NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2016
Decided December 12, 2016
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 16‐1615
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 15‐CR‐40040‐001
BOBBY JAMES MCCAW, James E. Shadid,
Defendant‐Appellant. Chief Judge.
ORDER
Late one night at a bar, a Rock Island police officer, acting on a tip from the bar
owner, approached a patron, Bobby McCaw, and grabbed a firearm from his waistband.
The rub was this: McCaw was a felon. Federal charges for possessing a firearm
unlawfully as a felon followed under 18 U.S.C. § 922(g)(1). McCaw conditionally
pleaded guilty and was sentenced to 37 months’ imprisonment. He now challenges the
No. 16‐1615 Page 2
district court’s denial of his motion to suppress the firearm. He urges that the police
officer lacked reasonable suspicion for the stop‐and‐frisk, and thus that the officer
unlawfully seized his firearm. We conclude that the district court was entitled on this
record to uphold the officer’s action and therefore affirm its judgment.
I
The key events of the night in question were described by Rock Island Police
Officer Justin Holmes, the only witness to testify at McCaw’s suppression hearing. Kyle
Peters, the owner of a bar called the Daiquiri Factory, had texted Holmes, a member of
Rock Island’s downtown police unit, to let Holmes know that he was concerned that a
patron might be carrying a gun. Peters, like most bar owners in downtown Rock Island,
had the personal cell phone numbers of the officers in this unit. The nature of Holmes’s
relationship with Peters is not clear; at the suppression hearing Holmes said only that
Peters “was … known” to him before that night. Holmes did not respond immediately
to the text, and so Peters sent a bar employee to track him down.
After the bar employee delivered the message to Holmes, the latter went to the
bar and met with Peters. Peters confirmed that he thought that a bar patron was armed
and said that two other patrons had told him “that a [white] guy wearing a black
basketball cap and a gray shirt had a handgun in his waistband.” Peters did not offer
any reason why these patrons knew this information. He just pointed at McCaw, who
was on the dance floor. Holmes then walked toward McCaw.
As Holmes approached, McCaw turned away and toward the bar’s counter.
Holmes then “put [his] hands on the side of [McCaw’s] hips … pretty much his
waistband on the sides.” Holmes said he touched McCaw in this manner to get his
attention and, at the same time, to determine whether he had a gun tucked into his
waistline. McCaw moved his right hand to the front of his waistband; Holmes followed
his motion and felt a gun. Holmes pressed the gun against McCaw’s body. Aided by
two officers who had accompanied him to the bar, Holmes pushed McCaw to the
ground, grabbed the gun, and handcuffed him. The gun, a Zastava 9‐millimeter pistol,
contained a fully‐loaded magazine.
The government charged McCaw, who previously had been convicted of a
felony, with knowingly possessing a firearm in violation of 18 U.S.C. § 922(g)(1).
McCaw moved to suppress the firearm as unlawfully seized. His theory was that Florida
v. J.L., 529 U.S. 266, 271 (2000), required Holmes to corroborate the secondhand tips
before conducting a Terry stop.
No. 16‐1615 Page 3
The district judge, adopting the findings and recommendation of a magistrate
judge, denied McCaw’s motion to suppress. The magistrate judge gave three reasons for
concluding that Holmes had reasonable suspicion to pat down McCaw:
1) Kyle Peters personally relayed the information he received to Officer
Holmes, thereby vouching for the credibility of the information he received;
2) two separate customers reported to Peters, who in turn reported to
Officer Holmes, that a man fitting McCaw’s description had a firearm in his
waistband; 3) the allegation of illegally possessing a firearm in a crowded
bar late at night concerned ongoing criminal activity presenting a risk to the
patrons warranting quick action.
