### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 14

- 2262

U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

R OBERT L EWHIM L EO , J R

. , Defendant

- Appell ant

.

____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin

. No. 13

- CR

- 123

— C harles N. Clevert, Jr.

, Judge

.

____________________

A RGUED D ECEMBER 17, 2014

— D ECIDED J ULY 2

, 201 5

____________________

Before W ILLIAMS , S YKES , and H AMILTON , Circuit Judges

.
W ILLIAMS , 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 hi s backpack, and found a
gun. The officers soon learned that the 911 caller had been mi staken 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 had2 No. 14

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detained him were conducting an investigatory stop under Terry v. Ohio , 392 U.S. 1 (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 the re was no probable cause or basis in Terry for the warrantless search, we vacate Leo’s conviction and remand for further proceedings.

I. BACKGROUND
One morning in May 2013, Robert Ortiz, a police officer for the City of Racine, Wisconsin, was driving an u nmarked 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,

t he 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 r evolver. The caller also had reported that he just saw an u n-No. 14

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marked police car pass by. Orti z 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 bac kup. As Ortiz waited, Leo reappeared and began walkin g 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 swea tshirt, and had a backpack. Around this time, the dispatcher r eported 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 entran ce, 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 wal king. Ortiz drew his gun, held it at his side, and again co mmanded the pair

— this time in a louder voice

— to stop. Leo and
Ara nda 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, See ger 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 i nterviewed the upstairs resident who called 911. The caller had seen the officers stop L eo and Aranda, and confirmed that the two men were the ones who had tried breaking into the dow n-4 No. 14

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stairs 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 i mmediately opened and emptied Leo’s backpack, which he had taken from Leo and placed on the ground. Inside were a black hoodie, a digital scale with marijuana residue, plastic baggies, three bullets in a box, and a loaded revolver wrapped in cloth.

A fter finding the gun, the officers learned that the 911 caller had been mistaken about the attempted burglary. T he res idents of the duplex’s lower unit had been interviewed and said they knew Leo and Aranda, and that the men had not trie d to
break in. By this time, however, the officers had learned that Leo is a felon (at the time of the search, he was on probation for attempted burglary and possession of marijuana). He was a rrested and charged with violating § 922(g)(1).
A magistrate ju dge conducted an evidentiary hearing on Leo’s motion to suppress. The government’s attorney mai ntained that the search of the backpack was lawful because the officers had “reasonable suspicion” that justified stopping Leo
and also searching his backpack. O fficer Ortiz testified that he
had “made contact” with Leo and Aranda because he was co ncerned about the safety of teachers, parents, and children at the preschool. The officer insisted, however, that the two suspects
were not under arrest when he handcuff ed Aranda. Rather, Ortiz explained, he had restrained Aranda for safety reasons because, in his opinion, potential burglars and armed suspectsNo. 14

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always present “a possibility of violent action.” And, he added, unholstered guns also present a danger of accide ntal discharge. Ortiz conceded knowing that Aranda’s mother worked at the preschool, as did Ortiz’s wife, a niece of Aranda’s mother. However, as Ortiz soon learned from the dispatcher, Aranda was violating his probation by being away from his residence.
A

t that point, the officer continued, he had arrested Aranda for this violation and found that he was carrying $40. That disco very, Ortiz said, made him suspect that Aranda had lied about going to the preschool to get money from his mother. This su spicion a bout Aranda’s story, though, arose only after Leo’s backpack already had been searched.
Officer Seeger testified that he detaine d and handcuffed
Leo to stop him “ from reaching or grabbing the firearm .” He said he was concerned about the safety of the offi cers and o ccupants of the preschool. Leo might have reached for his gun, Seeger explained, or the gun could have discharged accidenta lly. Like Officer Ortiz, Seeger acknowledged that he did not a rrest Leo before finding his gun. Leo had only been “detained ,” Seeger insisted, when he was handcuffed. The officer testified that Leo had said several times, “I consent to a search.” But
even if Leo had not consented, Seeger added, he would have searched the backpack because Leo “matched exactly” the cal ler’s description of the burglary suspect. Seeger acknowledged knowing that Ortiz’s wife worked at the preschool. He did not say that he knew Leo to be a felon before rummaging through his backpack.
Aranda testified that he and Leo were walking to the pr es chool to get gas money from his mother when members of the Latin Kings pulled up in a car and threatened them. He said that he and Leo ran to the duplex next to the preschool,6 No. 14

