### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1753

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

T RAVIS S. V ACCARO

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 17

‐ CR

‐ 84

‐ JPS

— J.P. Stadtmueller

, Judge

.

____________________

A RGUED D ECEMBER 11, 2018

— D ECIDED F EBRUARY 7, 2019

____________________

Before W OOD

, Chief Judge

, and R IPPLE

, and B ARRETT

, Circuit

Judges

.

B ARRETT

, Circuit Judge

. Travis Vaccaro entered a condi

‐

tional guilty plea to possessing a fi rearm as a felon, 18 U.S.C.

§ 922(g), preserving his right to appeal the denial of his mo

‐

tion to suppress the gun. Vaccaro contests both the pat

‐ down

search that occurred seconds after police o ffi cers pulled over

his car and the search of the car that yielded the gun. The pat

‐

down was lawful under Terry v. Ohio

, 392 U.S. 1 (1968). The2 No. 18

‐ 1753

sweep of the car, which the district court upheld under Mich

‐ igan v. Long

, 463 U.S. 1032 (1983), is a closer call, but we con

‐

clude that it too was permissible. Accordingly, we a ffi rm.

Our summary of the facts is taken from an evidentiary

hearing on Vaccaro’s motion to suppress. Milwaukee police

o ffi cers Aaron Frantal and Ma tt hew Tracy stopped Vaccaro

for running a red light. O ffi cer Frantal testi fi ed that Vaccaro

stopped his car and made a “very ferocious move” by “bend

‐ ing at the waist.” Vaccaro then leaned toward the passenger

seat and “made another aggressive move with his entire top

torso and both arms into the back seat of the vehicle.” O ffi cer

Tracy added that he saw Vaccaro “double over bending at the

waist” and then reach toward the passenger side of the car.

O ffi cer Frantal testi fi ed that Vaccaro’s movements took under

fi ve seconds. Afraid that Vaccaro might be trying to “gain con

‐

trol of something from the back seat,” O ffi cer Frantal drew his

gun and ordered Vaccaro out of his car. The o ffi cers immedi

‐ ately handcu ff ed Vaccaro, and O ffi cer Frantal pa tt ed him

down.

Meanwhile, O ffi cer Tracy asked Vaccaro questions about

his movements. Vaccaro expressed frustration to the o ffi cers

and mentioned that “people are trying to kill me.” Vaccaro

also said that he merely “took [his] coat o ff ” when he pulled

over. After saying that he was going to search the car, O ffi cer

Tracy asked Vaccaro seven times whether there was a gun in

the car. Vaccaro responded once to reiterate that someone was

trying to kill him and another time to say “I don’t have any

‐ thing.” O ffi cer Tracy added that Vaccaro appeared to be “ex

‐ tremely nervous” and in a “real amped

‐ up state,” which con

‐

tributed to the o ffi cer’s belief that Vaccaro was under the in

‐

fl uence of drugs.No. 18

‐ 1753 3

As O ffi cer Tracy questioned Vaccaro, O ffi cer Frantal

found a GPS monitor on Vaccaro’s ankle. Vaccaro con fi rmed

that he was on supervision for “false imprisonment,” which

the o ffi cers understood to be a felony. O ffi cer Frantal did not

discover a weapon during the frisk. But both o ffi cers testi fi ed

that they noticed a ri fl e case in the backseat. Neither o ffi cer

said anything, they testi fi ed, for fear of their safety; they did

not want to alert an “agitated” Vaccaro that they had seen the

case.

The o ffi cers then locked Vaccaro, still handcu ff ed, in the

backseat of their squad car. O ffi cer Frantal testi fi ed that Vac

‐

caro “did not appear to be fully stable” as he was led to the

car. O ffi cer Frantal called in the tra ffi c violation to dispatch,

which drew back

‐ up o ffi cers to the scene.

Meanwhile, O ffi cer Tracy returned to Vaccaro’s car and

began searching the front seats. O ffi cer Frantal then ap

‐ proached the vehicle. He soon remarked that he saw a ri fl e

case in the backseat. The o ffi cers then removed a coat on top

of the ri fl e case and eventually con fi rmed that a ri fl e was in

‐

side it.

