On February 18, 2021, the Seventh Circuit Court of Appeals decided the United States v. Reedy[i], which serves as an excellent review regarding reasonable suspicion and prolonged Terry stops. The facts of Reedy are as follows:
Everything began with the Eau Claire police responding on a Friday morning to a call from a Goodwill employee reporting that a homeless person appeared to be living in a white SUV parked behind the store. Officer Todd Johnson arrived first around 8:30 a.m. and saw a beat-up, white Kia SUV matching the caller’s description.
Upon approaching the car, Officer Johnson saw Joshua Reedy in the front passenger seat. He recognized Reedy from previous encounters. Indeed, Reedy was a known felon with approximately 27 prior arrests. Officer Johnson observed Reedy wearing a bulletproof vest and noticed a walkie-talkie near Reedy’s feet. The walkie-talkie was on and tuned to channel 13.
Within minutes, a second officer arrived. Reedy told the police that he had driven to the Goodwill parking lot with his friend Jason, and that Jason had walked off to visit a friend living in a nearby residential area. The second officer, Officer Farley, left to go look for Jason.
At 8:33 a.m., Sergeant Brandon Dohms arrived at the Goodwill, where he briefly joined Officer Farley in the search for Jason before returning to the parking lot. As Sergeant Dohms approached the Kia, he too saw the walkie-talkie on the floorboard along with a crowbar and an open hunting-style knife. Sergeant Dohms ordered Reedy out of the car and patted him down, finding no weapons.
Sergeant Dohms suspected that Reedy was engaged in criminal activity. Before leaving the parking area to look again for Jason, Sergeant Dohms told Officer Farley that Reedy was not free to go anywhere. Officer Farley and other officers soon determined that the Kia would have to be towed because it was not registered, had invalid plates, and was leaking gas.
Meanwhile, within approximately 20 to 40 minutes of looking for Reedy’s friend, Sergeant Dohms spotted a man in a nearby residential backyard who identified himself as Jason Harding. The backyard was less than a block from the Goodwill and separated by a hill and fence. When asked what he was doing, Harding claimed to be completing landscaping work. That explanation made little sense to Sergeant Dohms and Officer Johnson, however, as Harding was wearing dress pants and dress shoes.
Sergeant Dohms told Harding that the police were investigating Reedy, who was parked behind the nearby Goodwill. Although denying that he knew Reedy, Harding consented to a pat down, which resulted in the police finding a walkie-talkie—also tuned to channel 13.
Sergeant Dohms then spoke to the homeowner, who stated that he knew Harding and Reedy though had not hired Harding to do any yard work. The homeowner also confirmed being with Harding and Reedy the night before, but said that the two were gone when he woke up that morning.
Sergeant Dohms then found a backpack laying in the yard, which the homeowner said belonged to Harding. Harding agreed and allowed Sergeant Dohms to search it, leading to the discovery of several credit cards in other people’s names, shotgun shells, knives, rocks, latex gloves, and bolt cutters. Sergeant Dohms also found an eyeglass case containing a syringe with a white, opaque liquid that looked like metham-phetamine. Sergeant Dohms arrested Harding for drug possession and walked him back to the Goodwill. A field test confirmed that the substance contained methamphetamine.
Back in the parking lot, Sergeant Dohms searched the Kia and found a shotgun. Because Sergeant Dohms already knew that Reedy was a convicted felon, he arrested Reedy for unlawful gun possession. The arrest occurred at 10:08 a.m., just over 90 minutes after the police first responded to the Goodwill. Reedy confessed in a post-arrest statement that the shotgun was his.[ii]
Reedy was indicted by a federal grand jury for possession of a firearm by a convicted felon. He filed a motion to suppress and argued that the police detained him longer than permissible under the Fourth Amendment and, as such, all evidence, such as the gun and the confession, must be suppressed. The district court denied his motion, and he entered a conditional guilty plea with the right to appeal the denial of the motion to suppress. He then filed a timely appeal with the Seventh Circuit Court of Appeals.
On appeal, Reedy argued that the moment the police told him he was not free to leave as they looked for his companion, he was under arrest. He argued there was no probable cause to arrest him at that time, thus the gun and his admission that the gun was his, were products of the unlawful arrest that should be suppressed. The Seventh Circuit examined (1) whether there was initially reasonable suspicion to detain Reedy, (2) whether the length of the detention was impermissibly prolonged, (3) whether there was probable cause to arrest Reedy, and (4) whether the warrantless search of Reedy’s vehicle was reasonable under the Fourth Amendment.
