In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4082
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER J. T INNIE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 09 CR 50017—Philip G. Reinhard, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED JANUARY 18, 2011
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. During a traffic stop, a deputy
sheriff frisked the car’s passenger, Christopher Tinnie,
and discovered a gun and ammunition. A grand jury
indicted Tinnie for possession of a firearm by a felon.
Tinnie sought to suppress the gun, ammunition, and
statements he made following his arrest. The district
court denied his motion to suppress and Tinnie then
entered a conditional plea of guilty. Tinnie now appeals
2 No. 09-4082
from the district court’s denial of his motion to sup-
press. We affirm.
I.
On Friday, January 30, 2009, Winnebago County
Sheriff Deputies Dennis Hill and Brad Kaiser were
working a 4:00 p.m.-4:00 a.m. shift, patrolling in a “weed
and seed area” of Rockford, Illinois. A “weed and seed
area” is an area designated by state and local officials
based on a high crime rate and gang, drug, and gun
activity. Kaiser was part of a Special Focus Unit which
focused on areas with higher crime tendencies. At
around 11:30 that evening, the officers observed a black
Hyundai Sonata with a mass of air fresheners hanging
from its rearview mirror. That normally might not
attract law enforcement’s attention, but the strategy in
a “weed and seed area” is proactive policing through
increased traffic enforcement, and the hanging air fresh-
eners constituted an “obstructive view” justifying a
stop. Before the officers stopped the car, though, the
driver abruptly turned left and then into a driveway.
The officers testified that they believed the driver was
attempting to avoid being stopped.
After stopping the vehicle, the officers approached the
car. As he walked up to the passenger side, Kaiser
noticed Tinnie fidgeting left to right and back and forth
in the passenger’s seat. While Hill spoke with the
driver, Kaiser asked Tinnie for his identification. Tinnie
responded that he didn’t have a license but did have
an identification card. But then when Kaiser asked for
No. 09-4082 3
that, Tinnie merely moved his hands down the front of
his coat and pinched his jeans (he did not actually put
his hands inside his coat or pants pockets to check)
before saying he did not have an identification card.
Kaiser commented that Tinnie had never actually
checked his pockets for his identification card, but
Tinnie merely responded that “he didn’t have his ID on
him.” The officer then asked the passenger for his name,
birth date, and age. Tinnie identified himself as Christo-
pher Tinnie, gave a birth date of June 16, 1981, and told
the officer that he was 28. But as Kaiser immediately
realized, “with the date of birth that he had given me,
he could have only been 27 at the time.” And at the
suppression hearing, Kaiser explained that, in his experi-
ence, individuals who are unable to provide the correct
age to match their birth date are lying either about their
name or their date of birth.
At this point, Kaiser told Tinnie to exit the car. Kaiser
later testified that at the time he asked Tinnie to get out
of the car he had already decided to frisk him and in
fact that he frisks anyone he asks to exit a vehicle during
a traffic stop. After Tinnie exited the car, Kaiser
informed Tinnie he “was going to pat him down for
officer safety” and asked “him if he had anything on him
that he shouldn’t have as far as weapons or drugs.” Tinnie
didn’t respond. Kaiser slightly rephrased the question,
asking Tinnie if he had any weapons, guns, or anything
that would poke Kaiser’s hand. Again, Tinnie did not
answer. But when Kaiser questioned Tinnie a third
time, asking solely whether he had any drugs, “Tinnie
immediately said ‘no.’ ” At this point, Kaiser proceeded
4 No. 09-4082
to frisk Tinnie and discovered a gun and a magazine
with three rounds of ammunition. The officers arrested
Tinnie, and after a search of the car revealed no other
weapons or drugs, they gave the driver a warning
about the obstructed view and allowed her to leave.
The officers transported Tinnie to the Winnebago
County Criminal Justice Center where, according to Hill,
he Mirandized Tinnie. Tinnie then voluntarily provided
a handwritten and initialed statement acknowl-
edging his possession of the firearm. A grand jury later
indicted Tinnie for possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1). Tinnie moved to
suppress the gun, ammunition, and his written state-
ment. He argued the frisk was unconstitutional and
the written statement was the fruit of the illegal
search and also obtained without the benefit of a
Miranda warning. The district court denied the motion
to suppress, concluding reasonable suspicion justified
frisking Tinnie and that Tinnie had in fact received a
Miranda warning. Tinnie then entered a conditional plea
of guilty, reserving the right to appeal the denial of
his motion to suppress and the sentence imposed.
The district court then sentenced Tinnie to 84 months
in prison. Tinnie appeals.
II.
On appeal, Tinnie claims that the district court erred
in denying his motion to suppress because reasonable
suspicion did not justify the frisk and therefore the fruit
No. 09-4082 5
of the illegal search (i.e., the gun, ammunition, and
his later inculpatory statement) was inadmissible.1 We
review de novo the district court’s legal determination of
the constitutionality of a frisk and its findings of fact
for clear error. United States v. Oglesby, 597 F.3d 891, 893
(7th Cir. 2010).
