United States v. Brown, Lawrence

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2991

United States of America,

Plaintiff-Appellee,

v.

Lawrence Brown III,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99-CR-17--Barbara B. Crabb, Judge.

Argued September 15, 2000--Decided November

14, 2000

Before Flaum, Chief Judge, and Kanne and

Williams, Circuit Judges.

Flaum, Chief Judge. Lawrence Brown III

was convicted, following his guilty plea,

of possession of two sawed-off shotguns

and a destructive device. Brown now

appeals his conviction, arguing that the

district court erred in denying his

motion to suppress evidence gathered as a

result of a protective pat-down search.

For the reasons stated herein, we affirm.

Background

December 27, 1998 turned out to be a

difficult day for Brown. His encounter

with Edgerton police officer Chris

Chilson evolved from a series of

incidents that occurred during the

afternoon and early evening of that day.

At approximately 4:15 p.m., Chilson

received a dispatch order to investigate

a citizen’s complaint of intoxicated

driving. He was told that the incident

involved a red and black Chevy Blazer

with the Wisconsin license plate number

CEZ-802. Before arriving at the

complainant’s home, Chilson ran the plate

number and learned that the vehicle was

registered to Larry and Vicky Brown of

Edgerton, Wisconsin. Chilson was familiar

with Brown from an earlier contact and

knew that he was a light-skinned African

American male in his early 40’s.

Previously, Chilson had seen Brown "face-

to-face" at Edgerton High School when

Chilson, acting in a backup capacity, had

run Brown’s record for warrants.

Chilson talked to the complainant and

ascertained that the red and black Chevy

Blazer had just left her area. Initially

she had approached the driver because he

was honking his horn. The driver, who

claimed to be in the wrong place, refused

to tell her his name. When she asked the

driver to leave her premises, he called

her a bitch and proceeded to drive into

the back of her Blazer, damaging it.

After this exchange took place, the

driver then drove toward the end of a cul

de sac. He proceeded to turn around in a

driveway that had a chain in front of it

in order to prevent people from using it

in this very manner. In the process of

doing so, the driver drove over the chain

and post, breaking both, and then drove

away with the chain and post attached to

the front of his Blazer, while he

"flipped [the complainant] the bird."

While being interviewed, the complainant

described the driver as being a white

male in his late 30’s to early 40’s with

dark hair and a mustache. This

description, according to Chilson, seemed

to match that of Brown. The complainant

felt that the driver was probably intoxi

cated based upon the manner of his

speech, his inappropriate language, and

his driving. Another individual also

witnessed these events and provided

Chilson with a similar report.

While on duty later that evening Chilson

received another dispatch message telling

him that a Chevy Blazer with the license

plate number CEZ-802 (Brown’s Blazer

license plate number) had left a

McDonald’s just outside the Edgerton city

limits and that the driver seemed to be

drunk. Chilson drove to the part of

Edgerton nearest to the McDonald’s,

hoping to come across the allegedly

intoxicated driver, whom he presumed to

be Brown. State Trooper Kronau advised

Chilson that the Blazer was approaching

the city limits of Edgerton. Chilson

discovered the Blazer parked on Wileman

Drive, with its headlights on, and the

engine running. Although parking on

Wileman Drive is not illegal, it is not a

residential street, and so Chilson

thought this was an unusual place to

stop. While driving toward the Blazer,

Chilson noticed that a chain was hanging

from the Blazer’s front bumper. He turned

on his red and blue lights to commence a

stop and parked behind the Blazer.

Thereafter, Rock County Deputy Davies

arrived and stood to the rear of Brown’s

window while Chilson approached the

driver’s window. Chilson recognized the

defendant as Brown and saw that he was

eating a sandwich and drinking from a

McDonald’s cup. Chilson did not smell any

odor of intoxicants nor did he observe

any empty containers that might have held

alcohol. What he did notice was that

Brown’s eyes were moving slowly and

deliberately and that his speech was

slurred. Brown was also wearing a jacket.

Chilson told Brown that his vehicle was

suspected of being involved in two hit-

and-run accidents and that several people

had described a person matching his

appearance who was driving intoxicated.

