United States v. Antoine Richmond

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1559
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTOINE RICHMOND,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2016-cr-197-PP — Pamela Pepper, Judge.
____________________
ARGUED SEPTEMBER 24, 2018 — DECIDED MAY 13, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Antoine Richmond entered a con-
ditional plea of guilty to possessing a firearm as a felon. Be-
fore entering his plea, Richmond moved to suppress a
handgun police seized from the threshold of his residence’s
front door during an encounter on his porch. The district
court denied Richmond’s motion, and he now appeals the
court’s ruling. We affirm the judgment of the district court.
2 No. 18-1559
I. BACKGROUND
A. The Search and Arrest
The night of October 11, 2016, Milwaukee Police Officers
Chad Boyack and Anthony Milone were patrolling a residen-
tial neighborhood police refer to as the “Capitol Street Corri-
dor.” This area in Milwaukee is known for drug trafficking,
armed robberies, and gun violence. Shortly before midnight,
as they drove their marked squad car through an intersection,
both officers saw Richmond walking toward them on a side-
walk. Richmond strode with his left hand free at his side and
his right hand in the “kangaroo” pocket on the front of his
T-shirt. Officer Milone saw “a significant bulge” from this
pocket, and Officer Boyack described the bulge as a
“medium-sized to larger object” protruding through
Richmond’s front pocket. In their experiences and training as
police officers—almost 20 years for Boyack, and 6 years for
Milone—front pocket bulges like this typically concealed a
firearm. They suspected the same here.
Richmond made eye contact with Boyack as the squad car
approached. After the officers passed Richmond, he changed
direction, quickened his pace, crossed the front lawn of a res-
idential duplex, and moved toward the stairs up to its front
porch. Unknown to the officers, Richmond was walking
across the yard to get to the front door of a duplex where he
lived. 1 Seeing the suspicious bulge in Richmond’s front
1 Richmond’s girlfriend resided at the duplex, and Richmond had
been living there for about one month before his arrest.
No. 18-1559 3
pocket and his unusual change of course prompted the offic-
ers to make a sharp U-turn and park in front of the duplex to
talk with Richmond.
As the officers exited their squad car, Richmond walked
up the porch’s five stairs toward the front door. Boyack and
Milone followed and, from about 20 to 25 feet away, they saw
Richmond open the outer screen door with his left hand, bend
down, and with his right hand place a dark, medium-sized
object on the doorframe between the screen door and front
door, which was closed. The front porch light illuminated
Richmond’s action, but the officers could not make out what
Richmond placed on the threshold. Nor could they observe
the stashed object as they approached, as the bottom third of
the screen door was opaque. They suspected Richmond hid a
gun. Their suspicions were based on their experiences on pa-
trol, including with persons licensed to carry concealed weap-
ons. To them, hiding a gun on the floor behind an unlocked
screen door in response to approaching police was not typical
of a concealed-carry license holder.
After Richmond placed the object on the doorframe, he
closed the screen door and turned around as the officers
walked up to the porch. Boyack asked Richmond if he had
heard shots, if he was carrying a weapon, and what he was
doing at the duplex. Richmond answered no to the first two
questions, and replied that the house was his girlfriend’s.
While Boyack questioned Richmond, Milone walked up onto
the porch toward the screen door, which put Richmond be-
tween the two officers.
While Boyack asked questions, Milone opened the screen
door “as little as possible” and saw a black semi-automatic .40
4 No. 18-1559
caliber handgun resting where the officers observed Rich-
mond place the dark, medium-sized object from his pocket.
According to Milone, Richmond stood within the screen
door’s swing radius because he could open it only partially
without hitting Richmond’s back. After seeing the gun, Mi-
lone immediately used code to alert his partner of the pres-
ence of a firearm and possible arrest. Boyack then asked
Richmond if he was a convicted felon. Richmond confirmed
he was, so the officers arrested him. The entire encounter from
when the officers first observed Richmond walking on the
sidewalk to Milone seeing the gun and Richmond confirming
he was a felon lasted no more than thirty seconds.
B. Evidentiary Hearings on Motion to Suppress
After being indicted for possessing a firearm as a felon in
violation of 18 U.S.C. § 922(g)(1), Richmond moved to sup-
press the gun, arguing Milone’s act of opening the screen door
constituted a warrantless search on the curtilage of his home
without legal justification.
Two evidentiary hearings were held on Richmond’s mo-
tion. After the first, a magistrate judge issued a report recom-
mending the motion be denied for two reasons: the officers
had reasonable suspicion to make an investigatory stop of
Richmond, and the search behind the screen door was appro-
priate to ensure their safety. Richmond objected to the magis-
trate judge’s report, and the district judge held a second
hearing to personally evaluate the officers’ testimony.
Boyack and Milone testified at both hearings and were se-
questered during their examinations. Their accounts of the
facts leading up to Richmond’s arrest were consistent with
each other and at each hearing, except before the district judge
No. 18-1559 5
in one respect: where Richmond stood on the porch when Mi-
lone opened the screen door. Boyak testified Richmond, after
placing the gun in the doorframe, stepped away from the
door and walked down to the second step of the porch.
Milone said everyone remained on the top landing of the
porch, and Richmond remained close to the screen door.
Although Boyack and Milone gave differing accounts of
Richmond’s specific location on the porch, the officers each
stated Richmond could access what they had suspected was a
gun. The officers also testified Richmond was calm through-
out their interaction. Even still, the officers each feared that
Richmond could bolt toward the door to arm himself, as the
officers have experienced in the past with other suspects.
Richmond’s large stature heightened the officers’ concern.
Boyack testified Richmond was a “very well-built, muscular”
man, and at the hearing the district court verified the accuracy
of this description. The officers were similarly concerned
about unknown duplex occupants because a potentially
loaded gun lay exposed in the doorway, posing a danger to
anyone outside or inside the house.
C. Order Denying Suppression
After the second evidentiary hearing, the district court
adopted the magistrate judge’s recommendation and denied
Richmond’s motion to suppress. The court concluded that the
combination of facts described above gave the officers reason-
able suspicion that Richmond was doing something unlawful
as he walked down the street and headed toward the porch.
Also, based on these facts, the district court ruled the of-
ficers performed a lawful protective search under Terry v.
6 No. 18-1559
Ohio, 392 U.S. 1 (1968). The court relied on Richmond’s exhib-
its to confirm the porch was narrow, so regardless of whether
Richmond remained near the door (per Milone) or moved
onto the porch steps (per Boyack), Richmond stood unre-
strained within a stride or two of the gun and could have
armed himself quickly had he so chosen. Last, the district
court noted Terry searches are not restricted to the suspect’s
person, and ruled that Milone’s search was justified as nar-
rowly confined to the only place from which the officers had
reason to believe Richmond could obtain a weapon.