During a valid traffic stop, an officer may order the
driver and passengers out of the vehicle without violating
the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S.
106, 112 n.6 (1977); Maryland v. Wilson, 519 U.S. 408, 412
(1997). The officers may also frisk the driver and any
passengers upon reasonable suspicion that they may
be armed and dangerous. Arizona v. Johnson, 129 S.Ct.
781, 787 (2009). Whether an officer has a reasonable
suspicion to support such a frisk “is a fact-specific
inquiry that looks at the ‘totality of the circumstances’
in light of common sense and practicality.” United States
v. Robinson, 615 F.3d 804, 807-08 (7th Cir. 2010). In deter-
mining whether an officer had reasonable suspicion,
courts consider “the circumstances known to the officer
at the time of the stop, including the experience of the
officer and the behavior and characteristics of the sus-
pect.” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.
2006). The time and the location of the stop are also
1
Tinnie does not challenge the district court’s conclusion that
he received his Miranda warnings prior to providing his
written statement. This issue is thus not on appeal. Tinnie
also does not challenge his sentence on appeal, although he
had reserved the right to do so in his conditional plea.
6 No. 09-4082
relevant to the reasonable suspicion inquiry. Oglesby, 597
F.3d at 893.
In this case, the totality of the circumstances justified
frisking Tinnie. The stop occurred late on a Friday night
in a high-crime neighborhood. And Kaiser testified
at the suppression hearing that the driveway into
which Tinnie had pulled was “dimly lit just from road
lighting.” See, e.g., Oglesby, 597 F.3d at 893 (holding that
the totality of the circumstances justified a frisk, in
part, because it “occurred at night in a location that was
known to the officers to be a high-crime area plagued
by drug trafficking and gun violence”). Kaiser was part
of a Special Focus Unit charged with patrolling higher
crime areas and, as the district court found, was thus
familiar with the risk of gun possession in that area. See
United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006)
(holding that the experience of the officer is a factor
considered in judging whether reasonable suspicion
justifies a frisk). As the district court also found,
Tinnie acted suspiciously by moving around nervously
as the officers approached the car. See, e.g., United States
v. Brown, 273 F.3d 747, 748-49 (7th Cir. 2001) (finding
that the totality of the facts, including the defendant’s
“movements in the car,” justified “a limited patdown
for weapons”). Then, after stating he had an identifica-
tion card, Tinnie told Kaiser (without checking his pock-
ets) that he did not have the identification card. See, e.g.,
Cady v. Sheahan, 467 F.3d 1057, 1061-62 (7th Cir. 2006)
(noting that evasive responses to police questions can
help support reasonable suspicion). Tinnie also stated
No. 09-4082 7
he was 28 and Kaiser immediately perceived that “with
the date of birth that he had given me, he could have
only been 27 at the time.” See, e.g., United States v.
Marrocco, 578 F.3d 627, 633-34 (7th Cir. 2009) (concluding
that inconsistent answers to the officer’s questions was
a factor supporting reasonable suspicion that a suitcase
contained drugs); United States v. Thomas, 87 F.3d 909,
912 (7th Cir. 1996) (stating that defendant’s contra-
dictory answers to simple questions was a factor sup-
porting reasonable suspicion justifying detention of de-
fendant’s suitcase.) And before frisking Tinnie, Kaiser
asked him whether he had any weapons or drugs and
Tinnie did not respond. Kaiser rephrased the question
slightly, asking Tinnie “if he had any weapons on him,
any guns, or anything that would poke my hands.”
Again, Tinnie did not respond, but when Kaiser then
asked if Tinnie had any drugs on him, Tinnie immedi-
ately said no. Coupled with the earlier suspicious cir-
cumstances, Tinnie’s silence when twice asked if he
had any weapons, but his immediate denial of possessing
drugs, provided Kaiser with reasonable suspicion that
Tinnie was armed and thus justified the frisk.
It is true that Kaiser testified that when he asked
Tinnie to step out of the car, he had already decided to
frisk him. The district court believed the high-crime
neighborhood and the lateness of the hour, along
with Tinnie’s suspicious movement as the officers ap-
proached the car, his strange behavior when asked for
his identification, and the inconsistent date of birth and
age were enough to justify the frisk. That may well be,
8 No. 09-4082
given that we judge the totality of the circumstances
“in light of common sense and practicality.” Robinson,
615 F.3d at 807-08. Common sense tells us that an officer
faced with Tinnie’s suspicious behavior during a late-
night stop in a high-crime neighborhood would find it
totally sensible to perform a frisk to protect himself and
his partner. See, e.g., Oglesby, 597 F.3d at 893 (holding
frisk justified where it “occurred at night in a location
that was known to the officers to be a high-crime area
plagued by drug trafficking and gun violence” and where
defendant moved away from the crowd as officers ap-
proached and dropped his hand to his pants pocket).
