Federal Corner: The Terry Stop was Proper—But the Frisk Wasn’t – By F. R. Buck Files Jr.


Law enforcement officers stopped Waldo. Law enforcement officers questioned Waldo. Law enforcement officers began to frisk Waldo. Waldo ran away. Law enforcement officers caught Waldo, searched Waldo, and found something that was illegal. Waldo was prosecuted and convicted and what did the appellate court probably write?

  • That the officers were justified in making a Terry stop of Waldo;
  • That the evidence was sufficient to support a reasonable suspicion that Waldo was armed and dangerous to justify a protective frisk under the Fourth Amendment; and, that Waldo’s conviction is affirmed.

Poor Waldo.

On September 24, 2013, a panel of the United States Court of Appeals for the 7th Circuit refused to follow the usual script and held that United States District Judge William M. Conley of the Western District of Wisconsin should have granted the defendant’s motion to suppress the evidence obtained during an illegal frisk of the defendant and, further, that the application of the exclusionary rule was warranted to suppress the firearm that was seized from defendant. U.S. v. Williams, ___F.3d___, 2013 WL 5314594 (7th Cir. 2013). [Opinion by Stadtmueller, District Judge sitting by designation; Hamilton, Circuit Judge, filed an opinion concurring in part and concurring in the judgment; Ripple, Circuit Judge, filed an opinion concurring in part and dissenting in part.]

A Synopsis of the Facts

Law enforcement officers received an anonymous phone call that approximately 25 people were outside a bar and “about three or four of them had guns out.” The caller did not report any fighting or threatening behavior but only that the individuals were loud and that they were loitering in the parking lot of a local bar. This was a location well known to the police because they had often responded to complaints of criminal activity at that location.

Within three to five minutes of receiving the call, law enforcement officers arrived on the scene and found only eight to ten individuals standing around a group of cars in the parking lot. No one was loud or acting disruptively and no one was displaying a firearm. The officers were not even certain that this was the group that the anonymous caller had reported.

As the officers approached the group, they noted that each of the individuals appeared to act in the same manner: They avoided eye contact with the officers and began walking away slowly from the area. Officer Jesberger requested that Andre Williams step forward and display his hands. Jesberger began to pat down Williams, who had begun to move his hands toward his waist. Jesberger directed Williams not to do this, but Williams continued to do so. When Jesberger attempted to handcuff Williams, he pulled away and attempted to flee the scene. He was unsuccessful. After being kneed and tasered, Willams was handcuffed and searched. When the officers found a handgun, several ecstasy pills and $600 in cash, they arrested Williams.

Williams was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). His lawyer filed a motion to suppress the firearm discovered by the officers. At the suppression hearing, Jesberger testified the he started to “zero in” on Williams “once [he] saw the way that [Williams] was acting.” Jesberger did not provide any further details as to why he singled Williams out. The evidence at the suppression hearing indicated that every one of the group was doing exactly the same thing. When Jesberger requested that Williams step forward, Williams asked “Why.” As to every other request, Williams was compliant. Judge Conley denied the motion to suppress and Williams entered a conditional guilty plea. Judge Conley imposed a 70-month sentence and Williams gave notice of appeal.

Judge Stadtmueller’s opinion reads, in part, as follows:

Initial Stop

In this portion of my opinion, I . . . find that the police officers’ initial stop of the group of individuals was lawful.

        Police officers may detain a suspect for a brief investigatory stop if they have a “reasonable suspicion based on articulable facts that a crime is about to be or has been committed.” Carlisle, 614 F.3d at 754–55 (citing United States v. Wimbush, 337 F.3d 947, 949 (7th Cir.2003)); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


The first question I must ask is what, precisely, Officer Jesberger relied upon in deciding to stop Mr. Williams. The Government points, almost exclusively, to the anonymous 911 call, itself, arguing that the call was an emergency report, which can support an officer’s reasonable suspicion with less objective evidence to corroborate the report. See United States v. Hicks, 531 F.3d 555, 559–60 (citing Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)). However, in passing, the government also mentions that this stop occurred at night in a high-crime area.

        Do those facts, taken in conjunction with one another, support a finding that Officer Jesberger had a reasonable suspicion to stop Mr. Williams? Yes, but this is a very close call.

        The 911 call, in and of itself (and despite being anonymous), provided Officer Jesberger with a reasonable suspicion to stop Mr. Williams. When responding to an emergency report, officers may use the report, itself, to justify a Terry stop, provided that the report describes an ongoing emergency, as opposed to general criminality. See Hicks, 531 F.3d at 558–59 (distinguishing Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) on the basis that the report in Hicks provided details of an ongoing emergency situation, whereas the tip in J.L. reported only general criminality). In Hicks, we found that an individual’s 911 call reporting that “There’s a guy beating a woman up in my house,” was an emergency report justifying a Terry stop. Hicks, 531 F.3d at 557, 560.


Mr. Williams argues that the 911 call could not support a reasonable suspicion, under J.L., because it was made anonymously. That is incorrect. The mere fact that the caller was anonymous is not enough, under J.L., to make the 911 call per se unreliable. Hicks, 531 U.S. at 558–59 (citing United States v. Brown, 496 F.3d 1070, 1077 (10th Cir. 2007).


Mr. Williams also asserts that the changed circumstances between the time of the 911 report and the officers’ arrival on the scene undermined the credibility and emergency nature of that report, thus depriving it of its ability to provide Officer Jesberger with a reasonable suspicion to conduct the Terry stop; again, he is incorrect, though this is a much closer question. As Mr. Williams points out, the 911 caller reported that there was a group of 25 or more individuals in the parking lot being very loud. When the officers arrived, only eight to ten individuals remained, and apparently none of them were acting in a loud or threatening manner. But I find that those facts are not enough to strip the 911 report of either its credibility or of its emergency nature.


