United States v. Patton, 11–2659.

• Decision Date: 29 January 2013
• Docket Number: No. 11–2659.,11–2659.
• Citation: 705 F.3d 734
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Raphael W. PATTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 734

UNITED STATES of America, Plaintiff–Appellee,

v.Raphael W. PATTON, Defendant–Appellant.

No. 11–2659.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 24, 2012.

Decided Jan. 29, 2013.

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

Robert A. Alvarado (argued), Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.^*

ROVNER, Circuit Judge.

After a Ruger nine-millimeter pistol was discovered in the waistband of his pants in the course of a stop and frisk, Robert W. Patton was charged with being a felon in possession of a firearm. See18 U.S.C. § 922(g)(1). Patton moved to suppress evidence relating to the gun, contending that the officer who frisked him lacked a reasonable suspicion that he might be armed. See Terry v. Ohio, 392 U.S. 1, 27, 30–31, 88 S.Ct. 1868, 1883, 1884–85, 20 L.Ed.2d 889 (1968). After the district court concluded otherwise, Patton pleaded guilty to the weapons charge while reserving the right to appeal the denial of his motion to suppress. We now affirm the district court's determination that the patdown was supported by a reasonable suspicion that Patton might be armed and therefore pose a danger to the officers who stopped him.

I.

At approximately 1:30 a.m. on August 11, 2010, Peoria police officer Ryan Winkle and his partner were dispatched to investigate a group of seven or eight men who reportedly were drinking beers on a public sidewalk, in violation of a city ordinance. Winkle and his partner were assigned to the police department's violent crime task force; the supervisor of that task force had been asked by a local detective to look into the matter.

The location to which the officers were dispatched was situated in a high-crime area of Peoria. Gangs were active in the area; there had been multiple, recent reports of shots-fired; and two nights earlier, two people had been the victims of a drive-by shooting one block away from the specific location to which the officers were dispatched.

At least six members of the task force in three squad cars arrived on the scene and converged on the men from different directions, effectively blocking any route of escape. The men were variously standing on the street, sidewalk, and adjacent lawn, and a number of them had open cans of beer in their hands. Most immediately threw their beers to the ground; one tried to hand his can to Winkle, who instructed him to drop it. Patton was among the group of men although, so far as Winkle knew, he was not one of those who had a drink in his hand.

The officers directed the men to step over to a Cadillac parked nearby on the street. Winkle would later testify that he and the other officers intended to issue citations to the men for violating Peoria's open-container ordinance, while being on the lookout for other more serious offenses. First, however, the officers were going to frisk the men for weapons. Winkle explained:

[B]ecause of the area, if we're going to stand and write out drinking tickets, I want to conduct a patdown for weapons, and the reason being is I don't want to have my back turned on anybody if I'm trying to write a ticket and have somebody possibly be armed. I feel very uncomfortable, feel vulnerable, the equivalent of getting into a car and start driving without putting on a seat belt is the best way I can describe the feeling. So, I wanted to conduct a patdown.

R. 29 at 21–22.

At this point, Winkle noticed Patton doing something that distinguished himself from the other members of the group. Instead of stepping over to the Cadillac as the officers had instructed, Patton was backing away from the other men, looking from side to side nervously, like a “deer in the headlights.” R. 29 at 23, 37, 40, 45. Patton took at least five steps away from the other men; by Winkle's estimate, he backed away between five and fifteen feet from the sidewalk where he had been standing and onto the lawn behind him. The district judge, after having Winkle re-enact Patton's actions in court, found that Patton stepped at least ten feet away from the other men. R. 29 at 54. Winkle perceived Patton's behavior as consistent with a “flight or fight” response to a police presence; and in his seven years' experience as a police officer, when an individual stopped for a relatively minor offense reacts in that manner, it usually means either that he has a weapon or is wanted on a high-bond arrest warrant. Winkle explained:

With a weapon or a high bond warrant, ... somebody knows they're going to be going to jail, and the chances of them getting out soon are not good. For like a small bag of cannabis or a traffic warrant or something similar to that, an outstanding case for a simple battery, I'm not usually going to get that type of reaction.

