September 24, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 2016-cr-197-PP - Pamela Pepper,
WOOD, Chief Judge, and Easterbrook and Brennan, Circuit
Brennan, Circuit Judge.
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
The Search and Arrest
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.
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. 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.
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.
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.
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.
Evidentiary Hearings on Motion to Suppress
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.
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'
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.
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
Order Denying Suppression
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
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.
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
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
Reasonable Suspicion of Unlawful Activity
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).
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,
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.
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
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
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).
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).
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.
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)).
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 ...