||SEVENTH CIRCUIT UPHOLDS LIMITED SEARCH FOR WEAPON AT DOOR OF RESIDENCE

SEVENTH CIRCUIT UPHOLDS LIMITED SEARCH FOR WEAPON AT DOOR OF RESIDENCE

On May 13, 2019, the Seventh Circuit Court of Appeals decided the United States v. Richmond[i], in which the court discussed a Terry stop and limited search for weapons of an area between a screen door and exterior door to a duplex in which the suspect resided.  The relevant facts of Richmond, taken directly from the case, are as follows:

The night of October 11, 2016, Milwaukee Police Officers Chad Boyack and Anthony Milone were patrolling a residential neighborhood police refer to as the “Capitol Street Corridor.” This area in Milwaukee is known for drug trafficking, armed robberies, and gun violence. Shortly before midnight, as they drove their marked squad car through an intersection, both officers saw Richmond walking toward them on a sidewalk. Richmond strode with his left hand free at his side and his right hand in the “kangaroo” pocket on the front of his T-shirt. Officer Milone saw “a significant bulge” from this pocket, and Officer Boyack described the bulge as a “medium-sized to larger object” protruding through Richmond’s front pocket. In their experiences and training as police officers—almost 20 years for Boyack, and 6 years for Milone—front pocket bulges like this typically concealed a firearm. They suspected the same here.

Richmond made eye contact with Boyack as the squad car approached. After the officers passed Richmond, he changed direction, quickened his pace, crossed the front lawn of a residential duplex, and moved toward the stairs up to its front porch. Unknown to the officers, Richmond was walking across the yard to get to the front door of a duplex where he lived.1 Seeing the suspicious bulge in Richmond’s front pocket and his unusual change of course prompted the officers to make a sharp U-turn and park in front of the duplex to talk with Richmond.

As the officers exited their squad car, Richmond walked up the porch’s five stairs toward the front door. Boyack and Milone followed and, from about 20 to 25 feet away, they saw Richmond open the outer screen door with his left hand, bend down, and with his right hand place a dark, medium-sized object on the doorframe between the screen door and front door, which was closed. The front porch light illuminated Richmond’s action, but the officers could not make out what Richmond placed on the threshold. Nor could they observe the stashed object as they approached, as the bottom third of the screen door was opaque. They suspected Richmond hid a gun. Their suspicions were based on their experiences on patrol, including with persons licensed to carry concealed weapons. To them, hiding a gun on the floor behind an unlocked screen door in response to approaching police was not typical of a concealed-carry license holder.

After Richmond placed the object on the doorframe, he closed the screen door and turned around as the officers walked up to the porch. Boyack asked Richmond if he had heard shots, if he was carrying a weapon, and what he was doing at the duplex. Richmond answered no to the first two questions, and replied that the house was his girlfriend’s. While Boyack questioned Richmond, Milone walked up onto the porch toward the screen door, which put Richmond between the two officers.

While Boyack asked questions, Milone opened the screen door “as little as possible” and saw a black semi-automatic .40 caliber handgun resting where the officers observed Richmond place the dark, medium-sized object from his pocket. According to Milone, Richmond stood within the screen door’s swing radius because he could open it only partially without hitting Richmond’s back. After seeing the gun, Milone immediately used code to alert his partner of the presence of a firearm and possible arrest. Boyack then asked Richmond if he was a convicted felon. Richmond confirmed he was, so the officers arrested him. The entire encounter from when the officers first observed Richmond walking on the sidewalk to Milone seeing the gun and Richmond confirming he was a felon lasted no more than thirty seconds.[ii]

Richmond was subsequently charged with a federal weapons violation.  He filed a motion to suppress the evidence.  The district court denied the motion. Richmond appealed the denial of his motion to suppress to the Seventh Circuit Court of Appeals.

The first issue on appeal was whether the officers had sufficient reasonable suspicion that Richmond was involved in criminal activity such that his detention was reasonable under the Fourth Amendment.  The court discussed the legal principles relevant to this issue and stated

Reasonable suspicion exists when an officer can point to “‘specific and articulable facts which, taken together with rational inferences from those facts[,] reasonably warrant that intrusion.'” Baskin, 401 F.3d at 791 (quoting Terry, 392 U.S. at 21).

