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The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri, adopting the report and recommendation of the Honorable Sarah

W. Hays, United States Magistrate Judge.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2645

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* Western District of Missouri.

James E. Gilliam, *

*

Appellant. *

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Submitted: March 11, 2008

Filed: April 2, 2008 

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Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge.

James E. Gilliam, Jr., entered a conditional guilty plea to one count of being a

drug user in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and

924(a)(2). The plea agreement preserved Gilliam’s right to appeal the district court’s1

denial of his motion to suppress. Gilliam appeals, arguing that the Terry stop and

frisk that revealed his possession of a firearm violated his Fourth Amendment rights.

We affirm.
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I. Background

On October 25, 2005, seven officers conducted a warrant sweep throughout

Kansas City, Missouri, by visiting the addresses listed on outstanding felony warrants.

The officers went to the address listed on the arrest warrant for Kenio Simpson, who

was sought for failing to appear in court on a drug trafficking charge. After the

officers knocked on the door, Gilliam opened the door and the officers asked Gilliam

if he was Simpson. After Gilliam responded that he was not Simpson, the officers

asked if he knew Simpson or if Simpson was at the residence. At that point, Simpson

appeared behind Gilliam and was identified by Gilliam as being Simpson. The

officers asked Simpson to confirm his identity, but Simpson denied it. After Gilliam

and Simpson began arguing over Simpson’s identity, Gilliam grabbed Simpson and

tried to push him outside toward the officers. The officers separated Gilliam and

Simpson and attempted to determine who was who. Two of the officers took Simpson

into custody, handcuffed him, conducted a pat-down search, and questioned him

regarding his identity. 

Before the officers could positively identify Simpson, Gilliam reentered the

residence and headed toward an unsecured area therein. One of the officers told

Gilliam to come back. Gilliam responded that the officers did not want him but rather

the person on the porch. Gilliam continued to disobey the officer’s orders to step

outside, causing the officer to walk toward Gilliam. Thereafter, Gilliam walked

toward the officer, who put his hand on Gilliam’s shoulder and told Gilliam he was

going to do a pat-down search to ensure that Gilliam was not carrying any weapons.

Gilliam said “okay” and put his hands on the wall. The officer conducted a pat-down

search and discovered a firearm in Gilliam’s waistband. Gilliam was handcuffed and

then arrested for possession of stolen property following a computer check of the

weapon. After being indicted, Gilliam filed a motion to suppress the firearm, arguing

that there was no basis for a Terry stop or a Terry frisk. Following an evidentiary

hearing, the district court denied the motion. 
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II. Analysis

On appeal, Gilliam argues that his Fourth Amendment rights were violated in

two ways. First, he asserts that the Terry stop was improper because the officers had

no reasonable indication that he was involved in criminal activity. Secondly, he

contends that the Terry frisk was improper because there were no objective facts that

created a reasonable suspicion that he was armed and dangerous. 

“When reviewing a district court’s denial of a motion to suppress, we examine

the findings of fact for clear error and review de novo whether the investigatory stop

and search violated the Fourth Amendment.” United States v. Walker, 494 F.3d 688,

691 (8th Cir. 2007). We look at the totality of the circumstances to determine whether

an investigatory stop and search was justified. United States v. Hughes, No. 07-2213,

2008 WL 482414, at *2 (8th Cir. Feb. 25, 2008). 

In Terry v. Ohio, the Supreme Court held that an officer may conduct a brief,

investigatory stop of an individual if the officer has a reasonable, articulable suspicion

that the individual is involved in criminal activity. 392 U.S. 1, 30 (1968). Reasonable

suspicion does not exist solely on the basis of an officer’s hunch. Walker, 494 F.3d

at 691. To satisfy the Fourth Amendment, the officer must be able to articulate some

minimal, objective justification for a Terry stop. Walker, 494 F.3d at 691.

The district court found that the Terry stop of Gilliam was appropriate because:

(1) the officers were attempting to execute an arrest warrant for someone suspected

of trafficking a controlled substance; (2) the officers had not yet confirmed the

identity of the individual named in the arrest warrant; (3) Gilliam was trying to

distance himself from the officers; and (4) Gilliam ignored an officer’s directive to

stay outside. Gilliam argues that these circumstances are insufficient to justify a Terry

stop because his attempt to go back into the house and close the door did not create

a reasonable suspicion that he was involved in criminal activity. Gilliam points out
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that a person has the “right to ignore the police and go about his business,” and that

a person’s “refusal to cooperate, without more, does not furnish the minimal level of

objective justification needed” for a Terry stop. Illinois v. Wardlow, 528 U.S. 119,

125 (2000). Wardlow, however, makes a distinction between a person ignoring the

police and a person fleeing from the police. Id. at 125 (a suspect’s unprovoked flight

from officers can raise a suspicion of criminal activity). Because Gilliam answered

the door at the residence listed on the warrant, engaged in an argument with Simpson

over Simpson’s identity, attempted to avoid further contact with the officers, and

ignored commands to remain outside even though the officers had not yet confirmed

Simpson’s identity, Gilliam’s conduct went beyond merely ignoring the police.