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knocked on the door, and hid behind the house. Aranda stated that, once the coas t was clear, they continued walking to the preschool. He insisted that he did not know Leo had a gun and that he heard Leo tell Seeger that he did not consent to a search.
After the evidentiary hearing, the government submitted a brief arguing that the sea rch of Leo’s backpack was lawful b ecause the officers had a “reasonable suspicion that he was armed and dangerous.” The search of the backpack was re asonable, the government contended, because Leo

— who, a ccording to the 911 caller, had tried to commit a bur glary and
was armed

— was about to enter a preschool and was initially unresponsive to the officers’ commands. So , the government argued, the search of the backpack was necessary to protect not only the officers but also teachers, children, and parents from either an “active shooter situation” or an “accidental discharge
of the firearm.” I n the alternative the government asserted that Leo had consented to the search of his backpack. The gover nment did not argue , however, that the officers had probable

cause t o arrest the men and could search the backpack incident

to arrest.

Leo countered that no urgency justified the warrantless
search . He was handcuffed, Leo reminded the court, and the backpack was on the ground out of his reach. Leo maintained
that he and t he gun no longer posed a threat, leaving the offi

cers without a reason for not getting a search warrant. An yway , he insisted, the police could not reasonably have thought he was about to commit a shooting at the preschool because he and Aranda were suspe cted only of burglary and Ortiz knew that Aranda’s mother worked at the preschool. Leo also insis ted that he had not consented to the search of his backpack.No. 14

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The magistrate judge recommended denying Leo’s motion to suppress. See 28 U.S.C. § 636(b)(1)(B); F ED

. R. C RIM

. P. 59(b)(1). The magistrate judge accepted Aranda’s testimony
that Leo had not consented to the search. Officer Seeger’s co ntrary testimony was not credible, the magistrate judge re asoned, because for Leo to “spontaneously and repeatedly co ns ent to a search” would have been odd. Nonetheless, the magistrate judge reasoned that the officers had been justified in believing that Leo’s gun presented a safety issue even after he
was handcuffed and so the gun should not be suppressed. The magistrate judge relied principally on Michigan v. Long

, 463 U.S. 1032 (1983), which upheld the protective sweep of a car after a traffic stop, and Cady v. Sheahan , 467 F.3d 1057 (7th Cir. 2006), a civil case under 42 U.S.C. § 1983 involving a
warrantless search of t he plaintiff’s briefcase during an invest igatory detention.
Neither party objected to the magistrate judge’s proposed findings of fact, but Leo did oppose the court’s legal concl usions. He conceded the existence of reasonable suspicion to b elieve that he had tried to commit a burglary and that he was carrying a gun in his backpack. But he distinguished Long and Cady because, unlike his situation , the suspects in those cases
were not handcuffed at the time of the search and could have gained c ontrol of a weapon. He also maintained that the search of his backpack could not be justified as a search incident to arrest because, he said, he was not arrested until after the search had occurred. Leo contended that the police had plenty of time to phon e a judge and obtain a search warrant and thus the search was not justified by exigent circumstances.
The district judge directed the parties to brief whether Leo’s presence in a preschool parking lot affected the lawfulness of8 No. 14

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the search. The government s aid yes, contending that po ssessing a gun on “school” grounds is a felony under both state and federal law, even for someone with a concealed

- carry permit. (The government cited only 18 U.S.C. § 922(q)( 2 )(A)
and Wis consin Stat ute § 948.605 in support of th is contention. But the Wisconsin statute expressly allows a person with a
concealed

- carry permit to possess a gun on school grounds.
See W IS

. S TAT

. §§ 948.605(2)(b)1r, 175.60(1)(d), 175.60(1)(g). The federal statute similarly states that it does not apply “if the
individual possessing the firearm is licensed to do so by the
State in which the school zone is located.” 18 U.S.C. § 922 (q)( 2 )(B)(ii).) And anyway, the government added, Leo
could not have had a Wisconsin concealed

- carry permit b ecause he was unde r 21 and a convicted felon. See W IS

. S TAT

. §§ 175.60(3)(a), (c), 941.29(1)(a).