II. DISCUSSION
When considering a district court’s denial of a motion to
suppress, we review its legal conclusions de novo and its find-
ings of fact for clear error. United States v. Howard, 883 F.3d
703, 706–07 (7th Cir. 2018). We give due weight, as we must,
to a trial court’s assessment of the officers’ credibility and the
reasonableness of their inferences. Ornelas v. United States,
517U.S. 690, 700 (1996) (requiring reviewing courts to review
findings of historical fact only for clear error and give due
weight to factual inferences drawn by resident judges and lo-
cal law enforcement officers); Howard, 883 F.3d at 707 (holding
the same). “Because the resolution of a motion to suppress is
a fact-specific inquiry, we give deference to credibility deter-
minations of the district court, who had the opportunity to
listen to testimony and observe the witnesses at the suppres-
sion hearing.” United States v. Groves, 530 F.3d 506, 510 (7th
Cir. 2008) (internal quotations omitted).
We examine first whether the officers reasonably sus-
pected that Richmond was engaged in criminal activity, and
second whether Milone’s search behind the screen door
eclipsed a constitutional boundary.
No. 18-1559 7
A. Reasonable Suspicion of Unlawful Activity
A limited intrusion into an individual’s privacy is permit-
ted under the Fourth Amendment where the police have rea-
sonable suspicion to believe criminal activity is afoot. See
Terry, 392 U.S. at 30; United States v. Baskin, 401 F.3d 788, 791
(7th Cir. 2005). Reasonable suspicion exists when an officer
can point to “‘specific and articulable facts which, taken to-
gether with rational inferences from those facts[,] reasonably
warrant that intrusion.’” Baskin, 401 F.3d at 791 (quoting
Terry, 392 U.S. at 21).
When making reasonable suspicion determinations, we
“must look at the totality of the circumstances of each case to
see whether the detaining officer has a particularized and ob-
jective basis for suspecting legal wrongdoing.” United States
v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omit-
ted). Reasonable suspicion requires more than a hunch but
less than probable cause and “considerably less than prepon-
derance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000).
With these standards in mind, we examine the facts on
which the officers formed their suspicions, and whether the
district court erred in its reasonableness assessment.
Four categories of facts created a suspicion that Richmond
was illegally carrying a gun or was otherwise engaged in un-
lawful activity: (1) Richmond was walking down the street
near midnight in a neighborhood plagued by drug trafficking
and gun violence; (2) there was a significant bulge in Rich-
mond’s front T-shirt pocket as he walked down the street;
(3) in the officers’ over 25 combined years’ of police training
and experiences, a protrusion like this was more often than
8 No. 18-1559
not a gun; and (4) after the officers passed Richmond in their
marked squad car, Richmond quickened his pace, changed
his direction, cut across a property, and hid what they sus-
pected was a gun between the screen door and front door.
Richmond contends none of the factors articulated by the
officers at the suppression hearings, standing alone, are illegal
conduct. He emphasizes he was walking home and, after see-
ing the officers, continued on that path to his residence. Rich-
mond insists that, as far as the officers knew, he may have
been licensed to carry a concealed firearm. See WIS. STAT.
§ 175.60 (permitting persons age 21 and older who have not
been convicted of a felony to obtain a concealed-carry license).
Richmond’s points miss the forest for the trees: when eval-
uating the reasonableness of a police intrusion, we look at the
totality of circumstances and “must not be overly focused on
any one factor.” United States v. Swift, 220 F.3d 502, 506 (7th
Cir. 2000).
Richmond’s presence in a neighborhood beset by drug
trafficking and gun violence does not, by itself, support a par-
ticularized suspicion that he was committing a crime. But it is
among the relevant contextual considerations in a reasonable
suspicion analysis. See, e.g., Wardlow, 528 U.S. at 124–125 (con-
cluding defendant’s evasive behavior in a high crime area and
unprovoked flight after seeing the police had aroused a rea-
sonable suspicion that he was engaged in criminal activity);
United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002) (hold-
ing same). A suspect’s evasive behavior, and the experience
of the officers, are also relevant factors. United States v.
Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (evasive behavior);
Jackson, 300 F.3d at 746 (officer experience).
No. 18-1559 9
That Richmond changed his direction to head home does
not alter the analysis. The officers did not know he lived at the
duplex when they pulled over and approached him on the
porch. And both officers testified he was not acting the way
someone with a concealed-carry license would act on their
own property. “[B]ehavior which is susceptible to an innocent
explanation when isolated from its context may still give rise
to reasonable suspicion when considered in light of all of the
factors at play.” Baskin, 401 F.3d at 793. Richmond’s innocent
explanations—including a hypothetical concealed-carry li-
cense—do not discharge all other relevant facts from consid-
eration. Richmond argues this is new territory, as the
Supreme Court has yet to directly address the constitutional-
ity of a Terry stop within a home’s curtilage. He cites Ninth,
Tenth, and Eleventh Circuit cases to argue Terry does not jus-
tify a stop, seizure, or search inside the home. But none of
these cases concern a protective search for weapons by offic-
ers lawfully within the curtilage of a home. 2
2 Richmond cites Moore v. Pederson, 806 F.3d 1036, 1044–46 (11th Cir.
2015) (involving the warrantless seizure of a suspect inside his home);
United States v. Perea-Rey, 680 F.3d 1179, 1188–89 (9th Cir. 2012) (holding a
border patrol agent intruded into an area of curtilage where uninvited vis-
itors would not be expected to appear to stop an individual suspected of
entering the country illegally); United States v. Struckman, 603 F.3d 731, 743
(9th Cir. 2010) (holding the warrantless entry by two officers into a fully
enclosed backyard—one officer kicking open a padlocked gate and the
other scaling a fence—was not supported by probable cause, Terry, or ex-
igent circumstances); and United States v. Reeves, 524 F.3d 1161, 1167–69
(10th Cir. 2008) (involving the warrantless seizure of a suspect inside his
motel room and construing the encounter as occurring within the home).
Perea-Rey and Struckman proscribed police entries without consent into
cordoned areas of curtilage. But Richmond acknowledges that Boyack and
Milone were permitted to enter onto the porch even without his consent,
10 No. 18-1559
On this topic, this court has allowed a Terry stop in a struc-
ture attendant to a house. In United States v. Pace, 898 F.2d
1218, 1223 (7th Cir. 1990), we applied Terry to uphold the stop
of a defendant in his condominium garage, supported by rea-
sonable suspicion alone. There, the officer was pursuing the
defendant, whom the officer suspected might be a mob assas-
sin on his way to kill another condominium resident. Pace, 898
F.2d at 1229. Upon discovering he was being followed, the de-
fendant took what the officer considered to be evasive action.