R. 29 at 15–16.

As he looked from side to side, Patton would have seen that officers were approaching him from multiple directions; and ultimately he changed course and began walking forward toward the car as the officers had instructed, his demeanor still nervous. In view of Patton's behavior, Winkle decided to pat down Patton first. Winkle advised Patton, who by this point had his arms partly raised, that he was about to be frisked for safety purposes. Winkle then patted the front of Patton's waistband and immediately felt what he recognized as the handle of a gun. Winkle immediately grabbed Patton's wrists and instructed another officer to handcuff Patton, and shortly thereafter that officer removed the nine-millimeter Ruger from Patton's pants.

After he was indicted for being a felon in possession of a weapon (Patton had two prior felony drug convictions), Patton moved to suppress evidence relating to discovery of the weapon. The district court convened an evidentiary hearing, at which Winkle was the sole witness. Winkle recounted events as we have described them.

At the conclusion of the hearing, the district court denied Patton's motion, concluding, based on the circumstances confronting Winkle, that he reasonably suspected Patton might be armed, such that a pat-down was permissible. The court found in the first instance that Winkle's testimony was credible, noting that Winkle was “refreshingly candid on virtually everything that he was asked.” R. 29 at 67. “[O]fficers can exaggerate what happened or fabricate,” the court added later. “I don't believe either one of those was involved here.” R. 29 at 70. With respect to the justification for the frisk, the court found it significant that the incident occurred at 1:30 a.m. and in an area where there was ongoing gang activity, recent reports of gunfire, and a drive-by shooting just two days earlier. R. 29 at 67–68. That backdrop, coupled with the report that as many as seven or eight adults were involved in the drinking incident, warranted the caution that was evident from the decision to dispatch at least three squad cars and six police officers to the scene. R. 29 at 68–69. The court also found it “very telling” that when the group of men was instructed to move over to the car, everyone but Patton complied; Patton took “considerably more than just a back-up step that a person might take,” and instead took “four or five or six steps” backward while looking from side to side nervously. R. 29 at 69. Once Patton did that, the court reasoned, it was reasonable for Winkle to suspect that Patton might be armed. “I think under all of those circumstances, it was not unreasonable for the officer to conduct a frisk because I think at that point, ... he had reason to believe that this guy could be carrying a gun. And I believe that the search—the frisk here was ... justified under Terry v. Ohio....” R. 29 at 70.

II.

The district court's determination that the protective patdown of Patton was supported by reasonable suspicion that he might be armed is a legal determination that we review de novo. E.g., United States v. Snow, 656 F.3d 498, 500 (7th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1910, 182 L.Ed.2d 778 (2012). Absent clear error, we of course defer to any findings of historical fact and credibility determinations that the district court made based on the testimony presented to it. Id. As the district court credited Winkle's testimony, we accept, as the district court did, his description of the events culminating in his pat-down of Patton.

We begin by noting that there is no dispute that the officers had sufficient cause to stop and detain the group of men for investigatory purposes. Terry authorizes such a stop when an officer has a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. 392 U.S. at 21–22, 30, 88 S.Ct. at 1880, 1884. In this case, the officers arrived on scene to observe a number of men on the public way with open cans of beer in their hands.¹ It was reasonable for the officers to surmise that the men were violating a local ordinance proscribing both the possession of open containers of alcoholic beverages and the consumption of alcohol on the public way. See Peoria Municipal Code § 20–99(a) (“No person shall transport, carry, possess or have upon any public place or public way in the city any alcoholic liquor on or about his person except in the original package and with the seal unbroken. No person shall consume any alcoholic liquor upon any public place or public way within the city, except on premises licensed for the retail sale of alcoholic liquors for consumption on the premises.”).

The disputed issue is whether Winkle was justified in conducting the pat-down which revealed the presence of the firearm on Patton's person. In addition to authorizing an investigatory stop when there is reason to believe a crime is being committed, Terry permits the officer conducting such a stop to conduct a limited search of the suspect to determine whether he is armed,...