USA v. Raphael W. Patton, No,. 11-2659.
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. See 18 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 (1968).
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. 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.”
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, 132 S. Ct. 1910 (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.
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, Terrypermits the officer conducting such a stop to conduct a limited search of the suspect to determine whether he is armed, when the circumstances give rise to a reasonable belief that the individual may have a weapon and thus pose a danger to the officer or others in the immediate vicinity. 392 U.S. at 27, 30-31, 88 S. Ct. at 1883, 1884-85.
Before we turn to those circumstances, it bears emphasis that the reasonable suspicion standard is an objective one. Terry, 392 U.S. at 27, 88 S. Ct. 1883; United States v. Barnett, 505 F.3d 637, 639-40 (7th Cir. 2007). Whether the ensuing frisk of Patton was justified under Terry does not turn on Winkle’s subjective intent and perception of the facts, however. SeeBarnett, 505 F.3d at 640. What matters is whether a reasonable police officer, faced with the circumstances confronting Winkle, would believe that Patton posed a danger to those in the immediate vicinity. Terry, 392 U.S. at 27, 88 S. Ct. at 1888.
We now turn to those circumstances, beginning with the general and moving toward the specific.
We note first, as the district court did, that the area in which the incident occurred gave police officers particular reason to be concerned about the possibility of gun-related violence. The incidence of crime in the area would not by itself legally justify a protective pat-down. Illinois v. Wardlow,528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) But it is one factor which, in conjunction with the other circumstances we discuss, contributed to a reasonable suspicion that Patton might be armed. See United States v. Oglesby, 597 F.3d 891, 894 (7th Cir. 2010).
Second, the investigatory stop occurred at 1:30 a.m., essentially the middle of the night. We have recognized that “[a] nighttime traffic stop, especially in an area where crime is not a stranger, is more fraught with potential danger to an officer than would be a stop during the light of day.” United States v. Brown, 273 F.3d 747, 748 (7th Cir. 2001)
Third, the men were consuming alcohol when the officers arrived. But given that a number of the men were drinking, Winkle and his colleagues had greater reason to be concerned that any one of the men might do something unpredictable, unwise, and dangerous. See, e.g., United States v. Knight,562 F.3d 1314, 1327 (11th Cir. 2009) (smell of marijuana and alcohol among factors that supported pat-down); United States v. Holmes, 385 F.3d 786, 789-90 (D.C. Cir. 2004) (Roberts, J.) (suspect’s admission that he was drinking cited as a factor supporting protective frisk).
Turning now to Patton’s behavior, two aspects of his conduct bear discussion. First, Patton set himself apart from the other men when, rather than complying with the officers’ instruction to step over to the car parked in the street, Patton took a number of steps backward, covering a distance of (by the district court’s estimation) ten feet. We agree with the district court that Patton’s movement was telling. The Supreme Court has recognized that an individual’s evasive behavior is a factor that contributes to a reasonable suspicion to the officers who confront him. Wardlow, 528 U.S. at 124, 120 S. Ct. at 676 (coll. cases).
At the same time, a suspect’s failure or refusal to comply with a police officer’s order is also a factor that contributes to a reasonable suspicion that he may be dangerous. See, e.g., United States v. Denney, 771 F.2d 318, 322 (7th Cir. 1985)(refusal to keep hands in sight and exit vehicle); United States v. Simmons, 560 F.3d 98, 108 (2d Cir. 2009) (refusal to remove hands from pocket); United States v. Stachowiak, 521 F.3d 852, 856-57 (8th Cir. 2008) (refusal to step out of car); United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (refusal to remain still and keep hands within officer’s view); United States v. Bell, 762 F.2d 495, 502 (6th Cir. 1985)(refusal to place hands on car dashboard, exit from car, and place hands on roof of car).
Second, as he backed away from the others, Patton exhibited a nervous demeanor, glancing from side to side. A display of nervousness is frequently recognized as a sign that a suspect has something to hide, including a weapon. See Oglesby, 597 F.3d at 894 (“The Supreme Court has recognized in numerous cases that nervous or evasive behavior `is a pertinent factor in determining reasonable suspicion.'”) (quoting Wardlow, 528 U.S. at 124, 120 S. Ct. at 676); Barnett, 505 F.3d at 640 (noting suspect’s “high degree of nervousness” as a reason that initial suspicion suspect might be armed did not dissipate during questioning, notwithstanding suspect’s cordiality and cooperation with officers); United States v. Brown, supra, 188 F.3d at 865 (citing nervousness and refusal to make eye contact as a factor relevant to reasonable suspicion).
We acknowledge that the possession of a gun was not the only possible explanation for Patton’s behavior. But the reasonable suspicion standard does not demand that the possession of a weapon be the sole or most likely explanation for a suspect’s behavior. Terry rejected the notion that an officer must be certain that an individual is armed. 392 U.S. at 27, 88 S. Ct. at 1883. Subsequent cases have emphasized that “[r]easonable suspicion is a less demanding standard than probable cause . . .,” Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990),which itself “requires only that a probability or substantial chance of criminal activity exists; it does not require the existence of criminal activity to be more likely true than not true,” Thayer v. Chiczewski, ___ F.3d ___, 2012 WL 6621169, at *6 (7th Cir. Nov. 27, 2012).
An “inchoate and unparticularized suspicion or `hunch'” will not do, United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883); but so long as the suspicion that an individual could be armed is supported by specific, identifiable facts, it is an objectively reasonable suspicion that satisfies Terry, e.g., United States v. Thomas, 512 F.3d 383, 388 (7th Cir. 2008).
For all of the reasons we have discussed, the time, place, and reason for the stop, coupled with Patton’s evasive behavior as the officers approached the group and the men were directed to step forward, supported a reasonable suspicion that he might be armed.
Contrary to Patton’s suggestion, that suspicion did not evaporate when, after taking several steps backward, he ultimately changed course and walked over to the car with the others of his own volition. We cannot know what went on inside of Patton’s head. His subsequent accession to the officers’ command to step over to the car did nothing to undermine that suspicion. See United States v. Snow, supra, 656 F.3d at 501, 503-04 (defendant’s cordial and cooperative interaction with officer during stop did not undermine reasonable suspicion, based on independent facts, that he might be armed).
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