But we need not rest on those circumstances because
Kaiser testified at the suppression hearing that before
he frisked Tinnie, he had asked Tinnie whether he had
any weapons or drugs. And as recounted above, Tinnie
did not respond to the repeated questions about wea-
pons but immediately responded “no” when asked
about drugs. The Supreme Court has made clear that in
judging the constitutionality of a search or seizure, courts
must look at the facts objectively. United States v. Whren,
517 U.S. 806, 812-13 (1996) (collecting cases). Thus, “[i]t
is important to remember that we are not limited to what
the stopping officer says or to evidence of his subjective
rationale; rather, we look to the record as a whole to
determine what facts were known to the officer and
then consider whether a reasonable officer in those circum-
stances would have been suspicious.” United States v.
Brown, 232 F.3d 589, 594 (7th Cir. 2000) (internal quota-
tion marks and citations omitted; emphasis added). Thus,
it is irrelevant that Kaiser decided to frisk Tinnie before
No. 09-4082 9
directing him to exit the car. Similarly, it is also irrelevant
that Kaiser testified that he frisks anyone he asks to step
out of a vehicle during a traffic stop.2 The question is
rather whether given all of the facts known to Kaiser, a
reasonable officer would have believed the frisk was
justified. Given everything that took place prior to
2
Tinnie argues that because Kaiser routinely frisks occupants
whom he has directed to exit the vehicles, Kaiser engages
in unconstitutional automatic frisks. There are two flaws with
this argument: First, as just noted, the reasonable suspicion
analysis is an objective one—so Kaiser’s subjective intent is
irrelevant. Second, Kaiser did not testify that he routinely asks
everyone he stops to exit the vehicle. Thus, it may well be
that Kaiser only directs occupants to exit the stopped vehicle
if there is already reasonable suspicion to believe they are
armed and dangerous. The dissent finds this possibility highly
improbable but, as the dissent recognizes, many routine
traffic stops occur “while the drivers and passengers remain
inside the vehicle (and are often warned not to try to exit the
vehicle).” Dissent at 14 n.3. There is nothing to indicate that
Kaiser handles traffic stops any differently than the typical
officer, i.e., in most cases directing drivers and passengers to
remain inside the vehicle. But if, in fact, there was some evi-
dence that Kaiser has a higher rate of exit-requests and frisks
than the typical officer, it likely stems from the more dangerous
environment he faces in working the 4 p.m.-4 a.m. shift as a
member of the Special Focus Unit, patrolling high-crime
neighborhoods. Absent some support in the record to the
contrary, we should not imply that Kaiser regularly engages
in unconstitutional conduct.
10 No. 09-4082
the frisk,3 as well as the time and location of the stop, a
reasonable officer could conclude that there was rea-
sonable suspicion that Tinnie was armed and that
a frisk was necessary to assure the officers’ safety. Ac-
cordingly, the frisk was constitutional and the district
court properly denied Tinnie’s motion to suppress.4
We A FFIRM .
3
The dissent asserts that because “[t]he frisk had begun by
the time Deputy Kaiser asked Tinnie whether he had any
weapons or drugs,” his responses are irrelevant to the Terry
analysis and should be disregarded. Dissent at 24. However,
the record makes clear that Kaiser asked Tinnie whether
he had any weapons or drugs before the frisk had begun;
Kaiser testified at the suppression hearing that this questioning
took place before he “touched [Tinnie], before any interaction
with his body took place.” And the district court found—and
that finding was not clearly erroneous—that this questioning
occurred before Kaiser conducted the frisk.
4
While there may well be other cases in which officers engage
in unreasonably intrusive law enforcement practices, Dissent
at 28, this is not that case. Rather, this case illustrates how
proactive policing, within constitutional limits, success-
fully “weeds” dangerous criminals from the street while
providing law-abiding citizens the protection they deserve.
No. 09-4082 11
H AMILTON, Circuit Judge, dissenting. The erosion of
Fourth Amendment liberties comes not in dramatic
leaps but in small steps, in decisions that seem “fact-
bound,” case-specific, and almost routine at first
blush. Taken together, though, these steps can have
broader implications for the constitutional rights of law-
abiding citizens. I see this case as an unfortunate ex-
ample of this process. The immediate result here is
the removal of an armed felon from the streets of
Rockford, Illinois for seven years. But the court’s deci-
sion to sanction Deputy Kaiser’s frisk of defendant
Tinnie comes too close to allowing police officers to
frisk virtually at will any driver or passenger pulled
over in a high-crime area. I believe the Fourth Amend-
ment requires a different balance between the interests
of efficient law enforcement and the constitutional right
against unreasonable searches, so I respectfully dissent.
Before turning to the frisk itself, let’s consider the
series of events that led to that frisk, beginning with the
actual stop of the car in which Tinnie was a passenger.
The stated reason for the stop—to address a wind-
shield obscured by air fresheners hanging from the rear-
view mirror—was pure pretext, of course. No one
believes that Deputy Kaiser and his partner cared
about the obscured windshield for its own sake.
