United States v. Robert Leo, Jr.
792 F.3d 742
7th Cir.2015Background
- Police responded to a 911 call reporting two Hispanic men in black hoodies attempting a burglary; one was reported to have a gun and later possibly changed into a red jacket and carried the gun in a backpack.
- Officer Ortiz saw Robert Leo (in a red jacket with a backpack) and Enrique Aranda (in a black hoodie) near a duplex and then walking toward a Head Start preschool; officers ordered them to stop and handcuffed both.
- Officer Seeger patted down Leo (found nothing), then immediately opened and emptied Leo’s backpack without a warrant or further questioning, uncovering a loaded revolver and other items.
- After the search, officers learned the 911 caller had been mistaken about a burglary; they then arrested Leo and charged him under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm).
- Leo moved to suppress the gun; magistrate and district courts denied suppression, concluding the search was justified as a protective search during a Terry stop; Leo pleaded guilty but reserved the suppression appeal.
- On appeal, the Seventh Circuit held the warrantless search exceeded Terry’s limits, vacated the conviction, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of warrantless search of backpack during Terry stop | Leo: search exceeded Terry; he was handcuffed, backpack out of reach, no exigency or probable cause, no consent | Gov’t: officers reasonably suspected Leo was armed and dangerous (911 report + proximity to preschool); search necessary to protect officers/public; alternatively consent or inevitable discovery | Court: Search unauthorized under Terry; handcuffs and officer control of backpack eliminated immediate risk; no probable cause or proper reliance on other exceptions; evidence suppressed |
| Applicability of Michigan v. Long and similar rulings | Leo: Long inapplicable—roadside car context and immediate access to weapons differ from handcuffed pedestrian with bag in officer control | Gov’t: Long/Cady permit going beyond pat-down when safety risks justify searching effects | Court: Distinguished Long (vehicle context, diminished privacy, immediate control risk) and limited Cady to its facts; neither justified full rummage here |
| Consent or inevitable discovery | Leo: he did not consent; officers did not develop probable cause before search | Gov’t: claimed consent and raised inevitable-discovery/probable-cause arguments belatedly | Court: District found no consent; government forfeited/failed to develop probable-cause or inevitable-discovery arguments; cannot rely on them on appeal |
| Relevance of preschool location / school-zone statutes | Leo: Head Start not a "school" under state/federal definitions; officers did not know his age or felony status; no evidence they believed a school-zone offense had occurred | Gov’t: preschool placement increased safety concerns and potential school-zone offense | Court: Government never charged school-zone offense or showed officers knew facts making such an offense plausible; Second Amendment and state law undermined argument that mere presence of a gun justified full search |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (protective frisk limited to outer clothing and weapons during investigatory stops)
- Michigan v. Long, 463 U.S. 1032 (permitting protective search of vehicle compartments during Terry stops; vehicle-context limits)
- Riley v. California, 134 S. Ct. 2473 (warrantless searches of containers incident to arrest constrained; general rule against warrantless searches)
- Arizona v. Gant, 556 U.S. 332 (search incident to arrest limited when arrestee cannot access vehicle compartment)
- Cady v. Sheahan, 467 F.3d 1057 (7th Cir.) (permitting search of briefcase in specific facts where suspect was reaching into it; factual limits on extending pat-down)
- Maryland v. Buie, 494 U.S. 325 (protective sweeps scope limited to safety concerns)
- District of Columbia v. Heller, 554 U.S. 570 (Second Amendment protects individual right to possess firearms)
- McDonald v. City of Chicago, 561 U.S. 742 (Second Amendment applies to states via Fourteenth Amendment)