The magistrate judge recommended that the district court

deny Vaccaro’s motion to suppress. She credited the o ffi cers’

testimony that Vaccaro had made furtive movements because

Vaccaro had admi tt ed to taking o ff his jacket; therefore, she

said, the o ffi cers had reasonable suspicion to frisk Vaccaro for

weapons. But she discredited the o ffi cers’ testimony that they

had seen a ri fl e case in the back of Vaccaro’s car before locking

him in the squad car. The legality of the search therefore de

‐ pended on whether Vaccaro’s furtive gestures provided the

o ffi cers with reasonable suspicion to search the passenger4 No. 18

‐ 1753

compartment of the car in addition to Vaccaro’s person. She

concluded that they did.

Vaccaro objected to the magistrate judge’s report and rec

‐

ommendation, arguing that the immediate frisk was not jus

‐

ti fi ed by reasonable suspicion and that the search of the car

was not a lawful protective search under Long

. The govern

‐

ment argued that both the frisk and car search were reasona

‐

ble. Vaccaro’s furtive movements justi fi ed the pat

‐ down

search, the government said, and locking Vaccaro in the squad

car before the vehicle search enabled the o ffi cers to “avert[] a

calamitous and explosive event.”

The district judge sided with the government and denied

Vaccaro’s motion to suppress. The judge accepted the magis

‐

trate judge’s fi ndings of fact and discredited the o ffi cers’ tes

‐ timony that they had observed the ri fl e case in the backseat

before they searched the car. But Vaccaro’s furtive movements

provided the o ffi cers with reasonable suspicion that he had

“potentially armed himself or concealed a fi rearm,” which

warranted a protective frisk. The district judge also concluded

that the vehicle search was reasonable under Long

. Although

Vaccaro was handcu ff ed and locked in a squad car during the

search, he was not under arrest and could still be “dangerous”

or gain “immediate access” to weapons. While the o ffi cers’

“stated bases for their suspicion of dangerousness

... are

few,” the judge observed, he was “constrained” to fi nd that

the o ffi cers had reasonable suspicion that Vaccaro was dan

‐

gerous based on his “furtive movements,” the “relatively

late” time of the stop, and the o ffi cers’ belief that Vaccaro was

on drugs. Citing United States v. Arnold

, 388 F.3d 237 (7th Cir.

2004), the judge further explained that, had “the tra ffi c stop

resulted only in the issuance of a citation for running a redNo. 18

‐ 1753 5

light, Vaccaro would have been permi tt ed to re

‐ enter his ve

‐

hicle.”

Vaccaro then conditionally pleaded guilty to knowingly

possessing a fi rearm as a felon. 18 U.S.C. § 922(g). He ex

‐ pressly reserved the right to challenge the denial of his motion

to suppress.

On appeal, Vaccaro renews his challenge to the pat

‐ down

frisk and to the search of his car. We review the district court’s

underlying factual fi ndings for clear error, and we review de

novo the district court’s legal conclusions, including its deter

‐

minations of reasonable suspicion. See Ornelas v. United States

,

517 U.S. 690, 699 (1996); United States v. Ruiz

, 785 F.3d 1134,

1140–41 (7th Cir. 2015).

Vaccaro contends that the district court mistakenly cred

‐

ited the o ffi cers’ testimony that he made furtive movements

before exiting his car. This argument can be dispatched

quickly. Vaccaro protests that because the o ffi cers lied about

seeing the ri fl e case before locking him in the squad car, they

were also incorrect (or untruthful) about his movements. But

the district court may credit all or part of a witness’s testi

‐

mony, especially when there is more than one permissible

reading of the evidence. See United States v. McGraw

, 571 F.3d

624, 629 (7th Cir. 2009). And although Vaccaro maintains that

the o ffi cers’ views through the rear window were obstructed

by the headrests and a temporary license card, the judge cred

‐

ited the o ffi cers’ testimony about the movements they ob

‐

served, bolstered by Vaccaro’s own admission that he took o ff

his coat when he was pulled over. In light of Vaccaro’s admis

‐

sion that he was indeed moving around, we are not left with

a “de fi nite and fi rm conviction” that the district court mistak

‐ enly credited the o ffi cers’ testimony. See United States v.6 No. 18

‐ 1753

Thurman

, 889 F.3d 356, 363–64 (7th Cir. 2018) ( fi nding no clear

error when court faced with “he said versus they said” situa

‐

tion).

