United States v. Tinnie

to be addressed. remains One issue special had directed court

The district fee awards only to recommend

master complaints that investigate also in unethical be engaged

Wheelahan special mas litigation. in the

havior although Wheelahan concluded

ter unprofessionally various

had behaved unethically, had not behaved

respects, she impo against

and so he recommended district and the

sition of sanction Nev the recommendation.

judge accepted challenges judg appeal

ertheless her ground spe that the the further

ment on have judge the district

cial master and of her. criticisms

made unwarranted not, it is not a basis this is true or

Whether ap is not an A criticism appeal. order.

pealable and Remanded.

Modified America, STATES of

UNITED

Plaintiff-Appellee, TINNIE,

Christopher Defendant- J.

Appellant.

No. 09-4082. Appeals, States Court of

Seventh Circuit.

Argued Sept. 2010.

Decided Jan. higher

which focused on areas with crime evening, At around 11:30 that tendencies. Hyundai the officers observed black So- hanging nata with a mass of air fresheners normally rearview mirror. That from its law might attract enforcement’s atten- tion, strategy but the a “weed and seed proactive policing through area” is in- enforcement, hang- creased and the ing air fresheners constituted an “obstruc- justifying tive view” Before the Maher, A. Office of the United Brendan stopped though, officers the driver Rockford, IL, D. Attorney, Stuart States abruptly left turned and then into a drive- of the United (argued), Fullerton Office way. they The officers testified IL, Plaintiff- Attorney, Chicago, attempting lieved the driver was to avoid Appellee. being stopped. Brook, of the Federal Carol A. Office IL, vehicle, stopping Paul E. After Program, Chicago, Defender officers (argued), Federal Defender Pro- approached up Gaziano the car. As he walked to Rockford, IL, gram, Defendant-Appel- side, the passenger Kaiser noticed Tinnie lant. fidgeting right left to and back and forth in Hill passenger’s seat. spoke While MANION, POSNER, Before driver, with the Kaiser asked Tinnie for HAMILTON, Judges. Circuit responded his identification. Tinnie he didn’t have a license but did have an MANION, Judge. Circuit identification But card. then when Kaiser During stop, deputy sheriff that, merely asked for Tinnie moved his Christopher passenger, frisked the car’s hands down the front of his coat and Tinnie, and discovered a and ammuni- (he jeans pinched actually did not put grand jury tion. A Tinnie for indicted pants pockets his hands inside his coat or possession of a firearm a felon. Tinnie check) saying he did not an have ammunition, sought suppress gun, identification card. Kaiser commented and statements he made his ar- following actually Tinnie had never checked his rest. The district court denied his motion card, pockets for his identification Tin- suppress and Tinnie then entered a merely responded nie that “he didn’t have plea guilty. conditional ap- now his ID on him.” The officer then asked peals from the district court’s denial of his name, passenger date, for his birth suppress. motion to affirm. We age. Tinnie identified himself as Christo- I. pher gave a birth date of June 1981, and told the officer that he was 28. Friday, January On Winnebago realized, immediately But as Kaiser “with County Deputies Sheriff Dennis Hill and me, given the date of birth that he had working p.m.-4:00 Brad Kaiser were a 4:00 could have been at the time.” And shift, patrolling a.m. in a “weed and seed suppression hearing, Kaiser ex- Rockford, area” of A Illinois. “weed and that, plained experience, individuals designated by seed area” is area state are provide who unable to the correct and local high officials based on a crime to match their gang, drug, gun activity. lying rate and birth date are either part Special Kaiser was of a Focus Unit about their name or their date of birth. warning. Tinnie then entered a condition- Tinnie to exit point, Kaiser told At reserving right testified that at the plea guilty, Kaiser later al the car. car get Tinnie to he asked motion appeal suppress time the denial of his him and in already decided to frisk he had imposed. and the sentence The district to exit a anyone frisks he asks fact that he court then sentenced Tinnie to 84 months Tinnie After vehicle prison. appeals. informed Tinnie he the Kaiser