Chilson then asked Brown to step out of

the car because he desired to conduct

field sobriety tests. Brown complied and

Chilson directed him to place his hands

on the truck while he proceeded to

conduct a pat-down search. While the pat-

down was occurring, State Trooper Kronau

arrived on the scene and stood on

Chilson’s left while Deputy Davies stood

to Chilson’s right. During the pat-down,

Chilson felt hard objects under Brown’s

arms and discovered a loaded .45 handgun.

At this point, the officers handcuffed

Brown behind his back. While continuing

to pat down Brown, Chilson found a loaded

Taurus .454 revolver in his waistband and

discovered that Brown was wearing a

bullet proof vest. The officers then

arrested Brown for weapons violations and

searched his trunk and found additional

weapons and other suspected contraband.

The Bureau of Alcohol, Tobacco, and

Firearms later became involved and

obtained a search warrant for Brown’s

house. This search resulted in the

recovery of contraband and additional

federal charges against Brown.

The district court denied Brown’s motion

to suppress the evidence that was

obtained as a result of the protective

pat-down and all the subsequent evidence

arising out of this incident. The

district court concluded that the frisk

of Brown was appropriate: A reasonable

officer in the situation of Chilson would

have ensured that Brown was not armed.

Brown’s behavior earlier in the day as

well as the circumstances at the time

that he was stopped on Wileman Drive

created a situation where a police

officer would have found it necessary to

conduct a protective pat-down search. The

district court did not affirm, however,

the magistrate judge’s conclusion that

the search was justified as a search

incident to arrest. Brown pleaded guilty

to Count 3 of the indictment (possessing

two sawed-off shotguns and a destructive

device), but the plea was conditional, so

Brown reserved his right to appeal the

district court’s adverse determination on

his motion to suppress. This

appealthereafter followed.

Discussion

In reviewing the district court’s

decision on a motion to suppress, we

review questions of law de novo and

questions of fact for clear error. United

States v. Williams, 209 F.3d 940, 942

(7th Cir. 2000); United States v. Faison,

195 F.3d 890, 893 (7th Cir. 1999).

Therefore, "we review de novo the

ultimate conclusion that the police did

not have reasonable suspicion to stop or

search the individual, but we review all

findings of historical fact and

credibility determinations deferentially,

under the clear error standard." United

States v. Johnson, 170 F.3d 708, 712-13

(7th Cir. 1999). In this case, the

defendant is not challenging the district

court’s factual findings. He is

questioning the district court’s

conclusion that the protective pat-down

search was proper based upon reasonable

suspicion under the Fourth Amendment and

accordingly we review the district

court’s finding de novo. See Ornelas v.

United States, 517 U.S. 690, 699 (1996)

("[A]s a general matter determinations of

reasonable suspicion and probable cause

should be reviewed de novo on appeal.").

When an individual is stopped by a

police officer, this incident can

potentially involve two stages: (1) the

actual stop itself; and (2) a protective

pat-down search. The initial detention of

an individual is justified if the police

officer is stopping and briefly detaining

"a person for investigative purposes, so

long as the officer has a reasonable

suspicion supported by articulable facts

that criminal activity ’may be afoot.’"

Johnson, 170 F.3d at 713 (quoting United

States v. Sokolow, 490 U.S. 1, 7 (1989)).

Brown does not contend that Chilson

lacked the authority to stop and detain

him for investigative reasons. The

protective pat-down, which occurred

during the second part of the

investigatory stop, is what Brown argues

was unwarranted. When conducting a

protective pat-down during a Terry stop,

"the officer must be able to point to

specific and articulable facts that the

individual is armed and presents a risk

of harm to the officer or to others." Id.

at 713.

The district court stated that it was

incumbent upon "the government to show

that Chilson had a reasonable suspicion

that defendant might be armed and

dangerous." In deciding whether Brown was

dangerous or not, the district court

concluded that "[t]he inquiry is

objective: would a reasonably prudent

person believe in the circumstances that

the individual he is dealing with is

armed and dangerous?" The events leading

up to the protective pat-down of Brown

revealed his "potential dangerousness."

Chilson had "reliable reports" that Brown

appeared drunk at approximately 4:00 p.m.

and 8:00 p.m. Furthermore, reports

relayed that Brown had used his "sport

utility vehicle as a battering ram" and

that he was not "particularly

cooperative" when approached by Chilson.

According to the district court, the

"[d]efendant could be characterized as a

belligerent drunk, that is, one who is a

potential danger even if unarmed."

