In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2031
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
E RNEST R. SNOW ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 09 CR 87—Larry J. McKinney, Judge.
A RGUED F EBRUARY 7, 2011—D ECIDED A UGUST 24, 2011
Before
R OVNER and W OOD , Circuit Judges, and
G OTTSCHALL, District Judge.
R OVNER, Circuit Judge. A gun was discovered on
Ernest R. Snow’s person after he was pulled over on
suspicion of a burglary attempt and ordered out of his
vehicle for a protective patdown. See Terry v. Ohio, 392
The Honorable Joan B. Gottschall, of the Northern District
of Illinois, sitting by designation.
2 No. 10-2031
U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). As Snow had
prior felony convictions, he was indicted pursuant to
the felon-in-possession statute, 18 U.S.C. § 922(g)(1), and
ultimately pleaded guilty to that charge. Snow contends,
however, that his motion to suppress evidence related
to the gun should have been granted, because the
police officers who stopped him lacked any reasonable
grounds on which to believe that he might be armed
and that the order to exit his vehicle for purposes of a
protective frisk was therefore invalid. We disagree
and affirm.
I.
Shortly before 4 p.m. on January 16, 2009, a 911 operator
dispatched members of the Indianapolis police to a resi-
dential address after receiving a call reporting an at-
tempted break-in at that address. The dispatcher ad-
vised the officers that there was a “burglary in prog-
ress” and that the suspect was “a person [of] unknown
racial description in a black hoodie, gray pants, trying
to crawl through the front window, now went around
back.” R. 60-1 at 2.
After making the dispatch, the 911 operator resumed
contact with the caller, whom she had placed on hold. At
the operator’s request, the caller described the house
(which was across the street from the caller); the caller
also noted that there was a pickup truck parked in front
of the house that was green in front and white in back.
The caller then revised her description of the suspect,
whom she now spotted on the side of the residence, as
No. 10-2031 3
dressed in loose-fitting jeans rather than gray pants. The
operator passed all of this information along to the
officers, although she inaccurately described the truck
as being green and black. Finally, the caller reported
that the man had returned to the front of the house,
appeared for a moment to be holding and possibly
texting with a cell phone, and then entered the truck
and drove off. When the operator reported these events
to the police, one of the officers immediately re-
sponded that he had spotted the truck approximately
two blocks from the residence. The truck, which the
officers later testified was multicolored, or green in
front and a different, unspecified color in back, was
stopped shortly thereafter by officer Nicholas Andrews.
Snow was at the wheel of the truck. As Andrews ap-
proached the driver’s side of the vehicle, he observed
that Snow was dressed in a black hooded sweatshirt
and baggy blue jeans. Andrews asked Snow for his
driver’s license, which Snow handed to him. Apparently
without being asked, Snow also removed his keys from
the ignition and handed them to Andrews. At about
this time, the two other officers who were responding
to the dispatch arrived on the scene.
Andrews would later testify that without asking
Snow any questions or conducting any further investiga-
tion, he ordered Snow to step out of the truck with the
intent to frisk Snow for weapons. Andrews explained
that he gave that order “for officer safety,” because he
“believed [Snow] was a burglary suspect.” R. 56 at 16.
Snow alighted from the vehicle as directed, but when
4 No. 10-2031
Andrews instructed him to place his hands on the truck for
purposes of the patdown, Snow instead spun around to
face the officer. Interpreting this as an act of aggression,
Andrews grabbed Snow’s left arm, forced it behind his
back, pinned him against the truck, and ordered him
to “stop resisting.” R. 56 at 17. The other officers, on
seeing what was happening, ran to Andrews’ aide.
Officer Michael Wolley grabbed Snow’s right arm, which
Snow was moving toward his waist. At this point,
officer Emily Perkins spotted the handle of a gun in
Snow’s waistband. She called out “gun” and seized the
firearm. Snow was taken into custody.