exited II. him down for officer going pat to “was anything safety” and “him he had asked appeal, On Tinnie claims that the have as far as on him that shouldn’t denying court erred in his motion district respond. Tinnie didn’t drugs.” or weapons suppress suspicion because reasonable question, the slightly rephrased Kaiser did not the frisk and therefore the any weapons, guns, Tinnie if he had asking (i.e., illegal gun, fruit of the search Kaiser’s hand. anything poke that would ammunition, inculpatory and later Tinnie did not answer. But when Again, statement) was inadmissible.1 We review time, Tinnie a third ask- questioned legal de novo the district court’s determi “Tin- any drugs, he had ing solely whether constitutionality nation of the of a frisk ” immediately point, ‘no.’ At this nie said findings its of fact for clear error. Tinnie and dis- proceeded to frisk 891, v. 597 Oglesby, United States F.3d with three magazine a and a covered (7th Cir.2010). ammunition. The officers ar- rounds of During a stop, valid a search of the car rested and after may passen order the driver and weapons drugs, they no other revealed gers violating out of the vehicle without warning a about the ob- the driver gave Pennsylvania the Fourth Amendment. v. view and allowed her to leave. structed Mimms, 6, 106, 112 n. 434 U.S. 98 S.Ct. Tinnie to the transported The officers 330, (1977); Maryland 54 L.Ed.2d 331 v. Winnebago County Criminal Justice Cen- Wilson, 882, 519 U.S. where, Hill, according to he Mirandized ter (1997). 137 L.Ed.2d officers voluntarily provided Tinnie then a Tinnie. any passengers also frisk driver initialed statement ac- handwritten and they may upon suspicion reasonable of the firearm. knowledging possession v. be armed and Arizona pos- Tinnie for grand jury A later indicted Johnson, 781, 787, a a felon in violation session of firearm offi Whether an § Tinnie moved to 922(g)(1). of 18 U.S.C. suspicion a reasonable cer has ammunition, gun, and his suppress fact-specific inquiry a such frisk “is argued He the frisk written statement. ‘totality at the of the circumstances’ looks and the written state- was unconstitutional light practicality.” of common sense and illegal fruit search and ment was the Robinson, F.3d the benefit of Mi- also obtained without Cir.2010). (7th In determining 807-08 court denied warning. The district randa suspi an officer had reasonable whether concluding suppress, reason- the motion cion, consider “the circumstances courts suspicion justified frisking Tinnie and able known to the officer at the time of that Tinnie had in fact received Miranda challenge challenge nie also does not his sentence on does not the district court's 1. Tinnie his Miranda right conclusion that he received appeal, although he had reserved warnings prior providing his written state- plea. do so in his conditional appeal. thus not on Tin- ment. This issue is (7th Marrocco, of the officer 633-34 Cir. including experience stop, 2009) (concluding that inconsistent an characteristics of the and the behavior Lawshea, questions officer’s was a fac 461 swers to the suspect.” United (7th Cir.2006). reasonable that a supporting The time tor F.3d drugs); stop are also rele- suitcase contained United States and the location (7th Cir.1996) Thomas, suspicion inquiry. the reasonable vant to contradictory an (stating that defendant’s F.3d at 893. Oglesby, 597 simple questions swers to factor case, totality the circum- In this supporting suspicion justifying frisking Tinnie. The justified stances suitcase.) of defendant’s And detention Friday night high- in a late on a occurred Tinnie, frisking Kaiser asked him before And Kaiser testified neighborhood. crime any weapons drugs he had or and whether hearing that the drive- suppression at the respond. rephrased Tinnie not did pulled had way into which Tinnie slightly, asking Tinnie “if he question See, just lighting.” road “dimly lit from him, any guns, on or weapons had (holding at 893 that e.g., Oglesby, 597 F.3d anything poke my that would hands.” justified a totality of the circumstances not when Again, respond, Tinnie did frisk, night it “occurred at part, because any drugs Kaiser then asked Tinnie had known to the officers in a location that was him, immediately on Tinnie said no. Cou plagued by drug area high-crime to be a circum pled suspicious with the earlier violence”). Kaiser was trafficking gun stances, Tinnie’s silence when twice asked charged a with part Special Focus Unit any weapons, if he had but his immediate and, patrolling higher crime areas as the Kai possessing drugs, provided denial of found, was thus familiar with district court ser with reasonable that Tinnie in that gun possession the risk of area. justified was armed and thus the frisk. Lawshea, 461 See United States v. F.3d (7th Cir.2006) (holding that It is true that Kaiser testified that when car, step the officer is a factor consid- he asked Tinnie to experience of already decided to him. The judging suspi- ered in whether reasonable frisk frisk). justifies high-crime cion a As the district court district court believed the hour, found, suspiciously by neighborhood Tinnie acted and the lateness of the also nervously suspicious as the Tinnie’s movement moving along around officers with See, e.g., approached the his approached the car. United as the officers (7th Brown, strange when asked for his iden- States v. 273 F.3d 748-49 behavior Cir.2001) tification, totality (finding that the and the inconsistent date of birth facts, including the defendant’s “move- and were to the frisk. car,” be, that justified pat- given judge ments in the “a limited That well we Then, totality “in weapons”). stating light down for after of the circumstances card, practicality.” he had an identification Tinnie told common sense and Robin- (without son, that checking pockets) 615 F.3d 807-08. Common sense he did not identification card. us that an officer faced with Tinnie’s have the tells Sheahan, See, suspicious during late-night behavior a e.g., Cady v. (7th Cir.2006) would (noting high-crime neighborhood 1061-62 evasive a totally to responses police questions help sup- perform to can find it sensible to frisk See, suspicion). protect partner. e.g., Tinnie himself and his port reasonable also immediately (holding 597 F.3d at 893 frisk Oglesby, stated he was 28 and Kaiser justified night it “occurred at perceived that “with the date of birth that where me, have location that was known to the officers given he had he could been See, traf- plagued drug 27 at area e.g., the time.” United States be and then consider whether a violence” and where defen- reasonable ficking in those circumstances would have away from the crowd as offi- moved dant officer Brown, suspicious.” been dropped his hand to approached cers Cir.2000) (internal (7th But we need rest pants pocket). omitted; quotation tes- marks and citations circumstances because Kaiser on those added). Thus, it hearing emphasis is irrelevant suppression at the tified he had asked Tinnie that Kaiser decided he frisked fore Similarly, him exit car. it any weapons drugs. directing he had whether above, that Kaiser testified that Tinnie did not is also irrelevant And as recounted anyone step he frisks he asks to out of a questions about respond repeated immediately stop.2 ques- “no” vehicle responded weapons but drugs. Supreme given tion is rather whether all of the facts when asked about Kaiser, known to judging clear that Court has made seizure, justified. would have believed the frisk was constitutionality of search objectively. everything place prior took look at the facts Given courts must States, frisk,3 time and 812- as well as the location v. United Whren stop, L.Ed.2d 89 a reasonable officer could con- cases). Thus, suspicion clude that there was reasonable (collecting important is “[i]t that Tinnie was armed and that a frisk that we are not limited to to remember says necessary safety. evi- to assure the officers’ stopping the or to what rationale; rather, Accordingly, the subjective frisk was constitutional dence of properly a whole to deter- and the district court denied Tin- look to the record as we motion to suppress.4 mine facts were known to the officer nie’s We Affirm. what argues routinely neighborhoods. that because Kaiser Absent some in the occupants whom he has directed to exit contrary, imply frisks the record to we should not vehicles, engages in unconstitu- the regularly engages that Kaiser in unconstitu- automatic frisks. There are two flaws tional tional conduct. First, noted, argument: just with this as suspicion analysis objective is an reasonable 3. The dissent asserts that because "[t]he subjective Kaiser's intent is one—so irrele- begun by time asked Second, testify vant. Kaiser did not that he any weapons Tinnie whether he had everyone stops routinely to exit the asks drugs,” responses are irrelevant to the Thus, may it well be that Kaiser vehicle. Terry analysis disregarded. and should be occupants stopped to exit the vehicle if directs However, Dissent at 759. the record makes already there is to be- clear that Kaiser asked Tinnie whether he had they lieve are armed and any weapons drugs before the frisk had possibility highly improbable dissent finds this begun; suppression at the Kaiser testified but, recognizes, many routine as dissent hearing questioning place that this took pas- stops "while the drivers and traffic occur [Tinnie], any fore he "touched interac- (and sengers inside the vehicle are remain body place.” tion with his took And the dis- vehicle).” try to exit the often warned not finding trict court found—and that was not nothing 3. There Dissent at 755 n. is clearly questioning erroneous—that this oc- stops any indicate that Kaiser handles traffic curred before Kaiser conducted frisk. officer, i.e., differently typical than the in directing passengers most cases drivers 4. While there well be other cases in if, fact, to remain inside the vehicle. But in engage unreasonably which officers intru- evidence there was some that Kaiser has practices, sive law enforcement Dissent higher exit-requests rate of and frisks than Rather, officer, is that case. this case this likely typical stems from the more it proactive policing, illustrates how within con- working dangerous environment he faces in limits, successfully stitutional "weeds” dan- p.m.-4 the 4 a.m. shift as member of Unit, provid- patrolling high-crime gerous while Special criminals from the street Focus HAMILTON, Judge, dissenting. program night designat- and Seed” Circuit ed area.1 Fourth Amendment liber- The erosion of leaps advantage ties comes not dramatic The officers took of the fact steps, in decisions that seem “fact- pretex- small that the Fourth Amendment allows bound,” case-specific, and almost routine stops long tual traffic they so as are based together, though, at first blush. Taken upon an violation observed traffic law. steps implications these can have broader States, See Whren United rights law-abiding for the constitutional 810, 116 S.Ct. I as an unfortunate