Id. When the defendant entered the garage, the officer had to
decide whether to pursue him to investigate his suspicion or
to let him go despite the threat he might have posed to an-
other resident. Id. We balanced the potential for harm against
the intrusion on the defendant’s privacy and held both the of-
ficer’s suspicion and entry were reasonable. Id. (citing Terry,
392 U.S. at 21–22 and Michigan v. Long, 463 U.S. 1032, 1046
(1983)).
Like the police in Pace, Boyack and Milone articulated ob-
jectively reasonable grounds to suspect Richmond was en-
gaged in criminal activity that justified their entry onto the
porch. Richmond describes the facts differently. But “[t]he
need to resolve ambiguous factual situations—ambiguous be-
cause the observed conduct could be either lawful or unlaw-
ful—is a core reason the Constitution permits investigative
Brief of Appellant at 7, 15, unlike the closed off areas in Perea-Rey and
Struckman. He also acknowledges that he consented to the officers’ pres-
ence on the porch. Brief of Appellant at 7, 16–17, 19. Reeves and Moore ad-
dressed the warrantless seizures of suspects inside their homes without
probable cause, exigent circumstances, or consent. Richmond does not
contest his seizure on appeal, nor did any police activity occur inside his
girlfriend’s house.
No. 18-1559 11
stops.” United States v. Miranda-Sotolongo, 827 F.3d 663, 669
(7th Cir. 2016). Because the aggregate facts support a particu-
larized and objective basis for the officers to suspect Rich-
mond was engaged in criminal activity, their suspicions were
reasonable within the meaning of the Fourth Amendment.
The sum of all the information known to officers at the
time of the stop is considered, including the behavior and
characteristics of the suspect. Matz v. Klotka, 769 F.3d 517, 523
(7th Cir. 2014). Here, that information included specific and
articulable facts which taken together fostered Boyack’s and
Milone’s reasonable suspicion that “criminal activity is
afoot.”
B. The Search
We next address whether Milone exceeded the permissi-
ble scope of Terry when he partially opened the screen door
to search for a gun.
Richmond depicts his exchange with the officers as a “con-
sensual encounter,” not an investigatory stop. 3 In so doing, he
acknowledges the officers were permitted to enter onto the
porch area to ask him questions to dispel their suspicions, but
contends a warrant or his consent was required to open the
screen door. From this he argues there is no specific exception
for a “search incident to a Terry stop.”
3 Before the district court, Richmond claimed the officers conducted
an investigatory stop that was not supported by reasonable suspicion. Re-
ply in Support of Motion to Suppress at 2, 4, United States v. Richmond,
No. 16-CR-197 (E.D. Wis. Mar. 13, 2017), ECF No. 23. On appeal, he now
describes the officers’ entry on the porch as consensual. Brief of Appellant
at 7, 16–17, 19.
12 No. 18-1559
Even so, the Supreme Court upheld the search in Terry (a
protective frisk) without determining whether an investiga-
tory stop took place before the search. See United States v.
Mendenhall, 446 U.S. 544, 552 (1980) (explaining same). We fol-
low Terry’s approach. For purposes of our review, it matters
not whether a Terry stop preceded Milone’s search.
Now we turn to Richmond’s contention that Milone’s
search behind the screen door infringed upon established
Fourth Amendment principles.
1. Terry and later case law permit limited area
searches for weapons.
The Fourth Amendment guarantees the right of the people
to be secure in their houses against “unreasonable” police
searches. U.S. CONST. amend IV. Curtilage—the “area imme-
diately surrounding and associated with the home”—is enti-
tled to the same Fourth Amendment protection as the home
itself. Florida v. Jardines, 569 U.S. 1, 7 (2013) (describing the
front porch as the “classic exemplar” of constitutionally pro-
tected curtilage).
For protective searches for weapons, the Supreme Court
has held that area searches are permissible in limited circum-
stances: “[O]fficers who conduct area searches during inves-
tigative detentions must do so only when they have the level
of suspicion identified in Terry.” Long, 463 U.S. at 1050 n.14
(concluding officers did not act unreasonably in taking pre-
ventive measures to ensure there were no weapons within de-
fendant’s immediate grasp before permitting him to reenter
his automobile). Area searches are allowed “in the Terry con-
text” because “the arrestee, who may not himself be armed,
No. 18-1559 13
may be able to gain access to weapons to injure officers or oth-
ers nearby, or otherwise to hinder legitimate police activity.”
Id. All the same, the search remains a serious intrusion so it
“must ‘be confined in scope to an intrusion reasonably de-
signed to discover guns, knives, clubs or other hidden instru-
ments for the assault of the police officer.’” Jackson, 300 F.3d
at 746 (quoting Terry, 392 U.S. at 29); see also Minnesota v. Dick-
erson, 508 U.S. 366, 373 (1993) (holding a Terry search “must
be strictly limited to that which is necessary for the discovery
of weapons”). “The purpose of this limited search is not to
discover evidence of crime, but to allow the officer to pursue
his investigation without fear of violence … .” Adams v. Wil-
liams, 407 U.S. 143, 146 (1972).
We have similarly held that, under Terry, an officer may
conduct a protective search for weapons of an individual’s
person, “and area within his control,” if “‘a reasonably pru-
dent man in the circumstances would be warranted in the be-
lief that his safety or that of others was in danger.’” Cady v.
Sheahan, 467 F.3d 1057, 1061–62 (7th Cir. 2006) (quoting Terry,
392 U.S. at 27). A protective search for weapons “is a vital tool
to serve the ‘immediate interest of the police officer in taking
steps to assure himself that the person with whom he is deal-
ing is not armed with a weapon that could unexpectedly and
fatally be used against him.’” Id. at 1061 (quoting Terry, 392
U.S. at 23).
Richmond points to various decisions involving imper-
missible searches which he contends mandate reversal. First,
he invokes Florida v. Jardines, in which the Supreme Court as-
sessed the permissibility of a police search on a front porch.
569 U.S. at 3–5. In that case, officers without a warrant or
probable cause walked up to the front door of a residence and
14 No. 18-1559
used a drug-sniffing dog to investigate an unverified tip that
marijuana was being grown in the home. Id. at 3–4. The Court
acknowledged an implied license exists for members of the
public to approach a home and knock on the front door based
upon custom and social norms. Id. at 10–11. But the warrant-
less use of sensory-extending drug dogs to discover incrimi-
nating evidence inside the home exceeds this customary
invitation and constitutes a trespassory search implicating the
Fourth Amendment. Id. at 10–12 (affirming Florida Supreme
Court’s holding that canine sniff of front door was a search
requiring a warrant).
