Appeal from the United States District Court for the Central District of Illinois. No. 08-CR-10065-Michael M. Mihm, Judge.
The opinion of the court was delivered by: Der-yeghiayan, District Judge.*fn1
Before EVANS and SYKES, Circuit Judges, and DERYEGHIAYAN,District Judge.
During an investigatory 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 being a felon in possession of a handgun, in violation of 18 U.S.C. § 3231. Oglesby moved to suppress the handgun, arguing that the police officer did not have sufficient 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.
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 identified themselves to the group as police officers and Officer Poynter addressed one of the other men in the 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 identification, Oglesby again dropped his hand toward his right pocket. Officer Featherstone repeated to Oglesby the instruction to show his hands. Oglesby again immediately complied, claiming that he had been following Officer Featherstone's prior instruction to show his identification.
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 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 conditional 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.
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 error. United States v. Kenerson,585 F.3d 389, 392 (7th Cir. 2009).
The Fourth Amendment of the United States Constitution 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 suspicion.' " 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 'considerably 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 circumstances and "common-sensical judgments and inferences 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 enforcement 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).
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 ...