Snow was never charged with attempted burglary
(although there is no dispute that he was the person
seen by the 911 caller) but he was, as we have noted,
charged with being a felon in possession of a firearm.
He moved to suppress all evidence related to the gun,
contending that the police lacked a reasonable basis to
believe that he might be engaged in criminal activity,
such that he could be stopped for investigatory pur-
poses under Terry and, furthermore, that the officers
lacked any grounds to believe that he might be armed,
such that he could be frisked for weapons as part of
the investigatory stop. Based on the information pro-
vided by the 911 call, the district judge concluded that
the officers had reasonable grounds on which to
believe that Snow may have attempted to commit a
burglary and thus to detain him under Terry. The court
did not separately consider whether the officers had
grounds on which to believe that Snow might be
armed, such that a protective patdown was in order.
No. 10-2031 5
While reserving his right to appeal the denial of his
motion to suppress, Snow pleaded guilty to the felon-in-
possession charge. Snow’s status as an armed career
criminal, see 18 U.S.C. § 924(e), mandated a prison term
of not less than fifteen years. The district court ordered
him to serve that minimum term.
II.
Snow contends on appeal that the facts confronting
the officers who stopped him did not support a rea-
sonable suspicion that he might be armed, such that a
protective patdown was authorized. This is a legal deter-
mination that we review de novo. United States v.
Richmond, 641 F.3d 260, 262 (7th Cir. 2011). We of course
owe deference to any pertinent findings of historical
fact made by the district court. E.g., United States v.
Tyler, 512 F.3d 405, 409 (7th Cir. 2008).
Terry authorizes a brief investigatory detention of an
individual whom the police reasonably suspect, based on
specific and articulable facts, of engaging in criminal
activity. 392 U.S. at 21-22, 30, 88 S. Ct. at 1880, 1884.
“Reasonable suspicion is more than a hunch but less
than probable cause and ‘considerably less than prepon-
derance of the evidence.’ ” Jewett v. Anders, 521 F.3d 818,
823 (7th Cir. 2008) (quoting Illinois v. Wardlow, 528 U.S.
119, 123, 120 S. Ct. 673, 675 (2000)). Whether it was rea-
sonable for an officer to suspect that the defendant
was engaged in wrongdoing calls for an objective in-
quiry into all of the circumstances known to the officer
6 No. 10-2031
at the time he stopped the defendant, including infor-
mation relayed to him by fellow officers and police dis-
patchers. E.g., United States v. Hicks, 531 F.3d 555, 558
(7th Cir. 2008); United States v. Drake, 456 F.3d 771, 774-
75 (7th Cir. 2006). Snow no longer disputes that facts
known to Andrews and the other officers gave rise to a
reasonable suspicion that he may have been involved in
criminal activity, such that an investigative detention
under Terry was warranted. However, he renews his
contention that the facts did not support the decision
to order him out of his truck and to place his hands on
the vehicle for a protective patdown, which order re-
sulted in the discovery of the gun underlying his con-
viction.1
1
Throughout this opinion, we have assumed, consistent with
the premise of Snow’s appeal and with the government’s
primary argument in support of affirmance, that the process
of the frisk commenced when Andrews ordered Snow to step
out of the truck and to place his hands on the vehicle so that
he could be patted down. We have also assumed, in turn, that
a reasonable suspicion that Snow might be armed was re-
quired in order to justify Andrews’ order, regardless of
whether and when Andrews touched Snow’s person. However,
our recent opinion in United States v. Tinnie, 629 F.3d 749, 753
& n.3 (7th Cir. 2011) (2-1 decision), deemed a frisk not to
have begun until the officer actually placed his hands on the
defendant. In determining whether the officer reasonably
suspected that the defendant might be armed, the Tinnie
majority therefore looked at all of the information that
became known to the officer until that moment, including
(continued...)
No. 10-2031 7
Terry recognizes the authority of an officer conducting
an investigatory stop to take reasonable steps to assure
the safety of himself and others. Specifically, an officer
may frisk a detained individual for weapons when the
officer reasonably believes that the suspect may be
armed and poses danger to the officer or others nearby.
