United States v. Robert Leo, Jr. , 792 F.3d 742 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2262
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT LEWHIM LEO, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CR-123 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED DECEMBER 17, 2014 — DECIDED JULY 2, 2015
____________________
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. After a 911 caller reported that
Robert Leo had attempted to commit a burglary and was in
possession of a gun, police officers stopped Leo, cuffed his
hands behind his back, emptied his backpack, and found a
gun. The officers soon learned that the 911 caller had been mis-
taken about the attempted burglary, but Leo was charged with
possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). He
moved to suppress the gun because the police officers who had
2 No. 14-2262
detained him were conducting an investigatory stop under
Terry v. Ohio, 392 U.S. 1 (1968), and were not authorized by that
decision to rifle his backpack. The district court rejected this
contention, explaining that searching Leo’s backpack without a
warrant was necessary for the protection of the officers and the
public. Leo pleaded guilty and was sentenced to 37 months’
imprisonment, but reserved the right to appeal the denial of his
motion to suppress. Because we conclude that there was no
probable cause or basis in Terry for the warrantless search, we
vacate Leo’s conviction and remand for further proceedings.
I. BACKGROUND
One morning in May 2013, Robert Ortiz, a police officer for
the City of Racine, Wisconsin, was driving an unmarked car
when he spotted two young men in black hoodies standing on
the sidewalk. He recognized one of them as Enrique Aranda, a
cousin of his wife with prior convictions for drug possession,
burglaries, and disorderly conduct. Ortiz did not know Leo,
the defendant, who was with Aranda. As Ortiz drove past, he
saw Aranda and Leo running into the yard of a nearby duplex.
Ortiz quickly lost sight of Leo, but he caught a glimpse of
Aranda standing by an open screen door on the side of the
building.
As Officer Ortiz reached the end of the block and turned
around, the police dispatcher announced that a 911 caller was
reporting a possible burglary in progress in the lower unit of
the duplex where Ortiz had last seen Aranda. The dispatcher
radioed that the caller lived in the upper unit of the duplex and
had described the suspected burglars as two Hispanic men
wearing black hoodies, one of them with a gun, possibly a re-
volver. The caller also had reported that he just saw an un-
No. 14-2262 3
marked police car pass by. Ortiz told the dispatcher what he
had seen and where he was, and other officers radioed that
they were on their way. Because he was outnumbered, Ortiz
moved where he could watch the duplex and waited for back-
up.
As Ortiz waited, Leo reappeared and began walking with
Aranda away from the duplex toward the Head Start preschool
next door. Ortiz observed that Aranda still was wearing a black
hoodie but that Leo now was wearing a red jacket or sweat-
shirt, and had a backpack. Around this time, the dispatcher re-
ported that the 911 caller had given an update saying that one
of the suspects had changed into a red jacket or sweatshirt, and
that the gun was in a backpack.
When Officer Ortiz saw Leo and Aranda reach the Head
Start parking lot and continue toward the entrance, he ran up
to them, announced that he was a police officer, and ordered
them to stop. The two young men glanced back but kept walk-
ing. Ortiz drew his gun, held it at his side, and again com-
manded the pair—this time in a louder voice—to stop. Leo and
Aranda then paused 15 to 20 feet from Ortiz, who told Aranda
to come to him. Aranda complied, so Ortiz put away his gun
and handcuffed him. Meanwhile, Officer Michael Seeger had
arrived in time to see Ortiz order Leo and Aranda to stop.
When they did not, Seeger ran after Leo, who was nearing the
preschool’s front entrance. Seeger cuffed Leo’s hands behind
his back.
By this time, another officer had gone to the duplex and in-
terviewed the upstairs resident who called 911. The caller had
seen the officers stop Leo and Aranda, and confirmed that the
two men were the ones who had tried breaking into the down-
4 No. 14-2262
stairs unit. The dispatcher relayed this information to Officers
Ortiz and Seeger.
The officers separated Leo and Aranda by 20 to 30 feet.
Ortiz frisked Aranda but found nothing. Aranda explained that
he had just stopped at a friend’s house and was on his way to
get $5 from his mother, who worked at the preschool. As Leo
conversed with Aranda, Seeger patted down Leo. The officer
did not find a gun. Without asking any questions, he then im-
mediately opened and emptied Leo’s backpack, which he had
taken from Leo and placed on the ground. Inside were a black
hoodie, a digital scale with marijuana residue, plastic baggies,
three bullets in a box, and a loaded revolver wrapped in cloth.
