November 30, 2016
from the United States District Court for the Eastern
District of Wisconsin. No. 14-CR-25 - Rudolph T. Randa,
Wood, Chief Judge, and Flaum, Easterbrook, Kanne, Rovner,
Williams, Sykes, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
in Milwaukee saw a car stopped within 15 feet of a crosswalk,
which is unlawful unless the car is "actually engaged in
loading or unloading or in receiving or discharging
passengers". Wis.Stat. §346.53. One police car drew
up parallel to the stopped car, while another drew up behind.
Shining lights through the car's windows (it was after 7
P.M. in January), police saw a passenger in the back seat try
to hide a firearm. Randy Johnson, the passenger, was
prosecuted for possessing a weapon that, as a felon, he was
forbidden to have. 18 U.S.C. §922(g)(1). After the
district court denied his motion to suppress the gun, see
2014 U.S. Dist. Lexis 135367 (E.D. Wis. Sept. 25, 2014),
adopting 2014 U.S. Dist. Lexis 135374 (E.D. Wis. Aug. 7,
2014), Johnson entered a conditional guilty plea and was
sentenced to 46 months' imprisonment. A panel of this
court affirmed the conviction, 823 F.3d 408 (7th Cir. 2016),
but that decision was vacated when the full court decided to
hear the appeal en banc.
concedes that the car was stopped 7 or 8 feet from a
crosswalk. The district court held that this gave the police
probable cause to issue a ticket, a process that entails a
brief seizure of the car and its occupants. As Officer Conway
approached he saw Johnson make movements that led him to
infer that Johnson was hiding something such as alcohol,
drugs, or a gun. Concerned for his safety, Conway ordered
Johnson to get out of the car. See Pennsylvania v.
Mimms, 434 U.S. 106 (1977) (officers making a traffic
stop on probable cause may require a car's occupants to
get out). Once the car's door was open, Conway saw a gun
on the floor. This led to Johnson's arrest.
says that the judge should have suppressed the gun, because
the statutory exception for receiving or discharging cargo or
passengers means that the police did not have adequate reason
to issue a ticket or even to approach the car until they had
observed long enough to know that the car was not within the
scope of the exception. The district court rejected that
contention, as do we.
the district court found that, when the police approached,
all four doors of the car were shut and no one was standing
nearby, so that the exception was inapplicable. 2014 U.S.
Dist. LEXIS 135374 at *6 ("there is simply no evidence
that the SUV was engaged in loading or unloading, or in
receiving or discharging passengers, as the doors to the
vehicle were closed and there is no evidence that any
individuals were in the immediate vicinity of the
vehicle"). That finding is not clearly erroneous.
Indeed, Johnson does not contest it.
although Johnson contends that Wisconsin's judiciary
would treat a driver's stop to buy something from a
nearby store as within the "loading or unloading or ...
receiving or discharging passengers" exception, we need
not address that issue of state law. Officers who had
probable cause-recall that it has been stipulated that the
car was within 15 feet of the crosswalk-were entitled to
approach the car before resolving statutory exceptions.
Police possessed of probable cause can hand out tickets (or
make arrests) and leave to the judicial process the question
whether a defense, exception, proviso, or other limitation
applies. See, e.g., Baker v. McCollan, 443 U.S. 137,
145-46 (1979); Hurem v. Tavares, 793 F.3d 742,
745-46 (7th Cir. 2015); Askew v. Chicago, 440 F.3d
894, 896 (7th Cir. 2006). Parking-enforcement patrols
approach stopped cars countless times every day. Depending on
what they find, sometimes they write tickets and sometimes
they don't. If the car is occupied, the difference may
turn on what the driver says. The Fourth Amendment requires
searches and seizures to be reasonable; it does not demand
that police and other public officials resolve all possible
exceptions before approaching a stopped car and asking the
denying Johnson's motion to suppress, the district court
relied on Whren v. United States, 517 U.S. 806
(1996), which holds that probable cause to believe that a
car's driver is engaged in speeding or another
motor-vehicle violation supports a stop and arrest-and that
the possibility of an ulterior motive, such as a desire to
investigate drugs, does not matter, because analysis under
the Fourth Amendment is objective. Johnson, who believes that
the police had an ulterior motive for approaching his car,
contends that Whren does not apply to infractions by
stopped cars, which he labels parking violations rather than
Whren did not create a special rule for moving
offenses. The two doctrines that underlie
Whren's holding-(1) that probable cause
justifies stops and arrests, even for fine-only offenses, and
(2) that analysis of search-and-seizure issues disregards the
officers' thoughts-are of general application. See, e.g.,
Los Angeles v. Mendez, 137 S.Ct. 1539, 1546-47
(2017) (collecting cases); Arkansas v. Sullivan, 532
U.S. 769, 771 (2001); Atwater v. Lago Vista, 532
U.S. 318 (2001).
assumed in United States v. Shields, 789 F.3d 733,
744-46 (7th Cir. 2015), that Whren applies to parked
as well as moving vehicles, and to parking violations as well
as moving violations. Every other circuit that has addressed
the issue expressly has so held. See Flores v.
