In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4082

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER J. TINNIE,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Western Division.

No. 09 CR 50017—Philip G. Reinhard, Judge.

ARGUED SEPTEMBER 8, 2010—DECIDED JANUARY 18, 2011

Before POSNER, MANION, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. During a traffic stop, a deputy

sheriff frisked the car’s passenger, Christopher Tinnie,

and discovered a gun and ammunition. A grand jury

indicted Tinnie for possession of a firearm by a felon.

Tinnie sought to suppress the gun, ammunition, and

statements he made following his arrest. The district

court denied his motion to suppress and Tinnie then

entered a conditional plea of guilty. Tinnie now appeals
2 No. 09-4082

from the district court’s denial of his motion to suppress. We affirm.

I.

On Friday, January 30, 2009, Winnebago County

Sheriff Deputies Dennis Hill and Brad Kaiser were

working a 4:00 p.m.-4:00 a.m. shift, patrolling in a “weed

and seed area” of Rockford, Illinois. A “weed and seed

area” is an area designated by state and local officials

based on a high crime rate and gang, drug, and gun

activity. Kaiser was part of a Special Focus Unit which

focused on areas with higher crime tendencies. At

around 11:30 that evening, the officers observed a black

Hyundai Sonata with a mass of air fresheners hanging

from its rearview mirror. That normally might not

attract law enforcement’s attention, but the strategy in

a “weed and seed area” is proactive policing through

increased traffic enforcement, and the hanging air fresheners constituted an “obstructive view” justifying a

stop. Before the officers stopped the car, though, the

driver abruptly turned left and then into a driveway.

The officers testified that they believed the driver was

attempting to avoid being stopped.

After stopping the vehicle, the officers approached the

car. As he walked up to the passenger side, Kaiser

noticed Tinnie fidgeting left to right and back and forth

in the passenger’s seat. While Hill spoke with the

driver, Kaiser asked Tinnie for his identification. Tinnie

responded that he didn’t have a license but did have

an identification card. But then when Kaiser asked for
No. 09-4082 3

that, Tinnie merely moved his hands down the front of

his coat and pinched his jeans (he did not actually put

his hands inside his coat or pants pockets to check)

before saying he did not have an identification card.

Kaiser commented that Tinnie had never actually

checked his pockets for his identification card, but

Tinnie merely responded that “he didn’t have his ID on

him.” The officer then asked the passenger for his name,

birth date, and age. Tinnie identified himself as Christopher Tinnie, gave a birth date of June 16, 1981, and told

the officer that he was 28. But as Kaiser immediately

realized, “with the date of birth that he had given me,

he could have only been 27 at the time.” And at the

suppression hearing, Kaiser explained that, in his experience, individuals who are unable to provide the correct

age to match their birth date are lying either about their

name or their date of birth.

At this point, Kaiser told Tinnie to exit the car. Kaiser

later testified that at the time he asked Tinnie to get out

of the car he had already decided to frisk him and in

fact that he frisks anyone he asks to exit a vehicle during

a traffic stop. After Tinnie exited the car, Kaiser

informed Tinnie he “was going to pat him down for

officer safety” and asked “him if he had anything on him

that he shouldn’t have as far as weapons or drugs.” Tinnie

didn’t respond. Kaiser slightly rephrased the question,

asking Tinnie if he had any weapons, guns, or anything

that would poke Kaiser’s hand. Again, Tinnie did not

answer. But when Kaiser questioned Tinnie a third

time, asking solely whether he had any drugs, “Tinnie

immediately said ‘no.’ ” At this point, Kaiser proceeded
4 No. 09-4082

to frisk Tinnie and discovered a gun and a magazine

with three rounds of ammunition. The officers arrested

Tinnie, and after a search of the car revealed no other

weapons or drugs, they gave the driver a warning

about the obstructed view and allowed her to leave.

The officers transported Tinnie to the Winnebago

County Criminal Justice Center where, according to Hill,

he Mirandized Tinnie. Tinnie then voluntarily provided

a handwritten and initialed statement acknowledging his possession of the firearm. A grand jury later

indicted Tinnie for possession of a firearm by a felon

in violation of 18 U.S.C. § 922(g)(1). Tinnie moved to

suppress the gun, ammunition, and his written statement. He argued the frisk was unconstitutional and

the written statement was the fruit of the illegal

search and also obtained without the benefit of a

Miranda warning. The district court denied the motion

to suppress, concluding reasonable suspicion justified

frisking Tinnie and that Tinnie had in fact received a

Miranda warning. Tinnie then entered a conditional plea

of guilty, reserving the right to appeal the denial of

his motion to suppress and the sentence imposed.

The district court then sentenced Tinnie to 84 months

in prison. Tinnie appeals.

II.

