United States v. Broomfield, John ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-4180
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN BROOMFIELD,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:03-CR-88-TS—Theresa L. Springmann, Judge.
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ARGUED JULY 5, 2005—DECIDED JULY 29, 2005
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Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. At 8:25 one October night in an
Indiana town, a patrolling police officer received word from
his dispatcher that eight minutes earlier a store had been
held up by a black man wearing dark clothing and bran-
dishing a silver-colored pistol, who having completed the
robbery had fled on foot. Fifteen to twenty minutes after
receiving the news the officer spotted a black man in dark
clothing less than a mile from the site of the robbery. There
were few pedestrians about, so the officer thought this
2 No. 04-4180
might be the robber. He told him to stop and to take his
hands out of his pockets. The man immediately complied,
whereupon the officer noticed a silver-colored gun sticking
out of the pouch in the man’s sweatshirt; and so he arrested
him. It was Broomfield, who has been convicted of being a
felon in possession of a gun and challenges his conviction
on the ground that the officer violated the Fourth
Amendment in stopping him.
The district judge thought the stop governed by Terry v.
Ohio, 392 U.S. 1 (1968), which authorizes a brief stop-and-
frisk upon the basis of reasonable suspicion of criminal ac-
tivity or danger to the officer. See also Hiibel v. Sixth Judicial
District Court, 124 S. Ct. 2451, 2458 (2004); United States v.
Baskin, 401 F.3d 788, 791 (7th Cir. 2005). She ruled that there
was reasonable suspicion. Although the description of the
robber lacked specificity, Broomfield did fit the description;
he was stopped about as far from the store as he could have
gotten walking briskly, given the amount of time that had
elapsed since the robbery; and the streets in the vicinity of
the store were nearly deserted—the police spotted only
three pedestrians in the course of their search for the robber
that matched the description, and two of the spottings may
have been of the same person, namely Broomfield. There
was indeed a reasonable basis for suspecting that he was the
robber. (For cases upholding stops in very similar circum-
stances, see United States v. Wimbush, 337 F.3d 947, 950 (7th
Cir. 2003); United States v. Price, 328 F.3d 958, 959 (7th Cir.
2003).) It would be different had it been Lagos at high noon.
Gilding the lily, the officer testified that he was addition-
ally suspicious because when he drove by Broomfield in his
squad car before turning around and getting out and accost-
ing him he noticed that Broomfield was “star[ing] straight
ahead.” Had Broomfield instead glanced around him, the
officer would doubtless have testified that Broomfield
No. 04-4180 3
seemed nervous or, the preferred term because of its vague-
ness, “furtive.” Whether you stand still or move, drive
above, below, or at the speed limit, you will be described by
the police as acting suspiciously should they wish to stop or
arrest you. Such subjective, promiscuous appeals to an
ineffable intuition should not be credited. United States v.
Jones, 269 F.3d 919, 927-29 (8th Cir. 2001); United States v.
Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir. 1999); see also
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1123 n. 4
(9th Cir. 2002); cf. United States v. Troka, 987 F.2d 472, 474
(7th Cir. 1993). Nevertheless other circumstances established
a reasonable basis for suspicion that Broomfield was the
robber.
This discussion assumes that the stop rose to the level of
a seizure within the meaning of the Fourth Amendment; if
not, however, it didn’t have to be based on reasonable
suspicion or anything else. “[A] seizure does not occur
simply because a police officer approaches an individual
and asks a few questions.” Florida v. Bostick, 501 U.S. 429,
434 (1991); see also United States v. Drayton, 536 U.S. 194,
200-01 (2002) United States v. Price, supra, 328 F.3d at 960. In
the closest case factually to this one that we’ve found, the
following circumstances were held to constitute a seizure,
though the court called it “arguably a close case”: “a police
officer pointed a spotlight at [one of the plaintiffs] and said
‘What, are you stupid? Come here. I want to talk to you.’ He
[the plaintiff] was then told to show his hands.” Brown v.
City of Oneonta, 221 F.3d 329, 340 (2d Cir. 2000). Yet at the
same time the court ruled that the allegation of another of
the plaintiffs “that he encountered two police officers in his
dorm lobby, and that they asked him to show them his
hands,” did “not rise to the level of a seizure.” Id. at 341.
These two rulings are not easy to reconcile. The second is
closer to the view our court expressed in United States
4 No. 04-4180
v. Childs, 277 F.3d 947, 950 (7th Cir. 2002) (en banc), that
“approaching a person on the street (or at work, or on a bus)
to ask a question causes him to stop for at least the time
needed to hear the question and answer (or refuse to an-
swer),” yet is not a seizure. To similar effect, see
United States v. Hooper, 935 F.2d 484, 489 (2d Cir. 1991).
So suppose that during the search for the robber the police
had spotted a young woman walking near the store,
obviously not a suspect, and had said to her, “Excuse me,
we’re investigating a robbery, and we’d like to know
whether you’ve seen a black man wearing dark clothing.”
The asking of such a question of a pedestrian by a police
officer would bring the pedestrian to a halt. So it would be
a “stop” in a literal sense. But would it be a seizure within
the meaning of the Fourth Amendment? Bloomfield’s
lawyer at argument said yes, but Childs and Hooper say no.
The interference with personal liberty is too slight to
activate constitutional concerns. The Constitution should
not be trivialized in the fashion suggested. The maxim
de minimis non curat lex is as sensible a limitation on the
making of trifling constitutional claims as on other silly
litigation. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992);
Ingraham v. Wright, 430 U.S. 651, 674 (1977); Tesch v. County
of Green Lake, 157 F.3d 465, 476 (7th Cir. 1998); Hessel v.
O’Hearn, 977 F.2d 299, 303-04 (7th Cir. 1992); Thaddeus-X v.
Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (en banc); Riley v.
Dorton, 115 F.3d 1159, 1166 (4th Cir. 1997).
Had the pedestrian in our example told the officer to bug
off and he had insisted that she remain and answer his
questions, the innocuous stop would become a seizure, INS
v. Delgado, 466 U.S. 210, 216-17 (1984); Brown v. Texas, 443
U.S. 47, 49-50 (1979), though in particular circumstances of
urgent need it might be deemed reasonable despite her not
No. 04-4180 5
being a suspect. See City of Indianapolis v. Edmond, 531 U.S.
32, 45 (2000); Florida v. J.L., 529 U.S. 266, 273-74 (2000).
Before the police officer in this case had a chance to pose
a single question to Broomfield, he noticed the gun, at which
point he had probable cause to arrest him as the suspected
robber, though, as it happened, Broomfield was never pros-
ecuted for the robbery because the clerk at the store that had
been robbed could not identify him as the robber. That is an
aside; the relevant point is that the stop had not yet ripened
into a Terry stop, requiring reasonable suspicion to be
lawful, when the officer saw the gun. All the officer had
said was take your hands out of your pockets, an obvious
precaution since it was dark and an armed robber was on
the loose. It was only after the officer spotted the gun and
thus had probable cause to arrest that he asked Broomfield
“where he was going or what he was doing.” Until it turned
into a lawful arrest, the stop had lasted only seconds.
Though supported by reasonable suspicion, it didn’t need to
be, because it didn’t last long enough to count as a seizure.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-29-05