On June 3, 2019, the Seventh Circuit Court of Appeals decided the United States v. Adair[i], in which the court examined whether an officer had reasonable suspicion to stop and frisk a male, despite a discrepancy in the suspect’s clothing description. The relevant facts of Adair, taken directly from the case, are as follows:
Officer Squires received the emergency notification just after 10:45 p.m. The additional details came in a message transmitted by the 911 operator to the computer in Officer Squires’s police car. According to the message, the 911 caller provided her first name and phone number and stated that she had just been outside and saw the group smoking, drinking, and engaged in “very suspicious activity.” The caller added that, while she did not recognize anyone as living in the Tracy Drive Apartments, she walked by a short black male with a hoodie and saw he had a black gun in his front pocket. While driving to the location, Officer Squires spoke to the 911 operator and confirmed this information.
Officer Squires knew the Tracy Drive Apartments well. A seven-year veteran of the Bloomington Police Department, he had responded to the area many times to address reports of theft, burglaries, fights, and shots fired. He also knew local gangs to have a presence at the apartment complex. At the suppression hearing, Officer Squires testified to being concerned that, upon arriving at the Tracy Drive Apartments, he would encounter someone who did not live at the complex but was nonetheless outside drinking and carrying a gun. The concern, he underscored, was the product of seeing many times over that alcohol and guns do not mix well.
It took Officer Squires no more than two minutes to drive to the apartment complex. Upon exiting his car, he saw about ten people standing outside, just as the 911 caller reported. As he approached the group his attention focused on Herman Adair because he was relatively short and the only person (on an unusually warm September night) wearing long sleeves. Everyone else was wearing t-shirts and tank tops. Officer Squires testified he had encountered Adair many times before that night and immediately recognized him as not only someone who did not live at the Tracy Drive Apartments, but also the only person wearing clothing resembling the 911 caller’s description. Officer Squires further testified that he knew Adair had a prior felony conviction. He added that each of his prior encounters with Adair had been respectful.
When Officer Squires first approached, Adair was standing near the middle of the larger group. As Officer Squires got closer, however, Adair began to move away, weaving through the group and putting other people in between himself and the officer. Officer Squires believed Adair was trying to evade and avoid him. He eventually got close enough to Adair to see a conspicuous, large bulge in the front pocket of his jeans. Seeing the bulge raised even more concern because, as Officer Squires testified, he recalled the 911 caller reported seeing a gun protruding from a man’s pocket.
Officer Squires reacted by asking Adair to step away from the group. He then asked for permission to search him. When Adair declined, Officer Squires told him that, due to the circumstances, he was going to pat him down for weapons. The ensuing frisk revealed a hard object that Officer Squires immediately recognized as a gun in Adair’s front pocket. The firearm was a black and loaded Sig Sauer P230 handgun. Officer Squires testified that he knew at the time of the stop and pat down that Adair’s prior felony conviction prevented him from possessing a firearm.[ii]
Adair was ultimately charged under federal law for being a convicted felon in possession of a firearm. He filed a motion to suppress and argued that the officer lacked reasonable suspicion to stop and frisk him. The district court denied the motion, and Adair pleaded guilty with the right to appeal the denial of the motion to suppress. He filed a timely appeal with the Seventh Circuit Court of Appeals.
There were two issues on appeal. The first issue was whether there was reasonable suspicion to justify the initial stop of Adair, such that it was reasonable under the Fourth Amendment. The second issue was whether the frisk of Adair was reasonable under the Fourth Amendment.
Issue One: Whether the officer had reasonable suspicion necessary to justify Adair’s stop?
The court of appeals first noted the legal principles related to this issue. The court stated
The Supreme Court’s decision in Terry v. Ohio teaches that the Fourth Amendment permits law enforcement to conduct a brief investigative stop when an officer reasonably suspects a person is engaged in criminal behavior. See 392 U.S. at 21-22; Navarette v. California, 572 U.S. 393, 396-97 (2014). While “inarticulate hunches” are not enough, Terry, 392 U.S. at 22, “‘reasonable suspicion is a lower threshold than probable cause’ and ‘considerably less than preponderance of the evidence,'” United States v. Ruiz, 785 F.3d 1134, 1141 (7th Cir. 2015) (quoting United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir. 2011)).
