In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3257

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARNOLD BREWER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:07-cr-00123-RLM-1—Robert L. Miller, Jr., Chief Judge.

ARGUED JANUARY 27, 2009—DECIDED APRIL 2, 2009

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The defendant appeals from his

conviction for illegal possession of a gun, for which he

was sentenced to six years in prison. The only question

presented by his appeal is whether he was stopped without reasonable suspicion, for it was in the course of the

stop that the gun was discovered.

It was 2:30 a.m. when a South Bend police officer

named Tutino was told by the dispatcher that there was

a fight at the Beacon Heights apartment complex, a group
2 No. 08-3257

of some 30-odd buildings renowned for criminality—shots

are fired there three or four times a week. As Tutino,

parked near the complex because of its being a frequent

site of crime, prepared to respond to the dispatch, he

heard a popping sound that he believed was gunfire

coming from the complex. Within minutes he was told

by the dispatcher that indeed shots had been fired.

Driving toward the complex on the only street by which

one can enter or leave it, Tutino was passed by a white

SUV coming from the opposite direction. It was—

unsurprisingly given the hour—the only vehicle on

the road. He radioed to other officers to watch for the

white SUV.

When Tutino reached the complex, bystanders told

him about the shots and that they had been fired from a

white SUV. He radioed the information to his dispatcher,

but by the time the information was received and transmitted another police officer had stopped the SUV,

which was driven by the defendant. The officer asked

the defendant whether he had a gun, and he admitted

that he had two, one in the car and one on his person.

Still other firearms were found in the car, though there

is no evidence that the shots heard by Tutino and others

came from any of the defendant’s weapons.

Since the stop was made before the officer who made

the stop learned that someone in the Beacon Heights

apartment complex had said that the shots had been

fired from a car that matched the defendant’s, that report

cannot be used to justify the stop. “The reasonableness

of official suspicion must be measured by what the
No. 08-3257 3

officers knew before they conducted their search.” Florida

v. J.L., 529 U.S. 266, 271 (2000); Terry v. Ohio, 392 U.S. 1, 21-

22 (1968). Without that report, the case is on the line

between reasonable suspicion and pure hunch, but we

think that in the unusual circumstances presented it

meets the test for reasonable suspicion.

It was a natural surmise that whoever fired the shots

had left the complex, and the street that the defendant’s

vehicle was driving on was as we said the only street

leading from it, and he was driving away from rather

than towards it. The hour reinforced the suspicion, since

few people are on the road at 2:30 a.m. and, sure enough,

there was no other traffic. Tutino and other officers

were about to enter the complex, and if the gunman

was not the driver of the white SUV he was still in

the complex—armed and dangerous. It behooved each

member of the police team to obtain for his own

safety and that of the other officers as much information

about the situation in the complex as he could before

they entered it in the dark. The only vehicle leaving it

might have been driven by an entirely innocent person

who nevertheless had valuable information.

It is unexceptionable for a police officer to approach a

bystander on the street and ask him whether he

knows anything about some matter that the officer is

investigating. The bystander doesn’t have to answer the

officer’s questions—he can turn on his heels and walk

away—but accosting an unsuspected bystander to ask

him a question does not violate the Fourth Amendment.

United States v. Drayton, 536 U.S. 194, 200 (2002). This is
4 No. 08-3257

true even though as a practical matter the approach of

the police officer will usually cause the person accosted

by him to stop walking. United States v. Broomfield, 417

F.3d 654, 656 (7th Cir. 2005).

The issue is more complicated when the officer wants

to stop a car to ask the driver or passengers something.

Such a stop is a greater intrusion on freedom of movement and peace of mind than when a pedestrian is accosted by a police officer on the sidewalk. Still, such

stops are permitted when the circumstances justifying

the creation of a roadblock are present. See, e.g., City of

Indianapolis v. Edmond, 531 U.S. 32, 41, 44 (2000); United

States v. O’Mara, 963 F.2d 1288, 1291-92 (9th Cir. 1992)

overruled on other grounds by United States v. Gergen, 172

F.3d 719, 722 (9th Cir. 1999); State v. Gascon, 812 P.2d 239,

241 (Idaho 1991); State v. Claussen, 522 N.W.2d 196, 199

(S. Dak. 1994). And the Supreme Court in Illinois v.

Lidster, 540 U.S. 419, 424 (2004), upheld a roadblock

designed not to intercept the criminal (a driver who had

been involved in a hit and run accident a week earlier)

but to question persons who traveled on the same road

and may therefore have observed the crime. See also

State v. Gorneault, 918 A.2d 1207, 1209 (Maine 2007); Burns

v. Commonwealth, 541 S.E.2d 872, 883-84 (Va. 2001). The

Court said in Lidster that “it would seem anomalous

were the law (1) ordinarily to allow police freely to seek

the voluntary cooperation of pedestrians but (2) ordinarily

to forbid police to seek similar voluntary cooperation

from motorists.” 540 U.S. at 426; see also United States v.

Goodwin, 449 F.3d 766, 769-70 (7th Cir. 2006); United

States v. Burton, 441 F.3d 509, 511 (7th Cir. 2006).
No. 08-3257 5

The government in this case does not seek to justify the

stop of the car on the rationale of the roadblock cases.

Neither party mentions those cases, and we take note of

the Supreme Court’s observation in Delaware v. Prouse,

440 U.S. 648, 657 (1979), that in encountering a roadblock “the motorist can see that other vehicles are being

stopped, he can see visible signs of the officers’ authority,

and he is much less likely to be frightened or annoyed

by the intrusion.” That was not true here. But it is

pertinent to note that, as in Lidster, the police in this case

had a compelling reason to ask questions of the driver

or passenger of the sole vehicle departing from a building

complex in which shots had been fired (and not for the

first time), in order to protect the police officers who

were about to enter the complex. And the natural first

question to ask the driver was whether he had a gun,

since he might be the gunman rather than a witness.

This case is thus remote from the “standardless and

unconstrained” police conduct at issue in Delaware v.

Prouse, supra, where the Supreme Court forbade the

practice of randomly stopping drivers to check their

driving license and automobile registration when there

was no reason to suspect the driver of having violated any

traffic ordinance or other law. 440 U.S. at 661. Officer

Tutino was not acting randomly in deciding that the

only car emerging from the apartment complex moments

after he heard shots from within it should be intercepted.

He could not count on being able to do that himself,

because he was alone, so he radioed another officer to

ensure that the drivers of any vehicles leaving the apartment complex immediately after the shooting would be
6 No. 08-3257

stopped and questioned, and this was easily effectuated

because there was only one exit from the scene of the

crime.

Tutino had three years’ experience with criminal

activity in the particular housing complex, was parked in

a position in which he had an unobstructed view of the

only exit from the complex, heard gunfire, received

confirmation of a report of shots fired, and saw a vehicle

emerge seconds later from the complex. That vehicle—the

white SUV—was the only vehicle on the road at that late

hour in this high crime area, and it was pulled over and

stopped for only moments before the officers making the

stop learned that the SUV had been seen at the

site of the shooting and that the occupants may have

been involved in the shooting. Less than a minute later

the defendant admitted that he had guns in the car.

When we consider the dangerousness of the crime,

the brevity of the interval between the firing of the

shots and the spotting of the sole vehicle quickly exiting,

the minimal intrusion on the occupants of the vehicle,

the need of the police to inform themselves of the conditions in the complex before endangering themselves by

entering it in the dark, and the further need to stop potentially fleeing suspects until more information about the

crime could be obtained, we conclude that the police

acted reasonably, and therefore that the judgment must be

AFFIRMED.

4-2-09