United States v. Raphael Patton

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2659
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
R APHAEL W. P ATTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10 CR 10102—Michael M. Mihm, Judge.
A RGUED F EBRUARY 24, 2012—D ECIDED JANUARY 29, 2013
Before M ANION and R OVNER, Circuit Judges, and
C OLEMAN, District Judge. Œ
R OVNER, Circuit Judge. After a Ruger nine-millimeter
pistol was discovered in the waistband of his pants in
the course of a stop and frisk, Robert W. Patton was
Œ
The Honorable Sharon Johnson Coleman, of the United States
District Court for the Northern District of Illinois, sitting
by designation.
2 No. 11-2659
charged with being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). Patton moved to suppress evidence
relating to the gun, contending that the officer who
frisked him lacked a reasonable suspicion that he might
be armed. See Terry v. Ohio, 392 U.S. 1, 27, 30-31, 88 S. Ct.
1868, 1883, 1884-85 (1968). After the district court con-
cluded otherwise, Patton pleaded guilty to the weapons
charge while reserving the right to appeal the denial of
his motion to suppress. We now affirm the district
court’s determination that the patdown was supported
by a reasonable suspicion that Patton might be armed
and therefore pose a danger to the officers who
stopped him.
I.
At approximately 1:30 a.m. on August 11, 2010, Peoria
police officer Ryan Winkle and his partner were dis-
patched to investigate a group of seven or eight men
who reportedly were drinking beers on a public side-
walk, in violation of a city ordinance. Winkle and
his partner were assigned to the police department’s
violent crime task force; the supervisor of that task force
had been asked by a local detective to look into the matter.
The location to which the officers were dispatched was
situated in a high-crime area of Peoria. Gangs were active
in the area; there had been multiple, recent reports of
shots-fired; and two nights earlier, two people had
been the victims of a drive-by shooting one block
away from the specific location to which the officers
were dispatched.
No. 11-2659 3
At least six members of the task force in three squad cars
arrived on the scene and converged on the men from
different directions, effectively blocking any route of
escape. The men were variously standing on the street,
sidewalk, and adjacent lawn, and a number of them
had open cans of beer in their hands. Most immediately
threw their beers to the ground; one tried to hand his can
to Winkle, who instructed him to drop it. Patton was
among the group of men although, so far as Winkle
knew, he was not one of those who had a drink in his hand.
The officers directed the men to step over to a
Cadillac parked nearby on the street. Winkle would
later testify that he and the other officers intended to
issue citations to the men for violating Peoria’s open-
container ordinance, while being on the lookout for
other more serious offenses. First, however, the officers
were going to frisk the men for weapons. Winkle ex-
plained:
[B]ecause of the area, if we’re going to stand and
write out drinking tickets, I want to conduct a pat-
down for weapons, and the reason being is I don’t
want to have my back turned on anybody if I’m
trying to write a ticket and have somebody possibly
be armed. I feel very uncomfortable, feel vulnerable,
the equivalent of getting into a car and start driving
without putting on a seat belt is the best way I can
describe the feeling. So, I wanted to conduct a pat-
down.
R. 29 at 21-22.
At this point, Winkle noticed Patton doing something
that distinguished himself from the other members of the
4 No. 11-2659
group. Instead of stepping over to the Cadillac as the
officers had instructed, Patton was backing away from
the other men, looking from side to side nervously,
like a “deer in the headlights.” R. 29 at 23, 37, 40, 45.
Patton took at least five steps away from the other men;
by Winkle’s estimate, he backed away between five and
fifteen feet from the sidewalk where he had been
standing and onto the lawn behind him. The district
judge, after having Winkle re-enact Patton’s actions in
court, found that Patton stepped at least ten feet away
from the other men. R. 29 at 54. Winkle perceived
Patton’s behavior as consistent with a “flight or fight”
response to a police presence; and in his seven years’
experience as a police officer, when an individual
stopped for a relatively minor offense reacts in that man-
ner, it usually means either that he has a weapon or is
wanted on a high-bond arrest warrant. Winkle explained:
With a weapon or a high bond warrant, . . . somebody
knows they’re going to be going to jail, and the
chances of them getting out soon are not good. For
like a small bag of cannabis or a traffic warrant or
something similar to that, an outstanding case for a
simple battery, I’m not usually going to get that type
of reaction.