The controlling inquiry requires an objective examination of the “totality of the circumstances known to the officer at the time of the stop, including the experience of the officer and the behavior and characteristics of the suspect.” Ruiz, 785 F.3d at 1141 (quoting Bullock, 632 F.3d at 1012). Whether an officer had reasonable suspicion for an investigatory stop “is dependent upon both the content of the information possessed by police and its degree of reliability.” See Navarette, 572 U.S. at 397 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). Taking account of the “the whole picture” the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981).[iii]
The court then noted the relevant facts of the case regarding reasonable suspicion. The relevant facts were as follows: (1) the person that reported the man with the gun provided her first name and phone number; (2) the person that reported incident stated that she walked by the group of people and personally observed a gun in one male’s pocket; (3) the officer arrived within two minutes of receiving the dispatch of a crime in progress; (4) the officer observed Adair, shorter than the others (as described by the caller), and wearing long sleeves (but not a hoodie, as described by the caller); (5) the officer recognized Adair from prior contacts, as a convicted felon; and (6) the officer observed Adair trying to move through the group in order to avoid contact with the officer.
The court of appeals then stated that based upon the above facts, the officer had sufficient reasonable suspicion to justify the stop. The court explained its reasoning. First, the person providing a name and phone number increased the likelihood of reliability because they were not anonymous. Second, the caller provided their basis of knowledge, particularly that she walked past the group and saw the male described with a gun in his pocket. Third, the officer arrived within two minutes, which meant the information provided was fresh and increased the likelihood that the officer was encountering the group of people to which the caller referred. Fourth, Adair most closely matched the description of the man with the gun; even though he wasn’t wearing a hoodie, he was the only person in his group wearing long sleeves. Lastly, he attempted to evade the officer.
Adair argued that the fact that he was not wearing a hoodie, as described by the person that called the police, should render the stop unreasonable under the Fourth Amendment. However, the court noted that witnesses and police do not need to be perfect; rather, they need to be reasonable. In this case, Adair was the only person in his group wearing long sleeve; all others were in short sleeves or tank tops.
Therefore, based on the totality of the circumstances, the court held that the officer reasonably concluded that Adair matched the caller’s description of the suspect, and as such, the stop was supported by reasonable suspicion and did not violate the Fourth Amendment.
Issue Two: Whether the officer had a reasonable belief that Adair was armed and dangerous?
The court first examined the relevant legal principle and stated
In the course of an authorized investigatory stop, an officer may proceed to conduct a protective pat down when confronting facts and circumstances giving rise to a reasonable suspicion that the individual has a weapon and otherwise poses a danger. See Terry, 392 U.S. at 27.[iv]
The court also noted that “not every investigatory stop will automatically entitle” an officer to conduct a frisk. Again, there must be a reasonable belief that the person is armed and dangerous. With these principles in mind, regarding Adair’s case, the court of appeals examined the relevant facts and stated
Upon arriving at the Tracy Drive Apartments, Officer Squires reasonably concluded that Adair matched the 911 caller’s description of the armed man who was part of a group drinking and acting suspiciously outside the apartment complex. And this was especially so after Adair reacted to Officer Squires’s presence by seeking to evade and avoid all contact with him. Officer Squires then saw for himself the bulge in Adair’s front pocket, precisely as the 911 caller reported. At that point, no more was required to justify Officer Squires’s belief that Adair was armed and dangerous. The subsequent protective pat down did not violate Adair’s Fourth Amendment rights.[v]
Therefore, the court held the frisk was reasonable under the Fourth Amendment and affirmed the denial of the motion to suppress.
[i] No. 18-2796 (7th Cir. Decided June 3, 2019)
[ii] Id. at 2-4
[iii] Id. at 5-6 (emphasis added)
[iv] Id. at 9-10 (emphasis added)
[v] Id. at 10