392 U.S. at 27, 30-31, 88 S. Ct. at 1883, 1884-85. “The
officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man
1
(...continued)
the defendant’s answers to questions posed by the officer as
the defendant was assuming the position for the patdown at
the officer’s command. Id. By contrast, Judge Hamilton’s
dissenting opinion contended that the majority had conceived
of the frisk too narrowly, ignoring the real sense in which a
person is seized when a police officer orders him to bend
over the hood of a car or place his hands against a wall in
preparation for a patdown. Id. at 759. An understanding
that the frisk does not commence until the officer lays his
hand on the defendant, and that no reasonable suspicion that
the defendant poses a danger is required until that precise
moment, would likely doom Snow’s appeal, given that Snow
spun around on Andrews, triggering the scuffle that led
Officer Perkins to spot his gun, before Andrews could ever
touch Snow. Indeed, the government makes a secondary argu-
ment more or less along these lines at the conclusion of its
brief. Gov’t Br. 14-15. However, because we conclude, for the
reasons we discuss below, that Andrews did have a rea-
sonable suspicion that Snow might be armed as of the
moment Snow was stopped and ordered out of his truck for
a patdown, we need not explore this alternative rationale.
8 No. 10-2031
in the circumstances would be warranted in the belief
that his safety or that of others is in danger.” Id. at 27, 88
S. Ct. at 1883. That assessment is made based on the
totality of the circumstances. E.g., United States v.
Robinson, 615 F.3d 804, 807-08 (7th Cir. 2010).
When Andrews stopped Snow, neither he nor his
fellow officers had any information, apart from his
status as a burglary suspect, that Snow might pose a
danger to the officers. The 911 caller had said nothing
to the dispatcher suggesting that Snow might have a
weapon or had behaved in a menacing fashion. Snow
was neither speeding nor driving erratically when An-
drews stopped him in traffic. When Andrews ap-
proached Snow, he did not observe any sign of a
weapon underneath Snow’s clothing. Snow was calm
and cooperative when Andrews asked him for his
driver’s license. Nothing in the record suggests that the
area in which Snow was stopped had a history of
recent burglaries or was a high-crime neighborhood.
However, we held in United States v. Barnett, 505 F.3d
637, 640-41 (7th Cir. 2007), that a reasonable suspicion
that someone has committed a burglary typically gives
rise to a reasonable suspicion that the person might be
armed. “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 involved in such a crime.” Id.
at 640. Because burglary is the type of offense “normally
and reasonably expected to involve a weapon,” we con-
No. 10-2031 9
cluded that police do not require additional informa-
tion suggesting that a suspect might be armed before
they may conduct a protective frisk of someone they
reasonably suspect of being a burglar. Id.; see also United
States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007). We
added that a suspect’s “cordiality” and “cooperativeness”
upon being stopped for questioning do not undermine
the possibility that he might be armed: “[the] officers’
ongoing reasonable suspicion that [the suspect] com-
mitted a crime that likely involved a weapon independ-
ently preserve[s] the justification for a protective frisk.”
Barnett, 505 F.3d at 640.
Snow attempts to distinguish Barnett on the ground
that Andrews and the other officers did not suspect him
of burglary based on what they observed directly but
rather based on uncorroborated information provided
by a 911 caller and relayed to them by a dispatcher. He
likens the case to Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375
(2000), which held that an anonymous telephone tip that
a young man at a particular bus stop was carrying a
gun did not supply police with reasonable suspicion
to stop and frisk the youth, when the tip bore no indicia
of reliability beyond its accurate description of the
suspect and his location. This case is similar, Snow sug-
gests, in that neither the 911 operator nor the police
had any independent basis on which they could verify
the accuracy of anything the caller reported other than
her description of the suspect, what he was wearing,
and what type of vehicle he was driving. Snow points
out that had Andrews chosen to question Snow first, he
might have developed information that confirmed the
10 No. 10-2031
substance of what the caller reported, but instead Andrews
forewent any such inquiry and proceeded immediately
with a patdown based solely on the 911 dispatch.