On appeal, Tinnie claims that the district court erred

in denying his motion to suppress because reasonable

suspicion did not justify the frisk and therefore the fruit
No. 09-4082 5

Tinnie does not challenge the district court’s conclusion that 1

he received his Miranda warnings prior to providing his

written statement. This issue is thus not on appeal. Tinnie

also does not challenge his sentence on appeal, although he

had reserved the right to do so in his conditional plea.

of the illegal search (i.e., the gun, ammunition, and

his later inculpatory statement) was inadmissible. We 1

review de novo the district court’s legal determination of

the constitutionality of a frisk and its findings of fact

for clear error. United States v. Oglesby, 597 F.3d 891, 893

(7th Cir. 2010).

During a valid traffic stop, an officer may order the

driver and passengers out of the vehicle without violating

the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S.

106, 112 n.6 (1977); Maryland v. Wilson, 519 U.S. 408, 412

(1997). The officers may also frisk the driver and any

passengers upon reasonable suspicion that they may

be armed and dangerous. Arizona v. Johnson, 129 S.Ct.

781, 787 (2009). Whether an officer has a reasonable

suspicion to support such a frisk “is a fact-specific

inquiry that looks at the ‘totality of the circumstances’

in light of common sense and practicality.” United States

v. Robinson, 615 F.3d 804, 807-08 (7th Cir. 2010). In determining whether an officer had reasonable suspicion,

courts consider “the circumstances known to the officer

at the time of the stop, including the experience of the

officer and the behavior and characteristics of the suspect.” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.

2006). The time and the location of the stop are also
6 No. 09-4082

relevant to the reasonable suspicion inquiry. Oglesby, 597

F.3d at 893.

In this case, the totality of the circumstances justified

frisking Tinnie. The stop occurred late on a Friday night

in a high-crime neighborhood. And Kaiser testified

at the suppression hearing that the driveway into

which Tinnie had pulled was “dimly lit just from road

lighting.” See, e.g., Oglesby, 597 F.3d at 893 (holding that

the totality of the circumstances justified a frisk, in

part, because it “occurred at night in a location that was

known to the officers to be a high-crime area plagued

by drug trafficking and gun violence”). Kaiser was part

of a Special Focus Unit charged with patrolling higher

crime areas and, as the district court found, was thus

familiar with the risk of gun possession in that area. See

United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006)

(holding that the experience of the officer is a factor

considered in judging whether reasonable suspicion

justifies a frisk). As the district court also found,

Tinnie acted suspiciously by moving around nervously

as the officers approached the car. See, e.g., United States

v. Brown, 273 F.3d 747, 748-49 (7th Cir. 2001) (finding

that the totality of the facts, including the defendant’s

“movements in the car,” justified “a limited patdown

for weapons”). Then, after stating he had an identification card, Tinnie told Kaiser (without checking his pockets) that he did not have the identification card. See, e.g.,

Cady v. Sheahan, 467 F.3d 1057, 1061-62 (7th Cir. 2006)

(noting that evasive responses to police questions can

help support reasonable suspicion). Tinnie also stated
No. 09-4082 7

he was 28 and Kaiser immediately perceived that “with

the date of birth that he had given me, he could have

only been 27 at the time.” See, e.g., United States v.

Marrocco, 578 F.3d 627, 633-34 (7th Cir. 2009) (concluding

that inconsistent answers to the officer’s questions was

a factor supporting reasonable suspicion that a suitcase

contained drugs); United States v. Thomas, 87 F.3d 909,

912 (7th Cir. 1996) (stating that defendant’s contradictory answers to simple questions was a factor supporting reasonable suspicion justifying detention of defendant’s suitcase.) And before frisking Tinnie, Kaiser

asked him whether he had any weapons or drugs and

Tinnie did not respond. Kaiser rephrased the question

slightly, asking Tinnie “if he had any weapons on him,

any guns, or anything that would poke my hands.”

Again, Tinnie did not respond, but when Kaiser then

asked if Tinnie had any drugs on him, Tinnie immediately said no. Coupled with the earlier suspicious circumstances, Tinnie’s silence when twice asked if he

had any weapons, but his immediate denial of possessing

drugs, provided Kaiser with reasonable suspicion that

Tinnie was armed and thus justified the frisk.

It is true that Kaiser testified that when he asked

Tinnie to step out of the car, he had already decided to

frisk him. The district court believed the high-crime

neighborhood and the lateness of the hour, along

with Tinnie’s suspicious movement as the officers approached the car, his strange behavior when asked for

his identification, and the inconsistent date of birth and

age were enough to justify the frisk. That may well be,
8 No. 09-4082

given that we judge the totality of the circumstances

“in light of common sense and practicality.” Robinson,

615 F.3d at 807-08. Common sense tells us that an officer

faced with Tinnie’s suspicious behavior during a latenight stop in a high-crime neighborhood would find it

totally sensible to perform a frisk to protect himself and

his partner. See, e.g., Oglesby, 597 F.3d at 893 (holding

frisk justified where it “occurred at night in a location

that was known to the officers to be a high-crime area

plagued by drug trafficking and gun violence” and where

defendant moved away from the crowd as officers approached and dropped his hand to his pants pocket).

