U.S. v. DeBerry, No. 95-2232

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, Chief Judge, and ESCHBACH and DIANE P. WOOD; POSNER; DIANE P. WOOD
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anthony DeBERRY, Defendant-Appellant.
Decision Date22 February 1996
Docket NumberNo. 95-2232

Page 884

76 F.3d 884
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony DeBERRY, Defendant-Appellant.
No. 95-2232.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 12, 1995.
Decided Feb. 22, 1996.

Colin S. Bruce (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Gregory D. Fombelle (argued), Burger, Fombelle, Zachry & Rathbun, Decatur, IL, for Defendant-Appellant.

Page 885

Before POSNER, Chief Judge, and ESCHBACH and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The defendant was sentenced to 57 months in prison for being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1). He claims that the gun was seized in violation of the Fourth Amendment and should therefore not have been used as evidence (the essential evidence) against him. The seizure came about in the following way. One afternoon a uniformed police officer on patrol in his car in Decatur, Illinois received a message from his dispatcher conveying an anonymous tip that at the corner of Main and Calhoun Streets was a black man wearing a tan shirt and tan shorts who had a gun in his waistband. The officer drove to the corner of those streets and, sure enough, there was a black man wearing a tan shirt and tan shorts. The gun was not visible. The officer stopped his car near where the man was standing, got out, walked toward him, and told him he wanted to talk to him. We do not know how far he was from the man when he first spoke--the officer testified that it was about twelve feet but the judge made no finding--or what exactly he said. According to testimony by the officer that the district judge at the suppression hearing was entitled to and did believe, the man--DeBerry--took several steps backward, turned slightly to the side, and moved his hands as if he might be about to draw a gun. The officer then drew his own gun and ordered DeBerry to place his hands on the hood of the police car. When DeBerry complied, the officer holstered his gun. A backup officer arrived within two minutes, and the first officer then patted down DeBerry and found the gun. They then arrested him.

DeBerry argues that the police did not have probable cause to arrest him until they found the gun, and therefore the seizure of the gun was unlawful. The premise is correct, but not the conclusion. We may assume without having to decide that the combination of an anonymous tip that a man has a gun and an ambiguous gesture by him ominous only because of the tip does not create a sufficiently high probability that he is in fact carrying a gun to justify an arrest. But the tip and the gesture certainly justify the officer in drawing his own gun and detaining the gesturer until it can be determined whether in fact he has a gun. United States v. Gibson, 64 F.3d 617, 623-24 (11th Cir.1995). Self-defense is the original rationale of the Terry stop (that is, a stop and frisk) and still the most compelling justification for it. This is why the pointing of a gun at the person stopped does not transform a stop into an arrest, United States v. Vega, 72 F.3d 507, 515 (7th Cir.1995); United States v. Tilmon, 19 F.3d 1221, 1226-28 (7th Cir.1994); United States v. Serna-Barreto, 842 F.2d 965, 967-68 (7th Cir.1988), if in the circumstances (as here, unlike the circumstances of United States v. Novak, 870 F.2d 1345, 1351-53 (7th Cir.1989)) the pointing of the gun is a prudent measure of self-protection; and remember that the officer quickly returned his gun to its holster. No doubt at some point DeBerry's forced immobilization with his hands on the hood of the police cruiser would have turned the stop into an arrest, United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985), because it is the brevity of the stop that makes it tolerable even though the police lack probable cause to believe that the person stopped has committed a crime. But two minutes is not that point. Twenty minutes was held not too long in Sharpe, id. at 686, 105 S.Ct. at 1575-76, and we recently upheld a Terry stop that lasted 62 minutes. United States v. Vega, supra, 72 F.3d at 515-16.

The question becomes whether the officer was entitled to...

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39 practice notes
  • U.S. v. Jerez, Nos. 95-1549
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 19, 1997
    ...of the Fourth Amendment do not attach.' " United States v. Stribling, 94 F.3d 321, 323 (7th Cir.1996) (quoting United States v. DeBerry, 76 F.3d 884, 885 (7th Cir.1996)) (emphasis added). The majority selectively cites parts of the record in an attempt to convey the impression that Officers......
  • McChesney v. State, No. 97-63.
    • United States
    • United States State Supreme Court of Wyoming
    • October 20, 1999
    ...stop of person suspected of gun possession even though corroboration is of present rather than future events); United States v. DeBerry, 76 F.3d 884, 886 (7th Cir.1996) ("[a]rmed persons are so dangerous to the peace of the community that the police should not be forbidden to follow up a ti......
  • Brown v. City of Milwaukee, No. 02-C-0178.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • October 21, 2003
    ..."declaring similar searches compatible with the Fourth Amendment." Id. at 269, 120 S.Ct. 1375 (citing United States v. DeBerry, 76 F.3d 884, 886-887 (7th Cir.1996); United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir. In DeBerry, the court noted that a number of cases hold, United States v......
  • U.S. v. Wheat, No. 00-3457.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 2001
    ...States v. Clipper, 973 F.2d 944, 946-51 (D.C.Cir.1992); United States v. Bold, 19 F.3d 99, 102-04 (2d Cir.1994); United States v. DeBerry, 76 F.3d 884, 885-87 (7th Cir.1996); United States v. Gibson, 64 F.3d 617, 619-25 (11th Cir.1995); see also United States v. Roberson, 90 F.3d 75, 81 n. ......
  • Request a trial to view additional results
39 cases
  • U.S. v. Jerez, Nos. 95-1549
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 19, 1997
    ...of the Fourth Amendment do not attach.' " United States v. Stribling, 94 F.3d 321, 323 (7th Cir.1996) (quoting United States v. DeBerry, 76 F.3d 884, 885 (7th Cir.1996)) (emphasis added). The majority selectively cites parts of the record in an attempt to convey the impression that Officers......
  • McChesney v. State, No. 97-63.
    • United States
    • United States State Supreme Court of Wyoming
    • October 20, 1999
    ...stop of person suspected of gun possession even though corroboration is of present rather than future events); United States v. DeBerry, 76 F.3d 884, 886 (7th Cir.1996) ("[a]rmed persons are so dangerous to the peace of the community that the police should not be forbidden to follow up a ti......
  • Brown v. City of Milwaukee, No. 02-C-0178.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • October 21, 2003
    ..."declaring similar searches compatible with the Fourth Amendment." Id. at 269, 120 S.Ct. 1375 (citing United States v. DeBerry, 76 F.3d 884, 886-887 (7th Cir.1996); United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir. In DeBerry, the court noted that a number of cases hold, United States v......
  • U.S. v. Wheat, No. 00-3457.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 28, 2001
    ...States v. Clipper, 973 F.2d 944, 946-51 (D.C.Cir.1992); United States v. Bold, 19 F.3d 99, 102-04 (2d Cir.1994); United States v. DeBerry, 76 F.3d 884, 885-87 (7th Cir.1996); United States v. Gibson, 64 F.3d 617, 619-25 (11th Cir.1995); see also United States v. Roberson, 90 F.3d 75, 81 n. ......
  • Request a trial to view additional results

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