R. 29 at 15-16.
As he looked from side to side, Patton would have
seen that officers were approaching him from multiple
directions; and ultimately he changed course and began
walking forward toward the car as the officers had in-
structed, his demeanor still nervous. In view of Patton’s
No. 11-2659 5
behavior, Winkle decided to pat down Patton first. Winkle
advised Patton, who by this point had his arms partly
raised, that he was about to be frisked for safety pur-
poses. Winkle then patted the front of Patton’s waist-
band and immediately felt what he recognized as the
handle of a gun. Winkle immediately grabbed Patton’s
wrists and instructed another officer to handcuff
Patton, and shortly thereafter that officer removed
the nine-millimeter Ruger from Patton’s pants.
After he was indicted for being a felon in possession
of a weapon (Patton had two prior felony drug convic-
tions), Patton moved to suppress evidence relating to
discovery of the weapon. The district court convened
an evidentiary hearing, at which Winkle was the sole
witness. Winkle recounted events as we have described
them.
At the conclusion of the hearing, the district court
denied Patton’s motion, concluding, based on the cir-
cumstances confronting Winkle, that he reasonably sus-
pected Patton might be armed, such that a pat-down
was permissible. The court found in the first instance
that Winkle’s testimony was credible, noting that Winkle
was “refreshingly candid on virtually everything that
he was asked.” R. 29 at 67. “[O]fficers can exaggerate
what happened or fabricate,” the court added later.
“I don’t believe either one of those was involved here.”
R. 29 at 70. With respect to the justification for the frisk,
the court found it significant that the incident occurred
at 1:30 a.m. and in an area where there was ongoing
gang activity, recent reports of gunfire, and a drive-by
6 No. 11-2659
shooting just two days earlier. R. 29 at 67-68. That back-
drop, coupled with the report that as many as seven or
eight adults were involved in the drinking incident,
warranted the caution that was evident from the deci-
sion to dispatch at least three squad cars and six police
officers to the scene. R. 29 at 68-69. The court also
found it “very telling” that when the group of men was
instructed to move over to the car, everyone but
Patton complied; Patton took “considerably more than
just a back-up step that a person might take,” and instead
took “four or five or six steps” backward while looking
from side to side nervously. R. 29 at 69. Once Patton did
that, the court reasoned, it was reasonable for Winkle to
suspect that Patton might be armed. “I think under all
of those circumstances, it was not unreasonable for the
officer to conduct a frisk because I think at that point, . . .
he had reason to believe that this guy could be carrying
a gun. And I believe that the search—the frisk here
was . . . justified under Terry v. Ohio . . . .” R. 29 at 70.
II.
The district court’s determination that the protective pat-
down of Patton was supported by reasonable suspicion
that he might be armed is a legal determination that
we review de novo. E.g., United States v. Snow, 656 F.3d
498, 500 (7th Cir. 2011), cert. denied, 132 S. Ct. 1910
(2012). Absent clear error, we of course defer to any
findings of historical fact and credibility determinations
that the district court made based on the testimony pre-
sented to it. Id. As the district court credited Winkle’s
No. 11-2659 7
testimony, we accept, as the district court did, his descrip-
tion of the events culminating in his pat-down of Patton.