citizens. see this case shows, principle prac- As this case example process. of this The immediate tically limitless in application only the — the removal of an armed result here is most unobservant officer would be Rockford, felon from the streets of Illinois spot unable to at least one traffic violation years. for seven But the court’s decision Harris, in short order. See David “Driv- to sanction Kaiser’s frisk of defen- ing Black” and All Other While Traffic allowing too dant Tinnie comes close Supreme Court and Pretex- Offense: virtually officers to frisk at will Stops, tual 87 J. Crim. L. & Crimi- Traffic passenger pulled high- driver or over in a (1997) (“In nology 558-59 crime I area. believe the Fourth Amend- sense, most literal no driver can avoid requires ment different balance between violating some traffic law a short the interests of efficient law enforcement drive, even with the most careful atten- right and the constitutional against unrea- tion”; hand, “with code in searches, respectfully sonable so I dissent. time”); can stop any any driver Salken, Barbara C. The General Warrant itself, turning Before to the frisk let’s the Twentieth ? A Century Fourth consider series of events that led to of Amendment Solution to Unchecked Dis- frisk, beginning with actual stop Offenses, cretion to Arrest 62 of the car in a passenger. which Tinnie was for Traffic (1989) (“Almost 221, Temp. L. Rev. 223 The for stop stated reason address —to drives; every American adult hence the a windshield obscured air fresheners pool potential of arrestees is hanging from the enormous. rearview mirror —was pure pretext, regulations of innumerable rules and course. No one believes Deputy governing vehicular travel make it partner Kaiser and his cared difficult about the obscured not to violate one of them at one windshield its own time or (footnote omitted)).2 sake. another.” a prac- characterized As matter, proactive policeman as the work of a tical Whren allows law enforce- implementing federally-funded ment stops “Weed officers to conduct traffic near-

