December 11, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 17-CR-84-JPS - J.P. Stadtmueller,
Wood, Chief Judge, and Ripple, and Barrett, Circuit Judges.
BARRETT, CIRCUIT JUDGE.
Vaccaro entered a conditional guilty plea to possessing a
firearm as a felon, 18 U.S.C. § 922(g), preserving his
right to appeal the denial of his motion to suppress the gun.
Vaccaro contests both the pat-down search that occurred
seconds after police officers pulled over his car and the
search of the car that yielded the gun. The pat-down was
lawful under Terry v. Ohio, 392 U.S. 1 (1968). The
sweep of the car, which the district court upheld under
Michigan v. Long, 463 U.S. 1032 (1983), is a closer
call, but we conclude that it too was permissible.
Accordingly, we affirm.
summary of the facts is taken from an evidentiary hearing on
Vaccaro's motion to suppress. Milwaukee police officers
Aaron Frantal and Matthew Tracy stopped Vaccaro for running a
red light. Officer Frantal testified that Vaccaro stopped his
car and made a "very ferocious move" by
"bending at the waist." Vaccaro then leaned toward
the passenger seat and "made another aggressive move
with his entire top torso and both arms into the back seat of
the vehicle." Officer Tracy added that he saw Vaccaro
"double over bending at the waist" and then reach
toward the passenger side of the car. Officer Frantal
testified that Vaccaro's movements took under five
seconds. Afraid that Vaccaro might be trying to "gain
control of something from the back seat," Officer
Frantal drew his gun and ordered Vaccaro out of his car. The
officers immediately handcuffed Vaccaro, and Officer Frantal
patted him down.
Officer Tracy asked Vaccaro questions about his movements.
Vaccaro expressed frustration to the officers and mentioned
that "people are trying to kill me." Vaccaro also
said that he merely "took [his] coat off" when he
pulled over. After saying that he was going to search the
car, Officer Tracy asked Vaccaro seven times whether there
was a gun in the car. Vaccaro responded once to reiterate
that someone was trying to kill him and another time to say
"I don't have anything." Officer Tracy added
that Vaccaro appeared to be "extremely nervous" and
in a "real amped-up state," which contributed to
the officer's belief that Vaccaro was under the influence
Officer Tracy questioned Vaccaro, Officer Frantal found a GPS
monitor on Vaccaro's ankle. Vaccaro confirmed that he was
on supervision for "false imprisonment/' which the
officers understood to be a felony. Officer Frantal did not
discover a weapon during the frisk. But both officers
testified that they noticed a rifle case in the backseat.
Neither officer said anything, they testified, for fear of
their safety; they did not want to alert an
"agitated" Vaccaro that they had seen the case.
officers then locked Vaccaro, still handcuffed, in the
backseat of their squad car. Officer Frantal testified that
Vaccaro "did not appear to be fully stable" as he
was led to the car. Officer Frantal called in the traffic
violation to dispatch, which drew backup officers to the
Officer Tracy returned to Vaccaro's car and began
searching the front seats. Officer Frantal then approached
the vehicle. He soon remarked that he saw a rifle case in the
backseat. The officers then removed a coat on top of the
rifle case and eventually confirmed that a rifle was inside
magistrate judge recommended that the district court deny
Vaccaro's motion to suppress. She credited the
officers' testimony that Vaccaro had made furtive
movements because Vaccaro had admitted to taking off his
jacket; therefore, she said, the officers had reasonable
suspicion to frisk Vaccaro for weapons. But she discredited
the officers' testimony that they had seen a rifle case
in the back of Vaccaro's car before locking him
in the squad car. The legality of the search therefore
depended on whether Vaccaro's furtive gestures provided
the officers with reasonable suspicion to search the
passenger compartment of the car in addition to Vaccaro's
person. She concluded that they did.
objected to the magistrate judge's report and
recommendation, arguing that the immediate frisk was not
justified by reasonable suspicion and that the search of the
car was not a lawful protective search under Long.
The government argued that both the frisk and car search were
reasonable. Vaccaro's furtive movements justified the
patdown search, the government said, and locking Vaccaro in
the squad car before the vehicle search enabled the officers
to "avert a calamitous and explosive event."
district judge sided with the government and denied
Vaccaro's motion to suppress. The judge accepted the
magistrate judge's findings of fact and discredited the
officers' testimony that they had observed the rifle case
in the backseat before they searched the car. But
Vaccaro's furtive movements provided the officers with
reasonable suspicion that he had "potentially armed
himself or concealed a firearm," which warranted a
protective frisk. The district judge also concluded that the
vehicle search was reasonable under Long. Although
Vaccaro was handcuffed and locked in a squad car during the
search, he was not under arrest and could still be
"dangerous" or gain "immediate access" to
weapons. While the officers' "stated bases for their
suspicion of dangerousness ... are few," the judge
observed, he was "constrained" to find that the
officers had reasonable suspicion that Vaccaro was dangerous
based on his "furtive movements," the
"relatively late" time of the stop, and the
officers' belief that Vaccaro was on drugs. Citing
United States v. Arnold, 388 F.3d 237 (7th Cir.
2004), the judge further explained that, had "the
traffic stop resulted only in the issuance of a citation for
running a red light, Vaccaro would have been permitted to
reenter his vehicle."
then conditionally pleaded guilty to knowingly possessing a
firearm as a felon. 18 U.S.C. § 922(g). He expressly
reserved the right to ...