U.S. v. Barnett, 06-3215.

• Decision Date: 02 October 2007
• Docket Number: No. 06-3215.,06-3215.
• Citation: 505 F.3d 637
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth BARNETT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

505 F.3d 637

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth BARNETT, Defendant-Appellee.

No. 06-3215.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2007.

Decided October 2, 2007.

Linda L. Mullen (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellant.

William R. Kelly (argued), Peoria, IL, for Defendant-Appellee.

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Kenneth Barnett successfully moved to exclude evidence of a handgun found on his person when he was frisked by police during a Terry stop. The district court granted his motion after determining that the police did not have a reasonable suspicion that Barnett might be armed during the stop — thus the frisk was not reasonable even though the stop itself was. We find that the police had adequate, reasonable suspicion that Barnett could be armed, and that the frisk for weapons was a constitutionally valid search. We reverse and remand.

During the suppression hearing and two supplemental hearings with additional evidence, the district court was presented with the following facts. Officers Parnell and Sinks were on patrol in Peoria, Illinois in January 2006 when they spotted Barnett alone in a dark, empty parking lot near some businesses that were either closed or preparing to close. The officers noted that Barnett appeared "nervous, startled" and "hurried" when they slowly approached in their squad car. The officers decided to stop Barnett out of suspicion that he may have robbed a closed and darkened restaurant bordering the parking lot, even though there was no police report to that effect. The district court determined that this constituted a valid Terry stop supported by reasonable suspicion, and Barnett does not challenge that ruling. The contest between the parties involves the officers' interaction with Barnett after they initiated the stop but prior to the frisk that uncovered the gun.

Officer Sinks approached Barnett while Officer Parnell stood a few feet away. Sinks asked Barnett why he was in the area, and Barnett replied that he worked at the restaurant, which he had just closed for the evening, and he was going home. He provided a local address as his destination. The officers observed, however, that Barnett was nervous and sweating profusely despite the 30-degree temperature. Sinks asked for his identification. The officers testified that as Barnett turned to retrieve his identification from a pocket they saw the outline of the butt of a gun protruding through the waist area of the sweat suit Barnett was wearing. The officers recalled that his sweat suit was gold in color and of a "velvet type" material, and that it was no more loose-fitting than an ordinary sweat suit. Sinks admitted that until he saw what he took to be the outline of a gun, he did not believe Barnett was armed.

Officer Sinks examined Barnett's identification and noted that it listed an address roughly 40 miles away, contradicting Barnett's statement that he was going home to a local address. Sinks inquired several times if Barnett had anything illegal and if he would allow Sinks to frisk him for the officers' safety. Barnett responded that he did not want to be frisked and that his lawyer told him not to let officers frisk him. At some unspecified time during this roughly five-minute exchange, the officers had called for backup, which now arrived at the scene. With a third officer present, the officers immediately told Barnett they "had to" frisk him, and they grabbed his arm. Barnett then said, "Yeah, I got a gun on me." The officers discovered a loaded handgun in his waistband. Barnett's recollection of the events differed slightly: he testified that the officers asked to search him even before examining his identification; that he already had his identification out and did not reach into his pocket to retrieve it; and that after seeing his identification, Sinks said, "I don't mind about the drugs that you have on you, but where's the pistol," and then additional officers appeared and grabbed him.

Barnett appeared before the district court wearing a sweat suit that jail personnel certified had been collected from him at the time of his arrest, though officers Parnell and Sinks claimed that the sweat suit was larger and of a different color than they remembered Barnett wearing that night. Barnett explained that he had borrowed the sweat suit from his 400-pound cousin. The court noted that the sweat suit was "grossly" oversized for Barnett, who weighed 200 pounds.

After the court observed Barnett wearing the sweat suit with the unloaded gun in his waistband (in different variations of a zipped and unzipped top and tucked and untucked tee shirt, according to the different memories of Barnett and the officers), it determined that the government had not established by a preponderance of the evidence that the officers saw a gun protruding through Barnett's sweat suit. The court considered that Barnett lost approximately 35 pounds since the night of his arrest, but concluded that, even allowing for the weight loss, the sweat suit was too baggy to have allowed the officers to have seen a gun tucked in his waistband.

The court noted that the officers' frisk of Barnett would be constitutional if, under Terry, they had reasonable suspicion that he was armed and dangerous. But having discounted the testimony that the police saw the protrusion of the gun, the court concluded that the officers did not subjectively believe Barnett was armed or that they were in danger. It noted that Sinks specifically stated that he did not think Barnett was armed until he saw the outline of a gun, and it focused on the officers' agreement that Barnett was "cordial," "cooperative," "respectful," and "non-threatening." Without the officers' subjective suspicion of danger, the court explained, even a justified Terry stop did not warrant a frisk for weapons. The court also orally discussed the elapsed five minutes prior to the frisk, noting that if the officers had been concerned about Barnett being armed, they would have searched him immediately. The court even noted that an immediate frisk might have been reasonable, but that the delay of the officers showed that they merely wanted to search Barnett without having any true safety concern.

The court went on to consider whether Barnett's statement that "Yeah, I got a gun on me" constituted probable cause for the police to search him. It determined, however, that Barnett only made the statement once it was clear that the police were going to search him regardless, and as a result the statement was coerced and involuntary. Thus it could not be a basis for probable cause.

The district court granted Barnett's motion to exclude the evidence of the gun. The government appeals that ruling, arguing that the frisk was justified because the officers had initiated a valid Terry stop based on suspicion that Barnett was involved in a robbery, a crime so closely associated with weapon possession that his possible commission of such a crime created a reasonable suspicion that he was armed. We review the court's legal...