ing law-abiding protection they long predates citizens the 2. This observation the decision deserve. General, Attorney in Whren. When he was the future Justice Jackson said: "We know program 1. The "Weed and Seed” is a U.S. strictly that no local force can enforce Department designed of Justice initiative laws, the traffic or it would arrest half the impact "reduce the of violent crime on com- driving population any given morning.” on munities; intervention, provide prevention, Jackson, Prosecutor, R. Federal Address and treatment services for substance abuse Delivered at the Second Annual problems; and other social and revitalize Conference of Attorneys, April quoted United Stales through improved housing communities Olson, 654, 727-28, development” by [ing] economic v. "stress col- in Morrison laboration, coordination, community 2597, par- (1988) (Sca Justice, ticipation.” Department of Weed J., lia, dissenting). Manual, (2005). Implementation & Seed at 1

755 Robinson, See, e.g., People 97 fact had a reasonable ly will. that Tinnie 767 N.E.2d however, N.Y.2d N.Y.S.2d dangerous, was armed and so we J., (Levine, dissenting) eye turn a must blind (“[A] officer, armed persevering general practice, despite similarity its of the copy [traffic code] with practices general under the colonial-era subjecting on a vehicle and its occu- bent authorizing warrants searches of “sus- unjustified investigative stop, pants to pected persons” “suspicious places.” ultimately accomplish will be able to Davies, See Thomas Y. Recovering the will.”). objective virtually at Amendment, Original Fourth 98 Mich. L. Rev. 558 n. 12 stopped, Deputy the car was Kai- Once Tinnie, began questioning sup- ser at first isolation, When viewed each individual posedly identity. Again, to determine his aspect Deputy Kaiser’s behavior before seriously no one believes that this was the he started the frisk that discovered the primary purpose questioning Dep- — handgun arguably was either uty certainly looking Kaiser was almost constitutionally irrelevant. cen- “[T]he a reason to search or both. tral inquiry under the Fourth Amend- Otherwise, why would Kaiser have ment,” however, is “the reasonableness in as he did to rounding up reacted Tinnie’s all the circumstances of the particular gov- years from 27 and months to ernmental invasion of a personal citizen’s years? Based on Tinnie’s answers security,” Terry, 392 U.S. at questions, Deputy those Kaiser ordered added). (emphasis The issue be- course, Tinnie out of the car. Of Tinnie’s comes whether Kaiser’s frisk of actual to Deputy answers Kaiser’s initial objectively Tinnie was light reasonable in irrelevant, questions given that Dep- were of the fact that the frisk was conducted could, course, uty Kaiser as a matter of only after Deputy Kaiser had leveraged order Tinnie out of the car without pretextual stop insignificant for an suspicion beyond justified that which offense into an excuse to remove Tinnie Wilson, Maryland initial See from the vehicle. 408, 410, 882, 117 U.S. S.Ct. 137 L.Ed.2d (1997) together, taken When Kaiser’s (describing 41 intru- this additional “minimal”).3 apart already actions from the frisk itself sion as striking bear a resemblance to the prac- testified, By point, Deputy permitted tices in colonial times under already he had decided that going he was warrant, general “the practice upbraid- fact, In to frisk Tinnie. ed the colonists because it Brit- allowed practice every person standard is to frisk anyone soldiers to they ish confront felt he orders out of a vehicle investigating like trafficking sedition or practice flatly contrary Terry v. to —a in goods.” Christopher uncustomed Slobo- Ohio, 1, 27, 1868, 392 U.S. 20 gin, Ginsburg’s Justice Gradualism in (1968), progeny, L.Ed.2d 889 and its which Procedure, 867, Criminal 70 Ohio St. L.J. require suspicion suspect reasonable that a (2009); Davies, 886 see also Mich. L. 98 dangerous. is armed and The fact that (noting Rev. at & n. 12 applied an unconstitutional 558 that the war- practice in this case is in irrelevant rant clause of the Fourth Amendment was passengers Kaiser had no real need to order while the drivers and remain in- Many (and Tinnie out of the of course. rou- side the vehicle are often warned not to stops, particularly actually tine traffic those vehicle). try exit the purposes, proceed out carried for their stated general stances in which a officer “has rea- prohibiting of purpose