Subsequent Frisk

[T]he district court’s decision on the frisk issue was in error.

        A reviewing court must analyze a frisk separately from an initial stop, applying a slightly different standard to determine whether the frisk was lawful. See, e.g., Ybarra, 444 U.S. at 94; McKoy, 428 F.3d at 39. This separate standard is necessary to protect the public from frisks, which are “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” Terry, 392 U.S. at 17. Thus, given the more burdensome intrusion of a frisk, such action should only be allowed when the officer can point to articulable facts that would establish the separate and specific condition that the detainee has a weapon or poses some danger. Id., at 27. In other words, an officer performing a Terry stop may not automatically frisk the individual subject to the stop; rather, to do so, the officer must have some articulable suspicion that the subject is “armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); United States v. Pedroza, 269 F.3d 821, 827 (2001) (citing Terry, 392 U.S. at 27). This more specific analysis, requiring the officer to hold a reasonable suspicion that the subject is “armed and dangerous” as opposed to being generally suspicious, allows courts to distinguish between legitimate and illegitimate frisks, the latter of which constitute severe intrusions upon individual liberty. Terry, 392 U.S. at 27.

        Again, we begin our analysis by examining the circumstances that Officer Jesberger may have relied upon in deciding to frisk Mr. Williams. The government asserts that the following facts supported Officer Jesberger’s decision to frisk Mr. Williams: the fact that the group, in general, avoided eye contact with the officers and started to move away from the area upon the officers’ arrival; the fact that Mr. Williams, in particular, had his hands in his pocket or near his waistband, avoided eye contact, and began to move away from the area; the fact that this all occurred in a high crime area; and the fact that the police were responding to a 911 call reporting weapons.

        None of those facts, alone or together, could have supported a reasonable suspicion that Mr. Williams was armed and dangerous. To begin, the Court cannot see how the group’s general behavior could possibly support a reasonable suspicion that Mr. Williams, himself, was armed and dangerous. Moreover, neither the group behavior nor Mr. Williams’ own personal behavior could support a reasonable suspicion that he was armed and dangerous. Most people, when confronted by a police officer, are likely to act nervous, avoid eye contact, and even potentially shift their bodies as if to move away from the area, thus making such behaviors of very little import to a reasonable suspicion determination. See, e.g., United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (noting that importance of eye contact is purely subjective and easily skewed by police officers to support their view of a situation).


Additionally, while we understand that the fact that a stop occurs in a high-crime area may be a factor under Terry, we believe that the rest of the case for a frisk, here, was so weak that this factor cannot save the frisk. “Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.” Maryland v. Buie, 494 U.S. 325, 342 n. 2, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (applying Terry’s principles to protective sweep of a house.


Finally, while officers were responding to a weapons call, that fact could not give rise to a reasonable belief that Mr. Williams, personally, was armed and dangerous. By the time the officers arrived, the situation looked much different than had been reported during the 911 call. Considerably fewer people were present, and the individuals who were present were not acting loudly or displaying their weapons. Thus, upon their arrival, the officers had practically no reason to believe that any of the remaining individuals were armed and dangerous. Indeed, the individuals with guns may have been among the 15 to 20 individuals who had left the group between the time of the call and the officers’ arrival. Moreover, the 911 caller did not provide any information that would have identified Mr. Williams as one of the individuals in possession of a weapon. In sum, the 911 call was vague, circumstances had changed, and therefore we cannot envision that the call support a reasonable belief Mr. Williams was armed and dangerous.


Herring v. United States

The final question we must ask is whether Officer Jesberger’s frisk of Mr. Williams was so deliberate that the exclusionary rule should apply.


In Herring, the Supreme Court noted that courts should not exclude evidence unless the actions in question were “sufficiently deliberate that exclusion can meaningfully deter” similar actions in the future, and that the actions were “sufficiently culpable that such deterrence is worth the price paid by the judicial system.”Herring, 555 U.S. at 144.


Officer Jesberger’s action, here, was both deliberate and culpable to an extent that warrants suppression under Herring. As we stated above, Officer Jesberger had little articulable reason to suspect that Mr. Williams was armed and dangerous. In fact, the reasons he did articulate could have been used as pretext to search practically any person who was near the scene on the night of the arrest. For no apparent reason, Officer Jesberger singled out Mr. Williams, and proceeded to search him. It is entirely unclear from the record what, precisely, about Mr. Williams set off Officer Jesberger’s sense that he should be searched. But, in reaching our conclusion in this case, we hope that other officers will be deterred from engaging in the arbitrary, almost random, search of individuals who happen to be near the scene of a crime. Therefore, suppression in this case is appropriate under Herring.

Conclusion . . .

For all of these reasons, we hold that Officer Jesberger lacked a reasonable suspicion to conduct a frisk of Mr. Williams at the time of the frisk began, in violation of Mr. Williams’ Fourth Amendment rights. Accordingly, we must REVERSE the denial of Mr. Williams’ motion to suppress, VACATE his judgment of conviction, and REMAND this matter with instructions to the district judge to grant his suppression motion and for additional proceedings consistent with this decision. As already stated, because we determine that Mr. Williams’ conviction must be vacated, we do not reach the sentencing issues raised by the parties.

My Thoughts

  • I don’t remember the last time that I read a United States Court of Appeals opinion authored by a district judge sitting by designation that had one of the Circuit Judges filing an opinion concurring in part and concurring in the judgment and the other Circuit Judge filing an opinion concurring in part and a dissenting in part.
  • Even though the posture of the judges is unusual, the case is, nevertheless, interesting and instructive.
  • This case does remind us that—even if a Terry stop was lawful—that a pat down search after a Terry stop may be in violation of the Fourth Amendment.
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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