Nonetheless, the district court

acknowledged that it was a "close

question" as to whether a reasonable

police officer would have believed Brown

might be armed and that it was necessary

to conduct a protective pat-down. What

made the protective pat-down a "close

question" was the lack of specific facts

indicating that Brown possessed a weapon.

Chilson had no report that Brown was

carrying a weapon nor did he see anything

in Brown’s Blazer suggesting that he was

armed. Nonetheless, the district court

judge concluded that a reasonable police

officer would have conducted a pat-down

of Brown based on: (1) his "very strange

behavior during that day;" (2) the fact

that Brown was wearing a jacket that

could have been concealing a weapon; (3)

the fact that Brown was eating in a dark

and unpopulated area; and (4) the reality

that Brown was going to be outside his

vehicle for the sobriety tests and not in

physical custody. All of these factors

combined made it prudent, in the judgment

of the district court, for Chilson to

ensure Brown was unarmed.

Brown argues that the district court

erred in its conclusion because: (1)

Chilson subjectively did not fear that

Brown was armed; and (2) the objective

facts do not suggest that Chilson was

warranted in conducting a protective-pat-

down. Brown contends that the test as to

whether a police officer has properly

conducted a protective pat-down is not

strictly objective, but rather the test

has a subjective component as well.

Chilson did say that he frisked Brown for

his own safety and for the safety of

others. However, Chilson also admitted

that he usually frisked people when he

suspected them of drunk driving. Brown

argues that this shows Chilson’s practice

of frisking drunk drivers is routine and

is not based on any particularized facts.

Alternatively, Brown contends it would

have been unreasonable for a police

officer to believe that he was armed and

dangerous considering the circumstances.

Brown argues that he was legally parked

along a non-residential roadside. At the

time, he contends that he was eating

something and drinking from a McDonald’s

cup. During the two minute conversation

with Chilson, Brown talked slowly and in

a slurred tone. Although initially

sarcastic and hesitant, Brown then fully

cooperated with Chilson. All the alleged

prior events at the time of the pat-down,

according to Brown, were not yet

confirmed. Brown also argues that his car

was illuminated by the headlights of the

two marked police cars and neither

officer drew his gun before the pat-down.

When Chilson approached Brown, Brown did

not smell of alcohol, Chilson did not see

any weapons, nor did Brown appear to have

weapons in his truck. Brown asserts that

he was not physically assaultive toward

anyone that day, and after initially

being sarcastic, he cooperated with

Chilson. All of these facts taken

together, according to Brown, indicate

that a reasonable police officer would

not have perceived him as armed or

dangerous.

Factual circumstances can be painted in

various lights, as seen by the differing

versions presented by the district court

and Brown regarding the events that

occurred on December 27, 1998. Brown’s

account of the events that day portrays

his situation in a sympathetic light,

although his rendition on closer

inspection raises some suspicions. That

fateful day, among other incidents, Brown

had run into the complainant’s car and

drove over a chain and post fence. Brown

perceives the consequences of the day’s

incidents as unlucky and unjustified.

These very events though were not viewed

by others as mere disturbances. The

complainant was concerned about Brown’s

behavior enough to notify the police and

provide them with his license plate

number. Whether Brown’s behavior rises to

the level of being a danger to the police

and others is at the heart of the issue

in this case. We therefore have to try to

envision the position of Chilson on the

night in question.

We should try to step back and observe

what an outsider would think of the day’s

events. In Terry itself the court said

that a police officer "need not be

absolutely certain that the individual is

armed" because "the issue is whether a

reasonably prudent man in the

circumstances would be warranted in the

belief that his safety or that of others

was in danger." Terry v. Ohio, 392 U.S.

1, 27 (1968). With this perspective in

mind, we can begin to look at how

oneparticular day in Brown’s life led to

his current situation. One must remember

that Brown had not started his day on a

positive note; he had run into the

complainant’s car and run over a chain

and post fence. Brown heightened the

level of concern regarding his actions by

showing indications that he was drunk and

belligerent. This type of behavior would

make a reasonable police officer question

Brown’s state of mind.

Brown continued to act in an unusual

manner. After Chilson had already heard

from the complainant and another witness

about the events earlier in the day, he

received a dispatch around 8:20 p.m. that

a driver, who appeared drunk, had just

left from McDonald’s in a Blazer

andChilson presumed that this was Brown.

