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Seventh Circuit Reverses Denial of Motion to Suppress Because Police Lacked Reasonable Suspicion to Frisk

The U.S. Court of Appeals for the Seventh Circuit reversed the decision of the U.S. District Court for the Northern District of Illinois that denied Anthony Howell’s motion to suppress, holding that police lacked reasonable suspicion to frisk him.

Chicago Police Officers Sean Kelly and Christopher Miller arrived at a warehouse in response to an anonymous 911 caller who reported that a Hispanic male wearing a black sweater and black hat and carrying a black bag was climbing under the fence surrounding a warehouse. The officers stopped Eric Escobar who was walking outside the warehouse in question and patted him down.

After the officers determined Escobar worked at the warehouse, Escobar noticed another person (later identified as Howell) walking toward the officers. Escobar suggested that Howell was the person the officers were looking for. Kelly called from across the street, “What’s going on?”

Howell was a white male and wasn’t carrying a bag. But according to Kelly, Howell did not answer. Instead, Howell “did a “quick double take,” had “a look of panic on his face,” and placed his hands in his pockets. Kelly approached Howell and immediately frisked him for weapons. Kelly felt a hard object in Howell’s jacket pocket, and Howell pulled away. During an ensuing scuffle between Howell and Kelly, a .38 caliber revolver fell out of Howell’s pocket.

Howell was charged with unlawful possession of a handgun by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He filed a pretrial motion to suppress the gun, arguing police violated his Fourth Amendment rights by stopping and frisking him without reasonably suspecting him of criminal activity. The district court denied the motion, finding that Kelly had reasonable suspicion to frisk Howell because: (1) Howell matched the caller’s description “close enough” since he was wearing a black jacket and dark hat; (2) Howell had refused to answer Kelly’s question and did a quick double take; (3) and Howell put his hands in his pockets suggesting he was concealing something. Howell was convicted, and he appealed. One of his arguments was that the district court erred in denying his motion to suppress.

The Seventh Circuit observed that “[u]nder the Fourth Amendment, police may stop a person only if they have reasonable suspicion that he is engaged in criminal activity.” Terry v. Ohio, 392 U.S. 1 (1968). To determine if police had the requisite reasonable suspicion, courts examine the totality of the circumstances. Id. The reasonable suspicion must be based on specific, articulable facts that would justify an intrusion on the suspect’s liberty and dignity. United States v. Street, 917 F.3d 586 (7th Cir. 2019). But a frisk — a limited pat down of a suspect’s outer clothing to search for weapons — is permissible under the Fourth Amendment only if the officer can “point to specific and articulable facts” indicating “that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.” Terry.

Because a frisk is more intrusive than a stop, the Fourth Amendment compels the additional armed-and-dangerous inquiry. Terry. An anonymous tip giving a bare-bones description of a suspect’s race, sex, and clothing and reporting a possible nonviolent crime without anyone being in imminent danger or any observation of a weapon is not likely to provide reasonable suspicion justifying a frisk. United States v. Watson, 900 F.3d 892 (7th Cir. 2018). Nor does looking nervous or remaining silent when faced with an officer’s questions. Illinois v. Wardlow, 528 U.S. 119 (2000).

The Court concluded that because Howell resembled the caller’s description, Kelly had reasonable suspicion to stop him. But Kelly lacked any reasonable suspicion to frisk Howell. Howell’s looking nervous, not responding to Kelly’s “[w]hat’s going on,” and putting his hands in his pockets did not give rise to a reasonable suspicion that he was armed and dangerous, the Court concluded.

The Court was “most concern[ed]” by Kelly’s reaction in immediately commencing a pat down of Howell without asking any further questions, such as: “Where do you live?,” “Do you know anything about a burglary here?” or “Were you trying to climb under this fence?” Kelly responded to Howell in the same manner as he had responded upon meeting Escobar.

But frisks cannot be rote or reflexive — officers must make each decision to frisk based on reasonable suspicion determined by the totality of the circumstances, the Court reiterated. Kelly failed to do so, and thus the frisk violated Howell’s Fourth Amendment rights.

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Related legal case

United States v. Howell



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