After finding the gun, the officers learned that the 911 caller
had been mistaken about the attempted burglary. The resi-
dents of the duplex’s lower unit had been interviewed and said
they knew Leo and Aranda, and that the men had not tried to
break in. By this time, however, the officers had learned that
Leo is a felon (at the time of the search, he was on probation for
attempted burglary and possession of marijuana). He was ar-
rested and charged with violating § 922(g)(1).
A magistrate judge conducted an evidentiary hearing on
Leo’s motion to suppress. The government’s attorney main-
tained that the search of the backpack was lawful because the
officers had “reasonable suspicion” that justified stopping Leo
and also searching his backpack. Officer Ortiz testified that he
had “made contact” with Leo and Aranda because he was con-
cerned about the safety of teachers, parents, and children at the
preschool. The officer insisted, however, that the two suspects
were not under arrest when he handcuffed Aranda. Rather,
Ortiz explained, he had restrained Aranda for safety reasons
because, in his opinion, potential burglars and armed suspects
No. 14-2262 5
always present “a possibility of violent action.” And, he added,
unholstered guns also present a danger of accidental discharge.
Ortiz conceded knowing that Aranda’s mother worked at the
preschool, as did Ortiz’s wife, a niece of Aranda’s mother.
However, as Ortiz soon learned from the dispatcher, Aranda
was violating his probation by being away from his residence.
At that point, the officer continued, he had arrested Aranda for
this violation and found that he was carrying $40. That discov-
ery, Ortiz said, made him suspect that Aranda had lied about
going to the preschool to get money from his mother. This sus-
picion about Aranda’s story, though, arose only after Leo’s
backpack already had been searched.
Officer Seeger testified that he detained and handcuffed
Leo to stop him “from reaching or grabbing the firearm.” He
said he was concerned about the safety of the officers and oc-
cupants of the preschool. Leo might have reached for his gun,
Seeger explained, or the gun could have discharged accidental-
ly. Like Officer Ortiz, Seeger acknowledged that he did not ar-
rest Leo before finding his gun. Leo had only been “detained,”
Seeger insisted, when he was handcuffed. The officer testified
that Leo had said several times, “I consent to a search.” But
even if Leo had not consented, Seeger added, he would have
searched the backpack because Leo “matched exactly” the call-
er’s description of the burglary suspect. Seeger acknowledged
knowing that Ortiz’s wife worked at the preschool. He did not
say that he knew Leo to be a felon before rummaging through
his backpack.
Aranda testified that he and Leo were walking to the pre-
school to get gas money from his mother when members of the
Latin Kings pulled up in a car and threatened them. He said
that he and Leo ran to the duplex next to the preschool,
6 No. 14-2262
knocked on the door, and hid behind the house. Aranda stated
that, once the coast was clear, they continued walking to the
preschool. He insisted that he did not know Leo had a gun and
that he heard Leo tell Seeger that he did not consent to a search.
After the evidentiary hearing, the government submitted a
brief arguing that the search of Leo’s backpack was lawful be-
cause the officers had a “reasonable suspicion that he was
armed and dangerous.” The search of the backpack was rea-
sonable, the government contended, because Leo—who, ac-
cording to the 911 caller, had tried to commit a burglary and
was armed—was about to enter a preschool and was initially
unresponsive to the officers’ commands. So, the government
argued, the search of the backpack was necessary to protect not
only the officers but also teachers, children, and parents from
either an “active shooter situation” or an “accidental discharge
of the firearm.” In the alternative the government asserted that
Leo had consented to the search of his backpack. The govern-
ment did not argue, however, that the officers had probable
cause to arrest the men and could search the backpack incident
to arrest.
Leo countered that no urgency justified the warrantless
search. He was handcuffed, Leo reminded the court, and the
backpack was on the ground out of his reach. Leo maintained
that he and the gun no longer posed a threat, leaving the offi-
cers without a reason for not getting a search warrant. Any-
way, he insisted, the police could not reasonably have thought
he was about to commit a shooting at the preschool because he
and Aranda were suspected only of burglary and Ortiz knew
that Aranda’s mother worked at the preschool. Leo also insist-
ed that he had not consented to the search of his backpack.