Deputy Kaiser characterized this stop as the work of a
proactive policeman implementing the federally-funded
“Weed and Seed” program at night in a designated high-
12 No. 09-4082
crime area.1
The officers took advantage of the fact that the Fourth
Amendment allows pretextual traffic stops so long as
they are based upon an observed violation of a traffic
law. See Whren v. United States, 517 U.S. 806, 810 (1996). As
this case shows, this principle is practically limitless in
application—only the most unobservant police officer
would be unable to spot at least one traffic violation in
short order. See David Harris, “Driving While Black” and
All Other Traffic Offense: The Supreme Court and Pretextual
Traffic Stops, 87 J. Crim. L. & Criminology 544, 545, 558-59
(1997) (“In the most literal sense, no driver can avoid
violating some traffic law during a short drive, even
with the most careful attention”; “with the traffic code
in hand, any officer can stop any driver any time”);
Barbara C. Salken, The General Warrant of the Twentieth
Century? A Fourth Amendment Solution to Unchecked Dis-
cretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,
223 (1989) (“Almost every American adult drives; hence
the pool of potential arrestees is enormous. The innum-
erable rules and regulations governing vehicular travel
make it difficult not to violate one of them at one time
1
The “Weed and Seed” program is a U.S. Department of Justice
initiative designed to “reduce the impact of violent crime on
communities; provide prevention, intervention, and treat-
ment services for substance abuse and other social problems;
and revitalize communities through improved housing
and economic development” by “stress[ing] collaboration,
coordination, and community participation.” U.S. Department
of Justice, Weed & Seed Implementation Manual, at 1 (2005).
No. 09-4082 13
or another.” (footnote omitted)).2 As a practical matter,
Whren allows law enforcement officers to conduct traffic
stops nearly at will. See, e.g., People v. Robinson, 767
N.E.2d 638, 660 (N.Y. 2001) (Levine, J., dissenting) (“[A]
persevering police officer, armed only with a copy of the
[traffic code] and bent on subjecting a vehicle and its
occupants to an unjustified investigative stop, will ulti-
mately be able to accomplish that objective virtually
at will.”).
Once the car was stopped, Deputy Kaiser began ques-
tioning Tinnie, at first supposedly to determine his iden-
tity. Again, no one seriously believes that this was the
primary purpose of the questioning—Deputy Kaiser
was almost certainly looking for a reason to search
Tinnie, the car, or both. Otherwise, why would Deputy
Kaiser have reacted as he did to Tinnie’s rounding up
of his age from 27 years and 7 months to 28 years?
Based on Tinnie’s answers to those questions, Deputy
Kaiser ordered Tinnie out of the car. Of course, Tinnie’s
actual answers to Deputy Kaiser’s initial questions
were irrelevant, given that Deputy Kaiser could, as a
matter of course, order Tinnie out of the car without any
2
This observation long predates the decision in Whren. When
he was Attorney General, the future Justice Jackson said: “We
know that no local police force can strictly enforce the
traffic laws, or it would arrest half the driving population on
any given morning.” R. Jackson, The Federal Prosecutor, Address
Delivered at the Second Annual Conference of United States At-
torneys, April 1, 1940, quoted in Morrison v. Olson, 487 U.S. 654,
727-28 (1988) (Scalia, J., dissenting).
14 No. 09-4082
suspicion beyond that which justified the initial stop. See
Maryland v. Wilson, 519 U.S. 408, 410 (1997) (describing
this additional intrusion as “minimal”).3
By this point, Deputy Kaiser testified, he had already
decided that he was going to frisk Tinnie. In fact, Deputy
Kaiser’s standard practice is to frisk every person he
orders out of a vehicle during a traffic stop—a practice
flatly contrary to Terry v. Ohio, 392 U.S. 1, 27 (1968), and
its progeny, which require reasonable suspicion that a
suspect is armed and dangerous. The fact that Deputy
Kaiser applied an unconstitutional practice in this case
is irrelevant if he in fact had a reasonable suspicion
that Tinnie was armed and dangerous, however, so we
must turn a blind eye to Deputy Kaiser’s general prac-
tice, despite its similarity to practices under the colonial-
era general warrants authorizing searches of any “sus-
pected persons” or “suspicious places.” See Thomas Y.
Davies, Recovering the Original Fourth Amendment, 98
Mich. L. Rev. 547, 558 n. 12 (1999).
When viewed in isolation, each individual aspect of
Deputy Kaiser’s behavior before he started the frisk
that discovered the handgun was either arguably rea-
sonable or constitutionally irrelevant. “[T]he central
inquiry under the Fourth Amendment,” however, is “the
3
Deputy Kaiser had no real need to order Tinnie out of the car,
of course. Many routine traffic stops, particularly those actually
carried out for their stated purposes, proceed while the
drivers and passengers remain inside the vehicle (and are
often warned not to try to exit the vehicle).
No. 09-4082 15
reasonableness in all the circumstances of the par-
ticular governmental invasion of a citizen’s personal
security,” Terry, 392 U.S. at 19 (emphasis added). The
issue becomes whether Deputy Kaiser’s frisk of Tinnie
was objectively reasonable in light of the fact that
the frisk was conducted only after Deputy Kaiser had
leveraged a pretextual stop for an insignificant traffic
offense into an excuse to remove Tinnie from the vehicle.
