United States v. Smith

32 F.4th 638

UNITED STATES of America, Plaintiff-Appellee,

v.Leamon SMITH, Defendant-Appellant.

No. 21-1266

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2022

Decided April 22, 2022

Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Heather L. Winslow, Attorney, Law Office of Heather L. Winslow, Chicago, IL, for Defendant-Appellant.

Before Rovner, Wood, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Chicago police found a loaded handgun in Leamon Smith's underwear after a series of pat-downs during a traffic stop. The government charged Smith with being a felon in possession of a firearm, and he moved to suppress the gun. The district court concluded that the officer had reasonable suspicion to conduct each pat-down because of Smith's unusual body language throughout the stop: repeatedly leaning his pelvis against a car, waddling as if he had something between his legs, and appearing unusually nervous. Smith entered a conditional guilty plea but reserved his right to appeal the suppression motion. As explained below, we affirm.

I. Background

A. Facts

On the night of June 18, 2018, at approximately 9:00 p.m., Leamon Smith was a passenger in Dalon Naylor's car when Chicago police officers pulled them over for running a red light. Officers Steven Holden and Dimar Vasquez turned on their body cameras as soon as they initiated the traffic stop. Officer Vasquez approached the driver's side of Naylor's vehicle, while Officer Holden approached Smith, who was sitting in the front passenger seat.

As Smith handed over his driver's license, Officer Holden commented that Smith was "shaking like a leaf." Officer Holden asked Smith to step outside and directed him to the back of the car. Smith complied but immediately rested the front of his pelvis against the car, even though he had not been asked to do so. In fact, Officer Holden asked Smith to take a half-step away from the car. Officer Holden then performed the first of three pat-downs. The initial pat-down focused on "hot spots," including Smith's waistband, front pockets, and lower leg—but not his groin area. Although Officer Holden did not find any contraband, he placed Smith in handcuffs and explained that he was simply being detained.

Officer Holden suspected right away that Smith was hiding something in his pants. After the first pat-down, Officer Holden told Smith, "If it's a little loud, we can work with it," using a slang term for cannabis. Smith responded that he had "really nothing." Officer Holden then asked, "We're going to do this the hard way bro?" and told Smith, "Honesty goes a long way."

Next, Officer Holden asked Smith to walk from the back of Naylor's car to the front of the police car while he entered their names in a law-enforcement database. Officer Holden later testified that Smith "had that side-to-side walk, as if he was holding something in his crotch area and he was trying to walk around it, or hold it in place." Smith then rested his pelvis against the front of the police car. After running the name check, Officer Holden asked Smith to walk from the police car back to Naylor's car, where Smith again rested his pelvis on the car without prompting. Officer Holden offered to uncuff one of Smith's hands so that Smith could retrieve whatever he was hiding, but Smith declined. Officer Holden later testified that he did so in the hopes of building a rapport with Smith.

Meanwhile, Officer Vasquez was conducting a consent search of Naylor's car. Approximately six and a half minutes after the first pat-down, Officer Holden performed the second pat-down by jiggling Smith's pant legs. Nothing fell out. Officer Holden then asked Smith to walk back to the police car one more time. Officer Holden observed that Smith was walking with an exaggerated limp and asked if he was injured. Smith responded that he had been in a car accident and injured his right leg. Officer Holden later testified that Smith's more-pronounced limp was consistent with an item having "dropped" from his crotch.

About one minute after the second pat-down, Officer Holden conducted the third and final pat-down, this time focusing on Smith's groin area. Officer Holden felt a hard metal object, which he removed from Smith's underwear and determined to be a loaded handgun. All told, approximately 11 minutes elapsed between the initiation of the stop and the discovery of the gun.

B. Procedural History

The government charged Smith with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and Smith moved to suppress the gun. At the suppression hearing, Officer Holden testified that he "smelled the odor of fresh cannabis" as he approached the car, but he could not tell whether it was coming from the driver's side or the passenger's side. Officer Holden did not make note of this observation in his police report or comment on the smell of marijuana during the traffic stop. But Officer Vasquez did find a bag of marijuana tucked inside Naylor's pants.

The district court granted Smith's motion to suppress statements made after Officer Holden asked, "we're going to do this the hard way bro?" Of relevance to this appeal, however, the court denied his motion to suppress the gun itself. The district court concluded that the traffic stop was proper because both officers testified that Naylor's car ran a red light, and Smith presented no evidence to the contrary. The initial pat-down was also proper because it was dark, Smith had rested his pelvis against the car without prompting, and Officer Holden credibly testified that Smith appeared unusually nervous even though he was a passenger, not the driver.

Turning to the second and third pat-downs, the district court concluded that reasonable suspicion supported each pat-down. Smith's strange walk and repeated resting of his pelvis against the cars would have suggested to a reasonable officer that Smith was armed and dangerous. The court also observed that "[a] one-frisk-only rule would create a privacy-adverse Fourth Amendment incentive" for officers to perform "the most intrusive frisk possible the first time around, knowing that no more would be allowed."

Smith moved for reconsideration, which the district court denied. He ultimately entered a conditional plea agreement, reserving his right to appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2).

II. Discussion

This court employs a dual standard of review for motions to suppress evidence: we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Chang , 999 F.3d 1059, 1065 (7th Cir. 2021). A district court's credibility determinations are entitled to substantial weight on appeal. United States v. Richmond , 924 F.3d 404, 410– 11 (7th Cir. 2019).

A. Legal Standards

Under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct brief investigatory stops if they have reasonable suspicion that a person is engaged in criminal activity. United States v. Jackson , 962 F.3d 353, 357 (7th Cir. 2020) (citing Navarette v. California , 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) ). "Reasonable suspicion must account for the totality of the circumstances and requires more than a hunch but less than probable cause and considerably less than preponderance of the evidence." United States v. Reedy , 989 F.3d 548, 552 (7th Cir. 2021) (internal quotation marks omitted). When officers reasonably believe they have witnessed a traffic violation, that provides reasonable suspicion justifying a traffic stop, even if the violation is quite minor. See Jackson , 962 F.3d at 357 (hanging an air freshener from a rear-view mirror provided sufficient basis for a traffic stop).

The Fourth Amendment permits officers to order drivers and passengers out of a car during a traffic stop to ensure officer safety. See Maryland v. Wilson , 519 U.S. 408, 413–15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). But "[t]he power to conduct a Terry stop does not automatically give police the power to frisk the subject for weapons." United States v. Howard , 729 F.3d 655, 662 (7th Cir. 2013) (citing Terry , 392 U.S. at 27, 88 S.Ct. 1868 ). "To justify a patdown of the driver or a passenger during a traffic stop, ... the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Arizona v. Johnson , 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). On the other hand, an officer need not be certain that a person is hiding a weapon as opposed to drugs or other contraband before performing a pat-down. See United States v. Ford , 872 F.3d 412, 414–15 (7th Cir. 2017) ("Certainty about the presence of a weapon is unnecessary; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.") (internal quotation marks omitted).

B. Reasonable Suspicion Supported Each Pat-Down

On appeal, Smith concedes that the traffic stop itself was lawful and that Officer Holden had reasonable suspicion to conduct the initial pat-down. By contrast, he contends that the second and third pat-downs lacked reasonable suspicion and were based on no more than a hunch that Smith was hiding something.

We have explained that "it is not necessarily unreasonable for police to frisk a person more than once,"...