We begin by noting that there is no dispute
that the officers had sufficient cause to stop and
detain the group of men for investigatory purposes. Terry
authorizes such a stop when an officer has a reasonable
suspicion, based on specific and articulable facts, that
criminal activity may be afoot. 392 U.S. at 21-22, 30, 88
S. Ct. at 1880, 1884. In this case, the officers arrived on
scene to observe a number of men on the public way
with open cans of beer in their hands. 1 It was reasonable
for the officers to surmise that the men were violating a
local ordinance proscribing both the possession of open
containers of alcoholic beverages and the consumption
of alcohol on the public way. See Peoria Municipal Code
§ 20-99(a) (“No person shall transport, carry, possess or
have upon any public place or public way in the city any
alcoholic liquor on or about his person except in the
original package and with the seal unbroken. No person
shall consume any alcoholic liquor upon any public
1
By Winkle’s account, some of the men were standing on a
private lawn adjacent to the sidewalk. R. 29 at 19, 32. Winkle
conceded that standing on the lawn with an open container
of alcohol would not violate the local ordinance. R. 29 at 32.
Winkle believed that Patton was standing on the sidewalk
when the officers arrived, R. 29 at 48, although as we have
noted he could not say that Patton had a beer can in his hand,
R. 29 at 35. In any case, Patton does not argue that the
officers lacked an adequate basis on which to conduct an
investigatory stop of himself and the other men present.
8 No. 11-2659
place or public way within the city, except on premises
licensed for the retail sale of alcoholic liquors for con-
sumption on the premises.”).
The disputed issue is whether Winkle was justified
in conducting the pat-down which revealed the
presence of the firearm on Patton’s person. In addition
to authorizing an investigatory stop when there is
reason to believe a crime is being committed, Terry
permits the officer conducting such a stop to conduct a
limited search of the suspect to determine whether he is
armed, when the circumstances give rise to a reasonable
belief that the individual may have a weapon and thus
pose a danger to the officer or others in the immediate
vicinity. 392 U.S. at 27, 30-31, 88 S. Ct. at 1883, 1884-85.
“The officer need not be absolutely certain that the indi-
vidual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in dan-
ger.” Id. at 27, 88 S. Ct. at 1883. This is an issue that turns
on the totality of the circumstances confronting the
officer. E.g., Snow, 656 F.3d at 501.
Before we turn to those circumstances, it bears empha-
sis that the reasonable suspicion standard is an objective
one. Terry, 392 U.S. at 27, 88 S. Ct. 1883; United States v.
Barnett, 505 F.3d 637, 639-40 (7th Cir. 2007). As Patton
has pointed out, Winkle testified that it was his intent
to frisk the men from the outset of the encounter,
before Patton distinguished himself from the others
by stepping backward in contravention of the officers’
instruction. R. 29 at 21-22. Winkle also acknowledged
No. 11-2659 9
that although the officers planned to cite the men for the
open-container violation, they were also looking for
more serious transgressions with which to charge the
men. R. 29 at 31. Whether the ensuing frisk of Patton
was justified under Terry does not turn on Winkle’s
subjective intent and perception of the facts, however.
See Barnett, 505 F.3d at 640. What matters is whether a
reasonable police officer, faced with the circumstances
confronting Winkle, would believe that Patton posed
a danger to those in the immediate vicinity. Terry, 392
U.S. at 27, 88 S. Ct. at 1888. We now turn to those cir-
cumstances, beginning with the general and moving
toward the specific.
We note first, as the district court did, that the
area in which the incident occurred gave police officers
particular reason to be concerned about the possibility
of gun-related violence. The neighborhood was known
as a high-crime area of the city; but more importantly,
there were indications of gang activity, recent reports
of shots fired, and the occurrence of a drive-by shooting
with two victims two days earlier and one block away
from the location where the men were discovered drink-
ing. These specific and recent indicia of violence, including
gun-related violence, increased the odds that an indi-
vidual detained at this location for apparent criminal
activity (even a petty offense like the one at issue
here) might be armed. The incidence of crime in the area
would not by itself legally justify a protective pat-down.
Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676
(2000) (citing Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637
(1979)); Maryland v. Buie, 494 U.S. 325, 334 n.2, 110 S. Ct.
10 No. 11-2659
1093, 1098 n.2 (1990). But it is one factor which, in con-
junction with the other circumstances we discuss, contrib-
uted to a reasonable suspicion that Patton might be
armed. See United States v. Oglesby, 597 F.3d 891, 894 (7th
Cir. 2010); United States v. Mitchell, 256 F.3d 734, 739
(7th Cir. 2001); United States v. Brown, 188 F.3d 860, 865 (7th
Cir. 1999); United States v. Evans, 994 F.2d 317, 322 (7th Cir.
1993).
Second, the investigatory stop occurred at 1:30 a.m.,
essentially the middle of the night. We have recognized
that “[a] nighttime traffic stop, especially in an area
where crime is not a stranger, is more fraught with poten-
tial danger to an officer than would be a stop during
the light of day.” United States v. Brown, 273 F.3d 747, 748
(7th Cir. 2001); see also Adams v. Williams, 407 U.S. 143, 147-
48, 92 S. Ct. 1921, 1924 (1972) (noting late hour as among
facts giving officer reason to fear for his safety); United
States v. Tinnie, 629 F.3d 749, 752 (7th Cir. 2011) (noting
fact that “[t]he stop occurred late on a Friday night in
a high-crime neighborhood” as among circumstances
which supported frisk); but see also id. at 758 (Hamilton, J.,
dissenting) (“neither the lateness of the hour nor
the nature of the locale automatically transforms non-
threatening acts into indicators of danger”).
Third, the men were consuming alcohol when the
officers arrived. The officers had no way of knowing how
much alcohol the men had consumed, nor could they
know whether and how much Patton in particular had
been drinking (Winkle testified that he did not see a beer
can in Patton’s hand and, so far as he knew, his
No. 11-2659 11
colleagues did not see one either). But given that a
number of the men were drinking, Winkle and his col-
leagues had greater reason to be concerned that any one
of the men might do something unpredictable, unwise,
and dangerous. See, e.g., United States v. Knight, 562 F.3d
1314, 1327 (11th Cir. 2009) (smell of marijuana and
alcohol among factors that supported pat-down); United
States v. Holmes, 385 F.3d 786, 789-90 (D.C. Cir. 2004)
(Roberts, J.) (suspect’s admission that he was drinking
cited as a factor supporting protective frisk).
Turning now to Patton’s behavior, two aspects of his
conduct bear discussion. First, Patton set himself apart
from the other men when, rather than complying with
the officers’ instruction to step over to the car parked in
the street, Patton took a number of steps backward,
covering a distance of (by the district court’s estimation)
ten feet. We agree with the district court that Patton’s
movement was telling. A half-step or step in the wrong
direction might bespeak ordinary hesitation or confu-
sion, but five steps suggests purposeful evasion; and
the Supreme Court has recognized that an individual’s
evasive behavior is a factor that contributes to a rea-
sonable suspicion to the officers who confront him.
Wardlow, 528 U.S. at 124, 120 S. Ct. at 676 (coll. cases). At
the same time, a suspect’s failure or refusal to comply
with a police officer’s order is also a factor that con-
tributes to a reasonable suspicion that he may be danger-
ous. See, e.g., United States v. Denney, 771 F.2d 318, 322
(7th Cir. 1985) (refusal to keep hands in sight and exit
vehicle); United States v. Simmons, 560 F.3d 98, 108 (2d Cir.