for the information); inadequate dealing on son to that he is with an searches based believe Harris, The A. Car Wars: Fourth David dangerous armed and individual.” Id. at Highway, on the Death Amendment’s 88 S.Ct. 1868. Probable cause ar- (1998) (noting L. Rev. Geo. Wash. required, rest is not nor need the officer juris- post-Whren Fourth Amendment “absolutely person be certain” that the effectively allows law enforce- prudence armed, reasonably prudent “a man in for- exactly ment “to do what is otherwise the circumstances be in [must] warranted nothing on more than a bidden: act safety the belief that his or that of others hunch”). long-con- The effects that such danger.” companion was in Id. In a case law-abiding citi- practices demned have on Terry, Supreme emphasized Court humiliation, fear, anger, grow- and a zens— specific indicating this need for facts dan- in ing cynicism toward law enforcement ger: as no general surprise. come See —should officer is not entitled seize Stories, Harris, A. the Statis- David every person and search whom he sees tics, Why “Driving and the Law: While on the or of whom street he makes Matters, L. Rev. Black” 84 Minn. inquiries. places Before he a hand on (1999) (drawing on interviews statisti- person any- of a citizen in search of analyses police practices). cal thing, constitutionally he must have ade- itself, Turning to the frisk we must rec- quate, grounds doing reasonable so. ognize certainly that a frisk is most not a self-protective In the case of the search privacy. minor intrusion on As the Su- for weapons, point he must be able to preme explained Terry, Court which particular facts from which he reason- stop-and- first authorized warrantless ably inferred that the individual was (and probable frisks on less than cause armed and shortly after some of the most violent ur- York, Sibron v. New history ban riots American 1967 and (explain- S.Ct. 1968), a upon frisk “is serious intrusion ing reversal of conviction based on results sanctity person, which in- frisk). unjustified Frisks are “not to be great indignity strong flict and arouse re- lightly.” Terry, undertaken 1868; sentment.” 392 U.S. at 17, 88 S.Ct. 1868. (describ- see id. 17 n. 88 S.Ct. 1868 “ ing a ‘thorough frisk as a search ... of The need for a armpits, [an arms and waist- subject individual’s] dangerous” is “armed and —not back, line groin and the and area about the merely suspicious general key to —is testicles, legs and entire surface of the case, helps distinguish legiti- and ”), down to quoting the feet’ Priar & Mar- protective mate from frisks the abuses the tin, Criminals, Searching Disarming and Fourth Amendment was intended to limit. — Criminology 45 J. L. & Crim. Police Sci. Johnson, -, See Arizona v. U.S. (2009) 781, 784, 129 S.Ct. 172 L.Ed.2d 694 (“[T]o frisk, proceed stop from a to a