But we need not rest on those circumstances because

Kaiser testified at the suppression hearing that before

he frisked Tinnie, he had asked Tinnie whether he had

any weapons or drugs. And as recounted above, Tinnie

did not respond to the repeated questions about weapons but immediately responded “no” when asked

about drugs. The Supreme Court has made clear that in

judging the constitutionality of a search or seizure, courts

must look at the facts objectively. United States v. Whren,

517 U.S. 806, 812-13 (1996) (collecting cases). Thus, “[i]t

is important to remember that we are not limited to what

the stopping officer says or to evidence of his subjective

rationale; rather, we look to the record as a whole to

determine what facts were known to the officer and

then consider whether a reasonable officer in those circumstances would have been suspicious.” United States v.

Brown, 232 F.3d 589, 594 (7th Cir. 2000) (internal quotation marks and citations omitted; emphasis added). Thus,

it is irrelevant that Kaiser decided to frisk Tinnie before
No. 09-4082 9

Tinnie argues that because Kaiser routinely frisks occupants 2

whom he has directed to exit the vehicles, Kaiser engages

in unconstitutional automatic frisks. There are two flaws with

this argument: First, as just noted, the reasonable suspicion

analysis is an objective one—so Kaiser’s subjective intent is

irrelevant. Second, Kaiser did not testify that he routinely asks

everyone he stops to exit the vehicle. Thus, it may well be

that Kaiser only directs occupants to exit the stopped vehicle

if there is already reasonable suspicion to believe they are

armed and dangerous. The dissent finds this possibility highly

improbable but, as the dissent recognizes, many routine

traffic stops occur “while the drivers and passengers remain

inside the vehicle (and are often warned not to try to exit the

vehicle).” Dissent at 14 n.3. There is nothing to indicate that

Kaiser handles traffic stops any differently than the typical

officer, i.e., in most cases directing drivers and passengers to

remain inside the vehicle. But if, in fact, there was some evidence that Kaiser has a higher rate of exit-requests and frisks

than the typical officer, it likely stems from the more dangerous

environment he faces in working the 4 p.m.-4 a.m. shift as a

member of the Special Focus Unit, patrolling high-crime

neighborhoods. Absent some support in the record to the

contrary, we should not imply that Kaiser regularly engages

in unconstitutional conduct.

directing him to exit the car. Similarly, it is also irrelevant

that Kaiser testified that he frisks anyone he asks to step

out of a vehicle during a traffic stop. The question is 2

rather whether given all of the facts known to Kaiser, a

reasonable officer would have believed the frisk was

justified. Given everything that took place prior to
10 No. 09-4082

The dissent asserts that because “[t]he frisk had begun by 3

the time Deputy Kaiser asked Tinnie whether he had any

weapons or drugs,” his responses are irrelevant to the Terry

analysis and should be disregarded. Dissent at 24. However,

the record makes clear that Kaiser asked Tinnie whether

he had any weapons or drugs before the frisk had begun;

Kaiser testified at the suppression hearing that this questioning

took place before he “touched [Tinnie], before any interaction

with his body took place.” And the district court found—and

that finding was not clearly erroneous—that this questioning

occurred before Kaiser conducted the frisk.

While there may well be other cases in which officers engage 4

in unreasonably intrusive law enforcement practices, Dissent

at 28, this is not that case. Rather, this case illustrates how

proactive policing, within constitutional limits, successfully “weeds” dangerous criminals from the street while

providing law-abiding citizens the protection they deserve.

the frisk, as well as the time and location of the stop, a 3

reasonable officer could conclude that there was reasonable suspicion that Tinnie was armed and that

a frisk was necessary to assure the officers’ safety. Accordingly, the frisk was constitutional and the district

court properly denied Tinnie’s motion to suppress.4

We AFFIRM.
No. 09-4082 11

HAMILTON, Circuit Judge, dissenting. The erosion of

Fourth Amendment liberties comes not in dramatic

leaps but in small steps, in decisions that seem “factbound,” case-specific, and almost routine at first

blush. Taken together, though, these steps can have

broader implications for the constitutional rights of lawabiding citizens. I see this case as an unfortunate example of this process. The immediate result here is

the removal of an armed felon from the streets of

Rockford, Illinois for seven years. But the court’s decision to sanction Deputy Kaiser’s frisk of defendant

Tinnie comes too close to allowing police officers to

frisk virtually at will any driver or passenger pulled

over in a high-crime area. I believe the Fourth Amendment requires a different balance between the interests

of efficient law enforcement and the constitutional right

against unreasonable searches, so I respectfully dissent.

Before turning to the frisk itself, let’s consider the

series of events that led to that frisk, beginning with the

actual stop of the car in which Tinnie was a passenger.

The stated reason for the stop—to address a windshield obscured by air fresheners hanging from the rearview mirror—was pure pretext, of course. No one

believes that Deputy Kaiser and his partner cared

about the obscured windshield for its own sake.