No. 14-2262 7
The magistrate judge recommended denying Leo’s motion
to suppress. See 28 U.S.C. § 636(b)(1)(B); FED. R. CRIM. P.
59(b)(1). The magistrate judge accepted Aranda’s testimony
that Leo had not consented to the search. Officer Seeger’s con-
trary testimony was not credible, the magistrate judge rea-
soned, because for Leo to “spontaneously and repeatedly con-
sent to a search” would have been odd. Nonetheless, the
magistrate judge reasoned that the officers had been justified in
believing that Leo’s gun presented a safety issue even after he
was handcuffed and so the gun should not be suppressed. The
magistrate judge relied principally on Michigan v. Long,
463 U.S. 1032 (1983), which upheld the protective sweep of a
car after a traffic stop, and Cady v. Sheahan, 467 F.3d 1057
(7th Cir. 2006), a civil case under 42 U.S.C. § 1983 involving a
warrantless search of the plaintiff’s briefcase during an investi-
gatory detention.
Neither party objected to the magistrate judge’s proposed
findings of fact, but Leo did oppose the court’s legal conclu-
sions. He conceded the existence of reasonable suspicion to be-
lieve that he had tried to commit a burglary and that he was
carrying a gun in his backpack. But he distinguished Long and
Cady because, unlike his situation, the suspects in those cases
were not handcuffed at the time of the search and could have
gained control of a weapon. He also maintained that the search
of his backpack could not be justified as a search incident to
arrest because, he said, he was not arrested until after the
search had occurred. Leo contended that the police had plenty
of time to phone a judge and obtain a search warrant and thus
the search was not justified by exigent circumstances.
The district judge directed the parties to brief whether Leo’s
presence in a preschool parking lot affected the lawfulness of
8 No. 14-2262
the search. The government said yes, contending that pos-
sessing a gun on “school” grounds is a felony under both state
and federal law, even for someone with a concealed-carry
permit. (The government cited only 18 U.S.C. § 922(q)(2)(A)
and Wisconsin Statute § 948.605 in support of this contention.
But the Wisconsin statute expressly allows a person with a
concealed-carry permit to possess a gun on school grounds.
See WIS. STAT. §§ 948.605(2)(b)1r, 175.60(1)(d), 175.60(1)(g). The
federal statute similarly states that it does not apply “if the
individual possessing the firearm is licensed to do so by the
State in which the school zone is located.” 18 U.S.C.
§ 922(q)(2)(B)(ii).) And anyway, the government added, Leo
could not have had a Wisconsin concealed-carry permit be-
cause he was under 21 and a convicted felon. See WIS.
STAT. §§ 175.60(3)(a), (c), 941.29(1)(a).
However, the government could not point to evidence that
at the time of the search Officers Ortiz or Seeger knew Leo’s
age or that he was a felon. And without that information, Leo
countered, they could not have assumed he was committing a
gun crime. Moreover, he explained, a preschool is not a “school”
under state or federal law. Wisconsin defines a “school” as “an
educational program for one or more grades between grades 1
and 12 and which is commonly known as an elementary
school, middle school, junior high school, senior high school,
or high school.” Id. § 948.61(1)(b). The Head Start facility, in
contrast, serves only children who are 5 years old or younger.
And the federal statute making it a crime to possess a gun in a
“school” zone adopts each state’s definition of “school.”
See 18 U.S.C. §§ 921(a)(26), 922(q).
The district judge adopted the unopposed finding that Leo
had not consented to the search of his backpack but also agreed
No. 14-2262 9
with the magistrate judge that the search had been authorized
as part of an investigatory detention under Terry. Relying on
Long and Cady, the district judge reasoned that the search had
ensured “the safety of the officers and the children and adults
at the Head Start facility.” The dispatcher had reported that
Leo possessed a gun during an attempted burglary, the judge
explained, so Officers Ortiz and Seeger had reason to think him
dangerous. And Leo’s handcuffs did not eliminate the danger,
the judge continued, because he was not under arrest and
would regain control of the backpack and gun once the officers
released him.
