United States v. Andre Williams,   No. 12-3864.  

On the night of March 21, 2012, City of Fitchburg police officers responded to an anonymous 911 call reporting a group of twenty-five individuals acting loudly and displaying hand guns in a parking lot. Upon arriving at the scene, the officers observed something different: a smaller group of individuals, none of whom appeared to be acting inappropriately. The officers approached this group, which had begun to disperse slowly.

For no apparent reason, one of the officers singled out the appellant, Andre Williams, and performed a frisk. Mr. Williams began to resist the frisk and tried to escape, but was ultimately restrained. Thereafter, the officers searched his body and found both a handgun and several `ecstasy' pills. Mr. Williams was arrested and charged with being a felon in possession of a firearm. He moved to suppress the evidence seized from him, but the district judge ultimately denied his motion. 

We review the district judge's denial of Mr. Williams' suppression motion, reviewing factual findings for clear error and both legal conclusions and mixed questions of law and fact de novo. United States v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012).   

As we have already mentioned, there are two junctures at which we could find the search leading to the recovery of the firearm to be unconstitutional: at the moment that Mr. Williams was singled out and stopped, or at the moment that Mr. Williams was frisked. Slightly different legal standards apply to each of those situations, so we address them separately.

1. Initial Stop   Police officers may detain a suspect for a brief investigatory stop if they have a "reasonable suspicion based on articulable facts that a crime is about to be or has been committed."  This requires "more than a hunch but less than probable cause."  To find that reasonable suspicion existed to justify as stop, the Court must examine the totality of the circumstances in the situation at hand, in light of the individual officers' own training and experience, and should uphold the stop if it finds that "the detaining officer ha[d] a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002)

The 911 call, in and of itself (and despite being anonymous), provided Officer Jesberger with a reasonable suspicion to stop Mr. Williams. When responding to an emergency report, officers may use the report, itself, to justify a Terry stop, provided that the report describes an ongoing emergency, as opposed to general criminality. 

Moreover, that conclusion is not changed by the fact that the 911 call was made anonymously.  The mere fact that the caller was anonymous is not enough, under J.L. to make the 911 call per se unreliable.  Florida v. J.L., 529 U.S. 266 (2000).  So long as the call reported an ongoing emergency, J.L. may be distinguished.  United States v. Hicks, 531 F.3d 555 (7th Cir. 2008) ("Every circuit to consider the question has distinguished J.L. when the tip is not one of general criminality, but of an ongoing emergency… or very recent criminal activity.") 

For these reasons I find that Officer Jesberger's stop of Mr. Williams was supported by a reasonable suspicion. Accordingly, the district court properly found that the stop was permissible.  

2.  Subsequent Frisk 

Both Judge Hamilton and I agree, on the other hand, that the district court's decision on the frisk issue was in error.  A reviewing court must analyze a frisk separately from an initial stop, applying a slightly different standard to determine whether the frisk was lawful.  This separate standard is necessary to protect the public from frisks, which are "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment."   

An officer performing a Terry stop may not automatically frisk the individual subject to the stop; rather, to do so, the officer must have some articulable suspicion that the subject is "armed and dangerous." Arizona v. Johnson, 555 U.S. 323, 323 (2009).  This more specific analysis, requiring the officer to hold a reasonable suspicion that the subject is "armed and dangerous" as opposed to being generally suspicious, allows courts to distinguish between legitimate and illegitimate frisks, the latter of which constitute severe intrusions upon individual liberty.  Terry v. Ohio, 392 U.S. 1, 27 (1968).

Again, we begin our analysis by examining the circumstances that Officer Jesberger may have relied upon in deciding to frisk Mr. Williams. 

The government asserts that the following facts supported Officer Jesberger's decision to frisk Mr. Williams: the fact that the group, in general, avoided eye contact with the officers and started to move away from the area upon the officers' arrival; the fact that Mr. Williams, in particular, had his hands in his pocket or near his waistband, avoided eye contact, and began to move away from the area; the fact that this all occurred in a high crime area; and the fact that the police were responding to a 911 call reporting weapons. 

None of those facts, alone or together, could have supported a reasonable suspicion that Mr. Williams was armed and dangerous. 

In sum, the 911 call was vague, circumstances had changed, and therefore we cannot envision that the call support a reasonable belief Mr. Williams was armed and dangerous. 

Indeed, similar facts could support a search of practically anyone who happens to be near a high-crime area at night when police are called. That is the very evil that the Terry court was concerned with unleashing, and the reason that the Terry court restrained the ability to frisk. 

For all of these reasons, we hold that Officer Jesberger lacked a reasonable suspicion to conduct a frisk of Mr. Williams at the time the frisk began, in violation of Mr. Williams' Fourth Amendment rights. Accordingly, we must REVERSE the denial of Mr. Williams' motion to suppress, VACATE his judgment of conviction, and REMAND this matter with instructions to the district judge to grant his suppression motion and for additional proceedings consistent with this decision. 

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com  or call 312-913-1111

 

 

         

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