Deputy Kaiser characterized this stop as the work of a

proactive policeman implementing the federally-funded

“Weed and Seed” program at night in a designated high-
12 No. 09-4082

The “Weed and Seed” program is a U.S. Department of Justice 1

initiative designed to “reduce the impact of violent crime on

communities; provide prevention, intervention, and treatment services for substance abuse and other social problems;

and revitalize communities through improved housing

and economic development” by “stress[ing] collaboration,

coordination, and community participation.” U.S. Department

of Justice, Weed & Seed Implementation Manual, at 1 (2005).

crime area.1

The officers took advantage of the fact that the Fourth

Amendment allows pretextual traffic stops so long as

they are based upon an observed violation of a traffic

law. See Whren v. United States, 517 U.S. 806, 810 (1996). As

this case shows, this principle is practically limitless in

application—only the most unobservant police officer

would be unable to spot at least one traffic violation in

short order. See David Harris, “Driving While Black” and

All Other Traffic Offense: The Supreme Court and Pretextual

Traffic Stops, 87 J. Crim. L. & Criminology 544, 545, 558-59

(1997) (“In the most literal sense, no driver can avoid

violating some traffic law during a short drive, even

with the most careful attention”; “with the traffic code

in hand, any officer can stop any driver any time”);

Barbara C. Salken, The General Warrant of the Twentieth

Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221,

223 (1989) (“Almost every American adult drives; hence

the pool of potential arrestees is enormous. The innumerable rules and regulations governing vehicular travel

make it difficult not to violate one of them at one time
No. 09-4082 13

This observation long predates the decision in Whren. When 2

he was Attorney General, the future Justice Jackson said: “We

know that no local police force can strictly enforce the

traffic laws, or it would arrest half the driving population on

any given morning.” R. Jackson, The Federal Prosecutor, Address

Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940, quoted in Morrison v. Olson, 487 U.S. 654,

727-28 (1988) (Scalia, J., dissenting).

or another.” (footnote omitted)). As a practical matter, 2

Whren allows law enforcement officers to conduct traffic

stops nearly at will. See, e.g., People v. Robinson, 767

N.E.2d 638, 660 (N.Y. 2001) (Levine, J., dissenting) (“[A]

persevering police officer, armed only with a copy of the

[traffic code] and bent on subjecting a vehicle and its

occupants to an unjustified investigative stop, will ultimately be able to accomplish that objective virtually

at will.”).

Once the car was stopped, Deputy Kaiser began questioning Tinnie, at first supposedly to determine his identity. Again, no one seriously believes that this was the

primary purpose of the questioning—Deputy Kaiser

was almost certainly looking for a reason to search

Tinnie, the car, or both. Otherwise, why would Deputy

Kaiser have reacted as he did to Tinnie’s rounding up

of his age from 27 years and 7 months to 28 years?

Based on Tinnie’s answers to those questions, Deputy

Kaiser ordered Tinnie out of the car. Of course, Tinnie’s

actual answers to Deputy Kaiser’s initial questions

were irrelevant, given that Deputy Kaiser could, as a

matter of course, order Tinnie out of the car without any
14 No. 09-4082

Deputy Kaiser had no real need to order Tinnie out of the car, 3

of course. Many routine traffic stops, particularly those actually

carried out for their stated purposes, proceed while the

drivers and passengers remain inside the vehicle (and are

often warned not to try to exit the vehicle).

suspicion beyond that which justified the initial stop. See

Maryland v. Wilson, 519 U.S. 408, 410 (1997) (describing

this additional intrusion as “minimal”).3

By this point, Deputy Kaiser testified, he had already

decided that he was going to frisk Tinnie. In fact, Deputy

Kaiser’s standard practice is to frisk every person he

orders out of a vehicle during a traffic stop—a practice

flatly contrary to Terry v. Ohio, 392 U.S. 1, 27 (1968), and

its progeny, which require reasonable suspicion that a

suspect is armed and dangerous. The fact that Deputy

Kaiser applied an unconstitutional practice in this case

is irrelevant if he in fact had a reasonable suspicion

that Tinnie was armed and dangerous, however, so we

must turn a blind eye to Deputy Kaiser’s general practice, despite its similarity to practices under the colonialera general warrants authorizing searches of any “suspected persons” or “suspicious places.” See Thomas Y.

Davies, Recovering the Original Fourth Amendment, 98

Mich. L. Rev. 547, 558 n. 12 (1999).

When viewed in isolation, each individual aspect of

Deputy Kaiser’s behavior before he started the frisk

that discovered the handgun was either arguably reasonable or constitutionally irrelevant. “[T]he central

inquiry under the Fourth Amendment,” however, is “the
No. 09-4082 15

reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal

security,” Terry, 392 U.S. at 19 (emphasis added). The

issue becomes whether Deputy Kaiser’s frisk of Tinnie

was objectively reasonable in light of the fact that

the frisk was conducted only after Deputy Kaiser had

leveraged a pretextual stop for an insignificant traffic

offense into an excuse to remove Tinnie from the vehicle.