The judge emphasized that the government had never con-
tended that the officers acquired probable cause to arrest Leo
or search his backpack before they found his gun. And so it fol-
lows, the district judge thought, the relevant issue was not “the
scope of a post-arrest search while an arrestee is fully secured”
but instead “the scope of a protective search or exigent circum-
stances search for officers’ and others’ safety during a Terry
stop.” This means, the judge added, that deciding whether the
Head Start preschool is a “school” is unnecessary because the
search was lawful no matter the answer.
II. ANALYSIS
Before we address Leo’s contentions on appeal, we empha-
size that our task has been narrowed by the government’s
choice to bypass all but one limited defense of the backpack
search.
A. No Probable Cause for Warrantless Search
Warrantless searches are per se unreasonable under the
Fourth Amendment unless one of few recognized exceptions
applies. Riley v. California, 134 S. Ct. 2473, 2482 (2014); Arizona
10 No. 14-2262
v. Gant, 556 U.S. 332, 338 (2009). The single exception advanced
by the government here comes from Terry v. Ohio, 392 U.S. 1
(1968). That exception allows police officers—during an inves-
tigatory stop founded on reasonable suspicion that a crime is
being, has been, or is about to be committed—to frisk a de-
tained person for weapons if the officers have an articulable
suspicion that the person is both armed and a danger to the
safety of officers or others. Terry, 392 U.S. at 30; see Minnesota v.
Dickerson, 508 U.S. 366, 373 (1993); Maryland v. Buie, 494 U.S.
325, 334 n.2 (1990); Ybarra v. Illinois, 444 U.S. 85, 92–94 (1979);
United States v. Howard, 729 F.3d 655, 662 (7th Cir. 2013).
The government does not argue any other exception. The
government has never suggested, for example, that the police
officers searched Leo’s backpack incident to arrest.1 See Riley,
134 S. Ct. at 2483–85 (stating “categorical rule” that physical
containers “immediately associated with the person of the ar-
restee” may be searched incident to arrest but declining to ex-
tend rule to data on cellphones); United States v. Flores-Lopez,
670 F.3d 803, 805 (7th Cir. 2012) (“[A] container found on the
person of someone who is arrested may be searched as an inci-
dent to the arrest even if the arresting officers don’t suspect
that the container holds a weapon or contraband, and thus
without any justification specific to that container.” (citing
United States v. Robinson, 414 U.S. 218, 236 (1973)). In fact, with
1 We note that even a search that occurs before an arrest may be
deemed lawful as incident to that arrest, so long as probable cause for an
arrest existed independently of the evidence discovered during the search.
See Rawlings v. Kentucky, 448 U.S. 98, 111 & n.6 (1980); United States v.
Jackson, 377 F.3d 715, 716–17 (7th Cir. 2004); United States v. Chartier,
772 F.3d 539, 546 (8th Cir. 2014); United States v. McCraney, 674 F.3d 614,
618–19 (6th Cir. 2012); United States v. Torres-Castro, 470 F.3d 992, 997–98
(10th Cir. 2006).
No. 14-2262 11
the exception of a throwaway line in a footnote in its brief on
appeal, the government has taken every opportunity—
beginning with its attorney’s failure to even mention probable
cause at the suppression hearing—to convey that probable
cause to arrest Leo was lacking despite an eyewitness reporting
that Leo had openly brandished a gun while trying to burglar-
ize a residence. See Abbott v. Sangamon County, Ill., 705 F.3d 706,
716 (7th Cir. 2013); Matthews v. City of East St. Louis, 675 F.3d
703, 706–07 (7th Cir. 2012). Indeed, not one of the government’s
submissions in the district court even includes the words
“probable cause.”
And the government’s belated reference to probable cause
in a footnote in its appellate brief—that “the officers had prob-
able cause to search the backpack and would have discovered
the gun had they obtained a warrant”—is not a contention that
the search was lawful. Rather, the government’s footnote in-
vokes the inevitable-discovery doctrine, which allows the gov-
ernment to avoid suppression of evidence seized in violation of
the Fourth Amendment upon showing that lawful conduct in-
evitably would have led to discovery of that evidence. Howard,
729 F.3d at 663. That exception to the exclusionary rule, like the
underlying question of probable cause, was at least forfeited,
and arguably waived, by the government’s litigation strategy
in the district court. See United States v. Jones, 713 F.3d 336, 350–
51 (7th Cir. 2013); United States v. Melgar, 227 F.3d 1038, 1040
(7th Cir. 2000); United States v. Marvin, 135 F.3d 1129, 1135
(7th Cir. 1998); United States v. Tracey, 597 F.3d 140, 149 (3d Cir.
