In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3174

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LORENZO L. MITCHELL,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 CR 10077--Joe B. McDade, Chief Judge.

Argued FEBRUARY 27, 2001--Decided July 11, 2001



  Before COFFEY, RIPPLE and EVANS, Circuit
Judges.

  COFFEY, Circuit Judge. On October 19,
1999, a criminal complaint was filed in
the United States District Court for the
Central Division of Illinois charging
Lorenzo L. Mitchell with being a felon in
possession of a firearm, in violation of
18 U.S.C. sec. 922(g)(1). On November 10,
1999, the defendant filed a motion to
suppress the handgun in question,
alleging that the officers illegally
discovered his firearm. On January 25,
2000, the district court denied the
motion to suppress, concluding that under
the totality of the circumstances the
officers’ actions in taking possession of
the defendant’s firearm were legal.
Mitchell was arraigned, entered a plea of
not guilty, and waived his right to a
jury and his right to the appointment of
counsel./1 After a bench trial,
Mitchell was found guilty on March 27,
2000, and sentenced to 46 months’
imprisonment, three years’ supervised
release, and a $100 special assessment.
Mitchell appeals the denial of his motion
to suppress. We affirm.

I.   BACKGROUND

  At approximately 9:49 p.m., on October
5, 1999, Peoria Police Officers Jeff
Wilson and Tim Moore responded to a call
on the police radio of "shots fired"
within the 1700 block of Bigelow Street
in Peoria, Illinois, a known gang
area./2 The police dispatcher provided
the purported description of the suspect:
a black male walking north on Bigelow
Street toward Nebraska Street. The
officers radioed that they would respond,
and it took them only 90 seconds to
arrive at the reported area of shots
fired.

  Once in the area, the officers observed
five individuals in the immediate
vicinity; three female children were
standing on the front porch of 1715
Bigelow and two men were on the sidewalk
in front of 1709 Bigelow./3 The two
men, Jason Bennett and Lorenzo Mitchell,
were both known to the police officers as
a result of their previous criminal
activities.

  Jason Bennett, one of the most dangerous
gang members in Peoria, was the leader of
the Bennett brothers who ran the "Bigelow
Boys." According to Officer Wilson’s
testimony, "it came to be well-known in
the department that where there was Jason
[Bennett], there was usually a gun close
by."

  Officer Moore was very familiar with the
defendant, as Mitchell was a suspect in a
prior shooting incident Moore
investigated. Also, Mitchell had a
reputation for being associated with guns
and violence.

  When the officers saw the two men, they
stopped their car and asked Bennett and
Mitchell if they had heard any gunfire.
Both men responded in the negative. Not
wanting to turn their backs on these two
dangerous men, Officer Moore ordered
Bennett and Mitchell to "come over here
to the front of the car and put your
hands on the car, because we’re going to
pat you down for weapons." Bennett
immediately complied with the order, but
Mitchell refused and continued to stand
in the same area and inquired as to what
he had done wrong. Not only did Mitchell
refuse to consent to the pat-down, he
proceeded to place his hands in his coat
pockets, raising the suspicion that he
might be armed. After Mitchell placed his
hands in his coat pockets, Officer Moore
withdrew his firearm, pointed it at
Mitchell, and again ordered him to go
over to the squad car to submit to a pat-
down search.

  Although Mitchell took his hands out of
his pockets and started to walk over to
the squad car, the officers were still
suspicious and Officer Moore kept his gun
trained on Mitchell. The suspect kept
looking to the left and right and asking
what the problem was. As Mitchell
approached the police car, he placed his
hands on the hood but immediately
withdrew them. Mitchell then proceeded to
move to his left (in the direction of
Officer Moore). Officer Moore, unsure of
"whether or not [Mitchell] was going to
try to rush" him, started to put his gun
away./4 It was at this moment that
Mitchell took off running.

  Although Officer Moore was able to grab
Mitchell’s coat, the suspect was able to
slip out of his coat and continue his
flight. As Mitchell ran, both officers
testified that they were able to observe
that the suspect was running with his
hand on the front of his waist, leading
them to believe that the suspect was
armed. According to Officer Wilson’s
testimony:

From past experience, [the fact that
Mitchell’s hand was on the front of his
waist] either signified that, one,
they’re holding on to something in their
waistband, be it a gun or drugs. As I
stated in my report, I strongly felt in
this case, considering the shots fired
call we had received and Mr. Mitchell’s
action, that it was a--it was a gun in
his case.

  After a short chase, Officer Wilson was
able to shove Mitchell to the ground. As
Mitchell fell to the ground, Officer
Wilson observed a pistol in Mitchell’s
right hand and saw him lose control of
the gun as Mitchell hit the ground. As
Officer Wilson moved in to arrest the
suspect, Mitchell punched Wilson in the
face. After a brief struggle, Officer
Moore caught up with the two men and
assisted his partner in restraining and
cuffing Mitchell. Officer Moore recovered
a loaded Colt .22 caliber semi-automatic
pistol from the area.