When taken together, Deputy Kaiser’s actions apart

from the frisk itself already bear a striking resemblance

to the practices permitted in colonial times under

“the general warrant, the practice upbraided by the

colonists because it allowed British soldiers to confront anyone they felt like investigating for sedition

or trafficking in uncustomed goods.” Christopher

Slobogin, Justice Ginsburg’s Gradualism in Criminal Procedure, 70 Ohio St. L.J. 867, 886 (2009); see also Davies, 98

Mich. L. Rev. at 558 & n. 12 (noting that the warrant

clause of the Fourth Amendment was for the purpose of

prohibiting general searches based on inadequate information); David A. Harris, Car Wars: The Fourth Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556,

574 (1998) (noting that post-Whren Fourth Amendment

jurisprudence effectively allows law enforcement “to do

exactly what is otherwise forbidden: act on nothing

more than a hunch”). The effects that such long-condemned practices have on law-abiding citizens—fear,

humiliation, anger, and a growing cynicism toward

law enforcement in general—should come as no surprise.

See David A. Harris, The Stories, the Statistics, and the

Law: Why “Driving While Black” Matters, 84 Minn. L. Rev.
16 No. 09-4082

265 (1999) (drawing on interviews and statistical

analyses of police practices).

Turning to the frisk itself, we must recognize that a

frisk is most certainly not a minor intrusion on privacy.

As the Supreme Court explained in Terry, which first

authorized warrantless stop-and-frisks on less than

probable cause (and shortly after some of the most violent

urban riots in American history in 1967 and 1968), a frisk

“is a serious intrusion upon the sanctity of the person,

which may inflict great indignity and arouse strong

resentment.” 392 U.S. at 17; see id. at 17 n.13 (describing

a frisk as a “ ‘thorough search . . . of [an individual’s] arms

and armpits, waistline and back, the groin and area

about the testicles, and entire surface of the legs down

to the feet’ ”), quoting Priar & Martin, Searching and Disarming Criminals, 45 J. Crim. L. Criminology & Police

Sci. 481 (1954).

Terry authorized frisks as a reasonable and pragmatic

response to hard realities of our nation’s city streets.

But Terry nevertheless emphatically refused to authorize

frisks of just any suspicious person. The Supreme Court

authorized such intrusive searches only in those

narrow circumstances in which a police officer “has

reason to believe that he is dealing with an armed and

dangerous individual.” Id. at 27. Probable cause to arrest

is not required, nor need the officer be “absolutely certain” that the person is armed, but “a reasonably

prudent man in the circumstances [must] be warranted

in the belief that his safety or that of others was in danger.” Id. In a companion case to Terry, the Supreme
No. 09-4082 17

Court emphasized this need for specific facts indicating

danger:

The police officer is not entitled to seize and search

every person whom he sees on the street or of whom

he makes inquiries. Before he places a hand on the

person of a citizen in search of anything, he must

have constitutionally adequate, reasonable grounds

for doing so. In the case of the self-protective search

for weapons, he must be able to point to particular

facts from which he reasonably inferred that the

individual was armed and dangerous.

Sibron v. New York, 392 U.S. 40, 64 (1968) (explaining

reversal of conviction based on results of unjustified

frisk). Frisks are “not to be undertaken lightly.” Terry,

392 U.S. at 17.

The need for a reasonable suspicion that the subject is

“armed and dangerous”—not merely suspicious in

general—is key to this case, and helps to distinguish

legitimate protective frisks from the abuses the Fourth

Amendment was intended to limit. See Arizona v.

Johnson, 129 S. Ct. 781, 784 (2009) (“[T]o proceed from a

stop to a frisk, the police officer must reasonably

suspect that the person stopped is armed and dangerous.”). A review of the facts as found by the district

court, as well as decisions by this and other circuits,

shows that Deputy Kaiser simply lacked sufficient constitutional grounds to subject Tinnie to the intrusion

and indignity of a frisk.

For starters, when Deputy Kaiser approached the car,

he did not know anything about the driver or the pas-
18 No. 09-4082

senger. He had no reason to believe that either was inherently more dangerous than any other motorist he

might encounter during a traffic stop. See Ybarra v.

Illinois, 444 U.S. 85, 93 (1979) (finding insufficient facts

to justify frisk, taking into account fact that police did not

“recognize [the defendant] as a person with a criminal

history”); United States v. Thomas, 512 F.3d 383, 388 (7th

Cir. 2008) (upholding frisk where officer “was concerned,

based on prior information, that Thomas was armed”).

Nor was this traffic stop carried out for an offense “so

suggestive of the presence and use of weapons that a

frisk is always reasonable.” United States v. Barnett, 505

F.3d 637, 640 (7th Cir. 2007) (reversing grant of motion

to suppress where officer frisked suspect in burglary

that likely involved a weapon); see also Terry, 392 U.S.

at 28 (deeming frisk justified where officer reasonably

suspected preparations for armed robbery). As a result,

Deputy Kaiser’s frisk can be justified, if at all, based

only on his interactions with Tinnie.

