U.S. v. Snow

• Decision Date: 13 October 2011
• Docket Number: No. 10–2031.,10–2031.
• Citation: 656 F.3d 498
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Ernest R. SNOW, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

656 F.3d 498

UNITED STATES of America, Plaintiff–Appellee,
v.
Ernest R. SNOW, Defendant–Appellant.

No. 10–2031.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 7, 2011.Decided Aug. 24, 2011.Rehearing and Suggestion for Rehearing En Banc Denied Oct. 13, 2011.*

[656 F.3d 498]

James M. Warden (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.Sarah O'Rourke Schrup, Attorney, John MacIver, Richard Roibette, Law Students, Northwestern University School of Law, Chicago, IL, for Defendant–Appellant.Before ROVNER and WOOD, Circuit Judges, and GOTTSCHALL, District Judge.^**ROVNER, Circuit Judge.

A gun was discovered on Ernest R. Snow's person after he was pulled over on suspicion of a burglary attempt and ordered out of his vehicle for a protective patdown. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). As Snow had prior felony convictions, he was indicted pursuant to the felon-in-possession statute, 18 U.S.C. § 922(g)(1), and ultimately pleaded guilty to that charge. Snow contends, however, that his motion to suppress evidence related to the gun should have been granted, because the police officers who stopped him lacked any reasonable grounds on

[656 F.3d 499]

which to believe that he might be armed and that the order to exit his vehicle for purposes of a protective frisk was therefore invalid. We disagree and affirm.I.

Shortly before 4 p.m. on January 16, 2009, a 911 operator dispatched members of the Indianapolis police to a residential address after receiving a call reporting an attempted break-in at that address. The dispatcher advised the officers that there was a “burglary in progress” and that the suspect was “a person [of] unknown racial description in a black hoodie, gray pants, trying to crawl through the front window, now went around back.” R. 60–1 at 2.

After making the dispatch, the 911 operator resumed contact with the caller, whom she had placed on hold. At the operator's request, the caller described the house (which was across the street from the caller); the caller also noted that there was a pickup truck parked in front of the house that was green in front and white in back. The caller then revised her description of the suspect, whom she now spotted on the side of the residence, as dressed in loose-fitting jeans rather than gray pants. The operator passed all of this information along to the officers, although she inaccurately described the truck as being green and black. Finally, the caller reported that the man had returned to the front of the house, appeared for a moment to be holding and possibly texting with a cell phone, and then entered the truck and drove off. When the operator reported these events to the police, one of the officers immediately responded that he had spotted the truck approximately two blocks from the residence. The truck, which the officers later testified was multicolored, or green in front and a different, unspecified color in back, was stopped shortly thereafter by officer Nicholas Andrews.

Snow was at the wheel of the truck. As Andrews approached the driver's side of the vehicle, he observed that Snow was dressed in a black hooded sweatshirt and baggy blue jeans. Andrews asked Snow for his driver's license, which Snow handed to him. Apparently without being asked, Snow also removed his keys from the ignition and handed them to Andrews. At about this time, the two other officers who were responding to the dispatch arrived on the scene.

Andrews would later testify that without asking Snow any questions or conducting any further investigation, he ordered Snow to step out of the truck with the intent to frisk Snow for weapons. Andrews explained that he gave that order “for officer safety,” because he “believed [Snow] was a burglary suspect.” R. 56 at 16. Snow alighted from the vehicle as directed, but when Andrews instructed him to place his hands on the truck for purposes of the patdown, Snow instead spun around to face the officer. Interpreting this as an act of aggression, Andrews grabbed Snow's left arm, forced it behind his back, pinned him against the truck, and ordered him to “stop resisting.” R. 56 at 17. The other officers, on seeing what was happening, ran to Andrews' aid. Officer Michael Wolley grabbed Snow's right arm, which Snow was moving toward his waist. At this point, officer Emily Perkins spotted the handle of a gun in Snow's waistband. She called out “gun” and seized the firearm. Snow was taken into custody.

Snow was never charged with attempted burglary (although there is no dispute that he was the person seen by the 911 caller) but he was, as we have noted, charged with being a felon in possession of a firearm. He moved to suppress all evidence related to the gun, contending that the police lacked a reasonable basis to believe that he might be engaged in criminal activity,

[656 F.3d 500]

such that he could be stopped for investigatory purposes under Terry and, furthermore, that the officers lacked any grounds to believe that he might be armed, such that he could be frisked for weapons as part of the investigatory stop. Based on the information provided by the 911 call, the district judge concluded that the officers had reasonable grounds on which to believe that Snow may have attempted to commit a burglary and thus to detain him under Terry. The court did not separately consider whether the officers had grounds on which to believe that Snow might be armed, such that a protective patdown was in order.

While reserving his right to appeal the denial of his motion to suppress, Snow pleaded guilty to the felon-in-possession charge. Snow's status as an armed career criminal, see 18 U.S.C. § 924(e), mandated a prison term of not less than fifteen years. The district court ordered him to serve that minimum term.

II.

Snow contends on appeal that the facts confronting the officers who stopped him did not support a reasonable suspicion that he might be armed, such that a protective patdown was authorized. This is a legal determination that we review de novo. United States v. Richmond, 641 F.3d 260, 262 (7th Cir.2011). We of course owe deference to any pertinent findings of historical fact made by the district court. E.g., United States v. Tyler, 512 F.3d 405, 409 (7th Cir.2008).

Terry authorizes a brief investigatory detention of an individual whom the police reasonably suspect, based on specific and articulable facts, of engaging in criminal activity. 392 U.S. at 21–22, 30, 88 S.Ct. at 1880, 1884. “Reasonable suspicion is more than a hunch but less than probable cause and ‘considerably less than preponderance of the evidence.’ ” Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675, 145 L.Ed.2d 570 (2000)). Whether it was reasonable for an officer to suspect that the defendant was engaged in wrongdoing calls for an objective inquiry into all of the circumstances known to the officer at the time he stopped the defendant, including information relayed to him by fellow officers and police dispatchers. E.g., United States v. Hicks, 531 F.3d 555, 558 (7th Cir.2008); United States v. Drake, 456 F.3d 771, 774–75 (7th Cir.2006). Snow no longer disputes that the facts known to Andrews and the other officers gave rise to a reasonable suspicion that he may have been involved in criminal activity, such that an investigative detention under Terry was warranted. However, he renews his contention that the facts did not support the decision to order him out of his truck and to place his hands on the vehicle for a protective...