However, the government could not point to evidence that
at the time of the search Officers Ortiz or Seeger knew Leo’s age or that he was a felon. And without that information, Leo countered, they could not have assumed he was committing a gun crime. Moreover, he explained, a preschool is not a “school”
under state or federal law. Wisconsin defines a “school” as “a n educational program for one or more grades between grades 1
and 12 and which is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.” Id. § 948.61(1)(b). The Head Start facility, in
contrast, serves only children who are 5 years old or younger.
And the federal statute making it a crime to possess a gun in a “school” zone adopts each state’s definition of “school.”
See 18 U.S.C. §§ 921(a)(26), 922(q).
The district judge adopted the unopposed finding that Leo had not consented to the search of his backpack but als o agreedNo. 14

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with the magistrate judge that the search had been authorized as part of an investigatory detention under Terry . Relying on Long and Cady , the district judge reasoned that the search had ensured “the safety of the officers and the children and adu lts at the Head Start facility.” The dispatcher had reported that Leo possessed a gun during an attempted burglary, the judge explained, so Officers Ortiz and Seeger had reason to think him dangerous. And Leo’s handcuffs did not eliminate the danger, the j udge continued, because he was not under arrest and would regain control of the backpack and gun once the officers
released him.
The judge emphasized that the government had never co ntended that the officers acquired probable cause to arrest Leo
or search his backpack before they found his gun. And so it fo llows, the district judge thought, the relevant issue was not “the scope of a post

- arrest search while an arrestee is fully secured” but instead “the scope of a protective search or exigent circu mstances search for officers ’ and others ’ safety during a Terry stop. ” This means, the judge added, that deciding whether the Head Start preschool is a “school” is unnecessary because the
search was lawful no matter the answer.

II. ANALYSIS

Before we address Leo’s contentions on appeal, we emph asize that our task has been narrowed by the government’s choice to bypass all but one limited defense of the backpack
search.

A. No Probable Cause for Warrantless Search

Warrantless searches are per se unreasonable under the

F ourth Amendment unless one of few recognized exceptions applies. Riley v. California

, 134 S. Ct. 2473 , 2482 (2014); Arizona10 No. 14

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v. Gant , 556 U.S. 332, 338 (2009). The single exception advanced by the government here comes from Terry v. Ohio , 392 U.S. 1 (1968)

. That exception allows police officers

— during an inve stigatory stop founded on reasonable suspicion that a crime is being, has been, or is about to be committed

— to frisk a d etained person for weapons if the officers have an articulable suspicion that the p erson is both armed and a danger to the safety of officers or others. Terry , 392 U.S. at 30; see Minnesota v. Dickerson

, 508 U.S. 366, 373 (1993); Maryland v. Buie

, 494 U.S. 325, 334 n.2 (1990); Ybarra v. Illinois

, 444 U.S. 85, 92

– 94 (1979); United States v. Howard

, 729 F.3d 655, 662 (7th Cir. 2013).
The government does not argue any other exception. The government has never suggested, for example, that the police officers searched Leo’s backpack incident to arrest. 1 See Riley

, 134 S. Ct. at 2483

– 8 5 (stating “categorical rule” that physical
containers “ immediately associated with the person of the a rrestee” may be searched incident to arrest but declining to e xtend rule to data on cellphones); United States v. Flores

- Lopez

, 670 F.3d 803, 805 (7th Ci r. 2012) ( “[A] container found on the person of someone who is arrested may be searched as an inc ident to the arrest even if the arresting officers don ’ t suspect that the container holds a weapon or contraband, and thus without any justification specific t o that container .” (citing United States v. Robinson, 414 U.S. 218, 236 (1973) ). In fact, with

1 We note that even a search that occurs before an arrest may be deemed lawful as incident to that arrest, so long as probable cause for an arrest existed independently of the evidence discovered during the search.
See Rawlings v. Kentucky , 448 U.S. 98, 111 & n.6 (1980); United States v. Jac k son , 377 F.3d 715, 716

– 17 (7th Cir. 2004); United States v. Chartier

, 772 F.3d 539, 546 (8th Cir. 2014); United States v. McCraney , 674 F.3d 614,
618

– 19 (6th Cir. 2012); United States v. Torres

- Castro , 470 F.3d 992, 997

– 98 (10th Cir. 2006).No. 14

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the exception of a throwaway line in a footnote in its brief on appeal, the government has taken every opportunity

— beginning with its attorney’s failure to even mention probable cause at the suppression hearing

— to convey that probable cause to arrest Leo was lacking despite an eyewitness reporting that Leo had openly brandished a gun while trying to burgla rize a residence. See Abbott v. Sangamon County, Ill.