Turning to those interactions, as Deputy Kaiser approached the car’s passenger side, he saw Tinnie “fidgeting” and acting “as if he was uncomfortable or just

readjusting.” Deputy Kaiser asked for Tinnie’s identification. Passenger Tinnie said he did not have a driver’s

license, so Deputy Kaiser asked him for his ID card. In

response to this request, Tinnie ran his hands down

his coat and pinched the top of his blue jeans before

responding that he did not have his ID card with

him either. Deputy Kaiser then asked for Tinnie’s name,

date of birth, and age. Tinnie responded with his (correct) date of birth but gave his age in years at his next
No. 09-4082 19

birthday, not that day. Throughout the encounter,

Tinnie was cooperative, according to Deputy Kaiser,

and he gave no indication that he was armed. Unlike so

many other frisk cases, Deputy Kaiser never observed

any bulges in Tinnie’s clothing indicating that he might

be concealing a weapon. Regardless, Deputy Kaiser

ordered Tinnie out of the car, escorted him to the back

of the vehicle, and announced that he was going to

frisk him for officer safety.

The district court found that those facts alone were

sufficient to justify the frisk. My colleagues say they

tend to agree, without quite holding as much.

I address below the district court’s and the majority’s

reliance on Deputy Kaiser’s questioning as he began to

frisk Tinnie to justify the frisk itself. For the moment,

though, let’s focus on what occurred before the frisk

began: in a high-crime area at night, a passenger moves

or adjusts his position as the police approach, seems

nervous, gives an age and birth date that do not quite

match, and when asked for ID, runs his hands along

his pants and pinches them before saying he does not

have any identification on his person. Suspicious? Yes.

A reasonable indication that the passenger is armed

and dangerous? No.

Recall that Tinnie and the driver were not suspected of

or stopped for a violent crime, drug trafficking, or any

other crime connected to a threat of violence. The stop

was for air fresheners obstructing the windshield. Although Tinnie acted nervous when confronted, nervousness is, for obvious reasons, “of limited value in assessing
20 No. 09-4082

reasonable suspicion.” United States v. Simpson, 609

F.3d 1140, 1147 (10th Cir. 2010); United States v. Urrieta,

520 F.3d 569, 577 (6th Cir. 2008) (“Although nervousness

may be considered as part of the overall circumstances

giving rise to a reasonable suspicion, this court has

found nervousness inherently unsuspicious, and has

therefore given it very limited or no weight in the

reasonable-suspicion calculation.”); United States v.

McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (same); United

States v. Portillo-Aguirre, 311 F.3d 647, 656 n. 49 (5th

Cir. 2002) (noting that courts “often give little or no

weight to an officer’s conclusional statement that a

suspect appeared nervous”); United States v. Jones, 269

F.3d 919, 928 (8th Cir. 2001) (same); see also United States

v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)

(noting that nervousness is “especially” tenuous support for a frisk made “in the context of a traffic stop”).

However nervous Tinnie might have appeared, he never

moved as if he were reaching for a concealed weapon.

And his nervous pinching and feeling of his pants

before saying he had no ID with him is certainly not a

reasonable basis for concluding that he was armed

and dangerous.

The additional fact that Deputy Kaiser encountered

Tinnie “late at night in a high-crime neighborhood” did

not change these circumstances enough to justify a

frisk. While context is certainly important to the totality-ofthe-circumstances analysis, neither the lateness of the

hour nor the nature of the locale automatically transforms

non-threatening acts into indicators of danger. Perhaps

the lateness of the hour would be significant if darkness had limited Deputy Kaiser’s ability to see what
No. 09-4082 21

Tinnie was doing—an officer making a traffic stop is

certainly entitled to exercise greater caution when a suspect’s actions are veiled in shadow. Cf. Ybarra, 444 U.S.

at 92 (noting, in overturning frisk, that “the lighting

was sufficient” for law enforcement to see the individuals in the tavern where the frisk was conducted).

But nothing in the record indicates that Deputy Kaiser

had any actual difficulty seeing Tinnie at any time. There

was, after all, enough light for him to see Tinnie shift

around in his seat and pinch the leg of his pants.

I ascribe equally little significance to the fact that

Tinnie was confronted in a high-crime area “designated

by state and local officials.” While “the fact that the stop

occurred in a ‘high crime area’ [is] among the relevant

contextual considerations in a Terry analysis,” Illinois v.

Wardlaw, 528 U.S. 119, 124 (2000), there still needs to be

a reasonable connection between the neighborhood’s

higher crime rate and the facts relied upon to support

a frisk. In other words, we should ask, for example,

whether Tinnie’s behavior was consistent with that of

the violent criminals known to frequent that area. Cf.

Terry, 392 U.S. at 22-23 (noting how defendant’s noncriminal behavior appeared suspicious when viewed

in context). Unless we require at least some such connection, we give law enforcement the impression that

frisks will receive much less scrutiny when performed in

high-crime areas. That is particularly problematic in this

case, where the designated “high-crime area” occupied

half of the city of Rockford.

