792 F.3d 742 (7th Cir. 2015), 14-2262, United States v. Leo

Docket Nº:14-2262
Citation:792 F.3d 742
Opinion Judge:Williams, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT LEWHIM LEO, JR., Defendant-Appellant
Attorney:United States of America, Plaintiff - Appellee: Bridget J. Domaszek, Attorney, Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI. Robert L. Leo, Jr., Defendant - Appellant: Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, ...
Judge Panel:Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
Case Date:July 02, 2015
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Officer Ortiz saw men in black hoodies and recognized Aranda, who had prior convictions for drug possession and burglaries. Aranda and Leo approached a nearby duplex. Police dispatch announced that a 911 caller was reporting a possible burglary in progress at that duplex. The caller lived in the upper unit and described two Hispanic men wearing black hoodies; one had a gun. The two reappeared and ... (see full summary)

 
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Page 742

792 F.3d 742 (7th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ROBERT LEWHIM LEO, JR., Defendant-Appellant

No. 14-2262

United States Court of Appeals, Seventh Circuit

July 2, 2015

Argued December 17, 2014

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CR-123 -- Charles N. Clevert, Jr., Judge.

United States of America, Plaintiff - Appellee: Bridget J. Domaszek, Attorney, Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI.

Robert L. Leo, Jr., Defendant - Appellant: Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI.

Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

OPINION

Williams, Circuit Judge.

After a 911 caller reported that Robert Leo had attempted to commit a burglary and was in possession of a gun, police officers stopped Leo, cuffed his hands behind his back, emptied his backpack, and found a gun. The officers soon learned that the 911 caller had been mistaken about the attempted burglary, but Leo was charged with possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). He moved to suppress the gun because the police officers who had detained him were conducting an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and were not authorized by that decision to rifle his backpack. The district court rejected this contention, explaining that searching Leo's backpack without a warrant was necessary for the protection of the officers and the public. Leo pleaded guilty and was sentenced to 37 months' imprisonment, but reserved the right to appeal the denial of his motion to suppress. Because we conclude that there was no probable cause or basis in Terry for the warrantless search, we vacate Leo's conviction and remand for further proceedings.

I. BACKGROUND

One morning in May 2013, Robert Ortiz, a police officer for the City of Racine, Wisconsin, was driving an unmarked car when he spotted two young men in black hoodies standing on the sidewalk. He recognized one of them as Enrique Aranda, a cousin of his wife with prior convictions for drug possession, burglaries, and disorderly conduct. Ortiz did not know Leo, the defendant, who was with Aranda. As Ortiz drove past, he saw Aranda and Leo running into the yard of a nearby duplex. Ortiz quickly lost sight of Leo, but he caught a glimpse of Aranda standing by an open screen door on the side of the building.

As Officer Ortiz reached the end of the block and turned around, the police dispatcher announced that a 911 caller was reporting a possible burglary in progress in the lower unit of the duplex where Ortiz had last seen Aranda. The dispatcher radioed that the caller lived in the upper unit of the duplex and had described the suspected burglars as two Hispanic men wearing black hoodies, one of them with a gun, possibly a revolver. The caller also had reported that he just saw an unmarked police car pass by. Ortiz told the dispatcher what he had seen and where he was, and other officers radioed that they were on their way. Because he was outnumbered, Ortiz moved where he could watch the duplex and waited for backup.

As Ortiz waited, Leo reappeared and began walking with Aranda away from the duplex toward the Head Start preschool next door. Ortiz observed that Aranda still was wearing a black hoodie but that Leo now was wearing a red jacket or sweatshirt, and had a backpack. Around this time, the dispatcher reported that the 911 caller had given an update saying that one of the suspects had changed into a red jacket or sweatshirt, and that the gun was in a backpack.