Richmond also cites Collins v. Virginia, which questioned
whether the automobile search exception justifies an invasion
of curtilage. 138 S. Ct. 1663, 1671 (2018). In Collins, the officer
discovered photographs on social media of a potentially sto-
len motorcycle parked at the top of the driveway of a house.
The officer tracked down the address of the home, drove to it,
walked up the driveway to investigate, and pulled a tarp off
the motorcycle to search its license plate and vehicle identifi-
cation numbers, which confirmed that the motorcycle was
stolen. Id. at 1668. The Court held that the automobile excep-
tion—which is based largely upon the ready mobility of the
vehicle—“extends no further than the automobile itself[,]”
and does not give “an officer the right to enter a home or its
curtilage to access a vehicle without a warrant.” Id. at 1671.
Like the officers in Jardines and Collins, Boyack and Milone
performed a search within the curtilage of the house in which
Richmond resided. But there are critical distinctions between
the circumstances governing the officers’ conduct here and
the conduct proscribed by the Supreme Court in those cases.
First, and most importantly, no imminent safety threat existed
No. 18-1559 15
in either Jardines or Collins. There, the searches were per-
formed while the suspect was absent and the officers did not
articulate any threat of danger during their searches. Neither
of the officers in those cases made split-second decisions, nor
did they invoke Terry (or any of Terry’s underlying principles)
to justify their investigations or searches.
Second, the objects searched for in Jardines and Collins
were drugs and stolen property, not weapons. In Jardines, the
search implicated the actual interior of the home. Here, unlike
Jardines and Collins, at the moment of the search the officers
had no indication Richmond had any Fourth Amendment
interest in the home. Third, Milone and Boyack’s conduct
throughout their investigation remained anchored to the
Terry-exception’s safety justifications. Cf. Collins, 138 S. Ct. at
1672 (“[R]ely[ing] on the automobile exception to gain entry
into a house or its curtilage for the purpose of conducting a
vehicle search would unmoor the exception from its justifica-
tions.”). That conduct is not unfettered “trawl[ing] for
evidence.” Cf. Jardines, 569 U.S. at 6.
Richmond also cites our decision in United States v. Leo,
where we rejected officer safety as a justification for a search
into a backpack containing a gun. 792 F.3d at 749–51. In that
case, officers responded to a 911 call that two men committed
a burglary. When the officers arrived, they saw two men
walking toward a preschool. The officers stopped the men
and handcuffed their hands behind their backs. An officer
then took the defendant’s backpack, placed it out of the
defendant’s reach, emptied it, and found a gun. Id. at 744–45.
Leo does not help Richmond. In Leo, we held the backpack
search was not supported by reasonable suspicion because
the defendant could not get “immediate control” of a gun—
16 No. 18-1559
while handcuffed—outside his reach. Id. at 750. Here, when
Milone opened the screen door, Richmond was unrestrained,
the district court found he “could have armed himself
quickly,” and, unlike the prima facie privacy expectations of a
person carrying a backpack, it was unknown whether Rich-
mond had any privacy interest in the duplex porch.
Put succinctly, Jardines, Collins, and Leo do not concern
protective searches to neutralize the threat of a weapon in a
suspect’s immediate area of control. Cf. Long, 463 U.S. at
1049-50 (neutralizing threat in suspect’s car passenger com-
partment); Cady, 467 F.3d at 1062 (neutralizing threat in sus-
pect’s briefcase). In contrast, Long and Cady applied the
reasoning in Terry and its offspring and upheld the protective
searches evaluated in those cases. See Long, 463 U.S. at 1050
n.14; Cady, 467 F.3d at 1062. We do the same here. See Terry,
392 U.S. at 24, 26; see also Dickerson, 508 U.S. at 373. In sum,
police may conduct an area search strictly limited to that
which is necessary for the discovery of weapons if the officer
has a reasonable and articulable suspicion that the subject
whose suspicious behavior he is investigating at close range
may be able to gain access to a weapon to harm the officers or
others nearby.
2. Reasonable suspicion is required to conduct a
search.
Like all Terry searches, Milone’s search must be supported
by reasonable suspicion. To assess whether reasonable suspi-
cion existed here, we look again to the totality of circum-
stances known to Boyack and Milone at the time the search
occurred. United States v. Tinnie, 629 F.3d 749, 751–52 (7th Cir.
2011). We also balance the need to search against the intrusion
which the search entails. Terry, 392 U.S. at 21; see also Maryland
No. 18-1559 17
v. Buie, 494 U.S. 325, 335–36 (1990); Pace, 898 F.2d at 1229 (up-
holding Terry stop on curtilage).
Terry contemplates searches to screen persons who may be
“armed and presently dangerous.” Terry, 392 U.S. at 30. In so
determining, “[t]he officer need not be absolutely certain that
the individual is armed; the issue is whether a reasonably pru-
dent man in the circumstances would be warranted in the be-
lief that his safety or that of others was in danger.” Id. at 27;
Cady, 467 F.3d at 1061–62 (holding same). Here, the circum-
stances prompting the officers’ suspicions that Richmond was
engaged in criminal activity also roused their suspicions he
might be armed and dangerous; indeed, the officers sus-
pected Richmond had placed a gun on the threshold of the
front door behind the screen door.
Richmond argues his close proximity to a gun does not, by
itself, give rise to a reasonable suspicion he was dangerous.
He also contends the officers could not reasonably have been
alarmed at any point during the encounter because he main-
tained a calm and cooperative demeanor, he did not run away
from the officers, he stepped away from the door where the
gun was located, he did not insist on going into his home but
stayed and spoke with officers, and Milone stood between
him and the suspected gun, impeding Richmond’s access to
it.
But Richmond’s arguments focus on whether the officers
subjectively believed he was dangerous. Reasonable suspi-
cion is measured against the totality of the circumstances, an
objective test. United States v. Adamson, 441 F.3d 513, 521 (7th
Cir. 2006); see also Brigham City, Utah v. Stuart, 547 U.S. 398,
404 (2006) (explaining an officer’s subjective motivation to in-
18 No. 18-1559
trude within a home “is irrelevant” under the Fourth Amend-
ment; what matters is whether “the circumstances, viewed ob-
jectively, justify the action.”) (emphasis in original, internal
brackets omitted).
In determining whether a suspect is “presently danger-
ous,” “[t]he officer need not be absolutely certain that the in-
dividual 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 danger.” Terry, 392 U.S.
at 27; Cady, 467 F.3d at 1061–62 (holding same). “More im-
portantly … the fact-specific inquiry into the existence of rea-
sonable suspicion must be undertaken with due regard to
common sense and practicality.” Adamson, 441 F.3d at 521.