Setting aside these problems, the district court and

my colleagues seek to justify the frisk by relying on Tin-
22 No. 09-4082

nie’s responses to three questions Deputy Kaiser posed

as he began the frisk. After telling Tinnie that he was

about to be frisked for officer safety and walking him

to the rear of the car, Deputy Kaiser asked whether

Tinnie had any weapons or drugs in his possession.

Tinnie did not immediately respond. Deputy Kaiser

then asked if Tinnie had any weapons, guns, or things

that would poke the deputy’s hands, and again Tinnie

did not respond. Deputy Kaiser then asked Tinnie if he

had any drugs, and Tinnie immediately said no. From

these different responses to different questions, Deputy

Kaiser inferred that Tinnie might have a weapon. It

turned out that he was right.

When evaluating Deputy Kaiser’s decision to frisk

Tinnie, however, we may consider only the information that Deputy Kaiser had at the moment he initiated

the frisk and must disregard any information gathered

after the frisk had already begun. United States v. Odum,

72 F.3d 1279, 1284 (7th Cir. 1995), citing Terry, 392 U.S.

at 21-22. My colleagues and the district court both

conclude that the frisk had not begun when Deputy

Kaiser asked these questions because Deputy Kaiser

had not yet laid his hands on Tinnie. In other words,

they define a “frisk” narrowly as only those moments

during which an officer’s hands are in physical contact

with a suspect’s body.

This narrow definition of a frisk would require us to

close our eyes to reality and would encourage aggressive

and intrusive police tactics, especially during pretextual traffic stops. Under the majority’s definition of a
No. 09-4082 23

frisk, officers may tell a suspect that he is going to be

frisked and require him to assume the position for a

frisk before beginning the questioning needed to justify

the frisk itself. Bent over the hood of a car or pressed

against a wall in the middle of the night, most people

would be extremely nervous and disoriented. It would

be easy enough for an enterprising police officer to

find some justification for a frisk in any nervous

responses given at such a vulnerable moment. Moreover, the majority’s approach embraces the circular

logic that police may justify a frisk by observing how

the subject responds when told he is about to be frisked.

For Fourth Amendment purposes, a person can be

“seized” before he is actually restrained by physical

force, at the moment when, given all the circumstances,

a reasonable person would believe he is not free to

leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).

Essentially the same rule should apply to a frisk. We

should determine at what point in time a reasonable

person in Tinnie’s position would have thought that

the officer’s actions were part of the process of conducting a frisk. Such a test, like the test applied to

seizures, would “assess the coercive effect of police

conduct, taken as a whole, rather than . . . focus on particular details of that conduct in isolation.” Chesternut,

486 U.S. at 573. Furthermore, it would be “flexible

enough to be applied to the whole range of police conduct” while “call[ing] for consistent application from

one police encounter to the next” and providing uniform guidance to law enforcement officers in the field.

Id. at 574.
24 No. 09-4082

Applying this standard to the facts here, it is clear

that Tinnie would reasonably have believed that the

frisk was already underway when Deputy Kaiser asked

if he had a gun in his possession. By the time Tinnie was

asked if he was carrying a gun, Deputy Kaiser had

already ordered him out of the car, walked him to the

back of the car, and told him that he was about to be

frisked. When Deputy Kaiser announced his intent to

conduct a frisk, a person in Tinnie’s position would

reasonably have believed that the frisk procedure had

already begun—he certainly would not have felt free

to walk away or to refuse to allow Deputy Kaiser to

touch him. The frisk had begun by the time Deputy

Kaiser asked Tinnie whether he had any weapons or

drugs, making Tinnie’s responses to those questions

irrelevant to the Terry analysis.

Based on the facts in the record, I conclude that the

frisk of Tinnie violated the Fourth Amendment. But

I am not alone in finding a frisk like this to be unjustified. In similar cases, other courts have deemed

the searches unconstitutional. For example, in United

States v. McKoy, 428 F.3d 38 (1st Cir. 2005), police conducted a daylight traffic stop for parking and license

plate violations in a high-crime area. As the officers

approached, the driver avoided eye contact, appeared

nervous, and leaned to reach his right hand toward

the center console. Based on those facts, the officers

ordered the driver out of the car, frisked him, and

found drugs. The First Circuit affirmed the suppression

of the evidence found in the frisk, focusing on the need

for separate analysis of whether there was reasonable
No. 09-4082 25

suspicion that the driver was armed and dangerous.

The high-crime area was a relevant factor, but so was

the fact that the reason for the stop was only minor

traffic violations “from which no assumption about

weapons may fairly be drawn.” Id. at 40. The driver’s

nervousness and movement did not justify the frisk:

“Nervousness is a common and entirely natural reaction

to police presence,” and the reach for the center

console was consistent with reaching for a license or

registration. Id. The First Circuit acknowledged the

vital need for police officers to protect themselves, but

it rejected the government’s argument, which “comes

too close to allowing an automatic frisk of anyone who

commits a traffic violation in a high-crime area.” Id. 

