In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3215
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
KENNETH BARNETT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 10012—Michael M. Mihm, Judge.
____________
ARGUED JANUARY 18, 2007—DECIDED OCTOBER 2, 2007
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Kenneth Barnett successfully
moved to exclude evidence of a handgun found on his
person when he was frisked by police during a Terry stop.
The district court granted his motion after determining
that the police did not have a reasonable suspicion that
Barnett might be armed during the stop—thus the frisk
was not reasonable even though the stop itself was. We
find that the police had adequate, reasonable suspicion
that Barnett could be armed, and that the frisk for weap-
ons was a constitutionally valid search. We reverse and
remand.
During the suppression hearing and two supplemental
hearings with additional evidence, the district court was
2 No. 06-3215
presented with the following facts. Officers Parnell and
Sinks were on patrol in Peoria, Illinois in January 2006
when they spotted Barnett alone in a dark, empty park-
ing lot near some businesses that were either closed or
preparing to close. The officers noted that Barnett ap-
peared “nervous, startled” and “hurried” when they
slowly approached in their squad car. The officers de-
cided to stop Barnett out of suspicion that he may have
robbed a closed and darkened restaurant bordering the
parking lot, even though there was no police report to
that effect. The district court determined that this consti-
tuted a valid Terry stop supported by reasonable suspicion,
and Barnett does not challenge that ruling. The contest
between the parties involves the officers’ interaction
with Barnett after they initiated the stop but prior to the
frisk that uncovered the gun.
Officer Sinks approached Barnett while Officer Parnell
stood a few feet away. Sinks asked Barnett why he was
in the area, and Barnett replied that he worked at the
restaurant, which he had just closed for the evening, and
he was going home. He provided a local address as his
destination. The officers observed, however, that Barnett
was nervous and sweating profusely despite the 30-degree
temperature. Sinks asked for his identification. The
officers testified that as Barnett turned to retrieve his
identification from a pocket they saw the outline of the
butt of a gun protruding through the waist area of the
sweat suit Barnett was wearing. The officers recalled that
his sweat suit was gold in color and of a “velvet type”
material, and that it was no more loose-fitting than an
ordinary sweat suit. Sinks admitted that until he saw
what he took to be the outline of a gun, he did not believe
Barnett was armed.
Officer Sinks examined Barnett’s identification and
noted that it listed an address roughly 40 miles away,
contradicting Barnett’s statement that he was going home
No. 06-3215 3
to a local address. Sinks inquired several times if Barnett
had anything illegal and if he would allow Sinks to
frisk him for the officers’ safety. Barnett responded that he
did not want to be frisked and that his lawyer told him not
to let officers frisk him. At some unspecified time during
this roughly five-minute exchange, the officers had called
for backup, which now arrived at the scene. With a third
officer present, the officers immediately told Barnett they
“had to” frisk him, and they grabbed his arm. Barnett then
said, “Yeah, I got a gun on me.” The officers discovered a
loaded handgun in his waistband. Barnett’s recollection of
the events differed slightly: he testified that the officers
asked to search him even before examining his identifica-
tion; that he already had his identification out and did not
reach into his pocket to retrieve it; and that after seeing
his identification, Sinks said, “I don’t mind about the
drugs that you have on you, but where’s the pistol,” and
then additional officers appeared and grabbed him.
Barnett appeared before the district court wearing a
sweat suit that jail personnel certified had been collected
from him at the time of his arrest, though officers Parnell
and Sinks claimed that the sweat suit was larger and of
a different color than they remembered Barnett wearing
that night. Barnett explained that he had borrowed the
sweat suit from his 400-pound cousin. The court noted that
the sweat suit was “grossly” oversized for Barnett, who
weighed 200 pounds.
After the court observed Barnett wearing the sweat
suit with the unloaded gun in his waistband (in different
variations of a zipped and unzipped top and tucked and
untucked tee shirt, according to the different memories of
Barnett and the officers), it determined that the govern-
ment had not established by a preponderance of the
evidence that the officers saw a gun protruding through
Barnett’s sweat suit. The court considered that Barnett
4 No. 06-3215
lost approximately 35 pounds since the night of his arrest,
but concluded that, even allowing for the weight loss, the
sweat suit was too baggy to have allowed the officers to
have seen a gun tucked in his waistband.
The court noted that the officers’ frisk of Barnett would
be constitutional if, under Terry, they had reasonable
suspicion that he was armed and dangerous. But having
discounted the testimony that the police saw the protru-
sion of the gun, the court concluded that the officers did
not subjectively believe Barnett was armed or that they
were in danger. It noted that Sinks specifically stated
that he did not think Barnett was armed until he saw the
outline of a gun, and it focused on the officers’ agreement
that Barnett was “cordial,” “cooperative,” “respectful,” and
“non-threatening.” Without the officers’ subjective suspi-
cion of danger, the court explained, even a justified
Terry stop did not warrant a frisk for weapons. The court
also orally discussed the elapsed five minutes prior to the
frisk, noting that if the officers had been concerned about
Barnett being armed, they would have searched him
immediately. The court even noted that an immediate frisk
might have been reasonable, but that the delay of
the officers showed that they merely wanted to search
Barnett without having any true safety concern.
The court went on to consider whether Barnett’s state-
ment that “Yeah, I got a gun on me” constituted probable
cause for the police to search him. It determined, however,
that Barnett only made the statement once it was clear
that the police were going to search him regardless, and
as a result the statement was coerced and involuntary.
Thus it could not be a basis for probable cause.