Here, Boyack and Milone faced two obvious risks: Rich-
mond might lunge toward what they suspected was a gun,
and unknown duplex occupants might access the gun by
opening the front door and picking it up off the threshold. The
district court found the officers’ testimony credible; specifi-
cally, the porch was narrow, Richmond was within the imme-
diate vicinity of a gun, the officers did not know who owned
the property, and Richmond was large, muscular, and unre-
strained. The officers testified Richmond cooperated at that
moment, but they also were concerned he might quickly
change his mind, physically overwhelm them, and charge for
the gun. And Richmond’s cooperation did not eliminate the
possibility that someone from inside the house could obtain
the weapon to use against them, which they also feared.
That Milone and Boyack testified differently as to Rich-
mond’s exact location on the porch does not change our anal-
ysis. Milone testified Richmond was within the swing radius
of the screen door. Boyack placed Richmond a few steps from
No. 18-1559 19
the screen door. If the latter, there could be a fractional delay
in Richmond’s ability to access the gun and use it against
them. Richmond’s own evidence about the width of the porch
supports this finding, and the district court relied on that ev-
idence to conclude Richmond was one or two strides from the
gun.
That the officers could have asked or directed Richmond
to step away from the front door for a conversation does not
alter our assessment. As an initial matter, police officers are
not required to take unnecessary risks in the performance of
their duties. See Terry, 392 U.S. at 23. Officers must make quick
decisions in the field, so we judge from the perspective of a
reasonably prudent person in the circumstances before us, not
20/20 hindsight. See id. at 27; Cady, 467 F.3d at 1061–62. Even
if we second-guess, had the officers moved Richmond further
away from the gun, anyone in the house would still have had
ready access to the firearm.
Milone’s on-the-spot response is not rendered unreasona-
ble because Richmond was cooperative in the present mo-
ment. “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving.” Kentucky v. King, 563
U.S. 452, 466 (2011) (citations and internal quotations omit-
ted). The entire encounter here lasted no longer than half a
minute, which called for “necessarily swift action predicated
upon the on-the-spot observations of the officer[s] on the
beat.” Long, 463 U.S. at 1047 n.11. The only information the
officers knew during the search was that a suspected gun lo-
cated between the screen door and front door was accessible
20 No. 18-1559
to Richmond and to duplex occupants. Milone’s correspond-
ing search lasted no longer than necessary to verify the rea-
sonable suspicion of danger, and that search was limited to
the only place where the firearm could be accessed.
Based on the totality of these circumstances, Boyack and
Milone were objectively and reasonably concerned with their
safety, so the balancing required by Terry weighs in favor of
Milone’s minimally intrusive search in which he found the
gun. Opening the screen door thus fell within the bounds of a
constitutional search.
3. Deference is owed to reasonable factual
inferences.
“[T]he Supreme Court [in Ornelas] deliberately chose a for-
mulation that allows the court of appeals to give deference
where that is due, but to reject deference where its independ-
ent review suggests it is not due.” United States v. Sholola, 124
F.3d 803, 822 (7th Cir. 1997) (Wood, C.J., concurring) (citing
Ornelas, 517 U.S. at 699–700). In either case, our determination
“must be based on commonsense judgments and inferences
about human behavior.” Wardlow, 528 U.S. at 125. To demand
more of the district court, or Boyack and Milone, under the
circumstances of this case would be an unreasonable demand
for certainty where none exists. See id. at 124–125.
The facts articulated by Boyack and Milone prompt a rea-
sonable inference that Richmond was illegally carrying a gun.
Richmond’s activity was also consistent with hiding a gun,
which the officers suspected and subsequently confirmed.
The officers searched only for a gun and found only a gun.
They did not search for a gun until after seeing Richmond hide
a suspected gun, underscoring the non-speculative and non-
No. 18-1559 21
pretextual nature of their search. Nor was the search here un-
reasonably invasive. Opening the screen door provided no in-
formation about the interior of the house, the officers did not
search Richmond’s person, nor did they search any other ar-
eas of the porch or exterior of the duplex. The degree of intru-
sion on Richmond’s privacy was as reasonable and minimal
as common sense dictated in that moment based upon what
the officers had seen and what they knew.
The officers also acted on a commonsense inference that
Richmond did not have a license to carry a concealed weapon.
Both officers testified they had encountered individuals who
possess firearms legally with a concealed-carry license. But
those individuals never acted in the way Richmond did by
trying to hide the gun on a door sill. To the officers, the likeli-
hood Richmond had a license to carry a concealed weapon
was diminished when he stashed the object resembling a gun
on the ground, behind a screen door, where it was accessible
to others. This is suspicious (and dangerous) behavior for any
lawful gun owner, let alone concealed-carry license holders.
See Adams, 407 U.S. at 146 (noting a limited search “might be
equally necessary and reasonable, whether or not carrying a
concealed weapon violated any applicable state law”).
Based upon our independent review of the facts and infer-
ences before us, and giving due weight to the district court’s
credibility determinations, we see no reason to disturb the
court’s findings. Milone’s search was an objectively reasona-
ble police response to a reasonable suspicion of danger.
22 No. 18-1559
4. The principles of Terry and its later case law
supported the officers’ search.
Terry legitimated protective searches for weapons under
the Fourth Amendment, and the Supreme Court has since em-
phasized the importance of standards necessary to secure po-
lice safety. Maryland v. Buie, 494 U.S. 325 (1990) is instructive
here, as the Supreme Court applied the principles of Terry
(upholding stop and frisk of a person) and Long (upholding
roadside search of automobile passenger compartment) and
upheld protective police sweeps incident to arrests: “In Terry
and Long we were concerned with the immediate interest of
the police officers in taking steps to assure themselves that the
persons with whom they were dealing were not armed with,
or able to gain immediate control of, a weapon that could un-
expectedly and fatally be used against them.” Buie, 494 U.S. at
333. Neither Terry nor Long involved protective sweeps inci-
dent to arrest, yet the Supreme Court held that the principles
they applied in Terry and Long applied in Buie. Id at 333–34.
Each of these cases evaluated the dangerousness of the po-
lice confrontations and, as we do here, balanced the interests
of officer safety, effective law enforcement, and individual
rights. See id. (“The ingredients to apply the balance struck in
Terry and Long are present in this case.”). We see no difference
between the safety concerns which justified the searches in
Buie, Terry, or Long, and those articulated by Boyack and
Milone. Both officers had an immediate interest in assuring
themselves that neither Richmond nor someone inside the du-
plex could gain immediate control of a gun and use it against
them.
