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United States v. Richmond

United States Court of Appeals, Seventh Circuit

May 13, 2019

United States of America, Plaintiff-Appellee,
v.
Antoine Richmond, Defendant-Appellant.

          Argued September 24, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2016-cr-197-PP - Pamela Pepper, Judge.

          Before WOOD, Chief Judge, and Easterbrook and Brennan, Circuit Judges.

          Brennan, Circuit Judge.

         Antoine Richmond entered a conditional plea of guilty to possessing a firearm as a felon. Before entering his plea, Richmond moved to suppress a handgun police seized from the threshold of his residence's front door during an encounter on his porch. The district court denied Richmond's motion, and he now appeals the court's ruling. We affirm the judgment of the district court.

         I. Background

         A. The Search and Arrest

         The night of October 11, 2016, Milwaukee Police Officers Chad Boyack and Anthony Milone were patrolling a residential neighborhood police refer to as the "Capitol Street Corridor." This area in Milwaukee is known for drug trafficking, armed robberies, and gun violence. Shortly before midnight, as they drove their marked squad car through an intersection, both officers saw Richmond walking toward them on a sidewalk. Richmond strode with his left hand free at his side and his right hand in the "kangaroo" pocket on the front of his T-shirt. Officer Milone saw "a significant bulge" from this pocket, and Officer Boyack described the bulge as a "medium-sized to larger object" protruding through Richmond's front pocket. In their experiences and training as police officers-almost 20 years for Boyack, and 6 years for Milone-front pocket bulges like this typically concealed a firearm. They suspected the same here.

         Richmond made eye contact with Boyack as the squad car approached. After the officers passed Richmond, he changed direction, quickened his pace, crossed the front lawn of a residential duplex, and moved toward the stairs up to its front porch. Unknown to the officers, Richmond was walking across the yard to get to the front door of a duplex where he lived.[1] Seeing the suspicious bulge in Richmond's front pocket and his unusual change of course prompted the officers to make a sharp U-turn and park in front of the duplex to talk with Richmond.

         As the officers exited their squad car, Richmond walked up the porch's five stairs toward the front door. Boyack and Milone followed and, from about 20 to 25 feet away, they saw Richmond open the outer screen door with his left hand, bend down, and with his right hand place a dark, medium-sized object on the doorframe between the screen door and front door, which was closed. The front porch light illuminated Richmond's action, but the officers could not make out what Richmond placed on the threshold. Nor could they observe the stashed object as they approached, as the bottom third of the screen door was opaque. They suspected Richmond hid a gun. Their suspicions were based on their experiences on patrol, including with persons licensed to carry concealed weapons. To them, hiding a gun on the floor behind an unlocked screen door in response to approaching police was not typical of a concealed-carry license holder.

         After Richmond placed the object on the doorframe, he closed the screen door and turned around as the officers walked up to the porch. Boyack asked Richmond if he had heard shots, if he was carrying a weapon, and what he was doing at the duplex. Richmond answered no to the first two questions, and replied that the house was his girlfriend's. While Boyack questioned Richmond, Milone walked up onto the porch toward the screen door, which put Richmond between the two officers.

         While Boyack asked questions, Milone opened the screen door "as little as possible" and saw a black semi-automatic .40 caliber handgun resting where the officers observed Richmond place the dark, medium-sized object from his pocket. According to Milone, Richmond stood within the screen door's swing radius because he could open it only partially without hitting Richmond's back. After seeing the gun, Mi-lone immediately used code to alert his partner of the presence of a firearm and possible arrest. Boyack then asked Richmond if he was a convicted felon. Richmond confirmed he was, so the officers arrested him. The entire encounter from when the officers first observed Richmond walking on the sidewalk to Milone seeing the gun and Richmond confirming he was a felon lasted no more than thirty seconds.

         B. Evidentiary Hearings on Motion to Suppress

         After being indicted for possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), Richmond moved to suppress the gun, arguing Milone's act of opening the screen door constituted a warrantless search on the curtilage of his home without legal justification.