The fact that the officers were relying on information
reported by a 911 caller and conveyed to them by the
operator does not meaningfully distinguish this case
from Barnett. In Drake, 456 F.3d at 774-75, we held that
a 911 report of an ongoing emergency by an eyewitness
is presumptively reliable, and that when the caller pro-
vides enough information to identify himself, the police
are entitled to rely on the call in responding to the emer-
gency. See id. at 774 ( “[The 911 caller] may have been
an informant of untested reliability, but she was not
anonymous. Thus, this case is not governed by Florida
v. J.L.”.); Hicks, 531 F.3d at 559 (“Courts, including our
own, have distinguished J.L. when the tipster gives her
name or other identifying information to the 911 opera-
tor.”) (coll. cases). We have also noted that this principle
applies to 911 calls reporting very recently completed
crimes. Id.
In this case, the 911 call began as a report of an ongoing
emergency. The 911 caller identified herself in the
course of the call and provided her location—directly
across the street from the residence in question. She
described events as she was witnessing them, reporting
initially that she had seen a man attempting to crawl
through a front window, and later that the individual
had gone around the back of the home and then
emerged on the side of the house. There may have been
an innocent explanation for the behavior described by
No. 10-2031 11
the caller, but a nefarious explanation was at least
equally plausible; and given the potential danger posed
to the property and its inhabitants by an unlawful entry,
an immediate response by the police was warranted
based solely on the information provided by the caller.
Evidently the man did not actually enter the residence.
The caller ultimately reported that he left the scene in
his truck after possibly sending a text message on a
cell phone. But that report did not render the situation
something other than an emergency. The fact that the
man was leaving the scene did not rule out the possi-
bility of his return and a renewed effort to enter the
residence; and if he was using a cell phone to send a text
message, it may have been one to an accomplice. Even
if we discount these possibilities and assume that the
man had given up trying to enter the house, this was, at
the least, a very recently concluded (apparent) criminal
attempt. Snow’s truck was spotted and stopped within
two blocks of the residence and within moments of the
first dispatch to the officers. His truck and his clothing
generally matched the description relayed by the dis-
patcher. See United States v. Lenoir, 318 F.3d 725, 729 (7th
Cir. 2003) (“[P]olice observation of an individual, fitting
a police dispatch description of a person involved in a
disturbance, near in time and geographic location to the
disturbance establishes a reasonable suspicion that the
individual is the subject of the dispatch.”) (citing United
States v. Juvenile TK, 134 F.3d 899, 904 (8th Cir. 1998)).
Under these circumstances, Andrews was entitled to
rely on the information relayed to him by the 911 dis-
patcher in making not only the decision to stop Snow for
12 No. 10-2031
investigative purposes, but also the decision to frisk
him for weapons.
Now, it is true, as Snow points out, that the 911 caller
never used the term “burglary”; that was a term that the
dispatcher herself injected into her communications
with the police officers. But “burglary” was nonetheless
a reasonable label for the dispatcher to place on the
events reported by the caller. The caller had de-
scribed an apparent effort to enter a residence without
authority. More than an illegal entry would be required
to convict someone of burglary: Indiana law defines
burglary as an unauthorized entry into a building or
structure with the intent to commit a felony, Ind. Code
§ 35-43-2-1, and proof of an unauthorized entry by
itself does not suffice to establish an intent to commit
a felony. See Freshwater v. State, 853 N.E.2d 941, 943
(Ind. 2006) (“Intent to commit a felony may not be
inferred from proof of breaking and entering alone.”)