This decision would differ if Richmond’s gun was located
behind the closed front door. A Terry-search like this must be
No. 18-1559 23
limited to a weapon, in areas where a weapon may be con-
cealed, and only when police have a reasonable and articula-
ble suspicion that a suspect poses a danger from the presence
of a weapon within a suspect’s immediate access or control.
III. CONCLUSION
Given the totality of the circumstances, the officers’ suspi-
cions were reasonable that Richmond was illegally carrying a
gun. Because Richmond (or someone else) had ready access
to the gun, officer Milone acted reasonably to extinguish a pa-
tent safety threat when he performed a brief search limited
exclusively to the area where both officers saw the object, later
confirmed to be a gun, was placed.
For these reasons, we AFFIRM.
24 No. 18-1559
WOOD, Chief Judge, dissenting. The question in this case is
whether the police are entitled to enter, search, and seize an
object from a person’s home (including its curtilage) when
they do not have a warrant, they do not have probable cause
to believe that a crime is being committed, and none of the
exceptions to the warrant requirement such as exigent cir-
cumstances is present. The majority concludes that the an-
swer is “yes.” It does so by diluting the probable-cause re-
quirement for searches of a home down to the “reasonable-
suspicion” level described in Terry v. Ohio, 392 U.S. 1 (1968),
even though nothing in Terry or any other decision of the Su-
preme Court justifies this step. I respectfully dissent.
I
While the majority’s description of the facts is mostly ac-
curate—minus a potentially important detail I discuss be-
low—I restate them here in order to stress some additional
relevant circumstances. Around 11:40 p.m. on the night of Oc-
tober 11, 2016, Antoine Richmond was walking toward his
home. Two Milwaukee police officers—Anthony Milone and
Chad Boyack—spotted Richmond about 70 feet away from
their marked squad car. They noticed that his hand was
tucked in the kangaroo pouch of his shirt, which was bulging
out. Boyack said that he had a hunch that the bulge was
caused by a gun.
So far, there was nothing that would support a finding that
Richmond was doing anything wrong. Like many states in the
post-Heller world, Wisconsin permits both “concealed carry”
and “open carry” of a firearm. See Wis. Stat. § 175.60 (con-
cealed); Wis. Stat. § 947.01 (person not guilty of disorderly
conduct for “going armed with a firearm” regardless whether
it “is concealed or openly carried”). True, the neighborhood
No. 18-1559 25
in which Richmond was walking was known to be a high-
crime area, but that simply underscores why a person might,
for self-defense, want to have a gun with him. The act of walk-
ing down the street with a visible gun or a possible gun under
some clothing thus does not, without more, give rise even to
a reasonable suspicion that the person is violating the law,
much less probable cause. And at this stage of the story, there
was nothing more. Richmond had not seen them, nor was he
doing anything that could be characterized as flight or unex-
plained concealment.
With their curiosity piqued by the bulge, the officers made
a U-turn and approached Richmond; at that point they briefly
made eye contact with him. Richmond then “picked up his
pace, left the sidewalk, and crossed the grass in front of a du-
plex at 1933/35 West Vienna Avenue.” United States v. Rich-
mond, No. 16-cr-197-pp, at 3 (E.D. Wis. May 18, 2018). This was
still not enough to raise even a reasonable suspicion that Rich-
mond was committing even a minor crime. He was not run-
ning away from the squad car, cf. Illinois v. Wardlow, 528 U.S.
119 (2000), and no one has pointed to any Milwaukee or Wis-
consin rule requiring people to walk only on the sidewalk.
Moreover, as I explain in more detail below, the majority’s
statement that Richmond “changed direction” upon seeing
the officers goes beyond the findings of either the magistrate
judge or the district judge; it is at best the government’s ver-
sion of the events.
As the officers parked their squad car and got out, Rich-
mond walked up the steps to the porch, opened the screen
door, and put a dark object on the door-frame between the
screen door and the principal front door, which was closed.
The officers could not identify the object that Richmond had
26 No. 18-1559
put down, even though they suspected that it might be a gun.
Richmond closed the screen door and headed down the stairs
toward the officers. Officer Milone walked around him to-
ward the door, while Officer Boyack identified the two as Mil-
waukee police. Milone then opened the screen door, saw a
black, semi-automatic handgun, and seized it. Boyack asked
Richmond if he was a felon, and Richmond admitted that he
was. The officers promptly arrested Richmond and placed
him into custody. Ultimately, he was convicted on a federal
charge of illegal possession of a gun as an ex-felon, 18 U.S.C.
§ 922(g), upon a conditional plea of guilty. Everyone agrees
that the only issue in the case is whether Richmond’s motion
to suppress the gun should have been granted.
II
There are only two ways in which one might seek to justify
the officers’ act of opening the screen door and seizing the
gun: first, Richmond might have consented to their entry; or
second, the police might have had the right to enter without
consent, either because they had a warrant, or because one of
the exceptions to the warrant requirement applies. No one ar-
gues that Richmond consented to Milone’s act of opening his
screen door. I accept, however, and Richmond concedes, that
the conversation that took place on the porch before Milone
opened the door was consensual.
That takes me directly to the Fourth Amendment analysis
of the officers’ actions. I first explain why they violated the
rule of Florida v. Jardines, 569 U.S. 1 (2013), and I then discuss
why the Terry rule cannot save this search and seizure.
No. 18-1559 27
A
In Jardines, the Supreme Court considered the question
“whether using a drug-sniffing dog on a homeowner’s porch
to investigate the contents of the home is a ‘search’ within the
meaning of the Fourth Amendment.” Id. at 3. There, the police
officer had allowed the dog to go up to the base of the front
door of the house; the dog alerted to the presence of drugs (in
that case, marijuana); and the detective then obtained a war-
rant to search the house based on the dog’s alert.
The Court began its analysis by emphasizing that the
Fourth Amendment has always protected against physical in-
trusions of the home. Id. at 5. It then summarized its holding
as follows:
That principle renders this case a straightforward one.
The officers were gathering information in an area be-
longing to Jardines and immediately surrounding his
house—in the curtilage of the house, which we have
held enjoys protection as part of the home itself. And
they gathered that information by physically entering
and occupying the area to engage in conduct not ex-
plicitly or implicitly permitted by the homeowner.
Id. at 5–6. The home, the Court continued, “is first among
equals” for purposes of the Fourth Amendment. Id. at 6. And
that does not mean only the physical structure of the building.
The Court went out of its way to reaffirm that the curtilage—
that is, “the area immediately surrounding and associated
with the home”—is also part of the home itself under the
Fourth Amendment. Id. (cleaned up). The front porch, it con-
cluded, is “the classic exemplar” of a space that falls within
the curtilage. Id. at 7.