The magistrate judge thought that Holmes’s ability to assess Peters’s credibility and to
hold him accountable if the tips were fabricated reduced the likelihood that the tips
were false and supported a finding of reasonable suspicion. The judge bolstered these
points by referring to this court’s decision in United States v. Robinson, 537 F.3d 798 (7th
Cir. 2008), in which we held that reasonable suspicion can be established by police
corroboration of an anonymous secondhand tip reported by a known person and by an
evaluation of this person’s credibility. Id. at 801–02. Because reasonable suspicion
existed for the frisk, the magistrate judge did not need to decide whether Holmes’s
confiscation of McCaw’s firearm was an unlawful seizure. (There was no dispute that
the frisk made the existence of the gun obvious.)
McCaw conditionally pleaded guilty to possessing a firearm unlawfully. He was
sentenced to 37 months’ imprisonment and three years’ supervised release.
II
We consider de novo the question whether Holmes had reasonable suspicion to
frisk McCaw. United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009). Police may
conduct an investigatory stop without a warrant when the officer can identify “specific
and articulable facts” suggesting that criminal activity may be occurring. Terry v. Ohio,
392 U.S. 1, 21 (1968). Reasonable suspicion “is a commonsense, nontechnical concept
that deals with the factual and practical considerations of everyday life on which
reasonable and prudent people, not legal technicians, act.” United States v. Lawshea, 461
F.3d 857, 859 (7th Cir. 2006) (internal citation and quotation marks omitted). In
evaluating whether an officer had reasonable suspicion to conduct a Terry stop, we
consider “the totality of the circumstances known to the officer at the time of stop.” Id.
McCaw argues that the magistrate judge misapplied Robinson to this case
because Holmes, unlike the officers in Robinson, did not corroborate the reliability of the
bar owner’s tip (much less anything about the unidentified customers) and therefore
No. 16‐1615 Page 4
did not have reasonable suspicion to frisk McCaw. We held in Robinson that
secondhand tips can form the basis for reasonable suspicion if the party reporting the
secondhand tips is credible and the police corroborate the tips. Robinson, 537 F.3d at 801–
02. McCaw contends that Holmes lacked any basis to assess the reliability or source of
the secondhand accusations that McCaw had a concealed gun. According to McCaw,
Holmes therefore did not have reasonable suspicion to conduct a Terry stop even if he
knew Peters and trusted him. McCaw also disputes the government’s contention that
the information relayed by Peters was sufficiently corroborated by two different
patrons who reported that McCaw had a gun.
These are serious arguments, but we think that McCaw is reading too much into
Robinson. That decision did not quantify how much corroboration of secondhand tips, if
any, is necessary to establish reasonable suspicion. See Robinson, 537 F.3d at 801–02. In
Robinson, the officers knew the people who had relayed information about the
defendant, could assess their credibility, and could corroborate their information
through other means such as their personal observations of the defendant, their
knowledge of his criminal background, and the high‐crime history of the area where he
was found. Id. The record here is admittedly not as complete. Peters gave Holmes far
less information to go on. Holmes did not know McCaw’s criminal history, did not see
any sign of a gun in McCaw’s pants, and did not identify the bar as a site of regular
criminal activity. Further, the fact that two patrons, not just one, ascribed a gun to
McCaw did not necessarily corroborate Peters’s report because the patrons could have
colluded to provide a false report or obtained their information from an erroneous
source. Nevertheless, as Robinson suggests, the reliability of a secondhand tip can be
bolstered by an officer’s familiarity with a source who he knows has no reason to
prevaricate. See id. at 802.
On the other hand, facts similar to those we face here were present in United
States v. Hopes, 286 F.3d 788 (5th Cir. 2002). There the Fifth Circuit held that police
officers had reasonable suspicion to frisk a suspect for weapons in a halfway house
based on the reliability of the manager’s report of a secondhand tip. Id. at 790. The court
noted that the house manager, with whom the officers “had dealt reliably with … many
times,” identified the suspect as possibly having a gun. Id. at 788, 790. In addition, the
manager “could be held accountable if the tip proved to be fabricated.” Id. at 790.
