totality of the circumstances, an officer “is
justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and
presently dangerous to the officer or to others,” “due weight
3
Id. at 12-13.
4
Id. at 13-14.
5
Id. at 13.
6
Id.
No. 12-3864 39
must be given … to [the officer’s] specific reasonable inferences
which he is entitled to draw from the facts in light of his
experience.” Terry, 392 U.S. at 24, 27; see also United States v.
Jackson, 300 F.3d 740, 746 (7th Cir. 2002) (holding that the
totality of the circumstances “include[] the ‘experience of the
law enforcement agent’” (quoting United States v. Odum, 72
F.3d 1279, 1284 (7th Cir. 1995))); United States v. Andrade, 551
F.3d 103, 112 (1st Cir. 2008) (holding that in forming a reason-
able suspicion that a suspect may be armed and dangerous, an
officer “may draw on his own experience and specialized
training to make inferences from and deductions about the
cumulative information . . . that might well elude an untrained
person” (internal quotation marks omitted)). Frequently,
reasonable suspicion is found based on “the circumstances of
the encounter, in combination with [the officer’s] experience and
training.” Oglesby, 597 F.3d at 895.
Based on his training and experience, Officer Jesberger
believed that Mr. Williams was secreting a weapon because
Mr. Williams approached him with his hands in his pockets.
We have recognized that the placement of a suspect’s hands in
his pockets or at his waistband is a legitimate consideration in
assessing whether an officer is justified in believing that an
individual is armed and presents a threat to himself or to
others. See, e.g., United States v. Mitchell, 256 F.3d 734, 736 (7th
Cir. 2001) (finding reasonable suspicion where the frisking
officer testified that, “‘[f]rom past experience, [the fact that
Mitchell’s hand was on the front of his waist] either signified
that, one, they’re holding on to something in their waistband,
be it a gun or drugs” and that “I strongly felt in this case,
considering the shots fired call we had received and
40 No. 12-3864
Mr. Mitchell’s action, that it was a—it was a gun in his case’”
(alteration in original)); see also, e.g., United States v. Mays, 643
F.3d 537, 542 (6th Cir. 2011) (identifying that the suspect
“frantically dug his hands into his pockets” as one of the
totality of circumstances justifying a frisk); Andrade, 551 F.3d at
113 (finding that the facts that “Andrade had his hands in his
pocket[] and refused to make eye contact” contributed to
officer’s objectively reasonable belief that he was in danger);
United States v. Ellis, 501 F.3d 958, 962 (8th Cir. 2007) (noting
that suspect “act[ed] nervously and reach[ed] toward his
pocket” among other factors that justified a frisk).
This particularized information about Mr. Williams’s
conduct is significant because it distinguished Mr. Williams
from the other members of the group and from merely “any
person that had been around the area when the officers
showed up that night,” Majority Op. 18. His specific behavior,
indicative of weapon possession, must be taken into account in
determining whether the officer had a reasonable suspicion
that Mr. Williams was armed and dangerous.
Mr. Williams’s placement of his hands in an area where
weapons typically are secreted while in close proximity to a
police officer must be considered in conjunction with the other
circumstances confronting the officers—the report that some in
the group were armed, evasive behavior upon the officers’
arrival, the high-crime location, time of the encounter and the
presence of others nearby. Considering all of these factors, I
conclude that they create a reasonable suspicion that
Mr. Williams was armed and posed a risk to the safety of the
officers and the public. Therefore, I would hold that Officer
No. 12-3864 41
Jesberger was justified in conducting a protective frisk of
Mr. Williams before conducting further investigation.
The majority’s decision creates an unworkable rule for
police and disregards Terry’s concern for officer safety. The
majority holds that a police officer is not entitled to conduct a
protective frisk of a suspect whom “he is investigating at close
range,” Terry, 392 U.S. at 24, when the officer has received a
report that some in the group of which the suspect is a part
possess weapons and the suspect’s behavior indicates that he
likely is armed. The majority offers no guidance to the police
in this situation. What more must the suspect do before an
officer can conduct a protective frisk? The majority does not
say. How does the commanding officer of a police precinct
explain today’s holding to his police officers before they take
to the streets in the gang-infested areas of the major cities
within this circuit?
How much more risk must an officer be required to absorb
before he can take minimal actions to protect himself? The
Supreme Court stated in Terry that “to deny the officer the
power to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat
of physical harm,” is “clearly unreasonable.” Id. This is the
practical effect of the majority’s holding. It constitutes a major
departure from the established case law of the Supreme Court
and of this court. See Sup. Ct. R. 10.
For the foregoing reasons, I respectfully dissent.