When taken together, Deputy Kaiser’s actions apart
from the frisk itself already bear a striking resemblance
to the practices permitted in colonial times under
“the general warrant, the practice upbraided by the
colonists because it allowed British soldiers to con-
front anyone they felt like investigating for sedition
or trafficking in uncustomed goods.” Christopher
Slobogin, Justice Ginsburg’s Gradualism in Criminal Proce-
dure, 70 Ohio St. L.J. 867, 886 (2009); see also Davies, 98
Mich. L. Rev. at 558 & n. 12 (noting that the warrant
clause of the Fourth Amendment was for the purpose of
prohibiting general searches based on inadequate infor-
mation); David A. Harris, Car Wars: The Fourth Amend-
ment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556,
574 (1998) (noting that post-Whren Fourth Amendment
jurisprudence effectively allows law enforcement “to do
exactly what is otherwise forbidden: act on nothing
more than a hunch”). The effects that such long-con-
demned practices have on law-abiding citizens—fear,
humiliation, anger, and a growing cynicism toward
law enforcement in general—should come as no surprise.
See David A. Harris, The Stories, the Statistics, and the
Law: Why “Driving While Black” Matters, 84 Minn. L. Rev.
16 No. 09-4082
265 (1999) (drawing on interviews and statistical
analyses of police practices).
Turning to the frisk itself, we must recognize that a
frisk is most certainly not a minor intrusion on privacy.
As the Supreme Court explained in Terry, which first
authorized warrantless stop-and-frisks on less than
probable cause (and shortly after some of the most violent
urban riots in American history in 1967 and 1968), a frisk
“is a serious intrusion upon the sanctity of the person,
which may inflict great indignity and arouse strong
resentment.” 392 U.S. at 17; see id. at 17 n.13 (describing
a frisk as a “ ‘thorough search . . . of [an individual’s] arms
and armpits, waistline and back, the groin and area
about the testicles, and entire surface of the legs down
to the feet’ ”), quoting Priar & Martin, Searching and Dis-
arming Criminals, 45 J. Crim. L. Criminology & Police
Sci. 481 (1954).
Terry authorized frisks as a reasonable and pragmatic
response to hard realities of our nation’s city streets.
But Terry nevertheless emphatically refused to authorize
frisks of just any suspicious person. The Supreme Court
authorized such intrusive searches only in those
narrow circumstances in which a police officer “has
reason to believe that he is dealing with an armed and
dangerous individual.” Id. at 27. Probable cause to arrest
is not required, nor need the officer be “absolutely cer-
tain” that the person is armed, but “a reasonably
prudent man in the circumstances [must] be warranted
in the belief that his safety or that of others was in dan-
ger.” Id. In a companion case to Terry, the Supreme
No. 09-4082 17
Court emphasized this need for specific facts indicating
danger:
The police officer is not entitled to seize and search
every person whom he sees on the street or of whom
he makes inquiries. Before he places a hand on the
person of a citizen in search of anything, he must
have constitutionally adequate, reasonable grounds
for doing so. In the case of the self-protective search
for weapons, he must be able to point to particular
facts from which he reasonably inferred that the
individual was armed and dangerous.
Sibron v. New York, 392 U.S. 40, 64 (1968) (explaining
reversal of conviction based on results of unjustified
frisk). Frisks are “not to be undertaken lightly.” Terry,
392 U.S. at 17.
The need for a reasonable suspicion that the subject is
“armed and dangerous”—not merely suspicious in
general—is key to this case, and helps to distinguish
legitimate protective frisks from the abuses the Fourth
Amendment was intended to limit. See Arizona v.
Johnson, 129 S. Ct. 781, 784 (2009) (“[T]o proceed from a
stop to a frisk, the police officer must reasonably
suspect that the person stopped is armed and danger-
ous.”). A review of the facts as found by the district
court, as well as decisions by this and other circuits,
shows that Deputy Kaiser simply lacked sufficient con-
stitutional grounds to subject Tinnie to the intrusion
and indignity of a frisk.
For starters, when Deputy Kaiser approached the car,
he did not know anything about the driver or the pas-
18 No. 09-4082
senger. He had no reason to believe that either was inher-
ently more dangerous than any other motorist he
might encounter during a traffic stop. See Ybarra v.
Illinois, 444 U.S. 85, 93 (1979) (finding insufficient facts
to justify frisk, taking into account fact that police did not
“recognize [the defendant] as a person with a criminal
history”); United States v. Thomas, 512 F.3d 383, 388 (7th
Cir. 2008) (upholding frisk where officer “was concerned,
based on prior information, that Thomas was armed”).
Nor was this traffic stop carried out for an offense “so
suggestive of the presence and use of weapons that a
frisk is always reasonable.” United States v. Barnett, 505
F.3d 637, 640 (7th Cir. 2007) (reversing grant of motion
to suppress where officer frisked suspect in burglary
that likely involved a weapon); see also Terry, 392 U.S.
at 28 (deeming frisk justified where officer reasonably
suspected preparations for armed robbery). As a result,
Deputy Kaiser’s frisk can be justified, if at all, based
only on his interactions with Tinnie.
