Unlawful-stop Claim – Suppression of Evidence

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Howell

Case No.: 18-3157

Officials: BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Unlawful-stop Claim – Suppression of Evidence

On an afternoon in December 2012, the Chicago Police Department received an anonymous 911 call reporting a Hispanic man in a black sweater and black hat, carrying a bag, and climbing under a warehouse fence. Officers arrived and found someone who matched the description, but after stopping and frisking him, determined he was not engaged in any crime. The initial suspect then pointed the officers to someone else nearby who was crossing the street and walking toward the police. This man, Anthony Howell, was white and wearing a black jacket and dark hat. When an officer approached to ask what was going on, Howell did not answer, looked panicked, and put his hands in his pockets. The officer reacted by patting down Howell and found a gun in his jacket. A federal gun charge followed, and Howell moved to suppress the gun as the fruit of an unconstitutional stop-and-frisk. The district court denied the motion, Howell proceeded to trial, and a jury found him guilty.

Howell now appeals from the denial of the suppression motion. In evaluating his position, we also confront a question about the proper scope of the record on review. The question is whether we limit our review to the pretrial record or expand our look to consider the arresting officer’s trial testimony as well. The answer matters because the facts in the pretrial record differed in a material way from those that emerged at trial, where the arresting officer testified that he decided to proceed with the pat down only after Howell ignored a directive to remove his hands from his pockets. In the end, we limit ourselves to the pretrial record, for that is the only source of facts the district court considered in denying Howell’s motion. Viewing that record as a whole, we conclude that police lacked reasonable suspicion to frisk Howell. We therefore reverse the denial of his suppression motion and vacate his conviction for possessing that gun.

Our reversal is only partial, however, because Howell was also convicted on a second gun charge. Three months after the December 2012 stop-and-frisk, police executed a warrant to search Howell’s apartment, where they found more guns and ammunition. There was ample evidence for the jury to find that Howell possessed the guns in his apartment, so we affirm his conviction for this separate offense.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.