, 705 F.3d 706

, 716 (7th Cir. 2013); Matthews v. City of East St. Louis

, 675 F.3d
703 , 706

– 07 (7th Cir. 2012). Indeed, not one of the government’s
submissions in the district court even includes the words “probable cause.”
And the government’s belated referen ce to probable cause in a footnote in its appellate brief

— that “the officers had pro bable cause to search the backpack and would have discovered the gun had they obtained a warrant”

— is not a contention that
the search was lawful . Rather, the government’s f ootnote i nvokes the inevitable

- discovery doctrine, which allows the go vernment to avoid suppression of evidence seized in violation of the Fourth Amendment upon showing that lawful conduct i nevitably would have led to discovery of that evidence. Howard

, 72 9 F.3d at 663. That exception to the exclusionary rule, like the underlying question of probable cause, was at least forfeited, and arguably waived, by the government’s litigation strategy
in the district court. See United States v. Jones

, 713 F.3d 336, 35 0

– 51 (7th Cir. 2013); United States v. Melgar , 227 F.3d 1038 , 1040 (7th Cir. 2000) ; United States v. Marvin

, 135 F.3d 1129, 1135 ( 7th Cir. 1998); Unit ed States v. Tracey

, 597 F.3d 140 , 149 (3d Cir. 2010); United States v. Archibald

, 589 F.3d 289 , 295

– 96 (6th Cir. 2009).
We are given no reason to excuse that strategy, not that it matters. In this court the government has only compounded its12 No. 14

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problems by tossing out a fresh assertion about probable cause and inevitable discovery but then failing to cite any legal a uthority or otherwise develop an argument. See United States v.
Lewis

, 608 F.3d 996 , 1000 (7th Cir. 2010); United States v.
Wantuch

, 525 F.3d 505 , 516 n.5 (7th Cir. 2008). Not even at oral argument, when a judge’s question prompted Leo’s lawyer to adamantly deny that the 911 caller’s report had established probable cause, did the government have anything to say on the subject. As we often warn litigants, it is not our responsibi lity to make the parties’ arguments for them. See Wantuch , 525
F.3d a t 516 n.5. 2

B. Warrantless Search Not Justified U nder Terry
With that in mind, we turn to the single question presented by this appeal: whether the police lawfully searched Leo’s backpack based only on reasonable suspicion during what the parties agree was a Terry stop. Leo concedes that, under Terry

, the officers lawfully could have patted down the backpack to search for weapons. But he maintains that safety concerns did not justify opening and emptying the backpack because he was
handcuffed and out of reach of the backpack.
We agree with Leo that the warrantless search of his bac kpack exceeded the bounds of Terry . That decision provides that an officer who during a lawful investigatory stop reasonably suspects that the persons being investigated are armed an d

2 The government’s brief also includes the odd suggestion that “exigent circumstances” justified searching Leo’s backpack. Exigent circumstances might excuse getting a search warrant but not the absence of probable cause

. See Gro h v. Ramirez , 540 U.S. 551, 559 (2004) ; Kirk v. Louisiana

, 536 U.S. 635, 638 (2002). For the government to bandy about “exigent circumstances” a fter failing to argue probable cause is frivolous.No. 14

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dangerous may “conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Terry

, 392 U.S. at 30 . This limited protective search may include a pat

- down of the su spect’s e ffects, including a bag. See United States v. Adamson

, 441 F.3d 513, 521

– 22 (7th Cir. 2006) ; United States v. Hernandez

Mendez , 626 F.3d 203, 213 (4th Cir. 2010); United States v. Muhammad , 463 F.3d 115, 123

– 24 (2d Cir. 2006).
The government maintains that the full search of Leo’s backpack is authorized by M ichigan v. Long , 463 U.S. 1032 (1983) . But Long

— which upheld a police officer’s protective search of a car during a Terry stop

— is readily distinguishable. First, the Supreme Court has recognized a diminished expect ation of privacy in a car, partly because cars that travel on public roads are subject to “pervasive regulation.” See Pennsylvania v.
Labron , 518 U.S. 938, 940 (1996); California v. Carney , 471 U.S. 386, 391

– 92 (19 85). Second, Long involved a roadside encounter
with a motorist

— a type of encounter which, the Supreme Court emphasized, is “especially fraught with danger to police
officers.” Long , 463 U.S. at 1047. Third, the Court in Long was careful to emphasize that the search of the car was lawful b ecause the officers had a reasonable belief that the suspect was dangerous and may have been able to “gain immediate control of weapons.” Id. at 1049

– 50.