2010); United States v. Archibald, 589 F.3d 289, 295–96 (6th Cir.
2009).
We are given no reason to excuse that strategy, not that it
matters. In this court the government has only compounded its
12 No. 14-2262
problems by tossing out a fresh assertion about probable cause
and inevitable discovery but then failing to cite any legal au-
thority or otherwise develop an argument. See United States v.
Lewis, 608 F.3d 996, 1000 (7th Cir. 2010); United States v.
Wantuch, 525 F.3d 505, 516 n.5 (7th Cir. 2008). Not even at oral
argument, when a judge’s question prompted Leo’s lawyer to
adamantly deny that the 911 caller’s report had established
probable cause, did the government have anything to say on
the subject. As we often warn litigants, it is not our responsibil-
ity to make the parties’ arguments for them. See Wantuch, 525
F.3d at 516 n.5. 2
B. Warrantless Search Not Justified Under Terry
With that in mind, we turn to the single question presented
by this appeal: whether the police lawfully searched Leo’s
backpack based only on reasonable suspicion during what the
parties agree was a Terry stop. Leo concedes that, under Terry,
the officers lawfully could have patted down the backpack to
search for weapons. But he maintains that safety concerns did
not justify opening and emptying the backpack because he was
handcuffed and out of reach of the backpack.
We agree with Leo that the warrantless search of his back-
pack exceeded the bounds of Terry. That decision provides that
an officer who during a lawful investigatory stop reasonably
suspects that the persons being investigated are armed and
2 The government’s brief also includes the odd suggestion that “exigent
circumstances” justified searching Leo’s backpack. Exigent circumstances
might excuse getting a search warrant but not the absence of probable cause.
See Groh v. Ramirez, 540 U.S. 551, 559 (2004); Kirk v. Louisiana, 536 U.S. 635,
638 (2002). For the government to bandy about “exigent circumstances” af-
ter failing to argue probable cause is frivolous.
No. 14-2262 13
dangerous may “conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons
which might be used to assault him.” Terry, 392 U.S. at 30. This
limited protective search may include a pat-down of the sus-
pect’s effects, including a bag. See United States v. Adamson,
441 F.3d 513, 521–22 (7th Cir. 2006); United States v. Hernandez-
Mendez, 626 F.3d 203, 213 (4th Cir. 2010); United States v.
Muhammad, 463 F.3d 115, 123–24 (2d Cir. 2006).
The government maintains that the full search of Leo’s
backpack is authorized by Michigan v. Long, 463 U.S. 1032
(1983). But Long—which upheld a police officer’s protective
search of a car during a Terry stop—is readily distinguishable.
First, the Supreme Court has recognized a diminished expecta-
tion of privacy in a car, partly because cars that travel on public
roads are subject to “pervasive regulation.” See Pennsylvania v.
Labron, 518 U.S. 938, 940 (1996); California v. Carney, 471 U.S.
386, 391–92 (1985). Second, Long involved a roadside encounter
with a motorist—a type of encounter which, the Supreme
Court emphasized, is “especially fraught with danger to police
officers.” Long, 463 U.S. at 1047. Third, the Court in Long was
careful to emphasize that the search of the car was lawful be-
cause the officers had a reasonable belief that the suspect was
dangerous and may have been able to “gain immediate control
of weapons.” Id. at 1049–50.
In contrast, the search here did not involve a car or a road-
side encounter, nor did the officers have a reasonable belief
that Leo could get “immediate control” of the gun in his back-
pack. The reasonableness of a search is evaluated “on the basis
of the facts as they existed at the time” of the search.
United States v. Jacobsen, 466 U.S. 109, 115 (1984); see Terry, 392
U.S. at 21–22; United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.