  After Mitchell was charged with being a
felon in possession of a firearm, he
filed a motion to suppress the weapon on
the grounds that the officers did not
have the legal authority to order him to
submit to a pat-down search. After a
hearing on the motion to suppress, the
trial judge denied the motion and
concluded that under the totality of the
circumstances the officers had the
authority to search Mitchell. As
mentioned above, the defendant waived his
right to a jury trial and his right to an
attorney, and was found guilty on March
27, 2000. The defendant appeals the
denial of his motion to suppress.

II.   ANALYSIS

  In reviewing the district judge’s
decision to deny a motion to suppress,
this court reviews questions of law de
novo and questions of fact for clear
error. United States v. Williams, 

, 942 (7th Cir. 2000). Therefore,
"we review de novo the ultimate
conclusion that the police did not have
reasonable suspicion to stop or search
the individual, but we review all
findings of historical fact and
credibility determinations deferentially,
under the clear error standard." United
States v. Johnson, 

, 712-13
(7th Cir. 1999). In this case, the
defendant is not challenging the district
court’s factual findings or any
credibility determinations. Rather, this
case turns on the legal question of
whether the officers had sufficient
information to order Mitchell to place
his hands on the hood of the police car
and submit to a pat-down search.

  In considering whether the police had
sufficient cause to order the defendant
to submit to a pat-down search, it is
most important that we understand the
facts and knowledge the officers had at
that time. Initially, the officers had
been informed, via the police dispatcher,
that an anonymous phone caller had
reported shots being fired in the
vicinity of the 1700 block of Bigelow
Street and that the suspect involved was
a black male walking north on Bigelow
Street toward Nebraska Street. The two
experienced officers arrived at the scene
some 90 seconds after receiving the
report. Once at the scene, the officers
encountered two black men on Bigelow.
Importantly, according to the officers’
testimony, these were the only adult
males in the area and both men were known
gang members. Furthermore, based on the
officers’ knowledge and prior experience,
both men were considered to be very
dangerous.

  As discussed previously, Jason Bennett,
one of the most dangerous gang members in
Peoria, was the leader of the Bennett
brothers who ran the Bigelow Boys.
According to Officer Wilson’s testimony,
"it came to be well-known in the
department that where there was Jason,
there was usually a gun close by."

  It is also important to note that
Officer Moore was very familiar with the
defendant’s violent and illicit past, as
Mitchell was a suspect in a prior
shooting incident Moore investigated.
Also, Mitchell had a "propensity to carry
guns" and was considered dangerous.

  Immediately suspicious, especially given
the known history of these two men, the
officers asked if either of them had
heard any shots fired. They both
responded in the negative. Officer Moore
then ordered the two men to submit to
pat-down searches./5 According to
Officer Wilson,

You get a call of shots fired in the
area. This is an area that we know
that’s--that’s absolutely 100-percent
good for those types of calls, that there
are violent shots fired and calls that
come in in that neighborhood, either be
it drive-bys or just random acts of
shooting at each other in the street.
Again, I know Jason Bennett very well.
Jason Bennett again is part of the
Bigelow Boys street faction of the
Gangster Disciples. Jason Bennett is
considered by this Department to be a
shooter and has proven that fact by his
own actions. For me to know Jason and to
go into that neighborhood with a shots
fired call received and to simply drive
past him, walk past him, whatever the
case may be, without encountering him,
it’s--that’s asking for a bullet in the
back. He’s just simply not a person that
you trust at all.

  In Terry v. Ohio, 

, 23-24
(1968), the United States Supreme Court
recognized the importance of allowing
police officers some leeway under the
Fourth Amendment in order that they might
protect themselves and others. According
to Terry:

We are now concerned with more than the
governmental interest in investigating
crime; in addition, there is the more
immediate interest of the police officer
in taking steps to assure himself that
the person with whom he is dealing is not
armed with a weapon that could
unexpectedly and fatally be used against
him. Certainly it would be unreasonable
to require that police officers take
unnecessary risks in the performance of
their duties.

The Court went on to conclude
that given the dangers police officers
face everyday,

we cannot blind ourselves to the need for
law enforcement officers to protect
themselves and other prospective victims
of violence in situations where they may
lack probable cause for an arrest. When
an officer is justified in believing that
the individual whose suspicious behavior
he is investigating at close range is
armed and presently dangerous to the
officer or to others, it would appear to
be clearly unreasonable to deny the
officer the power to take necessary
measures to determine whether the person
is in fact carrying a weapon and to
neutralize the threat of physical harm.

  Finally, the Court noted that "a
perfectly reasonable apprehension of
danger may arise long before the officer
is possessed of adequate information to
justify taking a person into custody for
the purpose of prosecuting him for a
crime." 