In contrast, the search here did not involve a car or a roa dside e ncounter, nor did the officers have a reasonable belief that Leo could get “immediate control” of the gun in his bac kpack. The reasonableness of a search is evaluated “on the basis of the facts as they existed at the time” of the search.
United States v. J acobsen , 466 U.S. 109, 115 (1984); see Terry , 392
U.S. at 21

– 22; United States v. Brown , 64 F.3d 1083, 1086 (7th Cir.14 No. 14

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1995). And at the time of the search in this case, Leo’s hands were cuffed behind his back (as were Aranda’s), the officers already had frisked both men and found no weapons, and the backpack was in Officer Seeger’s hands and no longer in Leo’s possession. So when Seeger unzipped and emptied the bac kpack, it was inconceivable that either Leo or Aranda would have been able to lunge for the bag, unzip it, and grab the gun
inside. See Gant , 556 U.S. at 343 (holding that officer safety ju stifies search of arres tee’s car incident to arrest “only when the arrestee is unsecured and within reaching distance of the pa ssenger compartment at the time of the search”); United States v. Tejada , 524 F.3d 809, 811

– 12 (7th Cir. 2008) (explaining in the
context of search inci dent to arrest that it is “inconceivable” that defendant who was handcuffed, face down on the floor, and surrounded by police officers could have opened ente rtainment center and unzipped travel bag inside it to reach for weapon).
The government cites Cady v. Sheahan , 467 F.3d 1057 (7th Cir. 2006), for the proposition that, “ even in the context of Terry stops, this Court has r ecognized that the need to protect officers and the public can sometimes justify going beyond a traditional pat

- down search. ” But the operative word in the government’s proposition is sometimes . Our decision in Cady is
limited to the facts of that case: Cady did not announce a new
rule that officers always are justified in rummaging through a person’s bag during a Terry stop. The officer s in Cady spotted a disheveled man lurking in the bushes outside of a courthouse while the building was closed. See Cady , 467 F.3d at 1059. When they questioned him about his reason for being there, the man was evasive and kept reaching into his briefcase. See id. at 1059, 1062. It was only then that the officers took his briefcase and checked it for weapons. See id. In contrast to Cady , Leo was notNo. 14

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rummaging through his bag during the confrontation, nor did the officers question him before searching his ba ckpack. I nstead, Officer Seeger handcuffed him and, without saying a word, grabbed and emptied the bag. Any suggestion that the officers here acted out of a concern for their own safety is u ndermined by the government’s concession at oral argument that, be cause both Leo and Aranda were handcuffed, there was no immediate threat to officer safety at the time of the search.
The government counters that the police officers acted on legitimate safety concerns because they “did not have author ity to detain Leo i ndefinitely” and thus he might “be released in the parking lot of the preschool with a weapon in his bac kpack.” Leo emphatically agrees that the officers could not hold him indefinitely based on reasonable suspicion

, but he insists that, i f the officers could not develop their reasonable suspicion into probable cause during the investigatory stop

, “the Fourth
Amendment demands that he was free to leave and to take his belongings with him.”
Leo has the better argument. As the government concedes,

a Terry stop cannot continue indefinitely

, see United States v. Sharpe , 470 U.S. 675, 685 (1985) , yet the government is wrong in thinking that this legal principle could justify searching Leo’s backpack. “A Terry investigative stop is ‘ a brief detention which give s officers a chance to verify (or dispel) well

- founded susp icions that a person has been, is, or is about to be engaged in criminal activity. ’ ” United States v. Bullock , 632 F.3d 1004, 1014

– 15 (7th Cir. 2011) ( quoting United States v. Vega , 72 F.3d 5 07, 515 (7th Cir. 1995) ). A stop that is too prolonged becomes “a
de facto arrest that must be based on probable cause.” Id.

at 1015. Thus, one of t hree things must happen during a Terry stop: (1) the police gather enough inform ation to develop16 No. 14

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probable cause and allow for continued detention,

see United States v. Beltran , 752 F.3d 671, 677

– 78 (7th Cir. 2014) ; (2) the suspicions of the police are dispelled and they release the suspect

, see United States v. Childs , 277 F.3d 947, 952 (7th Cir.
20 02) (en banc) ; or (3) the suspicions of the police are not di spelled

, yet the officers have not developed probable cause but must release the suspect because the length of the stop is about to become unreasonable, see Illinois v. Wardlow , 528 U.S. 119,
126 (2000) ; United States v. Place , 462 U.S. 696, 709

– 10 (1983) ; Liberal v. Estrada , 632 F.3d 1064, 1081

– 82 (9th Cir. 2011);
United States v. Peters , 10 F.3d 1517, 1522 (10th Cir. 1993)