The Sixth Circuit affirmed the grant of a motion to

suppress in a similar case in United States v. Wilson, 506

F.3d 488 (6th Cir. 2007). Officers stopped a driver and

passenger who were not wearing seatbelts. Both were

nervous, and the driver rambled on in response to one

officer’s questions and said he had previously been convicted on a federal firearms charge. The car was

registered to a different person, and the driver talked on

his cell phone and then told the passenger, “They’re

coming.” The officers asked both to get out of the car

and then frisked them. The frisk of the passenger turned

up drugs. The Sixth Circuit held that the frisk of the

passenger was unconstitutional, concluding that the

only suspicious conduct that could be ascribed to the

passenger himself was his nervousness, which simply

was not enough to support the frisk. Id. at 495-96.
26 No. 09-4082

My colleagues rely on cases that place in sharp relief

the lack of any indication that Tinnie was armed and

dangerous. For example, my colleagues cite United States

v. Brown, 273 F.3d 747 (7th Cir. 2001), for the proposition that nervous movements may justify a frisk. But

Brown permitted a frisk where the defendant had acted

nervously before making a threatening “quick move”

when asked to step out of his vehicle. 237 F.3d at 748.

Tinnie, by contrast, never made a “quick move” (or any

other threatening move, for that matter) that Deputy

Kaiser could have perceived as threatening.

My colleagues’ reliance on Cady v. Sheahan, 467 F.3d

1057 (7th Cir. 2006), for the broad proposition that

evasive answers indicate dangerousness is equally unpersuasive. Cady was frisked not merely because he was

evasive, but because he was also “lurking outside a

courthouse well before it opened to the public, was shabbily dressed, had not showered, . . . claimed to be serving

federal process on a Sheriff’s officer . . . and repeatedly

reached into his briefcase.” Id. at 1062. Evasiveness

aside, it is hard to see how Tinnie is comparable to

Cady, whose strikingly unusual behavior certainly gave

law enforcement reason to believe that he posed a

danger to himself or others.

United States v. Oglesby, 597 F.3d 891 (7th Cir. 2010),

from which the majority claims that Tinnie’s mere

presence in a high-crime area is significant, is not on

point. In Oglesby, the defendant was present in a highcrime area, but he also had acted in a manner “potentially

calculated to keep a weapon hidden or out of reach”
No. 09-4082 27

and appeared to “be trying to confirm that his gun

[was] concealed and secured.” Id. at 895. By contrast,

Deputy Kaiser never indicated that he thought Tinnie

had tried to conceal a weapon, only that he believed that

Tinnie was “hiding something.” It has been clear since

Terry, though, that a belief that a person is acting suspiciously is just not enough to justify a frisk. Under

Terry, Deputy Kaiser needed more specific reasons for

believing that Tinnie posed a danger to himself or others.

We should not overlook Deputy Kaiser’s testimony

that his standard practice was to frisk anyone whom

he asks/orders out of a vehicle during a traffic stop. Of

course, an officer’s unconstitutional practice cannot

invalidate an otherwise-reasonable frisk. But such a

standard practice remains simply inconsistent with the

rule that frisks are forbidden absent a reasonable and

individualized suspicion that a suspect is armed and

dangerous, as set forth by Terry, Sibron, Ybarra, 444 U.S.

at 92-93 (finding no reasonable suspicion to support

frisk where defendant, “whose hands were empty, gave

no indication of possessing a weapon, made no gestures

or other actions indicative of an intent to commit an

assault, and acted generally in a manner that was not

threatening”), and a host of lower court decisions. My

colleagues speculate that perhaps Deputy Kaiser orders

passengers out of the vehicle only when he has constitutionally sufficient suspicion to conduct a frisk. But

Deputy Kaiser has the authority to order everyone out

of the vehicle, as a matter of course, every time he

conducts a traffic stop. Wilson, 519 U.S. at 410. So according

to his own testimony, Deputy Kaiser either (1) never
28 No. 09-4082

exercises this broad, wholly unqualified authority

unless he has constitutionally sufficient suspicion to

conduct a frisk; or (2) frisks a considerable number of

people without the constitutional authority to do so.

The first possibility is highly implausible. 

Christopher Tinnie is not a sympathetic candidate for

the protection of the Fourth Amendment or the benefits

of the exclusionary rule. He was guilty of being a felon

in possession of a concealed firearm, and an unusually

dangerous firearm at that. He has accumulated a lengthy

criminal record for, among other things, small-scale

drug crimes, battery, and unlawful use of firearms. But

the exclusionary rule is not applied for the benefit of

Tinnie or other criminals. It is applied to protect all

citizens from unreasonably intrusive, “proactive,” law

enforcement practices, even when carried out for

laudable goals. Deputy Kaiser did not have a reasonable

suspicion that Tinnie was armed and dangerous when

he frisked him in the course of the pretextual traffic stop.

I therefore respectfully dissent.

1-18-11