Palacios, 381 F.3d 391, 402-03 (5th Cir. 2004);
United States v. Copeland, 321 F.3d 582, 594 (6th
Cir. 2003); United States v. Choudhry, 461 F.3d
1097, 1101 (9th Cir. 2006) (collecting cases). If there were
to be a difference, it would be easier to deem
"reasonable" (the constitutional standard) an
officer's approach to a car already stopped than the
halting of a car in motion. "[I]f police may pull over a
vehicle if there is probable cause that a civil traffic
violation has been committed, then [the police] surely did
not violate the Fourth Amendment by walking up to [a
suspect], who was sitting in a car that rested in a spot
where it was violating one of [a city's] parking
regulations." United States v. Thornton, 197
F.3d 241, 248 (7th Cir. 1999).
States v. Paniagua-Garcia, 813 F.3d 1013 (7th Cir.
2016), and United States v. Flores, 798 F.3d 645
(7th Cir. 2015), do not hold otherwise. Both of these
decisions concern the circumstances under which moving
vehicles may be stopped on reasonable suspicion. Cf.
Terry v. Ohio, 392 U.S. 1 (1968). The stop of a
moving vehicle is more intrusive than approaching a parked
car. Because the police approached Johnson's car with
probable cause to believe that the driver was violating a
traffic law, and the car was not moving, it is unnecessary to
consider today how Terry applies when cars are in
motion. It is enough to conclude that Whren applies
to both parking and moving offenses.
grant that the police did more than just stroll up: two squad
cars, which bathed the parked car in bright light, implied
that the occupants were not free to drive away. The district
judge treated this as a seizure; so do we. But issuing a
ticket always entails a brief seizure. Johnson concedes that
the driver of a car approached with probable cause to
investigate a parking offense is not entitled to leave. What
is more, when the officers approached this parked car, no one
was in the driver's seat. (The driver was inside a liquor
store making a purchase.) So both as a matter of the
suspects' legal entitlements and as a matter of brute
fact, it did not make any difference whether the police
approached with two cars rather than one, or whether the
cars' spotlights were on. Johnson's car was not going
district court concluded that the way in which the stop was
conducted was not responsible for the gun's discovery.
2014 U.S. Dist. Lexis 135374 at *13-16. That finding is not
clearly erroneous. We therefore do not consider whether the
officers' show of force was excessive under the
circumstances. The United States contends that the use of two
cars and searchlights was reasonable to reduce the risk the
officers faced in making a nighttime stop in a high-crime
area, circumstances in which a city will not rely on foot
patrols to enforce traffic laws. Cf. Arizona v.
Johnson, 555 U.S. 323 (2009) (discussing steps that
officers may take for self-protection during auto stops). The
district court did not address that subject; we do not
it is worth noting that Johnson has never contended that the
police considered the race of the car's occupants when
deciding to approach it, or when deciding to use two cruisers
rather than one. Indeed, Johnson has not contended that the
police even observed the race of the car's occupants
until after they approached it; recall that Johnson's
principal contention is that police had the car in view for
only an instant before deciding to approach. We therefore do
not consider whether, and if so when, using racial criteria
to select among potential targets of investigation would
require the suppression of evidence.
Hamilton, Circuit Judge, joined by Rovner and Williams,
Circuit Judges, dissenting.
officers in two police cars seized the passengers of a
stopped car. The officers swooped in on the car, suddenly
parking close beside and behind it with bright lights shining
in from both directions, opening the doors, pulling all the
passengers out and handcuffing them. The district court
found, and the majority and I agree, that the passengers were
seized as the officers swarmed them, before the
officers had any sign that one passenger had a firearm. The
sole basis for this intrusive and even terrifying
"investigatory stop"? A suspected parking violation
... for parking too close to an unmarked crosswalk.
majority errs by extending Terry v. Ohio,392 U.S. 1
(1968), and Whren v. United States,517 U.S. 806
(1996), to allow this pretextual seizure based on the
suspected parking violation. This extension is not supported
by existing law. It also runs contrary to the core Fourth
Amendment standard of reasonableness. No other appellate
court has tolerated such police tactics to address a
suspected parking violation. Nor should we, at least absent
extraordinary circumstances ...