United States v. Dennis Oglesby ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1334
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ENNIS O GLESBY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-CR-10065—Michael M. Mihm, Judge.
A RGUED N OVEMBER 9, 2009—D ECIDED M ARCH 10, 2010
Before E VANS and S YKES, Circuit Judges, and D ER-
Y EGHIAYAN, District Judge.Œ
D ER-Y EGHIAYAN, District Judge. During an investiga-
tory stop, a police officer conducted a pat-down frisk of
Dennis Oglesby and found a handgun on his person.
Oglesby was arrested and charged with one count of
Œ
Hon. Samuel Der-Yeghiayan, District Judge for the Northern
District of Illinois, is sitting by designation.
2 No. 09-1334
being a felon in possession of a handgun, in violation of
18 U.S.C. § 3231. Oglesby moved to suppress the hand-
gun, arguing that the police officer did not have suf-
ficient justification to conclude that Oglesby was
armed or dangerous and therefore did not lawfully con-
duct a pat-down search of Oglesby. The district court
denied Oglesby’s motion to suppress the handgun based
on the testimonies of several police officers who were
present at the scene of the arrest. After entry of judgment,
Oglesby filed a timely appeal challenging the district
court’s denial of his motion to suppress. For the
following reasons, we affirm the district court’s denial of
the motion to suppress.
I. Background
On June 5, 2008, around 9:00 p.m., Dennis Oglesby was
standing with a group of four or five men by a bus stop in
a high-crime area of Peoria, Illinois. Police Officers Rory
Poynter and Mike Featherstone were on patrol in the
area and observed that the men were obstructing the
sidewalk in violation of a city ordinance. After calling
for back-up so that the police presence would approxi-
mate the number of men in the group, Officer Poynter
and Officer Featherstone approached the group to
discuss the ordinance violation. Almost immediately,
Police Officer Mike Johnston and his partner also arrived
on the scene in a squad car. After approaching the
group, Officer Poynter and Officer Featherstone identi-
fied themselves to the group as police officers and
Officer Poynter addressed one of the other men in the
No. 09-1334 3
group who was drinking alcohol in violation of another
city ordinance.
During the investigatory stop, the officers observed that
Oglesby looked from side to side, dropped his right
hand down toward his right pocket, and separated
himself from the group by taking a few steps backward
while still facing Officer Poynter and Officer Feather-
stone. The officers also observed that Oglesby had
angled his body away from Officer Poynter and
Officer Featherstone so that they were unable to view
Oglesby’s right side. Oglesby was wearing loose jeans
and a baggy T-shirt over another T-shirt, and therefore,
the officers could not have observed any bulge
beneath Oglesby’s clothing indicating that Oglesby
carried a weapon.
Upon seeing Oglesby drop his hand toward his right
pocket, Officer Featherstone told Oglesby to show his
hands, and Oglesby immediately complied. When
Officer Featherstone asked the group to show identifica-
tion, Oglesby again dropped his hand toward his right
pocket. Officer Featherstone repeated to Oglesby the
instruction to show his hands. Oglesby again immedi-
ately complied, claiming that he had been following
Officer Featherstone’s prior instruction to show his identi-
fication.
From his position behind Oglesby, Officer Johnston was
not able to hear any of the conversation between Officer
Featherstone and Oglesby, but Officer Johnston saw
Oglesby backing away from Officer Featherstone and
Officer Poynter while looking from side to side. Officer
4 No. 09-1334
Johnston also observed Oglesby repeatedly lower his
right hand to his right side, and noted Oglesby’s angled
stance. In response to Oglesby’s actions, Officer Johnston
approached Oglesby from behind and grabbed the back
of Oglesby’s waistband to keep Oglesby from fleeing.
Officer Johnston asked Oglesby to show his hands and
Oglesby complied. Officer Johnston then asked Oglesby
if he had any drugs or weapons on him and Oglesby
replied that he did not. Despite Oglesby’s denial, Officer
Johnston put his right hand on the right side of
Oglesby’s waistband and felt the butt of a handgun
that Oglesby was carrying. Oglesby was then arrested.
On August 20, 2008, a grand jury indicted Oglesby
on one count of possession of a handgun by a felon.
Oglesby pled not guilty and filed a motion to suppress
the handgun found on him. On October 10, 2008, following
an evidentiary hearing, the district court denied the
motion. On October 17, 2008, Oglesby entered a condi-
tional guilty plea and reserved the right to appeal the
denial of his motion to suppress. On February 6, 2009,
the district court sentenced Oglesby to 60 months of
imprisonment. Oglesby appeals from the district court’s
denial of his motion to suppress.
II. Discussion
The police officers properly approached Oglesby and
his group. The issue before the court is whether the pat-
down search of Oglesby was a violation of Ogelsby’s
constitutional rights. We review the district court’s legal
determination de novo and its findings of fact for clear
No. 09-1334 5
error. United States v. Kenerson, 585 F.3d 389, 392 (7th Cir.
2009).
The Fourth Amendment of the United States Constitu-
tion provides certain protections to the public from
searches and seizures, but it does not bar all searches. In
order to conduct an investigatory stop, also known as a
“Terry stop,” consistent with Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868 (1968), “an officer must be ‘aware of specific
and articulable facts giving rise to reasonable suspi-
cion.’ ” Jewett v. Anders, 521 F.3d 818, 823-25 (7th Cir. 2008)
(quoting in part United States v. Tilmon, 19 F.3d 1221, 1224
(7th Cir. 1994)). A reasonable suspicion requires “more
than a hunch but less than probable cause and ‘consider-
ably less than preponderance of the evidence.’ ”
Id. (quoting in part Illinois v. Wardlow, 528 U.S. 119, 123,
120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). Police officers
are permitted to rely on their experience and training
in forming a reasonable suspicion. United States v.
Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 750-51 (2002).
Determining whether an officer had a reasonable
suspicion is assessed considering the totality of the cir-
cumstances and “common-sensical judgments and infer-
ences about human behavior.” United States v. Baskin, 401
F.3d 788, 791 (7th Cir. 2005) (quoting Wardlow, 528 U.S. at
125, 120 S.Ct. at 676). During a Terry stop, a law enforce-
ment officer can conduct a protective pat-down search
only if the officer has “at a minimum some articulable
suspicion that the subject is concealing a weapon or
poses a danger to the [officer] or others . . . .” United States
v. Pedroza, 269 F.3d 821, 827 (7th Cir. 2001).
6 No. 09-1334
Oglesby’s arrest 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. While
being present in a high-crime area cannot, in and of
itself, support a particularized suspicion that a subject is
committing a crime, an officer is permitted to consider a
location’s characteristics when assessing a situation.
Wardlow, 528 U.S. at 124, 120 S.Ct. at 676; see also United
States v. Brewer, 561 F.3d 676, 679 (7th Cir. 2009) (noting
that the vehicle observed by officers “was the only
vehicle on the road at that late hour in [a] high crime
area”); United States v. Jackson, 300 F.3d 740, 746 (7th
Cir. 2002) (permitting officers to consider the prevalence
of criminal activity in a particular location when
evaluating the reasonableness of an investigatory stop).
In addition, as the officers converged on the scene,
Oglesby slowly retreated from the group while looking
from side to side. The Supreme Court has recognized
in numerous cases that nervous or evasive behavior “is a
pertinent factor in determining reasonable suspicion.”
Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. In the instant
case, the police officers confronted Oglesby and the group
of men he was standing with to discuss possible violations
of two city ordinances. Oglesby was the only man in the
group who seemed to be taking evasive action during
the confrontation. There is nothing in the record to
indicate any reason why a law-abiding person in
Oglesby’s position would have cause to be nervous or
back away from the officers. In addition, the police
officers testified at the suppression hearing that, based
on their experience, Oglesby’s behavior led them to
No. 09-1334 7
believe that Oglesby might be a flight risk. Such behavior,
coupled with the other circumstances surrounding the
Terry stop, would create a reasonable suspicion that
Oglesby was carrying a gun or was otherwise engaged
in unlawful activity.
Oglesby had also angled his body away from Officer
Poynter and Officer Feathersone so that Oglesby’s right
side was obscured from their view. Officer Johnston
testified at the suppression hearing that police officers
are trained to use the same angled stance to shield their
weapons when confronting a potentially dangerous
subject. Thus, Officer Johnston’s training made it rea-
sonable for him to infer that Oglesby’s stance was poten-
tially calculated to keep a weapon hidden or out of reach.
Finally, Oglesby repeatedly lowered his right hand
toward the right pocket of his pants. At the suppression
hearing, Officer Poynter indicated that police officers
are trained to watch for such behavior since experience
has shown that a subject who pats his waistband may
be trying to confirm that his gun is concealed and se-
cured. Officer Featherstone indicated that he was
worried when Oglesby dropped his right hand out of
Officer Featherstone’s view, which was why Officer
Featherstone repeatedly asked Oglesby to show his
hands. Officer Johnston stated that he perceived Officer
Featherstone’s alarm when Oglesby repeatedly lowered
his right hand. Although there is some indication that
Officer Featherstone had asked the group at one point
to produce identification, the record also indicates that
Oglesby placed his hand on his right side prior to the
8 No. 09-1334
request. Thus, the record clearly reflects that such action
by Oglesby reasonably indicated to the officers that
Oglesby might be carrying a weapon.
Based on the factors above and the totality of the cir-
cumstances, Officer Johnston clearly had articulable
facts upon which he could reasonably suspect that
Oglesby was armed or dangerous. Officer Johnston’s
timely and efficient observations in this case allowed
him to discover the handgun Oglesby was carrying and
remove it quickly and peacefully. Officer Johnston’s
ability to synthesize his observations and react quickly
was vital to the safety of the officers and the public. It is
clear that the circumstances of the encounter, in combina-
tion with Officer Johnston’s experience and training,
resulted in the proper pat-down search of Oglesby.
Furthermore, the pat-down search was extremely
limited in scope. Oglesby’s behavior led the officers to
suspect that Oglesby might be carrying a weapon on
the right side of his waistband area, and Officer
Johnston’s pat-down frisk of Oglesby was isolated to that
area. Thus, Officer Johnston’s pat-down frisk only mini-
mally invaded Oglesby’s personal security. In this case,
the need of the police officers to protect themselves and
the public from potential violence clearly outweighed
the slight invasion to Oglesby’s personal security. See
United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct.
2574, 2578-79 (1975) (instructing the court to balance the
public interest served by a search against the invasion of
personal security when testing the reasonableness of the
search). Therefore, based on all of the foregoing, we
No. 09-1334 9
conclude that Officer Johnston’s pat-down frisk of
Oglesby did not violate Oglesby’s Fourth Amendment
rights.
III. Conclusion
For the above stated reasons, we A FFIRM the district
court’s denial of Oglesby’s motion to suppress.
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