         Two evidentiary hearings were held on Richmond's motion. After the first, a magistrate judge issued a report recommending the motion be denied for two reasons: the officers had reasonable suspicion to make an investigatory stop of Richmond, and the search behind the screen door was appropriate to ensure their safety. Richmond objected to the magistrate judge's report, and the district judge held a second hearing to personally evaluate the officers' testimony.

         Boyack and Milone testified at both hearings and were sequestered during their examinations. Their accounts of the facts leading up to Richmond's arrest were consistent with each other and at each hearing, except before the district judge in one respect: where Richmond stood on the porch when Mi-lone opened the screen door. Boyak testified Richmond, after placing the gun in the doorframe, stepped away from the door and walked down to the second step of the porch. Milone said everyone remained on the top landing of the porch, and Richmond remained close to the screen door.

         Although Boyack and Milone gave differing accounts of Richmond's specific location on the porch, the officers each stated Richmond could access what they had suspected was a gun. The officers also testified Richmond was calm throughout their interaction. Even still, the officers each feared that Richmond could bolt toward the door to arm himself, as the officers have experienced in the past with other suspects. Richmond's large stature heightened the officers' concern. Boyack testified Richmond was a "very well-built, muscular" man, and at the hearing the district court verified the accuracy of this description. The officers were similarly concerned about unknown duplex occupants because a potentially loaded gun lay exposed in the doorway, posing a danger to anyone outside or inside the house.

         C. Order Denying Suppression

         After the second evidentiary hearing, the district court adopted the magistrate judge's recommendation and denied Richmond's motion to suppress. The court concluded that the combination of facts described above gave the officers reasonable suspicion that Richmond was doing something unlawful as he walked down the street and headed toward the porch.

         Also, based on these facts, the district court ruled the officers performed a lawful protective search under Terry v. Ohio, 392 U.S. 1 (1968). The court relied on Richmond's exhibits to confirm the porch was narrow, so regardless of whether Richmond remained near the door (per Milone) or moved onto the porch steps (per Boyack), Richmond stood unrestrained within a stride or two of the gun and could have armed himself quickly had he so chosen. Last, the district court noted Terry searches are not restricted to the suspect's person, and ruled that Milone's search was justified as narrowly confined to the only place from which the officers had reason to believe Richmond could obtain a weapon.

         II. Discussion

         When considering a district court's denial of a motion to suppress, we review its legal conclusions de novo and its findings of fact for clear error. United States v. Howard, 883 F.3d 703, 706-07 (7th Cir. 2018). We give due weight, as we must, to a trial court's assessment of the officers' credibility and the reasonableness of their inferences. Ornelas v. United States, 517U.S. 690, 700 (1996) (requiring reviewing courts to review findings of historical fact only for clear error and give due weight to factual inferences drawn by resident judges and local law enforcement officers); Howard, 883 F.3d at 707 (holding the same). "Because the resolution of a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing." United States v. Groves, 530 F.3d 506, 510 (7th Cir. 2008) (internal quotations omitted).

         We examine first whether the officers reasonably suspected that Richmond was engaged in criminal activity, and second whether Milone's search behind the screen door eclipsed a constitutional boundary.

         A. Reasonable Suspicion of Unlawful Activity

         A limited intrusion into an individual's privacy is permitted under the Fourth Amendment where the police have reasonable suspicion to believe criminal activity is afoot. See Terry, 392 U.S. at 30; United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005). Reasonable suspicion exists when an officer can point to "'specific and articulable facts which, taken together with rational inferences from those facts[, ] reasonably warrant that intrusion.'" Baskin, 401 F.3d at 791 (quoting Terry, 392 U.S. at 21).

         When making reasonable suspicion determinations, we "must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted). Reasonable suspicion requires more than a hunch but less than probable cause and "considerably less than preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

         With these standards in mind, we examine the facts on which the officers formed their suspicions, and whether the district court erred in its reasonableness assessment.