Upon arriving at the scene, Chilson saw a

chain hanging from the front bumper of

the Blazer--a remnant from Brown’s

earlier escapade. At this point Chilson

identified himself and told Brown why he

was there, to which Brown responded by

asking whether it was illegal to park and

eat where he was located. This remark led

Chilson to categorize Brown as a "maybe"

person. A "yes" person is someone Chilson

believes will cooperate and a "no" person

is an individual that he believes will

not cooperate. Brown even said that

"[b]ased on his attitude, [he] felt there

was a risk of him possibly leaving or

fleeing or fighting." One must remember

that Chilson had knowledge of Brown’s

earlier behavior in the day and had no

reason to trust that Brown would

cooperate. Chilson even said that he

conducted the pat-down search for his

"safety and the safety of everyone on the

scene." If one were observing the

interaction between Brown and Chilson

that evening, it would be apparent that

Brown was not the most cooperative

individual. Furthermore, Brown was parked

in a less than populated area with

inadequate lighting and there were

reports that he was drunk.

What perhaps makes this case somewhat

unusual is that Chilson was very candid.

Chilson admitted that he "usually"

conducts a protective pat-down during

sobriety tests. Had Chilson only said

that he labeled Brown as a "maybe" person

and that he felt Brown was a danger to

himself and others, then it would have

been difficult for Brown to question

Chilson’s subjective state of mind.

However, to take this one admission by

Chilson and extrapolate that he

improperly frisked Brown without any

individualized suspicion that he

presented a danger to himself and others

appears unfair in the context of this

case.

Chilson should not be penalized because

he did not provide a very sensationalized

version of the facts in order to shore up

his justification for the protective pat-

down. His honest responses should be

commended. He merely characterized Brown

as a "maybe" person, mentioned that he

was a possible danger, and that he

usually pats down people during sobriety

tests. He did not expound upon the fear

that he felt when approaching Brown in

his car or describe Brown’s behavior in

such a manner as to preclude anyone from

questioning his rationale for conducting

the protective pat-down search. A police

officer conducting a stop is not required

to "precisely and individually articulate

the facts that added up to suspicion in

his mind." United States v. McKie, 951

F.2d 399, 402 (D.C. Cir. 1991) (per

curiam). Perhaps Chilson is not the type

of officer who can articulate readily his

sense of fear or perhaps his own

particular disposition makes him less

forthcoming about these potentially

dangerous situations.

If we were to parse every reason as to

why Chilson decided to conduct a

protective pat-down search of Brown, we

would inevitably find inconsistencies and

a scenario riddled with competing

justifications. This still would not

negate the reality that Brown was acting

erratically and somewhat aggressively

throughout the late afternoon to early

evening period and therefore posed some

concern. It 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 circumstances would have been

suspicious." Id. at 402.

To judge Chilson’s behavior solely upon

his subjective and very personal reaction

to the Brown situation would lead to

"judicial micromanagement, oversight, and

second-guessing of officers’ behavior to

far-reaching dimensions, quite beyond

that required to ensure compliance with

the law (and into the very danger-laden

areas where officers must confront the

most delicate and dangerous decisions)."

United States v. Bonner, 874 F.2d 822,

829 (D.C. Cir. 1989). Chilson did not

conduct a pat-down of Brown based upon

some sort of "inchoate and

unparticularized suspicion or ’hunch.’"

Terry, 392 U.S. at 27. Brown provided

Chilson with adequate provocation to be

concerned about his own safety and the

safety of others, considering his

behavior earlier in the day and his

initial reaction to Chilson as well as

his slow eye movement and deliberate and

slurred speech. Taken as a whole, Brown

had acted erratically throughout the day,

and a reasonable police officer would

have wondered whether Brown posed a

threat to himself or herself or others.

However, notwithstanding our decision

that the officer’s conduct was reasonable

in this case, considering the stated

practice of Chilson, one should not read

into the opinion any implicit approval of

the frisking of drivers during routine

traffic stops for drunk driving.

Conclusion

Brown’s behavior on December 27, 1998

would have caused a reasonable individual

to pause and wonder about his or her

safety, thereby warranting a protective

pat-down search. Chilson acted as a

prudent person in the situation and

therefore we Affirm the district court’s

decision.