14 No. 14-2262
1995). And at the time of the search in this case, Leo’s hands
were cuffed behind his back (as were Aranda’s), the officers
already had frisked both men and found no weapons, and the
backpack was in Officer Seeger’s hands and no longer in Leo’s
possession. So when Seeger unzipped and emptied the back-
pack, it was inconceivable that either Leo or Aranda would
have been able to lunge for the bag, unzip it, and grab the gun
inside. See Gant, 556 U.S. at 343 (holding that officer safety jus-
tifies search of arrestee’s car incident to arrest “only when the
arrestee is unsecured and within reaching distance of the pas-
senger compartment at the time of the search”); United States v.
Tejada, 524 F.3d 809, 811–12 (7th Cir. 2008) (explaining in the
context of search incident to arrest that it is “inconceivable”
that defendant who was handcuffed, face down on the floor,
and surrounded by police officers could have opened enter-
tainment center and unzipped travel bag inside it to reach for
weapon).
The government cites Cady v. Sheahan, 467 F.3d 1057
(7th Cir. 2006), for the proposition that, “even in the context of
Terry stops, this Court has recognized that the need to protect
officers and the public can sometimes justify going beyond a
traditional pat-down search.” But the operative word in the
government’s proposition is sometimes. Our decision in Cady is
limited to the facts of that case: Cady did not announce a new
rule that officers always are justified in rummaging through a
person’s bag during a Terry stop. The officers in Cady spotted a
disheveled man lurking in the bushes outside of a courthouse
while the building was closed. See Cady, 467 F.3d at 1059. When
they questioned him about his reason for being there, the man
was evasive and kept reaching into his briefcase. See id. at 1059,
1062. It was only then that the officers took his briefcase and
checked it for weapons. See id. In contrast to Cady, Leo was not
No. 14-2262 15
rummaging through his bag during the confrontation, nor did
the officers question him before searching his backpack. In-
stead, Officer Seeger handcuffed him and, without saying a
word, grabbed and emptied the bag. Any suggestion that the
officers here acted out of a concern for their own safety is un-
dermined by the government’s concession at oral argument
that, because both Leo and Aranda were handcuffed, there was
no immediate threat to officer safety at the time of the search.
The government counters that the police officers acted on
legitimate safety concerns because they “did not have authori-
ty to detain Leo indefinitely” and thus he might “be released in
the parking lot of the preschool with a weapon in his back-
pack.” Leo emphatically agrees that the officers could not hold
him indefinitely based on reasonable suspicion, but he insists
that, if the officers could not develop their reasonable suspicion
into probable cause during the investigatory stop, “the Fourth
Amendment demands that he was free to leave and to take his
belongings with him.”
Leo has the better argument. As the government concedes,
a Terry stop cannot continue indefinitely, see United States v.
Sharpe, 470 U.S. 675, 685 (1985), yet the government is wrong in
thinking that this legal principle could justify searching Leo’s
backpack. “A Terry investigative stop is ‘a brief detention which
gives officers a chance to verify (or dispel) well-founded suspi-
cions that a person has been, is, or is about to be engaged in
criminal activity.’” United States v. Bullock, 632 F.3d 1004, 1014–
15 (7th Cir. 2011) (quoting United States v. Vega, 72 F.3d 507, 515
(7th Cir. 1995)). A stop that is too prolonged becomes “a
de facto arrest that must be based on probable cause.” Id.
at 1015. Thus, one of three things must happen during a Terry
stop: (1) the police gather enough information to develop
16 No. 14-2262
probable cause and allow for continued detention,
see United States v. Beltran, 752 F.3d 671, 677–78 (7th Cir. 2014);
(2) the suspicions of the police are dispelled and they release
the suspect, see United States v. Childs, 277 F.3d 947, 952 (7th Cir.
2002) (en banc); or (3) the suspicions of the police are not dis-
pelled, yet the officers have not developed probable cause but
must release the suspect because the length of the stop is about
to become unreasonable, see Illinois v. Wardlow, 528 U.S. 119,
126 (2000); United States v. Place, 462 U.S. 696, 709–10 (1983);
Liberal v. Estrada, 632 F.3d 1064, 1081–82 (9th Cir. 2011);
United States v. Peters, 10 F.3d 1517, 1522 (10th Cir. 1993).
By forgoing any reliance on probable cause, the govern-
ment has conceded that the first scenario does not apply here.