         Four categories of facts created a suspicion that Richmond was illegally carrying a gun or was otherwise engaged in unlawful activity: (1) Richmond was walking down the street near midnight in a neighborhood plagued by drug trafficking and gun violence; (2) there was a significant bulge in Richmond's front T-shirt pocket as he walked down the street; (3) in the officers' over 25 combined years' of police training and experiences, a protrusion like this was more often than not a gun; and (4) after the officers passed Richmond in their marked squad car, Richmond quickened his pace, changed his direction, cut across a property, and hid what they suspected was a gun between the screen door and front door.

         Richmond contends none of the factors articulated by the officers at the suppression hearings, standing alone, are illegal conduct. He emphasizes he was walking home and, after seeing the officers, continued on that path to his residence. Richmond insists that, as far as the officers knew, he may have been licensed to carry a concealed firearm. See Wis. Stat. § 175.60 (permitting persons age 21 and older who have not been convicted of a felony to obtain a concealed-carry license).

         Richmond's points miss the forest for the trees: when evaluating the reasonableness of a police intrusion, we look at the totality of circumstances and "must not be overly focused on any one factor." United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000).

         Richmond's presence in a neighborhood beset by drug trafficking and gun violence does not, by itself, support a particularized suspicion that he was committing a crime. But it is among the relevant contextual considerations in a reasonable suspicion analysis. See, e.g., Wardlow, 528 U.S. at 124-125 (concluding defendant's evasive behavior in a high crime area and unprovoked flight after seeing the police had aroused a reasonable suspicion that he was engaged in criminal activity); United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002) (holding same). A suspect's evasive behavior, and the experience of the officers, are also relevant factors. United States v. Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (evasive behavior); Jackson, 300 F.3d at 746 (officer experience).

         That Richmond changed his direction to head home does not alter the analysis. The officers did not know he lived at the duplex when they pulled over and approached him on the porch. And both officers testified he was not acting the way someone with a concealed-carry license would act on their own property. "[B]ehavior which is susceptible to an innocent explanation when isolated from its context may still give rise to reasonable suspicion when considered in light of all of the factors at play." Baskin, 401 F.3d at 793. Richmond's innocent explanations-including a hypothetical concealed-carry license-do not discharge all other relevant facts from consideration. Richmond argues this is new territory, as the Supreme Court has yet to directly address the constitutionality of a Terry stop within a home's curtilage. He cites Ninth, Tenth, and Eleventh Circuit cases to argue Terry does not justify a stop, seizure, or search inside the home. But none of these cases concern a protective search for weapons by officers lawfully within the curtilage of a home.[2]

         On this topic, this court has allowed a Terry stop in a structure attendant to a house. In United States v. Pace, 898 F.2d 1218, 1223 (7th Cir. 1990), we applied Terry to uphold the stop of a defendant in his condominium garage, supported by reasonable suspicion alone. There, the officer was pursuing the defendant, whom the officer suspected might be a mob assassin on his way to kill another condominium resident. Pace, 898 F.2d at 1229. Upon discovering he was being followed, the defendant took what the officer considered to be evasive action. Id. When the defendant entered the garage, the officer had to decide whether to pursue him to investigate his suspicion or to let him go despite the threat he might have posed to another resident. Id. We balanced the potential for harm against the intrusion on the defendant's privacy and held both the officer's suspicion and entry were reasonable. Id. (citing Terry, 392 U.S. at 21-22 and Michigan v. Long, 463 U.S. 1032, 1046 (1983)).

         Like the police in Pace, Boyack and Milone articulated objectively reasonable grounds to suspect Richmond was engaged in criminal activity that justified their entry onto the porch. Richmond describes the facts differently. But "[t]he need to resolve ambiguous factual situations-ambiguous because the observed conduct could be either lawful or unlawful-is a core reason the Constitution permits investigative stops." United States v. Miranda-Sotolongo,827 F.3d 663, 669 (7th Cir. 2016). Because the aggregate facts support a particularized and objective basis ...


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