Turning to those interactions, as Deputy Kaiser ap-
proached the car’s passenger side, he saw Tinnie “fid-
geting” and acting “as if he was uncomfortable or just
readjusting.” Deputy Kaiser asked for Tinnie’s identifica-
tion. Passenger Tinnie said he did not have a driver’s
license, so Deputy Kaiser asked him for his ID card. In
response to this request, Tinnie ran his hands down
his coat and pinched the top of his blue jeans before
responding that he did not have his ID card with
him either. Deputy Kaiser then asked for Tinnie’s name,
date of birth, and age. Tinnie responded with his (cor-
rect) date of birth but gave his age in years at his next
No. 09-4082 19
birthday, not that day. Throughout the encounter,
Tinnie was cooperative, according to Deputy Kaiser,
and he gave no indication that he was armed. Unlike so
many other frisk cases, Deputy Kaiser never observed
any bulges in Tinnie’s clothing indicating that he might
be concealing a weapon. Regardless, Deputy Kaiser
ordered Tinnie out of the car, escorted him to the back
of the vehicle, and announced that he was going to
frisk him for officer safety.
The district court found that those facts alone were
sufficient to justify the frisk. My colleagues say they
tend to agree, without quite holding as much.
I address below the district court’s and the majority’s
reliance on Deputy Kaiser’s questioning as he began to
frisk Tinnie to justify the frisk itself. For the moment,
though, let’s focus on what occurred before the frisk
began: in a high-crime area at night, a passenger moves
or adjusts his position as the police approach, seems
nervous, gives an age and birth date that do not quite
match, and when asked for ID, runs his hands along
his pants and pinches them before saying he does not
have any identification on his person. Suspicious? Yes.
A reasonable indication that the passenger is armed
and dangerous? No.
Recall that Tinnie and the driver were not suspected of
or stopped for a violent crime, drug trafficking, or any
other crime connected to a threat of violence. The stop
was for air fresheners obstructing the windshield. Al-
though Tinnie acted nervous when confronted, nervous-
ness is, for obvious reasons, “of limited value in assessing
20 No. 09-4082
reasonable suspicion.” United States v. Simpson, 609
F.3d 1140, 1147 (10th Cir. 2010); United States v. Urrieta,
520 F.3d 569, 577 (6th Cir. 2008) (“Although nervousness
may be considered as part of the overall circumstances
giving rise to a reasonable suspicion, this court has
found nervousness inherently unsuspicious, and has
therefore given it very limited or no weight in the
reasonable-suspicion calculation.”); United States v.
McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (same); United
States v. Portillo-Aguirre, 311 F.3d 647, 656 n. 49 (5th
Cir. 2002) (noting that courts “often give little or no
weight to an officer’s conclusional statement that a
suspect appeared nervous”); United States v. Jones, 269
F.3d 919, 928 (8th Cir. 2001) (same); see also United States
v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)
(noting that nervousness is “especially” tenuous sup-
port for a frisk made “in the context of a traffic stop”).
However nervous Tinnie might have appeared, he never
moved as if he were reaching for a concealed weapon.
And his nervous pinching and feeling of his pants
before saying he had no ID with him is certainly not a
reasonable basis for concluding that he was armed
and dangerous.
The additional fact that Deputy Kaiser encountered
Tinnie “late at night in a high-crime neighborhood” did
not change these circumstances enough to justify a
frisk. While context is certainly important to the totality-of-
the-circumstances analysis, neither the lateness of the
hour nor the nature of the locale automatically transforms
non-threatening acts into indicators of danger. Perhaps
the lateness of the hour would be significant if dark-
ness had limited Deputy Kaiser’s ability to see what
No. 09-4082 21
Tinnie was doing—an officer making a traffic stop is
certainly entitled to exercise greater caution when a sus-
pect’s actions are veiled in shadow. Cf. Ybarra, 444 U.S.
at 92 (noting, in overturning frisk, that “the lighting
was sufficient” for law enforcement to see the indi-
viduals in the tavern where the frisk was conducted).
But nothing in the record indicates that Deputy Kaiser
had any actual difficulty seeing Tinnie at any time. There
was, after all, enough light for him to see Tinnie shift
around in his seat and pinch the leg of his pants.
I ascribe equally little significance to the fact that
Tinnie was confronted in a high-crime area “designated
by state and local officials.” While “the fact that the stop
occurred in a ‘high crime area’ [is] among the relevant
contextual considerations in a Terry analysis,” Illinois v.
Wardlaw, 528 U.S. 119, 124 (2000), there still needs to be
a reasonable connection between the neighborhood’s
higher crime rate and the facts relied upon to support
a frisk. In other words, we should ask, for example,
whether Tinnie’s behavior was consistent with that of
the violent criminals known to frequent that area. Cf.
Terry, 392 U.S. at 22-23 (noting how defendant’s non-
criminal behavior appeared suspicious when viewed
in context). Unless we require at least some such con-
nection, we give law enforcement the impression that
frisks will receive much less scrutiny when performed in
high-crime areas. That is particularly problematic in this
case, where the designated “high-crime area” occupied
half of the city of Rockford.