(quoting Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988)). In
the context of a Terry stop, however, all that is required
is reasonable suspicion that criminal activity may be
afoot. 392 U.S. at 30, 88 S. Ct. at 1884. It was a fair infer-
ence based on the attempted entry described by the
caller that the man she saw was attempting to burglarize
a residence—that is, to gain entry for the purpose
of committing a felony, including theft. See, e.g., United
States v. Davis, 175 F. App’x 286, 288 (11th Cir. 2006)
(nonprecedential decision) (among other facts, dispatch
report that defendant had been seen crawling through
window of trailer supported reasonable suspicion that
he may have committed burglary). As we have dis-
No. 10-2031 13
cussed, that is certainly not the only explanation for
the behavior observed by the caller, but it is a plausible
and, indeed, likely explanation. Only by investigating
the circumstances further, and in particular by ques-
tioning the individual the caller had seen, could the
police determine whether in fact a burglary had been
committed or attempted. And that is the very purpose
of a Terry stop. 392 U.S. at 22-23, 88 S. Ct. at 1880-81.
Because the facts known to the officers supported a
Terry stop to investigate whether he in fact had at-
tempted a residential burglary, and because burglary is
the type of offense that likely involves a weapon, An-
drews’ decision to order Snow out of the truck for pur-
poses of a protective frisk was reasonable despite
the absence of additional facts suggesting that Snow in
particular might be armed. That Snow was calm and
readily gave his driver’s license to Andrews did not, for
the same reasons we cited in Barnett, mitigate the rea-
sonable suspicion that he might be armed given the
nature of the crime of which he was suspected. Nor
does the fact that Snow handed over his keys without
being asked mitigate that suspicion. Viewed in a light
favorable to Snow, the surrender of his keys was simply
an additional manifestation of his cooperative attitude;
although we add that it could also be viewed as an
attempt to forestall any request that he step out of the
truck. Snow points out that the stop did not occur
at night or in a neighborhood that was known to have a
high crime rate. See, e.g., United States v. Tinnie, 629 F.3d
749, 752 (7th Cir. 2011) (citing the time of day and nature
of the neighborhood as among the circumstances sup-
14 No. 10-2031
porting a protective patdown). But given that it is the
nature of the crime of which Snow was suspected that
gave rise to the inference he might be armed, the time
and place of the stop did not lessen the possibility that
Snow might pose a danger to Andrews or others nearby.
Moreover, given what Snow was wearing (loose-fitting
jeans and a hooded sweatshirt), it was not possible for
Andrews to determine just by looking at Snow whether
a weapon might be concealed by his clothing. Finally,
whatever Andrews potentially might have learned
by questioning Snow further before deciding to pat him
down is neither here nor there, given that it was rea-
sonable to suspect that Snow was armed at the very
outset of the stop. After all, the purpose of a protective
frisk is to ensure the safety of the officer and others
during the investigative detention. As our colleagues
on the Fourth Circuit have observed:
A compulsory interval of questioning between the
stop and frisk leaves law enforcement officers at risk;
“such a limitation would be unsound and has not
been followed by the Supreme Court or the lower
courts.” W. LaFave & J. Israel, C RIMINAL P ROCEDURE
182 (1985). “There is no reason why an officer, right-
fully but forcibly confronting a person suspected of
a serious crime, should have to ask one question
and take the risk that the answer might be a bullet.”
Terry, 392 U.S. at 33, 98 S.Ct. at 1886 (Harlan, J., con-
curring).
United States v. Moore, 817 F.2d 1105, 1107-08 (4th Cir. 1987)
(Wilkinson, J.).
No. 10-2031 15
III.
Because the facts known to the police officers who
stopped Snow supported a reasonable suspicion that
he may have just attempted to commit a burglary, and
because burglary is the type of crime that often involves
a weapon, the officers had reasonable grounds on which
to believe that Snow might be armed. Officer Andrews’
order that Snow step out of his truck and submit to a
protective patdown was therefore lawful, and the
district court properly denied Snow’s motion to sup-
press all evidence related to the gun that was discov-
ered when Snow resisted the frisk. We thank Snow’s
appointed counsel for their vigorous advocacy on
Snow’s behalf.
A FFIRMED
8-24-11