28 No. 18-1559
The Court then rejected the possibility that the dog’s pres-
ence on the porch fell within the license that the home’s occu-
pants are presumed to grant for “solicitors, hawkers, and ped-
dlers of all kinds,” id. at 8, with this comment:
[I]ntroducing a trained police dog to explore the area
around the home in hopes of discovering incriminating
evidence is something else. There is no customary in-
vitation to do that.
Id. at 9. If an officer’s actions fall outside the scope of the li-
cense that a reasonable officer can presume—if, in other
words, the officer takes actions beyond those that a home-
owner has authorized for all visitors—Jardines holds that it is
immaterial that the officer might be lawfully present while
conducting those unauthorized actions. And although the
subjective intent of the officer is irrelevant to the legality of his
actions, see, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011),
Jardines explained that this means only that “a stop or search
that is objectively reasonable is not vitiated by the fact that the
officer’s real reason for making the stop or search has nothing
to do with the validating reason.” 569 U.S. at 10.
The Court returned to this theme in Collins v. Virginia, 138
S. Ct. 1663 (2018), in which it considered “whether the auto-
mobile exception to the Fourth Amendment permits a police
officer, uninvited and without a warrant, to enter the curtilage
of a home in order to search a vehicle parked therein.” Id. at
1668. No, was the Court’s clear answer. In that case, the police
believed that a motorcycle parked in defendant Collins’s
driveway was stolen. One officer went to the house, walked
up the driveway to the motorcycle, lifted up a tarp that was
covering it, recorded the identifying information, and con-
firmed that it was indeed stolen.
No. 18-1559 29
In light of Jardines, there was no way in which that search
could be justified as a warrantless search of the home or its
curtilage. Instead, the state tried to shoehorn the search into
the so-called automobile exception to the warrant require-
ment—an exception that developed because of the inherent
mobility of the vehicle. The Court rejected that effort, explain-
ing that “the scope of the automobile exception extends no
further than the automobile itself. … Nothing in our case law,
however, suggests that the automobile exception gives an of-
ficer the right to enter a home or its curtilage to access a vehi-
cle without a warrant.” Id. at 1671. It also reconfirmed, in
words that this panel should be respecting, that it “already
has declined to expand the scope of other exceptions to the
warrant requirement to permit warrantless entry into the
home.” Id. at 1672. It went on to list examples of its commit-
ment to the warrant requirement, including the plain-view
doctrine, which requires that “the officer have a lawful right
of access to the object itself,” id., and, “absent another excep-
tion such as exigent circumstances, officers may not enter a
home to make an arrest without a warrant, even when they have
probable cause.” Id. (emphasis added).
Here, the majority accepts that the officers lacked probable
cause to search the home (or, importantly, its curtilage). Given
that deficit, and the uncontested fact that none of the excep-
tions to the warrant requirement applies here, Officer Mi-
lone’s act of opening the screen door and looking behind it—
which easily qualifies as an intrusion into at least the curti-
lage, and probably also the home—was forbidden. That act
cannot be saved by the implicit license to approach the door,
any more than that license saved the dog-sniff in Jardines. The
majority observes that “Boyack and Milone were permitted to
enter onto the porch without his consent” and that “he
30 No. 18-1559
consented to the officers’ presence on the porch.” Ante at 9 n.2.
Fine, but unhelpful. The critical fact is that the officers did
more than they were invited or implicitly permitted to do
when they opened and looked behind the screen door: there
was no “invitation to do that.” Jardines, 569 U.S. at 9. Likewise,
it would make no difference if (counterfactually) “Boyack and
Milone had articulated objectively reasonable grounds [that
is, something grounded in ascertainable facts] to suspect
Richmond was engaged in criminal activity that justified their
entry onto the porch.” Ante at 10 (emphasis added). They did
not need reasonable suspicion to walk up to the porch and
talk with Richmond. But they needed more than reasonable
suspicion to open the door and thereby conduct a search of
the home’s curtilage. And that they lacked.
The majority also asserts that “at the moment of the search
the officers had no indication Richmond had any Fourth
Amendment interest in the home.” Ante at 15. Putting aside
the fact that the government never argued this issue, the offic-
ers’ subjective belief about Richmond’s own connection to the
property (or lack thereof) is entirely irrelevant to the legality
of the search or to the availability of the suppression remedy.
If it had been another person’s home, the government would
have so argued, and Richmond would not have been able to
demonstrate the necessary interest for a Fourth Amendment
claim. Since it was Richmond’s home, the government reason-
ably refrained from any such challenge, thereby forfeiting any
argument it might have made. Had the government snooped
behind the screen door of another person’s house without a
warrant or other legal basis for its action, we might right now
be facing a case in which that other person’s Fourth Amend-
ment rights were violated.
No. 18-1559 31
For purposes of the suppression remedy, the operative in-
quiry is whether the person seeking suppression in fact pos-
sesses enough of a connection to the home to trigger the pro-
tections of the Fourth Amendment. If the search of the curti-
lage had turned up something belonging to another resident
of the home, such as illegal drugs or child pornography, that
other resident would be entitled to contest that search and
seek to suppress the evidence. That would be so even though
the police had never given any thought to the possibility of
another resident or her connection to the property. Here,
Richmond does have a Fourth Amendment interest in the
home, giving him the necessary interest to contest the search
and the right to seek suppression of illegally collected evi-
dence. Rakas v. Illinois, 439 U.S. 128, 134 (1978).
The government might point to United States v. Santana,
427 U.S. 38 (1976), as support for its position, but nothing in
that case is in tension with the later decisions in Jardines and
Collins. The only common element is the fact that a person’s
front porch featured in the facts. Otherwise, everything that
is missing here was present there. First, the district court
found, and the Supreme Court confirmed, that the police had
“strong probable cause” that defendant Santana had just par-
ticipated in an illegal sale of narcotics. Id. at 41–42. Second, it
found that Santana herself was in a public place as she stood
on the threshold of her dwelling, and so, given the existence
of probable cause, the police were entitled to arrest her there
under the authority of United States v. Watson, 423 U.S. 411
(1976). Finally, even though she briefly retreated into the
house, the Court held that the police were entitled to follow
her, because the requirements for “hot pursuit” were satis-
fied. Santana, 417 U.S. at 42–43. In Richmond’s case, there was
32 No. 18-1559
neither probable cause nor hot pursuit—the two crucial fea-
tures supporting the result in Santana.
I conclude, therefore, that a straightforward application of
Jardines and Collins requires us here to find that the police vi-
olated the Fourth Amendment when they opened the screen
door, thereby entering and searching the curtilage of Rich-
mond’s home in a manner that exceeded the boundaries of
any express or implied license. That violation continued when
they seized the gun. Because neither a warrant nor probable
cause (nor any other exception) protected that entry and sei-
zure, the gun should have been suppressed.