This is exactly
what happened in this case. The officers,
upon their arrival at the scene, clearly
did not have sufficient information to
immediately arrest Mitchell for being a
felon in possession. However, we are of
the opinion that the combination of a
report of shots being fired, the rapid
response time of the officers
(approximately 90 seconds), the fact that
Mitchell matched the general (albeit
limited) description of the suspect, the
fact that Mitchell and Bennett were known
to the officers as gang members and
dangerous men, the fact that both men had
a propensity to carry weapons, that they
were the only adult black males that
could be seen on the 1700 block of
Bigelow, that the 1700 block of Bigelow
was a known "hot-spot" for criminal
activity, and that they both denied
hearing shots fired, gave both officers a
"perfectly reasonable apprehension of
danger."/6 Accordingly, under the
totality of the circumstances we hold
that the two officers had a sufficient
legal basis to conduct an investigation,
including a Terry stop.

  We note that such a conclusion is
consistent with prior cases decided by
this court. For example, in United States
v. Brown, 

, 865 (7th Cir.
1999), this court stated:

  Here the totality of the circumstances
also included Brown’s demeanor, which was
more nervous than one would expect in a
routine traffic stop, and his failure to
meet Wildauer’s gaze. Nervousness or
refusal to make eye contact alone will
not justify a Terry stop and pat- down,
see United States v. Jerez, 

,
694 (7th Cir. 1997), but such behavior
may be considered as a factor in the
totality of circumstances. See 

n. 4 (citing cases). The
totality of the circumstances also
included Brown’s repeatedly glancing back
towards the car in question while its
occupants rolled down the tinted windows.
Brown gives us no reason to doubt these
factual findings. Neither does he suggest
any other innocent explanation which
might plausibly account for his excessive
nervousness.

  Finally, the exchange took place in a
high crime area where there had been drug
activity, shootings, and gang violence.
Although "’the fact that appellant was in
a neighborhood frequented by drug users,
standing alone, is not a basis for
concluding that appellant himself was
engaged in criminal conduct,’ " 

(quoting Brown v. Texas,

, 52, 

, 61 L.
Ed.2d 357 (1979)), "courts may consider
the defendant’s presence in a high crime
area as part of the totality of
circumstances confronting the officer at
the time of the stop." 

n. 2. The police do not have carte
blanche to pat down anyone in a dangerous
neighborhood, but Brown had been stopped
for speeding while driving a car under
surveillance for drug trafficking and
redolent of marijuana smoke. He was
excessively nervous, refusing to meet the
officer’s gaze and repeatedly glancing
back towards the car as his passengers
rolled down its tinted windows--and he
was in a bad neighborhood. Against this
background, Officer Wildauer had a
reasonable suspicion that Brown might be
armed and dangerous which was sufficient
to support his decision to conduct the
pat-down search.

[Emphasis added].

  Mitchell’s conviction and sentence are

AFFIRMED.

FOOTNOTES

/1 The trial judge appointed stand-by counsel.

/2 Jeff Wilson is a 12-year veteran with experience
in both the Street Crimes Unit and as a patrol
officer. Tim Moore has been a police officer for
over 10 years and has worked as a patrol officer,
a walking beat officer in the city’s housing
projects, a vice and narcotics officer, a field
training officer, and in the Street Crimes Unit.
On this particular night, both men were assigned
to the Street Crimes Unit.

/3 A gang called the Bigelow Boys (an offshoot of
the Gangster Disciples) controlled this area and
the five leaders of the Bigelow Boys (the Bennett
brothers) resided at 1715 Bigelow Street, their
grandmother’s house. In fact, there were more
police calls to 1715 Bigelow Street than any
other address in the area.

/4 Officer Moore stated that he started to put his
gun away when he suspected Mitchell might charge
him because he would not be justified in shooting
the suspect and he would be unable to physically
restrain him with a gun in his (Officer Moore’s)
hands.

/5 We, like the district court, are concerned with
Officer Moore’s statement that he would have
patted down any black male in the vicinity.
Obviously, such conduct is in violation of the
Fourth Amendment and we hope that AUSA Tate
Chambers’ promise to the trial judge that Officer
Moore would undergo additional training will be
carried out. Because we are confident that race
was not a controlling factor in the officers’
decision to stop the two men, we need not address
Officer Moore’s comments any further.

/6 The fact that Officer Moore withdrew his firearm
from his holster in order to conduct the Terry
stop does not necessarily transform Mitchell’s
detention into an arrest. United States v. Har-
ley, 

, 402 (2d Cir. 1982); United
States v. Trullo, 

, 113 (1st Cir.
1987); United States v. Lane, 

, 899
(6th Cir. 1990); United States v. Diaz-Lizaraza,

, 1221 (11th Cir. 1993); Foote v.
Dunagan, 

, 449 n. 3 (4th Cir. 1994).