Argued December 17, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 13-CR-123 -- Charles N. Clevert, Jr., Judge.
United States of America, Plaintiff - Appellee: Bridget J. Domaszek, Attorney, Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI.
Robert L. Leo, Jr., Defendant - Appellant: Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI.
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 mistaken 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 detained him were conducting an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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.
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 revolver. The caller also had reported that he just saw an unmarked 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 backup.
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 sweatshirt, and had a backpack. Around this time, the dispatcher reported 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 walking. Ortiz drew his gun, held it at his side, and again commanded 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 interviewed 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 downstairs 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 immediately opened and emptied Leo's backpack, which he had taken from Leo and placed on the ground. Inside were a black ...