Terry authorized frisks as a reasonable reasonably that suspect must pragmatic response to hard realities of person stopped danger- is armed and city Terry our nation’s streets. But never- ous.”). A by review of the facts as found emphatically theless refused to authorize court, the district just as well as decisions any suspicious person. frisks of circuits, Supreme this and other shows that Deputy Court authorized such intrusive only in simply searches those narrow circum- Kaiser lacked sufficient constitu- encounter, that subject day. Throughout Tinnie to the not grounds to tional of a frisk. indignity cooperative, according Depu- intrusion and Tinnie was Kaiser, ty gave and he no indication that starters, ap- For when many he was armed. Unlike so other frisk car, any- know he did not proached cases, Deputy any Kaiser never observed thing passenger. about the driver or the bulges clothing indicating Tinnie’s to believe that either He had no reason might concealing weapon. be Re- inherently dangerous any more than was gardless, Deputy Kaiser ordered Tinnie might motorist he encounter other escorted him to the Illinois, back See Ybarra v. vehicle, and announced that he was justify going safety. to frisk him for officer (finding insufficient facts frisk, taking into account fact that The district court found that those facts “recognize not as a [the defendant] did justify alone were sufficient to the frisk. person history”); with a criminal United My colleagues say they agree, tend to (7th Thomas, quite holding without as much. I address Cir.2008) (upholding frisk where officer majori- below district court’s and the concerned, prior “was based on informa- ty’s question- rebanee on armed”). tion, Nor that Thomas was ing began as he to frisk Tinnie to an this traffic carried out for offense moment, the frisk itself. For the though, suggestive presence “so and use of let’s focus on what occurred before the always that a frisk is reasonable.” weapons began: night, frisk area at Barnett, United passenger adjusts position moves or his Cir.2007) (7th (reversing grant of motion nervous, the police approach, as seems suspect suppress where officer frisked gives and birth date do not likely weapon); burglary involved match, ID, quite and when asked for runs Terry, see also 392 U.S. at along pants his hands pinches justified (deeming where officer saying he them before does not have reasonably suspected preparations person. Suspicious? identification on his result, robbery). armed As a Kai- Yes. A reasonable indication that pas- all, justified, can if ser’s frisk be based senger dangerous? is armed and No. only on his interactions with Tinnie. Recall that Tinnie and the driver were interactions, Turning to those as of or for a violent suspected stopped Kaiser approached passenger the car’s crime, drug trafficking, crime other side, he “fidgeting” acting saw Tinnie connected to a threat of violence. The just “as he was uncomfortable or read- obstructing stop was for air fresheners justing.” Tin- Deputy Kaiser asked for Although windshield. Tinnie acted ner- Passenger nie’s identification. Tinnie said is, confronted, vous when nervousness license, Depu- he did not have driver’s so reasons, “of limited value in obvious as- ty Kaiser asked him for his ID card. In sessing suspicion.” response request, ran to this 1140, Simpson, v. 609 1147 States F.3d hands coat pinched top down his and (10th Cir.2010); Urrieta, United States v. jeans responding his blue before that he (6th Cir.2008) (“Al- 569, 520 F.3d 577 ID him did not have his card with either. though nervousness be considered as Deputy Kaiser then asked for Tinnie’s name, birth, part giving of the overall circumstances age. date of and Tinnie re- (correct) suspicion, to a this court rise sponded with his date of birth but inherently unsuspi- gave years birthday, in at his next has found nervousness 758

cious, given very equally significance it lim I ascribe little to the and has therefore weight reasonable-suspi in the ited or no fact that in a high- Tinnie was confronted calculation.”); United States v. cion “designated crime area state and local (1st Cir.2005) 38, 40 McKoy, 428 F.3d fact that stop officials.” While “the (same); Portillo-Aguirre, ‘high among occurred in a crime area’ [is] (5th Cir.2002) n. 49 311 F.3d the relevant contextual considerations give “often little or no (noting that courts Wardlow, analysis,” v. Terry Illinois weight to an officer’s conclusional state 145 L.Ed.2d S.Ct. nervous”); suspect appeared that a ment (2000), there still needs to be a reason- Jones, United States able connection the neighbor- between (8th Cir.2001) (same); see also United higher hood’s crime rate and the facts Richardson, 630-31 upon support relied a frisk. In other (6th Cir.2004) (noting that nervousness is words, ask, example, we should wheth- “especially” tenuous for a frisk er Tinnie’s behavior was consistent with stop”). made “in the context of a traffic that of the violent criminals known to fre- might ap However nervous Tinnie have quent that area. Terry, Cf. 392 U.S. at peared, never moved as he were 22-23, (noting how defen- reaching weapon. for a concealed And his dant’s behavior appeared noncriminal sus- pinching feeling pants nervous and of his context). picious when viewed in Unless saying he had no ID with him is connection, require we at least some such certainly not a reasonable basis for con give impression we law enforcement the cluding that he was armed and scrutiny that frisks will receive much less The additional fact that Kaiser performed when in areas. encountered Tinnie in night “late particularly problematic That is in this high-crime neighborhood” change did not case, designated “high-crime where the these circumstances area” occupied city of Rockford. half certainly important frisk. While context is totality-of-the-circumstances analy- Setting problems, aside these the dis- sis, neither the lateness of the hour nor the my colleagues justi- trict court and seek to automatically nature of the locale trans- fy by relying respons- the frisk on Tinnie’s non-threatening forms acts into indicators questions Deputy posed es three danger. Perhaps the lateness of the began telling as he the frisk. After Tinnie significant hour would be if darkness had that he was about to be for officer frisked ability limited to see what safety walking him to the rear of the doing' Tinnie was making —an car, Deputy Kaiser asked whether Tinnie certainly entitled to exercise any weapons drugs posses- had in his greater caution when a suspect’s actions immediately respond. sion. Tinnie did not Ybarra, are veiled shadow. Cf. Deputy Kaiser then asked if Tinnie had (noting, 100 S.Ct. 338 in overturning any weapons, guns, things that would frisk, lighting that “the was sufficient” for hands, poke deputy’s again Tinnie law enforcement see the individuals in respond. Deputy did not Kaiser then conducted). the tavern where the frisk was any drugs, asked Tinnie if he had But nothing the record indicates that immediately Tinnie no. From said these difficulty actual questions, responses different to different was, seeing Tinnie at time. There might Kaiser inferred all, enough light after for him to see Tinnie It weapon. shift have turned out he was pinch leg around his seat and pants. right. of his apply should to a frisk. should deter evaluating Deputy Kaiser’s deci- We