When making reasonable suspicion determinations, we “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted). Reasonable suspicion requires more than a hunch but less than probable cause and “considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000).[iii] [emphasis added]

The court then examined the facts upon which the officers articulated regarding why they thought that he was carrying a concealed firearm without a license.  The relevant facts were as follows:

(1) Richmond was walking down the street near midnight in a neighborhood plagued by drug trafficking and gun violence;

(2) There was a significant bulge in Richmond’s front T-shirt pocket as he walked down the street;

(3) In the officers’ over 25 combined years’ of police training and experiences, a protrusion like this was more often than not a gun; and

(4) After the officers passed Richmond in their marked squad car, Richmond quickened his pace, changed his direction, cut across a property, and hid what they suspected was a gun between the screen door and front door.[iv]

Richmond argued that none of the factors are criminal in nature or illegal.  However, the court stated that

[W]hen evaluating the reasonableness of a police intrusion, we look at the totality of circumstances and “must not be overly focused on any one factor.” United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000).[v] [emphasis added]

Richmond also argued that, even if the officers had a reasonable belief that he possessed a firearm, as far as the officers knew, he may have had a license to carry a concealed firearm.  It seems this argument is intended to extend to the supposition that, as such, the fact that he appeared to possess a firearm should not give rise to reasonable suspicion of criminal activity.  However, no one factor is determinative of reasonable suspicion; rather, it is the totality of the circumstances, viewed together, in light of the officer’s training and experience, as well as rational inferences from the facts, that provide reasonable suspicion that criminal activity is afoot.  Further, as the officers testified, and the court agreed, Richmond’s behavior of changing direction, going onto a porch, and hiding the firearm between a screen door and exterior door is completely inconsistent with how persons licensed to carry concealed firearms behave in similar situations.

Richmond also argued that it was unlawful to conduct a Terry stop within the curtilage of a home.  However, the court pointed to a Seventh Circuit case, the United States v. Pace[vi], in which the court approved a Terry stop of a suspected mob hit-man after he had taken evasive actions and entered what turned out to be the suspect’s own garage.

Based on the precedent discussed and the totality of the circumstance before the officers the Seventh Circuit then held the officers had reasonable suspicion to detain Richmond, therefore the stop did not violate the Fourth Amendment.

The court of appeals also examined whether it was reasonable under the Fourth Amendment for the officer to conduct the limited search for the gun by opening the screen door enough to check for a weapon.

The court first noted the legal principles relevant to this issue and stated

For protective searches for weapons, the Supreme Court has held that area searches are permissible in limited circumstances: “[O]fficers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry.” Long, 463 U.S. at 1050 n.14 (concluding officers did not act unreasonably in taking preventive measures to ensure there were no weapons within defendant’s immediate grasp before permitting him to reenter his automobile). Area searches are allowed “in the Terry context” because “the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity.” Id. All the same, the search remains a serious intrusion so it “must ‘be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.'” Jackson, 300 F.3d at 746 (quoting Terry, 392 U.S. at 29); see also Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (holding a Terry search “must be strictly limited to that which is necessary for the discovery of weapons”). “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence … .” Adams v. Williams, 407 U.S. 143, 146 (1972).[vii] [emphasis added]

In Richmond’s case, the search was very limited in nature, in that the officer looked only where he saw the suspect put the object.

The court also noted that, for the limited search for weapons to be reasonable, the officers must have a reasonable suspicion that the suspect “may be armed and presently dangerous.”[viii]  The court explained

In so determining, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27; Cady, 467 F.3d at 1061-62 (holding same).[ix] [emphasis added]

The court then observed that the same reasons that provided reasonable suspicion to detain Richmond also provided reasonable suspicion that he was armed (or within reach) of a weapon and presently dangerous.  The court also considered the fact that while there were two officers present, Richmond was larger and more muscular than the officers, which caused the concern by the officers that he could overpower them and reach the door area where he had concealed the weapon.

The Seventh Circuit then held

Given the totality of the circumstances, the officers’ suspicions were reasonable that Richmond was illegally carrying a gun. Because Richmond (or someone else) had ready access to the gun, Officer Milone acted reasonably to extinguish a patent safety threat when he performed a brief search limited exclusively to the area where both officers saw the object, later confirmed to be a gun, was placed.[x] [emphasis added]

Therefore, the court of appeals affirmed the denial of the motion to suppress.

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Citations

[i] No. 18-1559 (7th Cir. Decided May 13, 2019)

[ii] Id. at 2-4

[iii] Id. at 7

[iv] Id. at 7-8

[v] Id. at 8

[vi] 898 F.2d 1218 (7th Cir. 1990)

[vii] Richmond at 13

[viii] Id. at 17

[ix] Id.

[x] Id. at 23

By |2020-01-14T15:46:55+00:00January 14th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.