Because Vaccaro cannot show that the district court clearly

erred in fi nding that he made furtive movements before leav

‐ ing the car, he cannot show that the pat

‐ down was unlawful.

Vaccaro’s movements, including bending forward at the waist

and reaching toward the passenger and rear seats, reasonably

suggested that he could be reaching for or concealing a

weapon. See United States v. Evans

, 994 F.2d 317, 321 (7th Cir.

1993); United States v. Denney

, 771 F.2d 318, 322 (7th Cir. 1985).

Moreover, Vaccaro appeared to be “having di ffi culty with

something that the o ffi cer could not see,” so the o ffi cers had

reasonable suspicion to order him out of the car and to per

‐

form a pat

‐ down search. See United States v. Hendricks

, 319

F.3d 993, 1004 (7th Cir. 2003). Vaccaro o ff ered an innocent ex

‐ planation for his movements, but an o ffi cer need not be abso

‐ lutely certain that a suspect is armed before conducting a pro

‐

tective pat

‐ down. See Terry

, 392 U.S. at 27; United States v. Ford

,

872 F.3d 412, 415 (7th Cir. 2017).

Vaccaro also protests that the frisk was unreasonable be

‐

cause the o ffi cers handcu ff ed him unnecessarily. Handcu ffi ng

a suspect during a pat

‐ down search for weapons should be

the rare case. See United States v. Smith

, 3 F.3d 1088, 1094 (7th

Cir. 1993). But there is “a limited set of circumstances in which

handcu ff s are appropriate without converting a Terry stop

into a full arrest,” and “[c]hief among them is o ffi cer safety

and the possibility of the presence of a weapon.” Howell v.

Smith

, 853 F.3d 892, 898 (7th Cir. 2017). Based on the o ffi cers’

concern that Vaccaro might have armed himself with aNo. 18

‐ 1753 7

weapon when they observed his “aggressive” movements,

handcu ffi ng him to conduct the frisk was reasonable.

Vaccaro next argues that the district court should have

suppressed the ri fl e because the o ffi cers discovered it during

an unlawful search of his car. The government asserts that

Michigan v. Long justi fi ed the search. The Long exception to the

warrant requirement permits the police to search a vehicle

when there are “genuine safety or evidentiary concerns.” Ar

‐

izona v. Gant

, 556 U.S. 332, 347 (2009). Long holds: “[T]he

search of the passenger compartment of an automobile, lim

‐

ited to those areas in which a weapon may be placed or hid

‐

den, is permissible if the police o ffi cer possesses a reasonable

belief based on ‘speci fi c and articulable facts which, taken to

‐ gether with the rational inferences from those facts, reasona

‐ bly warrant’ the o ffi cers in believing that the suspect is dan

‐

gerous and the suspect may gain immediate control of weap

‐

ons. ” 463 U.S. at 1049–50 (quoting Terry, 392 U.S. at 21). In ap

‐ plying this test, the key question is whether the search was

reasonable. See United States v. Correa

, 908 F.3d 208, 217 (7th

Cir. 2018). Long searches are grounded in concern for o ffi cer

safety, see 463 U.S. at 1050, so if that concern is not present,

Long does not justify the search. See Gant

, 556 U.S. at 338–39

(discussing how searches incident to arrest are not reasonable

if concerns underlying exception to warrant requirement are

absent).