Issue One: Was there reasonable suspicion to detain Reedy?
The court of appeals first discussed the law related to seizures of persons and Terry stops. The court stated
The Fourth Amendment protects people from unreasonable searches and seizures. Stopping someone is generally considered a seizure and ordinarily requires probable cause to be reasonable. See Dunaway v. New York, 442 U.S. 200, 213 (1979). In Terry v. Ohio, the Supreme Court recognized an exception to the probable-cause requirement. 392 U.S. 1 (1968). “Under Terry, police officers may briefly detain a person for investigatory purposes based on the less exacting standard of reasonable suspicion that criminal activity is afoot.” United States v. Eymann, 962 F.3d 273, 282 (7th Cir. 2020) (citing Terry, 392 U.S. at 21-22). Reasonable suspicion must account for the totality of the circumstances and “requires ‘more than a hunch but less than probable cause and considerably less than preponderance of the evidence.'” Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir. 2010) (quoting Jewett v. Anders, 521 F.3d 818, 823-25 (7th Cir. 2008)).[iii]
The court of appeals then examined the facts of Reedy’s case in light of the above legal principles. The court noted that when the officers responded to the dispatch, they located Reedy, a person who they knew had a long criminal history (including felony convictions), wearing body armor, sitting in a car, with a two-way walkie-talkie, crowbar, and an open knife within arms reach on the floorboard. Additionally, Reedy told the officers that he was waiting on a friend named Jason who had walked into a nearby subdivision to visit a friend. Sergeant Dohms testified that these facts made him suspicious that criminal activity was in progress.
The court of appeals then held that the “police had ample authority” detain Reedy for “questioning and investigation consistent with Terry.”[iv]
Issue Two: Whether the length of the detention was impermissibly prolonged such that it amounted to a “de facto arrest”?
The court of appeals examined the legal principles relevant to this issue and stated
A Terry stop comes with limits. For a stop to “pass constitutional muster, the investigation following it must be reasonably related in scope and duration to the circumstances that justified the stop in the first instance so that it is a minimal intrusion on the individual’s Fourth Amendment interests.” United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994). This means a Terry stop cannot continue indefinitely. See United States v. Sharpe, 470 U.S. 675, 685 (1985). A stop lasting too long becomes “a de facto arrest that must be based on probable cause.” United States v. Bullock, 632 F.3d 1004, 1015 (7th Cir. 2011).
[O]ne of three things must happen during a Terry stop: “(1) the police gather enough information to develop probable cause and allow for continued detention; (2) the suspicions of the police are dispelled and they release the suspect; or (3) the suspicions of the police are not dispelled, yet the officers have not developed probable cause but must release the suspect because the length of the stop is about to become unreasonable.” United States v. Leo, 792 F.3d 742, 751 (7th Cir. 2015) (citations omitted).[v]
The court of appeals also looked to two Supreme Court cases that speak to this issue. First, in the United States v. Place[vi], the Supreme Court declined to adopt a specific, bright-line time limit, but rather allowed authorities to tailor their response to the needs of a specific situation. Second, in the United States v. Sharpe[vii], the Supreme Court held that the courts should
[E]xamine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”[viii]
The court also cited several Seventh Circuit cases where they upheld the reasonableness of Terry stops that ranged in time from twenty-five (25) to ninety (90) minutes.[ix] The court also noted a Seventh Circuit case that held that a three-hour Terry stop that involved the detention of luggage was not reasonable under the Fourth Amendment.[x]
The court then noted the facts of Reedy’s case that are relevant to the issue at hand. Officers arrived at the dispatch between 8:30 a.m. and 8:33 a.m. A quick search was conducted for Jason, to no avail. Within 10-15 minutes, Sergeant Dohms re-initiated the search. Jason was located 20-40 minutes later. Jason was arrested between 9:05 a.m. and 9:25 a.m. By 10:08 a.m., Reedy was formally placed under arrest. This was approximately ninety (90) minutes after the stop was initiated.
After the examination of the facts above, the court determined that “the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly that a burglary may be underway.”[xi] There was no evidence to suggest that the police unreasonably delayed the investigation in any manner.
Issue Three: Whether, at the time of the arrest, there was probable cause to arrest Reedy?