B
Interestingly, my colleagues recognize that there was no
probable cause for the search, and that it was the search of a
home. In order to salvage Richmond’s conviction, they resort
to the Terry line of cases to justify their decision. As I now ex-
plain, however, they have stretched Terry beyond anything
the Supreme Court has ever endorsed.
The first question for Terry purposes is when, if ever, did
the police develop a reasonable suspicion that Richmond was
violating the law? We can rule out several points. First, as I
indicated earlier, at the moment when Richmond was walk-
ing along the street in a high-crime neighborhood with a
bulge in his front pocket, the police had no support for a rea-
sonable suspicion of any misconduct. Plenty of people are out
and about around midnight, after spending an evening with
friends, seeing a movie or live show, or working a late shift.
Unfortunately, plenty of people also live in neighborhoods
with a significant crime problem. They are not confined to
quarters, however, and so they are just as entitled to walk
No. 18-1559 33
around in the evening as anyone else. But, the majority
stresses, Richmond had a bulge in his pocket, and the officers,
based on their experience, believed that this bulge was a gun.
That was, however, at most a guess. It could just as easily have
been a couple of beer cans, or a late-night snack, or a book.
Reasonable suspicion requires more than educated specula-
tion. And critically, as of that time Richmond had done noth-
ing that a person with a valid firearms license might also have
done.
The next suspicious event to which the majority points is
the fact that Richmond accelerated his pace when he realized
that the police were interested in him. But nothing in the rec-
ord supports a finding that he turned tail and ran, as was the
case in Wardlow. In fact, Officer Boyack acknowledged that
Richmond “was not running or sprinting.” The majority
adopts the government’s assertion that Richmond “changed
direction” upon seeing the officers, ante at 2, but that pur-
ported fact appears nowhere in the district court’s opinion nor
in the magistrate judge’s report and recommendation. It is
therefore improper for this court to assume that the officers
had an objective basis to suspect a violation of the law because
they saw Richmond make an “unusual change of course,” id.,
at least without making clear that we are finding facts for the
first time. Yet the majority bases its finding of reasonable sus-
picion at least partly on this fact. Ante at 8.
Even if we were entitled to consider whether Richmond
changed direction, the record support for that proposition is
quite weak. There is testimony from one of the officers indi-
cating that Richmond “did change his direction,” but the of-
ficer elaborated as follows: “First he was walking north. He
then went on a – not a hard right but it would be to his right
34 No. 18-1559
on an angle across the grass which would be to his east.” Dkt.
75 at 9-10. It is doubtful whether a person’s choice to cut
across the grass to reach a home located along his preexisting
route—as many people might do at the conclusion of a walk—
is best described as a “change of direction.” That seems more
like a phrase that signals at least a 90 degree turn, if not a 180.
It is hardly an “unusual change of course,” ante at 2, for pe-
destrians to take this type of shortcut.
A person who keeps on going in the general direction in
which he was traveling but accelerates his pace upon making
eye contact with a police officer—which is the most that this
record establishes—has not done enough to give rise to rea-
sonable suspicion. It is not hard to imagine that this person
might want to avoid a late-night chat with the police, espe-
cially given the notoriously fraught state of community-police
relationships in many cities. Gallup reported a few years ago
that confidence in the police is at its lowest level in 22 years.
See Jeffrey M. Jones, “In U.S., Confidence in Police Lowest in
22 Years,” Gallup News, at https://news.gallup.com/
poll/183704/confidence-police-lowest-years.aspx. A chart in
that article shows that this problem is especially severe
among African-Americans, only 30% of whom reported in
2014–15 that they had either “a great deal” or “quite a lot” of
confidence in the police.
This leaves Richmond’s act of placing the object behind the
screen door when he reached the porch. That one act does not
suffice to support reasonable suspicion, in my view, even tak-
ing into account the fact that a person with a valid firearm li-
cense presumably would not mind being found with the
weapon. As of this time, the police had nothing but a “hunch”
that the item was a gun, rather than a package that Richmond
No. 18-1559 35
wanted to tuck away before his encounter. (If this were a drug
case, would the police have insisted that they suspected that
Richmond was carrying a brick of cocaine?) A person in a
high-crime neighborhood is very likely aware that the police
have been known to make mistakes about objects, with tragic
results. The act of stashing the unknown package thus does
not salvage an otherwise inadequate case for reasonable sus-
picion. I will not dignify with any response the government’s
effort to squeeze reasonable suspicion out of the fact that
Richmond was “a large, muscular man who stood unre-
strained within a couple strides from where he concealed”
what hindsight proved to be a gun. The majority lists this fact
as evidence substantiating the officers’ concern for their
safety. Does this mean that large, physically fit men can be
searched at will, in the name of officer safety? I hope not. Yet
the government cites Richmond’s appearance as one of “at
least five articulable facts [that] support[ed] their suspicion.” It
does not.
And even if this thin set of facts were enough to justify a
working assumption that Richmond had a gun, so what? Gen-
erally speaking, to justify an investigatory stop, the police
must have “a particularized and objective basis for suspecting
the particular person stopped of criminal activity.” Navarette
v. California, 572 U.S. 393, 396 (2014), citing United States v. Cor-
tez, 449 U.S. 411, 417–18 (1981). Mere possession of a firearm
in a high-crime area—assuming for a moment that the police
had an adequate basis for even this conclusion—is not good
enough. See United States v. Watson, 900 F.3d 892, 896–97 (7th
Cir. 2018). As we pointed out in Watson, “[p]eople who live in
rough neighborhoods may want and, in many situations, may
carry guns for protection. They should not be subject to more
36 No. 18-1559
intrusive police practices than are those from wealthy neigh-
borhoods.” Id. at 897.
The police did not have the necessary reasonable suspi-
cion to frisk Richmond, had they accosted him before he
reached his front door, and they made no effort to do so. Even
if they did, they knew that he was no longer carrying the mys-
tery package; for officer safety, they could have escorted him
to the squad car, far from the package, and gone about their
business. I am aware of no authority that endorses the con-
duct of a Terry-like “frisk” not of a person, but of a home or
its curtilage. Any kind of search of the home or curtilage on
less than probable cause (supported by a warrant, normally),
or without one of the recognized exceptions such as hot pur-
suit, is forbidden by binding Supreme Court precedent, nota-
bly Jardines and Collins.
I would therefore reverse the district court’s decision to
deny Richmond’s motion to suppress and return this case to
that court for further proceedings. I thus dissent from the ma-
jority’s decision.