Instead, the totality of the circumstances created a reasonable justification to briefly

detain Gilliam until it was clear that he was not the person named in the arrest warrant.

Gilliam also argues that the officers should have known that he was not

Simpson because Gilliam is seventy-four inches tall and the arrest warrant described

Simpson as sixty-five inches tall. Gilliam suggests that because a person’s height

does not change dramatically over time, the discrepancy between his height and

Simpson’s height should have put the officers on notice that Gilliam was not the

person they were seeking. Although Gilliam and Simpson are of different heights, the

district court relied on the testimony of one of the officers that the information in an

arrest warrant is not always precise. Given the totality of the circumstances and the

fluid situation that the officers faced, the difference in height did not necessarily

eliminate all reasonable suspicion that Gilliam was the individual named in the arrest

warrant. See Walker, 494 F.3d at 693 (during a Terry stop, officers can take

reasonable steps to protect their safety and maintain the status quo during the stop);

United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (during a

typical Terry stop, an officer may ask the detainee “a moderate number of questions”

to determine the detainee’s identity and to confirm or deny the officer’s suspicions).
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Gilliam’s further argument that his proximity to Simpson does not make the

Terry stop reasonable is likewise without merit. Although an individual’s mere

presence in a high crime area does not create reasonable suspicion that the individual

is involved in criminal activity, Hughes, 2008 WL 482414, at *2 (citing Brown v.

Texas, 443 U.S. 47, 52 (1979)), the basis for the officers’ suspicion of Gilliam was not

solely that Gilliam was found at the residence listed on the arrest warrant. Rather,

Gilliam’s conduct, as discussed above, along with the fact that the officers had not yet

confirmed Simpson’s identity, created a reasonable basis to briefly detain Gilliam

until the officers could ascertain who was who. See Hughes, 2008 WL 482414, at *2

(citing United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005), for the proposition

that suspicious behavior and presence in high crime area creates reasonable suspicion

to make a Terry stop). Accordingly, we conclude that the district court did not err in

finding that the officers conducted a proper Terry stop of Gilliam. 

Following a valid Terry stop, the officer may conduct a limited pat-down search

of the individual’s outer clothing for the purpose of uncovering concealed weapons

if the officer has a reasonable, articulable suspicion that the person is armed and

dangerous. Terry, 392 U.S. at 30. This search must be conducted in the least intrusive

means reasonably necessary to dispel the risk of danger to the officers. Id.

The district court found that the officers properly conducted a Terry frisk of

Gilliam because the circumstances of the encounter with Gilliam created a reasonable

concern for officer safety. The district court noted that: (1) the officers were

executing an arrest warrant for a person facing felony drug charges; (2) Gilliam was

avoiding contact with the officers; (3) Gilliam was not heeding the officer’s

commands to remain outside; and (4) Gilliam was wearing multiple layers of clothing

and baggy pants that could conceal dangerous items. Although Gilliam argues that

these circumstances do not establish a reasonable, articulable suspicion that he was

armed and dangerous and that his attempt to go back into the house was a valid
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exercise of his right to go about his business and ignore the police, we conclude that,

for the reasons stated above, this argument is without merit. 

Gilliam further asserts that his baggy clothing could not create reasonable

suspicion that he was armed and dangerous because that fact also applies to a large

proportion of the black male population. We grant that Gilliam’s attire alone would

not necessarily have created a reasonable suspicion that he was armed and dangerous.

See United States v. Green, 52 F.3d 194, 198 (8th Cir. 1995) (investigatory stop not

justified by fact that individual was traveling alone, carrying a small bag, wearing

baggy clothing, and failed to make eye contact with officers). Nevertheless, when

viewed in the light of the totality of the circumstances, the fact that Gilliam easily

could have been concealing a weapon, combined with the fact that the officers

reasonably suspected that he was the subject of an arrest warrant for trafficking a

controlled substance, see United States v. Robinson, 119 F.3d 663, 667 (8th Cir. 1997)

(suspected involvement in drug transactions creates a reasonable suspicion that

individual is armed and dangerous), and the fact that he was avoiding contact with the

police and ignoring commands to stop, gave rise to a reasonable concern for officer

safety. See also United States v. Crawford, 891 F.2d 680, 681 (8th Cir. 1989)

(“Obviously, conduct typical of a broad category of innocent people provides a weak

basis for suspicion. However, the relevant inquiry is not whether particular conduct

is innocent or guilty but the degree of suspicion that attaches to particular types of

noncriminal acts.” (internal citation and quotation omitted)). Thus, we conclude that

the district court did not err when it found that the officers conducted a proper Terry

frisk of Gilliam.

The judgment is affirmed. 

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