2009) (refusal to remove hands from pocket); United
12 No. 11-2659
States v. Stachowiak, 521 F.3d 852, 856-57 (8th Cir. 2008)
(refusal to step out of car); United States v. Soares, 521 F.3d
117, 121 (1st Cir. 2008) (refusal to remain still and keep
hands within officer’s view); United States v. Bell, 762 F.2d
495, 502 (6th Cir. 1985) (refusal to place hands on car
dashboard, exit from car, and place hands on roof of car).2
Second, as he backed away from the others, Patton
exhibited a nervous demeanor, glancing from side to
side. Patton discounts his nervous appearance, sug-
gesting that the arrival of three police cars and the con-
vergence of at least six officers on the men from dif-
ferent directions would elicit a similar response from
most individuals. But what Winkle described was not a
mere look of concern or alarm; he emphasized that
Patton was “backing away from the group, not coming
towards us when ask[ed], looking side to side . . . possibly
looking for an escape route, appearing very nervous, kind
of a deer-in-the-headlights look.” R. 29 at 22-23. Most
individuals, he explained, will make eye contact with
him as he approaches; Patton did not. R. 29 at 23-24.
Winkle also noted that Patton’s nervous demeanor per-
2
We note that it is not clear from the record at precisely what
moment Patton began to step backward away from the other
men and from the officers who were converging on them,
and in particular whether he started to do so before or after
he and the others were directed to step over to the Cadillac.
However, it seems clear from Winkle’s testimony that Patton,
at a minimum, continued to back up after that order was
given. See R. 29 at 22 (Winkle notes as a “red flag” the fact
that Patton was “not coming towards us when ask[ed].”).
No. 11-2659 13
sisted even after he stopped backing away from the
others and came forward toward the Cadillac as in-
structed. R. 29 at 24. It is a fair inference from Winkle’s
testimony that the manifestation and degree of Patton’s
nervousness was unusual; Winkle described it as a “red
flag.” R. 29 at 22. A display of nervousness is frequently
recognized as a sign that a suspect has something to hide,
including a weapon. See Oglesby, 597 F.3d at 894 (“The
Supreme Court has recognized in numerous cases that
nervous or evasive behavior ‘is a pertinent factor in
determining reasonable suspicion.’ ”) (quoting Wardlow,
528 U.S. at 124, 120 S. Ct. at 676); Barnett, 505 F.3d at
640 (noting suspect’s “high degree of nervousness” as a
reason that initial suspicion suspect might be armed did
not dissipate during questioning, notwithstanding sus-
pect’s cordiality and cooperation with officers); United
States v. Brown, supra, 188 F.3d at 865 (citing nervousness
and refusal to make eye contact as a factor relevant to
reasonable suspicion).
As we have noted, Winkle testified that in his
experience, when a suspect exhibits a “flight or fight
response” to a police presence, it usually means that the
suspect has a weapon or is wanted on a high-bond
warrant for a serious offense. Because the reasonable
suspicion standard is an objective one, Winkle’s
subjective interpretation of Patton’s behavior does not
control our own assessment of whether the circum-
stances confronting Winkle supported the pat-down.
Nonetheless, the inferences that an experienced officer
like Winkle draws from an individual’s behavior do
inform our assessment of what a reasonable person in
14 No. 11-2659
Winkle’s position would think about the likelihood that
the suspect poses a danger to him. See United States v.
Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 750-51 (2002).
Winkle’s belief, based on his years in the field, that the
possession of a gun was a plausible explanation for
Patton’s nervous and evasive behavior strikes us as
reasonable, and we agree with the district court that
the way in which Patton backed away from the officers
and the other suspects gave rise to a reasonable
suspicion that he might be armed.
Indeed, we drew the same inference in Oglesby based
on facts similar to those presented here. In that case,
multiple police officers converged on a group of men
who were blocking a sidewalk, in violation of a local
ordinance. As the officers approached the men, the de-
fendant was observed looking from side to side, drop-
ping his hand toward his pocket, taking a few steps
backward, and angling his body away from the officers.
We construed that behavior, which took place at a late
hour in a high-crime neighborhood, as a significant
reason why it was reasonable for the officers to believe
that the defendant was armed:
Oglesby was the only man in the group who seemed
to be taking evasive action during the confrontation.