Nor is the second scenario relevant because, plainly, the police
officers’ suspicions had not been dispelled before Leo’s back-
pack was searched. That leaves the third scenario, which the
government finds unsatisfying and apparently would prefer to
revise by allowing an officer conducting a Terry stop to do a
full search of a suspect if the detention is in danger of becom-
ing too long. But this step, no matter how convenient for the
police, is not one that is authorized by Terry or any other prec-
edent.
We are not free to ignore Terry or to rewrite that decision to
suit the government. And, anyway, the government’s argu-
ment is disingenuous: The search of Leo’s backpack was not a
last-ditch attempt by the officers to find evidence of a crime be-
fore the duration of the stop exceeded constitutionally permis-
sible bounds. Officer Seeger searched the backpack immediately,
without even asking Leo to identify himself. See Hiibel v. Sixth
Judicial Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177, 186–87
(2004) (explaining that “it is well established that an officer
No. 14-2262 17
may ask a suspect to identify himself in the course of a Terry
stop” and holding that Fourth Amendment permits a state to
require “a suspect to disclose his name in the course of a valid
Terry stop”). If the officers had instead identified Leo before
searching his backpack, they could have contacted dispatch
and quickly learned that he was a felon who was violating his
probation.
We recognize that Officers Ortiz and Seeger may have
balked at the thought of letting Leo enter the preschool with
his backpack. But if the officers were concerned about the safe-
ty of the preschool’s occupants, nothing prevented them from
following Leo into the building after the investigatory stop to
keep an eye on him in case he attempted any wrongdoing.
See United States v. Jones, 132 S. Ct. 945, 953 (2012) (“This Court
has to date not deviated from the understanding that mere vis-
ual observation does not constitute a search.”); Kyllo v.
United States, 533 U.S. 27, 32 (2001); United States v. Knotts,
460 U.S. 276, 282 (1983).
There are other flaws with the government’s argument that
the search of Leo’s backpack was justified solely by the possi-
bility that Leo would enter the preschool with a gun. Leo main-
tained in the district court that the Head Start preschool is not
a “school” under either Wisconsin or federal gun laws,
see 18 U.S.C. § 921(a)(26); WIS. STAT. § 948.61(1)(b), and that the
police officers therefore had no reason to think that he unlaw-
fully possessed a gun in a school zone, see 18 U.S.C.
§ 922(q)(2)(A); WIS. STAT. § 948.605(2).
The government has never responded to Leo’s contention
that the Head Start facility is not a “school” under these stat-
utes, nor did the government ever charge Leo with possessing
a gun in a school zone in violation of state or federal law. And
18 No. 14-2262
there is no evidence in the record to show that Leo’s possession
of a handgun in the preschool parking lot violated any other
Wisconsin gun law, such as the trespass statute. See WIS. STAT.
§ 943.13(1m)(c). Moreover, Wisconsin law generally permits a
person who is 21 or older and has not been convicted of a felo-
ny to obtain a concealed-carry license. See id. § 175.60(3). At the
time of the search, the officers knew neither Leo’s age nor crim-
inal history, nor did they inquire whether he had a license to
carry a concealed firearm. See id. § 175.60(2g)(c).
In closing, we note that the Supreme Court has made clear
that the Second Amendment protects the individual right to
keep and bear arms, see District of Columbia v. Heller, 554 U.S.
570, 635–36 (2008), and applies equally to the states through the
Fourteenth Amendment, see McDonald v. City of Chicago, 561
U.S. 742, 791 (2010). And we have held that, subject to reason-
able restrictions, the Second Amendment protects the right to
carry a gun in public. See Moore v. Madigan, 702 F.3d 933, 942
(7th Cir. 2012). Considering these important developments in
Second Amendment law together with Wisconsin’s gun laws,
we cannot accept the government’s contention that the possi-
bility of a gun in Leo’s backpack posed a unique threat that jus-
tified a full search of the bag on less than probable cause.
See United States v. Williams, 731 F.3d 678, 694 (7th Cir. 2013)
(Hamilton, J., concurring in part and concurring in judgment)
(“After Heller and McDonald, all of us involved in law enforce-
ment, including judges, prosecutors, defense attorneys, and
police officers, will need to reevaluate our thinking about these
Fourth Amendment issues and how private possession of fire-
arms figures into our thinking.”).
No. 14-2262 19
III. CONCLUSION
Accordingly, the judgment of conviction is VACATED, and
the case is REMANDED for further proceedings consistent
with this opinion.