When however, may con- point we mine at what in time a reasonable to frisk sion Deputy only the information position sider in Tinnie’s would have person initiated the at the moment he Kaiser had thought part that the officer’s actions were any information disregard must frisk and conducting a frisk. process Such already had be- after the frisk gathered test, seizures, applied a like the test Odum, gun. United police would “assess the coercive effect of (7th Cir.1995), citing Terry, 392 whole, conduct, than ... taken as a rather 21-22, My at 88 S.Ct. 1868. col- U.S. particular focus on details of that conduct con- and the district court both leagues Chestemut, in isolation.” 486 U.S. at begun that the frisk had not when clude Furthermore, 1975. it would be questions Kaiser asked these Deputy the whole applied “flexible to be yet laid his Deputy cause Kaiser had not range police “callfing] conduct” while words, they In other hands on Tinnie. application police consistent from one en narrowly as those define a “frisk” providing counter to the next” and uniform during which an officer’s hands moments guidance to law enforcement officers in the a suspect’s in contact with physical are 574, 108 field. at Id. S.Ct. body. here, Applying this standard to the facts of a frisk would This narrow definition reasonably it is clear that Tinnie would reality eyes to close our require us already have believed that the frisk was and intrusive encourage aggressive would underway Deputy when Kaiser asked if he tactics, pre-textual especially during police By a in possession. had the time majority’s defini- stops. Under carrying gun, Tinnie was asked if he was a frisk, suspect a tion of a officers tell already Kaiser had ordered him going require that he is to be frisked and car, walked him to the back of a position him to assume the frisk and told him that he was about to beginning questioning needed to an- be frisked. When justify the frisk itself. Bent over the hood frisk, nounced his intent to conduct a a a in pressed against of a car or wall in person position Tinnie’s would reason- people most be night, middle of the would ably procedure have believed that the frisk It extremely nervous and disoriented. already begun certainly would not —he easy enough enterprising would be for an away have felt free to walk or to refuse to justification for police officer to find some allow Kaiser to touch him. The responses given nervous begun by frisk had the time Moreover, moment. such vulnerable any weapons asked Tinnie whether he had majority’s embraces the circular approach drugs, making responses Tinnie’s may justify by logic a frisk questions Terry those irrelevant to the subject observing responds how the when analysis. to be told he is about frisked. record, I Based on the facts in the con- purposes, For Fourth Amendment clude that the frisk of Tinnie violated the person can be “seized” before he is actual Fourth Amendment. But I am not alone force, ly physical restrained the mo unjustified. finding a frisk like this to be when, circumstances, all the given ment cases, In similar other courts have deemed person would believe he is not For exam- Chesternut, the searches unconstitutional. Michigan free to leave. McKoy, ple, 100 L.Ed.2d (1st Cir.2005), Essentially day- rule conducted a the same parking for and license cribed to the light stop passenger himself was his high-crime in a area. plate nervousness, violations As simply which was not the driver approached, the officers avoided the frisk. Id. at 495-96. nervous, contact, and leaned eye appeared My rely colleagues place on cases that toward right to reach his hand the center sharp relief the lack of indication that facts, on those the officers console. Based Tinnie was armed and dangerous. For out of the frisked ordered the driver example, my cite colleagues United States him, drugs. The and found First Circuit (7th Brown, Cir.2001), 273 F.3d 747 for suppression affirmed the evidence proposition that nervous movements frisk, focusing found in the on the need for may justify a permitted frisk. But Brown analysis separate of whether there was a frisk where the defendant had acted the driver was nervously making a threatening high-crime armed and The “quick step move” when asked to out of his factor, area was relevant but so was the vehicle. con fact that the reason was trast, (or “quick never made a move” minor traffic violations “from which no as- matter) move, threatening other for that sumption about weapons fairly be perceived Kaiser could have drawn.” Id. at 40. The driver’s nervous- threatening. as ness and movement did not frisk: “Nervousness is a common en- My colleagues’ Cady reliance on tirely police presence,” natural reaction to Sheahan, (7th Cir.2006), 467 F.3d 1057 and the reach for the center console was the broad proposition that evasive answers consistent reaching with for a license or dangerousness indicate equally unper- registration. Id. The First Circuit ac- Cady suasive. merely was frisked not knowledged the vital need for police offi- evasive, cause he was but because he was themselves, protect rejected cers to it “lurking also outside a courthouse well be- government’s argument, which “comes fore it opened public, to the shabbily was too close allowing an automatic frisk of dressed, showered, had not ... claimed to anyone who commits a traffic violation in a be serving process federal on a Sheriffs high-crime area.” Id. repeatedly officer ... and reached into his The Sixth grant Circuit affirmed the of a briefcase.” Id. at 1062. Evasiveness suppress motion to in a similar case in aside, it is hard to see how Tinnie is com- Wilson, (6th United States v. 506 F.3d 488 parable Cady, strikingly whose unusual Cir.2007). stopped Officers a driver and behavior certainly gave law enforcement passenger wearing who were not seatbelts. reason to posed danger believe that he nervous, Both were and the driver ram- himself or others. response bled on in ques- to one officer’s Oglesby, United States v. 597 F.3d 891 tions and previously said he had been con- (7th Cir.2010), majority from which the on a charge. victed federal firearms presence claims that Tinnie’s mere car registered was to a different person, significant, area is is not on and the driver phone talked on his cell In point. Oglesby, the defendant was then told passenger, “They’re coming.” present area, in a high-crime but he also get officers asked both to had acted in a “potentially manner calcu- car and then frisked them. The frisk of lated to keep weapon hidden or out of passenger up drugs. turned The Sixth reach” appeared trying to “be to con- Circuit held that passenger the frisk of the unconstitutional, firm that concealed and se- concluding [was] only suspicious contrast, conduct that could be By as- cured.” Id. at 895. or the benefits of the exclu- thought that he Amendment indicated never weapon, only guilty being a He was a sionary tried to conceal rule. Tinnie had “hiding firearm, that Tinnie was believed of a concealed possession that he felon Terry, It has clear since something.” been unusually dangerous firearm at acting person that a is that a belief though, accumulated a crimi- lengthy that. He has justify a just not is suspiciously for, among things, nal record other small- need- Terry, Deputy Kaiser frisk. Under crimes, drug battery, and unlawful scale believing that reasons for specific more ed exclusionary But the rule use of firearms. danger a to himself or others. posed applied is not for the benefit of Tinnie or It applied protect other criminals. is all not overlook should We intrusive, unreasonably from practice was to citizens testimony that his standard he out of a anyone “proactive,” practices, frisk law enforcement whom asks/orders course, an stop. Of goals. vehicle carried out for laudable even when practice cannot unconstitutional officer’s Deputy Kaiser did not have a reasonable frisk. an otherwise-reasonable invalidate suspicion that Tinnie was armed and dan- sim- practice a standard remains But such gerous when he frisked him in the course that frisks inconsistent with the rule ply stop. I pretextual of the therefore and in- absent a reasonable are forbidden respectfully dissent. suspect a is suspicion that