Regarding the legal principles related to probable cause, the court of appeals stated
Whether probable cause exists depends upon the reasonable conclusions drawn from the facts known to the arresting officer at the time of the arrest. See Maryland v. Pringle, 540 U.S. 366, 371 (2003). And an “arrest may be supported by probable cause that the arrestee committed any offense, regardless of the crime charged or the crime the officer thought had been committed.” United States v. Shields, 789 F.3d 733, 745 (7th Cir. 2015); see Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“An arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”).[xii]
The court of appeals noted that, when the police located Jason Harding in the backyard of a residence with a walkie-talkie tuned to the same channel as Reedy and a backpack with bolt cutters, gloves, shotgun shells, knives, rocks, and methamphetamine, as well as an implausible story of doing yard work, this provided the police with probable cause to believe that Reedy was also in possession of burglary tools in violation of Wisconsin law. While Reedy argued that he was “under arrest” the moment the police told him he was not free to leave, the court noted that Reedy’s argument contradicts the legal principles from Terry that allow stops based on reasonable suspicion. As such, his de facto arrest argument failed.
Further, Reedy argued that the officers lacked probable cause to arrest him for burglary tools because that charge requires a showing of “burglarious intent.” He argued that intent was lacking. However, the court of appeals disagreed and stated
The law requires only reasonable suspicion of criminal activity, not probable cause, to initiate the Terry stop. And as the encounter and investigation continued, the facts and circumstances allowed the police to reasonably infer Reedy’s intent. See Dollard v. Whisenand, 946 F.3d 342, 355 (7th Cir. 2019) (“[A]lthough a police officer must have ‘some evidence’ on an intent element to demonstrate probable cause, an officer need not have the ‘same type of specific evidence of each element of the offense as would be needed to support a conviction.’” (citations omitted)). The police had more than enough to arrest Reedy, at minimum, for possessing burglarious tools.[xiii]
Therefore, the court held that the officers had probable cause to arrest Reedy for possession of burglary tools.
Issue Four: Whether the warrantless search of Reedy’s vehicle was reasonable under the Fourth Amendment?
The court first began by discussing legal principles relevant to this issue. They noted that when the officers developed probable cause to arrest Reedy, this provided the officers with the ability to search the vehicle incident to arrest. The court stated
Although warrantless searches are generally per se unreasonable, they are subject to “a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception authorizes a warrantless search of a vehicle “incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 351.[xiv]
Here, the court noted that after the arrests of Harding and Reedy, the police “had every reason to believe” that Reedy’s vehicle “contained further evidence of burglary-related offenses.”[xv] Thus, under the second part of Gant, particularly the reasoning that the police have a “reasonable belief the vehicle contains evidence of the offense of arrest,” the search was lawful.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 20-2444 (7th Cir. Decided February 18, 2021)
[ii] Id. at 2-5
[iii] Id. at 7 (emphasis added)
[iv] Id. at 11
[v] Id. at 7-8 (emphasis added)
[vi] 462 U.S. 696 (1983)
[vii] 470 U.S. 675 (1985)
[viii] Reedy at 8-9 (quoting Sharpe, 470 U.S. at 685 (emphasis added)
[ix] Id. at 9 (citing Rabin v. Flynn, 725 F.3d 628, 633-35 (7th Cir. 2013) (concluding that a 90-minute Terry stop did not exceed scope or durational limits where officers were verifying the legitimacy of an individual’s firearm license and the delay occurred for reasons outside of the officers’ control); Bullock, 632 F.3d at 1015 (determining that a 30-to 40-minute detention while police executed a search warrant was reasonable when there was no indication that the officers unnecessarily prolonged the search); United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006) (concluding that a 25-minute delay was reasonable to investigate whether an individual was taking part in drug activity in a motel room given the number of subjects and their reluctance to tell officers their names or why they were at the motel), and United States v. Vega, 72 F.3d 507, 515-16 (7th Cir. 1995) (determining that a 62-minute delay was reasonable given the defendant initially consented to a search [*10] of a garage but then changed his mind and a drug-sniffing dog was called to examine the defendant’s car.)
[x] Id. at 10 (citing with Moya v. United States, 761 F.2d 322, 326-27 (7th Cir. 1984) (applying Place and concluding that a three-hour detention of luggage was unreasonable where there was no explanation for why it took that long to transport the luggage from one terminal to another for drug testing).
[xi] Id. at 12
[xii] Id. at 12-13 (emphasis added)
[xiii] Id. at 14-15 (emphasis added)
[xiv] Id. at 15 (emphasis added)
[xv] Id. at 16