Setting aside these problems, the district court and
my colleagues seek to justify the frisk by relying on Tin-
22 No. 09-4082
nie’s responses to three questions Deputy Kaiser posed
as he began the frisk. After telling Tinnie that he was
about to be frisked for officer safety and walking him
to the rear of the car, Deputy Kaiser asked whether
Tinnie had any weapons or drugs in his possession.
Tinnie did not immediately respond. Deputy Kaiser
then asked if Tinnie had any weapons, guns, or things
that would poke the deputy’s hands, and again Tinnie
did not respond. Deputy Kaiser then asked Tinnie if he
had any drugs, and Tinnie immediately said no. From
these different responses to different questions, Deputy
Kaiser inferred that Tinnie might have a weapon. It
turned out that he was right.
When evaluating Deputy Kaiser’s decision to frisk
Tinnie, however, we may consider only the informa-
tion that Deputy Kaiser had at the moment he initiated
the frisk and must disregard any information gathered
after the frisk had already begun. United States v. Odum,
72 F.3d 1279, 1284 (7th Cir. 1995), citing Terry, 392 U.S.
at 21-22. My colleagues and the district court both
conclude that the frisk had not begun when Deputy
Kaiser asked these questions because Deputy Kaiser
had not yet laid his hands on Tinnie. In other words,
they define a “frisk” narrowly as only those moments
during which an officer’s hands are in physical contact
with a suspect’s body.
This narrow definition of a frisk would require us to
close our eyes to reality and would encourage aggressive
and intrusive police tactics, especially during pre-
textual traffic stops. Under the majority’s definition of a
No. 09-4082 23
frisk, officers may tell a suspect that he is going to be
frisked and require him to assume the position for a
frisk before beginning the questioning needed to justify
the frisk itself. Bent over the hood of a car or pressed
against a wall in the middle of the night, most people
would be extremely nervous and disoriented. It would
be easy enough for an enterprising police officer to
find some justification for a frisk in any nervous
responses given at such a vulnerable moment. More-
over, the majority’s approach embraces the circular
logic that police may justify a frisk by observing how
the subject responds when told he is about to be frisked.
For Fourth Amendment purposes, a person can be
“seized” before he is actually restrained by physical
force, at the moment when, given all the circumstances,
a reasonable person would believe he is not free to
leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).
Essentially the same rule should apply to a frisk. We
should determine at what point in time a reasonable
person in Tinnie’s position would have thought that
the officer’s actions were part of the process of con-
ducting a frisk. Such a test, like the test applied to
seizures, would “assess the coercive effect of police
conduct, taken as a whole, rather than . . . focus on par-
ticular details of that conduct in isolation.” Chesternut,
486 U.S. at 573. Furthermore, it would be “flexible
enough to be applied to the whole range of police con-
duct” while “call[ing] for consistent application from
one police encounter to the next” and providing uni-
form guidance to law enforcement officers in the field.
Id. at 574.
24 No. 09-4082
Applying this standard to the facts here, it is clear
that Tinnie would reasonably have believed that the
frisk was already underway when Deputy Kaiser asked
if he had a gun in his possession. By the time Tinnie was
asked if he was carrying a gun, Deputy Kaiser had
already ordered him out of the car, walked him to the
back of the car, and told him that he was about to be
frisked. When Deputy Kaiser announced his intent to
conduct a frisk, a person in Tinnie’s position would
reasonably have believed that the frisk procedure had
already begun—he certainly would not have felt free
to walk away or to refuse to allow Deputy Kaiser to
touch him. The frisk had begun by the time Deputy
Kaiser asked Tinnie whether he had any weapons or
drugs, making Tinnie’s responses to those questions
irrelevant to the Terry analysis.
Based on the facts in the record, I conclude that the
frisk of Tinnie violated the Fourth Amendment. But
I am not alone in finding a frisk like this to be unjusti-
fied. In similar cases, other courts have deemed
the searches unconstitutional. For example, in United
States v. McKoy, 428 F.3d 38 (1st Cir. 2005), police con-
ducted a daylight traffic stop for parking and license
plate violations in a high-crime area. As the officers
approached, the driver avoided eye contact, appeared
nervous, and leaned to reach his right hand toward
the center console. Based on those facts, the officers
ordered the driver out of the car, frisked him, and
found drugs. The First Circuit affirmed the suppression
of the evidence found in the frisk, focusing on the need
for separate analysis of whether there was reasonable
No. 09-4082 25
suspicion that the driver was armed and dangerous.
The high-crime area was a relevant factor, but so was
the fact that the reason for the stop was only minor
traffic violations “from which no assumption about
weapons may fairly be drawn.” Id. at 40. The driver’s
nervousness and movement did not justify the frisk:
“Nervousness is a common and entirely natural reaction
to police presence,” and the reach for the center
console was consistent with reaching for a license or
registration. Id. The First Circuit acknowledged the
vital need for police officers to protect themselves, but
it rejected the government’s argument, which “comes
too close to allowing an automatic frisk of anyone who
commits a traffic violation in a high-crime area.” Id.