The district court granted Barnett’s motion to exclude
the evidence of the gun. The government appeals that
ruling, arguing that the frisk was justified because the
officers had initiated a valid Terry stop based on suspicion
No. 06-3215 5
that Barnett was involved in a robbery, a crime so closely
associated with weapon possession that his possible
commission of such a crime created a reasonable suspicion
that he was armed. We review the court’s legal conclusions
de novo and its findings of fact for clear error. United
States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007).
The district court erred in treating the test for reason-
able suspicion as a subjective inquiry when it is an objec-
tive one. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (“the
issue is whether a reasonably prudent man in the circum-
stances would be warranted in the belief that his safety
or that of others was in danger”); Scott v. United States,
436 U.S. 128, 137 (1978) (recognizing that “it is imperative
that the facts be judged against an objective standard,”
“without regard to the underlying intent or motivation of
the officers involved,” and “the fact that the officer does
not have the state of mind hypothecated by the reasons
which provide the legal justification for the officer’s ac-
tion does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action”);
Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“The Fourth
Amendment’s concern with ‘reasonableness’ allows cer-
tain actions to be taken in certain circumstances, whatever
the subjective intent,” because “evenhanded law enforce-
ment is best achieved by the application of objective
standards of conduct, rather than standards that depend
upon the subjective state of mind of the officer”); United
States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999) (“the
test is objective, not subjective”) (citing Terry, 392 U.S.
at 27).
The frisk of Barnett was objectively reasonable. Though
not every Terry stop justifies a frisk, some crimes by their
very nature are so suggestive of the presence and use of
weapons that a frisk is always reasonable when officers
have reasonable suspicion that an individual might be
6 No. 06-3215
involved in such a crime. See Terry, 392 U.S. at 33
(Harlan, J., concurring) (“the right to frisk must be
immediate and automatic if the reason for the stop is, as
here, an articulable suspicion of a crime of violence”);
United States v. Hanlon, 401 F.3d 926, 929-30 (8th Cir.
2005) (“when officers encounter suspected car thieves, they
also may reasonably suspect the individuals might possess
weapons”); United States v. Edwards, 53 F.3d 616, 618 (3d
Cir 1995) (fraud that occurred in a bank during daytime
made it reasonable to conclude suspects might have
armed themselves and might use force to facilitate their
escape); United States v. Walker, 924 F.2d 1, 4 (1st Cir.
1991) (an officer’s “experience that burglars often carry
weapons or other dangerous objects . . . clearly support[s]
[his] concern for his safety and suspicions that [the
suspects] might be armed”). Here, the parties agree that
the officers had reasonable suspicion that Barnett might
have been involved in a burglary, a crime normally and
reasonably expected to involve a weapon. Cf. United States
v. Brown, 366 F.3d 456, 461 (7th Cir. 2004) (“Certainly a
bank robbery is the type of violent criminal activity from
which officers reasonably could infer that the suspect
might be armed”).
This objectively reasonable suspicion did not dissipate
during the roughly five minutes of questioning leading
up to the frisk, regardless of Barnett’s “cordiality” or
“cooperativeness.” The officers’ ongoing reasonable suspi-
cion that Barnett committed a crime that likely involved a
weapon independently preserved the justification for a
protective frisk. This is true even if Officers Sinks and
Parnell did not subjectively fear Barnett was armed when
they announced that they intended to frisk him, because
the legitimacy of their search stemmed at all times from
whether a protective frisk for weapons was objectively
reasonable under the circumstances. See United States v.
Adamson, 441 F.3d 513, 521 (7th Cir. 2006) (noting that
No. 06-3215 7
the test for reasonableness is objective and thus rejecting
defendant’s argument that the passage of time prior to a
frisk during a Terry stop showed that the officers did not
subjectively believe he was armed); United States v. Brown
232 F.3d 589, 594-95 (7th Cir. 2000) (applying an objective-
ness standard to uphold a frisk during a Terry stop when
the defendant argued the officer did not subjectively fear
for his safety). The testimony showing Barnett’s high
degree of nervousness and indirectness about his address
and destination kept the suspicion of his involvement in a
robbery alive during the questioning. As long as that
suspicion remained alive, the objectively reasonable
suspicion that he was armed remained alive. We would
have a different case if the officers’ questioning had
dispelled objectively reasonable suspicion of his commis-
sion of a crime that often involves weapons, but that is not
the case before us.
We note that the result of the district court’s reasoning
would be an incentive for police conducting a Terry stop
to immediately frisk any person whom they think they
may eventually need to frisk for their safety. This is not a
desirable result. Officers may need to conduct some
investigation to assess the situation and apprise them-
selves of the suspect’s behavior and attitude before taking
further action. Such investigation might even eliminate
objective safety concerns and thus eliminate the personal
intrusion of a frisk that otherwise might have occurred.
We also note that this was not a case of excessive delay
prior to the frisk. Although the five-minute delay here calls
into question the subjective intent of the officers and
their fear of harm, it is not enough to call into question
the objectively reasonable concern that a person still
suspected of involvement in a crime in which he or she is
likely to be armed might be carrying a weapon. A longer
delay might eventually begin to undermine the objective
reasonableness of a frisk. Such a case is not before us now.
8 No. 06-3215
Because the officers were justified in their frisk of
Barnett under Terry, we need not address the question of
the voluntariness of Barnett’s admission to the officers
that he possessed a gun.
For the foregoing reasons, the decision of the district
court is REVERSED and REMANDED for continued proceed-
ings not in conflict with this decision.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-2-07