There is nothing in the record to indicate any reason
why a law-abiding person in Oglesby’s position
would have cause to be nervous or back away from
the officers. In addition, the police officers testified at
the suppression hearing that, based on their experi-
ence, Oglesby’s behavior led them to believe that
No. 11-2659 15
Oglesby might be a flight risk. Such behavior, coupled
with the other circumstances surrounding the Terry
stop, would create a reasonable suspicion that
Oglesby was carrying a gun or was otherwise
engaged in unlawful activity.
597 F.3d at 894. As Patton is quick to remind us, we also
found it noteworthy that Oglesby moved his hand
toward his pants pocket and also turned the same side
of his body away from the officers. Id. at 894-95. Patton
did not exhibit these additional movements. Nonethe-
less, Oglesby remains pertinent for its endorsement of
the very sort of inference that Winkle said he drew
from Patton’s own evasive behavior.
We acknowledge that the possession of a gun was not
the only possible explanation for Patton’s behavior. Winkle
himself cited another possibility: that Patton might be
wanted on a high-bond warrant. But the reasonable
suspicion standard does not demand that the possession
of a weapon be the sole or most likely explanation for
a suspect’s behavior. Terry rejected the notion that an
officer must be certain that an individual is armed. 392
U.S. at 27, 88 S. Ct. at 1883. Subsequent cases have empha-
sized that “[r]easonable suspicion is a less demanding
standard than probable cause . . .,” Alabama v. White,
496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990), which
itself “requires only that a probability or substantial
chance of criminal activity exists; it does not require the
existence of criminal activity to be more likely true
than not true,” Thayer v. Chiczewski, — F.3d —, 2012
WL 6621169, at *6 (7th Cir. Nov. 27, 2012) (quoting Mucha
16 No. 11-2659
v. Vill. of Oak Brook, 650 F.3d 1053, 1056-57 (7th Cir.
2011)). An “inchoate and unparticularized suspicion or
‘hunch’ ” will not do, United States v. Sokolow, 490 U.S. 1, 7,
109 S. Ct. 1581, 1585 (1989) (quoting Terry, 392 U.S. at 27,
88 S. Ct. at 1883); but so long as the suspicion that an
individual could be armed is supported by specific,
identifiable facts, it is an objectively reasonable sus-
picion that satisfies Terry, e.g., United States v. Thomas, 512
F.3d 383, 388 (7th Cir. 2008). For all of the reasons we
have discussed, the time, place, and reason for the
stop, coupled with Patton’s evasive behavior as the
officers approached the group and the men were
directed to step forward, supported a reasonable
suspicion that he might be armed.
Contrary to Patton’s suggestion, that suspicion did not
evaporate when, after taking several steps backward, he
ultimately changed course and walked over to the car
with the others of his own volition. We cannot know
what went on inside of Patton’s head. One possibility we
have mentioned is that Patton, having looked around
himself, realized that he was surrounded and that
escape was impossible. Whatever caused him to stop
backing up, the fact remains that it was Patton’s first
instinct to disobey the officers and to step purposely
away from the other men in the group; coupled with his
overtly nervous demeanor, that is what gave rise to a
reasonable suspicion that he might have a weapon that
he did not wish the officers to discover. His subsequent
accession to the officers’ command to step over to the
car did nothing to undermine that suspicion. See United
States v. Snow, supra, 656 F.3d at 501, 503-04 (defendant’s
No. 11-2659 17
cordial and cooperative interaction with officer during
stop did not undermine reasonable suspicion, based on
independent facts, that he might be armed).
III.
Because the facts confronting Officer Winkle sup-
ported a reasonable suspicion that Patton might be
armed, Winkle and his colleagues were entitled under
Terry to conduct a protective pat-down. The district court
therefore correctly denied Patton’s motion to suppress
evidence of the pistol that was discovered on his person.
A FFIRMED.
1-29-13