The Sixth Circuit affirmed the grant of a motion to
suppress in a similar case in United States v. Wilson, 506
F.3d 488 (6th Cir. 2007). Officers stopped a driver and
passenger who were not wearing seatbelts. Both were
nervous, and the driver rambled on in response to one
officer’s questions and said he had previously been con-
victed on a federal firearms charge. The car was
registered to a different person, and the driver talked on
his cell phone and then told the passenger, “They’re
coming.” The officers asked both to get out of the car
and then frisked them. The frisk of the passenger turned
up drugs. The Sixth Circuit held that the frisk of the
passenger was unconstitutional, concluding that the
only suspicious conduct that could be ascribed to the
passenger himself was his nervousness, which simply
was not enough to support the frisk. Id. at 495-96.
26 No. 09-4082
My colleagues rely on cases that place in sharp relief
the lack of any indication that Tinnie was armed and
dangerous. For example, my colleagues cite United States
v. Brown, 273 F.3d 747 (7th Cir. 2001), for the proposi-
tion that nervous movements may justify a frisk. But
Brown permitted a frisk where the defendant had acted
nervously before making a threatening “quick move”
when asked to step out of his vehicle. 237 F.3d at 748.
Tinnie, by contrast, never made a “quick move” (or any
other threatening move, for that matter) that Deputy
Kaiser could have perceived as threatening.
My colleagues’ reliance on Cady v. Sheahan, 467 F.3d
1057 (7th Cir. 2006), for the broad proposition that
evasive answers indicate dangerousness is equally unper-
suasive. Cady was frisked not merely because he was
evasive, but because he was also “lurking outside a
courthouse well before it opened to the public, was shab-
bily dressed, had not showered, . . . claimed to be serving
federal process on a Sheriff’s officer . . . and repeatedly
reached into his briefcase.” Id. at 1062. Evasiveness
aside, it is hard to see how Tinnie is comparable to
Cady, whose strikingly unusual behavior certainly gave
law enforcement reason to believe that he posed a
danger to himself or others.
United States v. Oglesby, 597 F.3d 891 (7th Cir. 2010),
from which the majority claims that Tinnie’s mere
presence in a high-crime area is significant, is not on
point. In Oglesby, the defendant was present in a high-
crime area, but he also had acted in a manner “potentially
calculated to keep a weapon hidden or out of reach”
No. 09-4082 27
and appeared to “be trying to confirm that his gun
[was] concealed and secured.” Id. at 895. By contrast,
Deputy Kaiser never indicated that he thought Tinnie
had tried to conceal a weapon, only that he believed that
Tinnie was “hiding something.” It has been clear since
Terry, though, that a belief that a person is acting suspi-
ciously is just not enough to justify a frisk. Under
Terry, Deputy Kaiser needed more specific reasons for
believing that Tinnie posed a danger to himself or others.
We should not overlook Deputy Kaiser’s testimony
that his standard practice was to frisk anyone whom
he asks/orders out of a vehicle during a traffic stop. Of
course, an officer’s unconstitutional practice cannot
invalidate an otherwise-reasonable frisk. But such a
standard practice remains simply inconsistent with the
rule that frisks are forbidden absent a reasonable and
individualized suspicion that a suspect is armed and
dangerous, as set forth by Terry, Sibron, Ybarra, 444 U.S.
at 92-93 (finding no reasonable suspicion to support
frisk where defendant, “whose hands were empty, gave
no indication of possessing a weapon, made no gestures
or other actions indicative of an intent to commit an
assault, and acted generally in a manner that was not
threatening”), and a host of lower court decisions. My
colleagues speculate that perhaps Deputy Kaiser orders
passengers out of the vehicle only when he has constitu-
tionally sufficient suspicion to conduct a frisk. But
Deputy Kaiser has the authority to order everyone out
of the vehicle, as a matter of course, every time he
conducts a traffic stop. Wilson, 519 U.S. at 410. So according
to his own testimony, Deputy Kaiser either (1) never
28 No. 09-4082
exercises this broad, wholly unqualified authority
unless he has constitutionally sufficient suspicion to
conduct a frisk; or (2) frisks a considerable number of
people without the constitutional authority to do so.
The first possibility is highly implausible.
Christopher Tinnie is not a sympathetic candidate for
the protection of the Fourth Amendment or the benefits
of the exclusionary rule. He was guilty of being a felon
in possession of a concealed firearm, and an unusually
dangerous firearm at that. He has accumulated a lengthy
criminal record for, among other things, small-scale
drug crimes, battery, and unlawful use of firearms. But
the exclusionary rule is not applied for the benefit of
Tinnie or other criminals. It is applied to protect all
citizens from unreasonably intrusive, “proactive,” law
enforcement practices, even when carried out for
laudable goals. Deputy Kaiser did not have a reasonable
suspicion that Tinnie was armed and dangerous when
he frisked him in the course of the pretextual traffic stop.
I therefore respectfully dissent.
1-18-11