United States v. Anthony Howell
958 F.3d 589
| 7th Cir. | 2020Background
- Dec. 2012: anonymous 911 caller reported a Hispanic male in black sweater/hat carrying a bag climbing under a warehouse fence; CPD responded.
- Officers stopped Eric Escobar (matched caller) and, after pat-down and manager confirmation, concluded he was lawful on scene.
- Escobar pointed to Anthony Howell (white, black jacket, dark hat) walking toward police; Officer Kelly asked “What’s going on?” Howell looked panicked, did a double-take, and put his hands in his pockets.
- Kelly immediately frisked Howell (based on pretrial reports describing hands-in-pockets and nervousness) and recovered a .38 revolver; Howell was charged under 18 U.S.C. § 922(g)(1).
- District court denied Howell’s pretrial suppression motion based on police/FBI reports (no mention there of an order to remove hands). At trial Kelly testified that he had ordered Howell to remove his hands and Howell ignored the command; the district court never considered that trial testimony when re-asserting its suppression ruling.
- On appeal the Seventh Circuit held it would consider only the pretrial record (concluding inclusion of the trial testimony would unfairly prejudice Howell), ruled the frisk unconstitutional for lack of reasonable suspicion, reversed/vacated conviction for the gun found on Howell (Count One), but affirmed the separate conviction for guns seized in a March 2013 apartment search (Count Two) as supported by independent evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of appellate record: May appellate court consider trial testimony when reviewing denial of a pretrial suppression motion? | Howell: appeal should be limited to the pretrial record the district court actually relied on. | Gov’t: appellate review may include trial evidence that explains or supports the pretrial ruling. | Court: exercise discretion to limit review to the pretrial record here because district court relied solely on that record and incorporating trial testimony would unfairly prejudice Howell. |
| Legality of the stop (seizure) | Howell: stop was unlawful. | Gov’t: 911 tip + Howell’s nervousness and silence gave reasonable suspicion to stop. | Court: stop (approach and question) was reasonable under Terry; police had basis to approach. |
| Legality of the frisk (pat-down) | Howell: frisk lacked reasonable suspicion that he was armed and dangerous; anonymous tip and his nervousness were insufficient. | Gov’t: anonymous tip and Howell’s panicked reaction (and, per trial testimony, failing to remove hands after an order) justified frisk. | Court: frisk was unconstitutional—pretrial record lacked the additional facts (e.g., disobeying an order) needed to support a weapons frisk. Suppression denial reversed as to the December gun. |
| Prejudice from admission of suppressed gun as to Count Two (apartment guns) | Howell: admission of the December gun prejudiced jury’s assessment of his credibility and constructively possessing apartment guns. | Gov’t: evidence for Count Two (guns, ammunition, safe, ammo in sock, links to Howell’s window/room) was strong and independent; any error was harmless. | Court: admission of the December gun was harmless beyond a reasonable doubt as to Count Two; conviction for Count Two affirmed. |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (establishes stop-and-frisk reasonable-suspicion standard)
- Florida v. J.L., 529 U.S. 266 (anonymous tip reporting only observable traits cannot alone justify frisk)
- Alabama v. White, 496 U.S. 325 (reliability of anonymous tips depends on indicia of veracity or corroboration)
- Illinois v. Wardlow, 528 U.S. 119 (flight and contextual factors can supply reasonable suspicion)
- United States v. Longmire, 761 F.2d 411 (appellate court may consider trial testimony to sustain denial of suppression but must avoid unfair prejudice; discretionary)
- United States v. Parra, 402 F.3d 752 (noting appellate review may consider evidence from suppression hearing and trial)