Long ’s fi rst prong is satis fi ed here because the o ffi cers had

reasonable suspicion to believe that Vaccaro was dangerous

at the time they searched the car. In addition to Vaccaro’s fur

‐

tive movements, the o ffi cers suspected that Vaccaro was un

‐

der the in fl uence of drugs, which gave them greater reason to

fear for their safety. See Long

, 463 U.S. at 1050; United States v.8 No. 18

‐ 1753

Kenerson

, 585 F.3d 389, 392 (7th Cir. 2009). The o ffi cers also

discovered that Vaccaro was on probation for “false impris

‐

onment,” and prior criminal activity is one factor that can con

‐

tribute to reasonable suspicion. See United States v. Johnson

,

427 F.3d 1053, 1057 (7th Cir. 2005).

The second prong of the Long inquiry requires the govern

‐

ment to establish that the o ffi cers reasonably suspected that

Vaccaro could gain “immediate control” of weapons in the ve

‐

hicle. See 463 U.S. at 1049–50; United States v. Stewart

, 902 F.3d

664, 674 (7th Cir. 2018). Vaccaro claims that he could not have

immediately obtained weapons because he was handcu ff ed

and locked in the back of a squad car. He insists that this case

is controlled by Arizona v. Gant

, in which the Supreme Court

held that o ffi cer

‐ safety concerns did not justify a search inci

‐

dent to the arrest of a driver who had been handcu ff ed and

locked in the back seat of a squad car. 556 U.S. at 335. The

government, on the other hand, contends that Gant doesn’t

govern because Vaccaro wasn’t arrested. When a suspect is

merely detained, the government argues, United States v. Ar

‐

nold controls the Long inquiry. 388 F.3d 237, 241 (7th Cir.

2004).

In Arnold

, which we decided before Gant

, the motorist

made furtive movements upon being stopped by police. 388

F.3d at 238. The o ffi cer asked him to step out of the vehicle,

pa tt ed him down, and “placed [the motorist] in the back seat

of the patrol car so that he could ensure that the tra ffi c stop

was completed safely.” Id. The o ffi cer then decided to have

the car towed because the defendant had been driving with a

learner’s permit without a licensed driver. Id. Before towing

the vehicle, however, the o ffi cer searched it and discovered a

fi rearm. Id. at 238–39. We held that o ffi cer

‐ safety concernsNo. 18

‐ 1753 9

justi fi ed the search under Long

. Id. at 241. This was a tra ffi c

stop, not an arrest, and the o ffi cer “may have permi tt ed [the

motorist] to gather items from the car before leaving the scene

even if the o ffi cer would not have permi tt ed him to drive the

vehicle.” Id. We also noted that while the motorist was in the

back seat of the squad car, he was not handcu ff ed and there

‐

fore “could have broken away from [the o ffi cer’s] control.” Id.

At oral argument, we asked the government whether Gant

limited or overruled Arnold

, and it maintained that Arnold is

still good law. We agree. In Arnold

, it was reasonable to be

‐

lieve that the defendant, who was not under arrest, could

have regained access to his vehicle. See id

. at 238, 241; see also

Gant

, 556 U.S. at 352 (Scalia, J., concurring) (“In the no

‐ arrest

case, the possibility of access to weapons in the vehicle always

exists, since the driver or passenger will be allowed to return

to the vehicle when the interrogation is completed.”). In Gant

, the opposite was true: the defendants were not going to return

to the vehicle because they were arrested, handcu ff ed, and

locked in squad cars. See 556 U.S. at 336–37, 344. The cases

therefore do not con fl ict: Arnold applies to Terry stops; Gant

applies to arrests.

Thus, if Vaccaro had been under arrest, Gant would con

‐

trol. And if Vaccaro contended that he had been under arrest,

we would face the di ffi cult task of determining whether this

Terry stop became an arrest. See, e.g.

, United States v. Bullock

,

632 F.3d 1004, 1016–18 (7th Cir. 2011). But Vaccaro does not

argue that the o ffi cers arrested him. To the contrary, he con

‐

ceded at oral argument that he had been subjected to a Terry

stop, not an arrest, and that he would have been allowed back

to his vehicle at the conclusion of his brief detention if the10 No. 18

‐ 1753

o ffi cers had found no contraband. 1 Vaccaro’s concession dic

‐

tates the disposition of this case. By admi tt ing that he would

have been allowed to return to his car, Vaccaro conceded that

he could have gained “immediate control of weapons” inside

the vehicle. The search was therefore lawful under Long

. 463

U.S. at 1049; Arnold

, 388 F.3d at 241.

The judgment of the district court is AFFIRMED.

1 Vaccaro also conceded that he did not argue in the district court that his

detention amounted to an arrest, rather than a Terry stop.