Hopes supports the conclusion that Holmes’s familiarity with Peters and his
opportunity to evaluate Peters’s credibility face‐to‐face reasonably allowed him to
assess the reliability of the secondhand tips. See Adams v. Williams, 407 U.S. 143, 147
(1972) (declaring that “a credible informant warn[ing] of a specific impending crime”
can be sufficient to support a Terry stop). Furthermore, as a bar owner Peters had an
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incentive to report only reliable tips. He would have had no reason to facilitate police
harassment of his customers.
McCaw counters that Hopes is not consistent with the Supreme Court’s opinion
in Florida v. J.L., supra. In J.L., the Court ruled that an anonymous tip that does not
reveal how the tipster knows of alleged illegal activity must be adequately corroborated
by police to establish reasonable suspicion. Id. at 270. McCaw believes that Hopes
“nullif[ied] J.L.” by crediting a known person’s tip, which itself did no more than repeat
uncorroborated secondhand information. McCaw sees this as indistinguishable from a
more conventional uncorroborated tip of an anonymous person.
We already have explained why we are not persuaded by McCaw’s challenge to
Hopes, at least insofar as it is a broadside attack on secondhand information. In Robinson,
we concluded that a police officer’s personal interactions with a familiar person can
lend reliability to his report of secondhand tips. Robinson, 537 F.3d at 802. Robinson
emphasized that secondhand sources are not inevitably unaccountable: police officers
can often trace false secondhand tips back to the persons who originated them. Id.
McCaw alternatively tries to distinguish Hopes by arguing that the officers there
corroborated the anonymous secondhand tip, but Holmes did not. In Hopes, unlike
McCaw’s case, the suspect acted in an “alarmed” manner once officers approached him.
The officers knew that the halfway house served former convicts in a dangerous
neighborhood, and the halfway house manager reported that Hopes “had an
altercation” with another resident before the officers arrived. See Hopes, 286 F.3d at 788,
790.
Even though Holmes did not corroborate the secondhand tips, as did the officers
in Hopes, see id. at 790, there was enough other evidence to support reasonable
suspicion for purposes of a Terry stop. That evidence included Peters’s reporting of the
secondhand tips; his incentive to report only accurate tips; the lack of any evidence
indicating that the two customers who spoke to Peters had colluded; the late hour (1:45
a.m. or so); and the risk that there was an ongoing threat. We acknowledge that this is a
close case, and that reasonable suspicion cannot be created by nothing more than an
anonymous secondhand tip containing conclusory allegations of criminal activity and a
physical description of a suspect’s appearance. J.L., 529 U.S. at 272. But if a tip is
reported by a person whom the police know and regard as credible, it is possible
(depending always on the surrounding facts) that they can establish reasonable
suspicion. The critical point is the need to ensure that the police have a sufficient factual
basis for concluding that crime may be afoot, and that the police, not tipsters, decide
which tips are sufficiently reliable enough to support further action.
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McCaw next asserts that the magistrate judge erred in concluding that the
particular crime alleged in the tip, illegal gun possession, supported a finding that
Holmes had reasonable suspicion to stop him. As McCaw points out, the idea that there
is a so‐called “firearm exception,” under which a Terry stop is permissible based on bare
allegations of illegal gun toting, was squarely rejected by the Supreme Court in J.L. 529
U.S. at 272. Such an exception would invite harassment and abuse of law‐abiding gun
owners. Id. at 272–73.
The problem with this argument is that the magistrate judge did not apply a
firearm exception. Nothing in J.L. bars district courts from taking into account the
nature of criminal activity alleged by tipsters into their assessments of reasonable
suspicion. Illegal gun possession is just one form of potentially relevant criminal
activity. In addition, McCaw’s argument ignores Holmes’s belief that McCaw was
engaging in criminal activity at the bar. “[W]hen the police believe that a crime is in
progress … action with fewer procedural checks in advance can be reasonable.” United
States v. Wooden, 551 F.3d 647, 650 (7th Cir. 2008).
III
Because Holmes had reasonable suspicion to frisk McCaw, we do not consider
whether Holmes “seized” McCaw when he grabbed McCaw’s waistline. We AFFIRM
the judgment of the district court.