When Officer Ortiz saw Leo and Aranda reach the Head Start parking lot and continue toward the entrance, he ran up to them, announced that he was a police officer, and ordered them to stop. The two young men glanced back but kept walking. Ortiz drew his gun, held it at his side, and again commanded the pair--this time in a louder voice--to stop. Leo and Aranda then paused 15 to 20 feet from Ortiz, who told Aranda to come to him. Aranda complied, so Ortiz put away his gun and handcuffed him. Meanwhile, Officer Michael Seeger had arrived in time to see Ortiz order Leo and Aranda to stop. When they did not, Seeger ran after Leo, who was nearing the preschool's front entrance. Seeger cuffed Leo's hands behind his back.

By this time, another officer had gone to the duplex and interviewed the upstairs resident who called 911. The caller had seen the officers stop Leo and Aranda, and confirmed that the two men were the ones who had tried breaking into the downstairs unit. The dispatcher relayed this information to Officers Ortiz and Seeger.

The officers separated Leo and Aranda by 20 to 30 feet. Ortiz frisked Aranda but found nothing. Aranda explained that he had just stopped at a friend's house and was on his way to get $5 from his mother, who worked at the preschool. As Leo conversed with Aranda, Seeger patted down Leo. The officer did not find a gun. Without asking any questions, he then immediately opened and emptied Leo's backpack, which he had taken from Leo and placed on the ground. Inside were a black hoodie, a digital scale with marijuana residue, plastic baggies, three bullets in a box, and a loaded revolver wrapped in cloth.

After finding the gun, the officers learned that the 911 caller had been mistaken about the attempted burglary. The residents of the duplex's lower unit had been interviewed and said they knew Leo and Aranda, and that the men had not tried to break in. By this time, however, the officers had learned that Leo is a felon (at the time of the search, he was on probation for attempted burglary and possession of marijuana). He was arrested and charged with violating § 922(g)(1).

A magistrate judge conducted an evidentiary hearing on Leo's motion to suppress. The government's attorney maintained that the search of the backpack was lawful because the officers had " reasonable suspicion" that justified stopping Leo and also searching his backpack. Officer Ortiz testified that he had " made contact" with Leo and Aranda because he was concerned about the safety of teachers, parents, and children at the preschool. The officer insisted, however, that the two suspects were not under arrest when he handcuffed Aranda. Rather, Ortiz explained, he had restrained Aranda for safety reasons because, in his opinion, potential burglars and armed suspects always present " a possibility of violent action." And, he added, unholstered guns also present a danger of accidental discharge. Ortiz conceded knowing that Aranda's mother worked at the preschool, as did Ortiz's wife, a niece of Aranda's mother. However, as Ortiz soon learned from the dispatcher, Aranda was violating his probation by being away from his residence. At that point, the officer continued, he had arrested Aranda for this violation and found that he was carrying $40. That discovery, Ortiz said, made him suspect that Aranda had lied about going to the preschool to get money from his mother. This suspicion about Aranda's story, though, arose only after Leo's backpack already had been searched.

Officer Seeger testified that he detained and handcuffed Leo to stop him " from reaching or grabbing the firearm." He said he was concerned about the safety of the officers and occupants of the preschool. Leo might have reached for his gun, Seeger explained, or the gun could have discharged accidentally. Like Officer Ortiz, Seeger acknowledged that he did not arrest Leo before finding his gun. Leo had only been " detained," Seeger insisted, when he was handcuffed. The officer testified that Leo had said several times, " I consent to a search." But even if Leo had not consented, Seeger added, he would have searched the backpack because Leo " matched exactly" the caller's description of the burglary suspect. Seeger acknowledged knowing that Ortiz's wife worked at the preschool. He did not say that he knew Leo to be a felon before rummaging through his backpack.

Aranda testified that he and Leo were walking to the preschool to get gas money from his mother when members of the Latin Kings pulled up in a car and threatened them. He said that he and Leo ran to the duplex next to the preschool, knocked on the door, and hid behind the house. Aranda stated that, once the coast was clear, they...

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