. By forgoing any reliance on probable cause, the gover nment has conceded that the first scenario does not apply here. Nor is the second scenario relevant because, plainly, the police officers’ suspicions had not been dispelled before Leo’s bac kpack was searched. That leaves the third scenario, which the government find s unsatisfying and apparently would prefer to revise by allowing an officer conducting a Terry stop to do a full search of a suspect if the detention is in danger of beco ming too long. But this step, no matter how convenient for the police, is not one that is authorized by Terry or any other pre cedent.
We are not free to ignore Terry or to rewrite that decision to suit the government. And, anyway, the government’s arg ument is disingenuous: The search of Leo’s backpack was not a last

- ditch attempt by the of ficers to find evidence of a crime b efore the duration of the stop exceeded constitutionally permi ssible bounds. Officer Seeger searched the backpack immediately

, without even asking Leo to identify himself. See Hiibel v. Sixth Judicial Dist. Court of Nev. , Humboldt Cnty. , 542 U.S. 177, 186

– 87 (2004) (explaining that “ it is well established that an officerNo. 14

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may ask a suspect to identify himself in the course of a Terry stop ” and holding that Fourth Amendment permits a state to require “ a suspect to disclose his name in the course of a valid Terry stop ”). If the officers had instead identified Leo before searching his backpack, they could have contacted dispatch and quickly learned that he was a felon who was violating his probation.

We r ecognize that Officers Ortiz and Seeger may have balked at the thought of letting Leo enter the preschool with his backpack. But if the officers were concerned about the saf ety of the preschool’s occupants, nothing prevented them from following Leo into th e building after the investigatory stop to keep an eye on him in case he attempted any wrongdoing.
See United States v. Jones , 132 S. Ct. 945, 953 (2012) (“ This Court has to date not deviated from the understanding that mere vi sual observation does not con stitute a search. ”); Kyllo v.
United States , 533 U.S. 27, 32 (2001) ; United States v. Knotts

, 460 U.S. 276, 282 (1983)

. There are other flaws with the government’s argument that the search of Leo’s backpack was justified solely by the poss ibility that Leo would enter the preschool with a gun. Leo mai ntained in the district court that the Head Start preschool is not a “school” under either Wisconsin or federal gun laws,

see 18 U.S.C. § 921(a)(26); W IS

. S TAT

. § 948.61(1)(b), and that the police officers there fore had no reason to think that he unlaw

fully possessed a gun in a school zone, see 18 U.S.C. § 922(q)(2)(A); W IS

. S TAT

. § 948.605(2).
The government has never responded to Leo’s contention
that the Head Start facility is not a “school” under these sta tutes, nor did the government ever charge Leo with possessing a gun in a school zone in violation of state or federal law. And18 No. 14

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there is no evidence in the record to show that Leo’s possession of a handgun in the preschool parking lot violated any other
Wisc onsin gun law, such as the trespass statute. See W IS

. S TAT

. § 943.13(1m)(c). Moreover, Wisconsin law generally permits a person who is 21 or older and has not been convicted of a fel ony to obtain a concealed

- carry license. See id. § 175.60(3). At the
time of the search, the officers knew neither Leo’s age nor cri minal history, nor did they inquire whether he had a license to carry a concealed firearm. See id. § 175.60(2g)(c).
In closing, we note that the Supreme Court has made clear
that the Second Amendme nt protects the individual right to keep and bear arms, see District of Columbia v. Heller , 554 U.S. 570, 635

– 36 (2008), and applies equally to the states through the Fourteenth Amendment, see McDonald v. City of Chicago , 561 U.S. 742, 791 (2010). And we have held that, subject to reason

able restrictions, the Second Amendment protects the right to carry a gun in public. See Moore v. Madigan , 702 F.3d 933, 942 (7th Cir. 2012). Considering these important developments in Second Amendment law together with Wisconsin’s gun laws, we cannot accept the government’s contention that the poss ibility of a gun in Leo’s backpack posed a unique threat that ju stified a full search of the bag on less than probable cause.
See United States v. Williams , 731 F.3d 678, 694 ( 7th Cir. 2013) (Hamilton, J., concurring in part and concurring in judgment) (“After Heller and McDonald , all of us involved in law enforc ement, including judges, prosecutors, defense attorneys, and police officers, will need to reevaluate our thinking abo ut these Fourth Amendment issues and how private possession of fir earms figures into our thinking.”).No. 14

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III. CONCLUSION
Accordingly, the judgment of conviction is VACATED, and the case is REMANDED for further proceedings consistent
with this opinion.