dividualized dangerous, as set forth Ter-

armed and Ybarra, 92-93, Sibron,

ry, no reasonable (finding

S.Ct. defendant, “whose where empty, gave no indication of

hands were weapon, gestures made no

possessing an intent actions indicative of other Jay BERMAN, In re Debtor. assault, generally acted commit an threatening”), and a manner Higher Group, Education Follett My col- host of lower court decisions. corporation, Inc., an Illinois leagues speculate perhaps Plaintiff-Appellant, passengers orders out of the vehi- constitutionally suffi- cle when he has Berman, Jay Defendant-Appellee. But suspicion to conduct a frisk. cient authority has the to order Deputy Kaiser No. 10-1882. vehicle, everyone out of the as a matter Appeals, States Court of course, every time conducts a traffic Wilson, Seventh Circuit. testimony, according to his 882. So own Argued Oct. (1) Kaiser either never exercises 21, 2011. Decided Jan. broad, authority wholly unqualified constitutionally unless he has sufficient frisk; frisks a

suspicion to conduct people

considerable number of without authority to do so. The first

constitutional

possibility highly implausible. sympathetic

Christopher Tinnie is not Fourth protection for the

candidate

Case Details

Case Name: United States v. Tinnie

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 18, 2011

Citation: 629 F.3d 749

Docket Number: 09-4082

Court Abbreviation: 7th Cir.