UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

No. 20-CR-00381

v.

Judge Mary M. Rowland

ROMEO HOLLOWAY

MEMORANDUM OPINION & ORDER

A Chicago Police Department officer and two Bureau of Alcohol, Tobacco, 

Firearms, and Explosives agents stopped and frisked Romeo Holloway (“Holloway”),

recovering a handgun. At the police station Holloway gave a Mirandized statement

and consented to a search of his cell phone. He is charged with being a felon in 

possession of a firearm under 18 U.S.C. § 922(g)(1). Holloway argues the officers 

violated his Fourth Amendment right to be free from unreasonable searches and 

seizures. (Dkt. 23). The Court held a suppression hearing on May 25, 2021. The 

parties filed supplemental briefing on October 29, 2021. (Dkts. 54, 55). Holloway’s 

motion to suppress is granted for the following reasons.

LEGAL STANDARD

The Fourth Amendment allows for a “limited intrusion into an individual’s 

privacy” if police officers have “reasonable suspicion to believe criminal activity is 

afoot.” United States v. Richmond, 924 F.3d 404, 411 (7th Cir. 2019) (citing Terry v. 

Ohio, 392 U.S. 1, 30 (1968)). Officers must be able to “point to specific and articulable 

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facts” when justifying intruding on an individual’s privacy by stopping them in public. 

Terry, 392 U.S. at 21. Reasonable suspicion is “more than a hunch” but less than 

probable cause, and significantly less than a preponderance of the evidence. See

Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). When justifying a frisk, an officer 

must also point to “articulable facts that would establish the separate and specific 

condition that the detainee has a weapon or poses some danger.” United States v. 

Williams, 731 F.3d 678, 686 (7th Cir. 2013) (citing Terry, 392 U.S. at 27). These are 

two distinct standards, requiring separate consideration. Id. See Williams, 731 F.3d 

at 682–83 (“if we determine that the initial stop [. . .] was unconstitutional, then we 

must also determine that all of the later occurrences, including the frisk and recovery 

of the firearm, were similarly unconstitutional, and likely warrant suppression.”).

ANALYSIS

A. The Stop

On July 21, 2020, Special Agents Chris Labno (Labno) and Rick Rayner 

(Rayner) of the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) 

met Officer Joseph Cappello (Cappello) at the Chicago Police Department’s 11th

precinct station. It was the first day of Operation Legend, a national initiative 

through which federal agents were deployed by the United States Department of 

Justice to partner with local police departments and target violent crime in cities. 

(Tr. 26:4–17, 65:19–23, 114:23–25).1 Agents Labno and Rayner asked Officer

1 The facts are taken from testimony and other evidence admitted during the suppression hearing held 

on May 25, 2021. The transcript of this hearing (Dkt. 52) is cited as Tr. followed by the page and line 

number.

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Cappello to “show them around the 11th District.” (Tr. 26:16–17). At around 7:00 PM 

they set out in an unmarked ATF vehicle, Agent Labno driving, Officer Cappello in 

the front passenger seat, and Agent Rayner in the rear right-hand passenger seat.

Cappello directed the ATF agents to the intersection of California Avenue and 

Flournoy Street, describing it as “a stronghold for the Cali Boy faction.” (Tr. 27:22).

He directed the agents to this area first because it was “closest to the district [police

station]” and because it was an area with “lot[s] of shootings, lots[s] of homicides, big 

in narcotics sales, [and] lot[s] of criminal activity.” (Tr. 28:16–21). 

Agent Labno turned onto Flournoy Street, driving eastbound. There were cars 

parked on the north side of Flournoy, and the officers were traveling at a speed of 

about 15 miles per hour. (Tr. 29:20–21, 44:15–17, 73:11–14). As the officers

approached, Officer Cappello saw Holloway standing on the north side of the street, 

walking toward a parked car. (Tr. 30:1–4). Officer Cappello told both ATF agents

Holloway “was on parole and that he’s a high-ranking member within the Cali Boys.” 

(Tr. 31:3–4). Agents Labno and Rayner both testified that Officer Cappello pointed 

out Holloway as a member of the Cali Boys who was on parole.2 (Tr. 72:7–11, 104-

05:25-1).

2 The Court is confident that Officer Cappello was familiar with the Cali Boys faction of the Traveling 

Vice Lords, as “a very predominant gang within the 11th District” where Officer Cappello had worked

for seven years. (Tr. 20:10-22). The Court also believes Officer Cappello knew Holloway in particular 

because, as a ranking member of the Cali Boys, Holloway had been discussed “in several briefings,” 

(Tr. 22:18–23, 23:4–6), and his photograph was displayed on bulletin boards at the 11th precinct police 

station. (Tr. 24-25). Therefore, United States v. Watson, 900 F.3d 892, 896 (7th Cir. 2018), finding that 

because it is legal to carry a handgun, “a mere possibility of unlawful use” is insufficient to establish 

reasonable suspicion, is not persuasive here. 

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Officer Cappello then saw Holloway “fidget” and “make movements towards 

his front waistband area.” (Tr. 31:7–9). According to Officer Cappello, this fidgeting, 

combined with Holloway’s “background history” made him suspect that Holloway was 

attempting to conceal a firearm. (Tr. 31:18–20). When asked to explain Cappello 

testified:

Based on my police experience and just having several hundred -- ... gun 

arrests and being a part of them, just observing subjects’ tendencies on the 

street is that I believe that Romeo Holloway was attempting to conceal some 

type of firearm in his front waistband area. (Tr. 31:11–15).3

Officer Cappello exited the vehicle to approach Holloway, and Holloway 

became visibly nervous, “eyes bulging”. (Tr. 32:5-8). For a second time Cappello saw 

Holloway “manipulating his front waistband area frantically.”4 (Tr. 33:19-20). Officer 

Cappello drew his weapon. (Tr. 33:22). 

According to Agent Labno, when Officer Cappello identified Holloway, Labno 

saw Holloway “pulling up his pants” and “blousing his shirt over his pants”. (Tr. 73:7–

10). Labno believed Holloway was concealing a weapon. Id. Agent Labno told Officer 

Cappello that he thought Holloway was concealing a gun, and Officer Cappello 

agreed. (Tr. 74:8–16). Agent Labno stopped the vehicle, “stood on [the vehicle’s] 

running board [and] unholstered [his] firearm.” (Tr. 76:13–14).

3 There is no bodycam evidence up to this point because Officer Cappello’s chest height camera was 

recording inside the vehicle. (Tr. 37:3-5).

4 Officer Cappello’s approach is reflected in the body cam at marker 1:41 seconds. The footage does not 

support Cappello’s memory that Holloway engaged in any frantic movements. (Tr. 33:17-22). 

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The parties agree that when the officers drew their weapons, Holloway was 

seized. (Tr. 117:20–118:15). The Court must determine whether, at that time, the 

officers had reasonable suspicion to subject Holloway to a stop. Reasonable suspicion 

turns on “the totality of the circumstances,” Richmond, 924 F.3d at 411, and whether 

the officer had “a particularized and objective basis for suspecting the particular 

person stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014).

The government bears the burden of establishing reasonable suspicion, United States 

v. Uribe, 709 F.3d 646, 650 (7th Cir. 2013). 

The government, acknowledging that presence in a high crime neighborhood 

is not enough to establish reasonable suspicion, asserts that this fact combined with 

Holloway’s “evasive behavior (moving his hand at his waist and mak[ing] a downward 

motion, consistent with concealing a firearm)” combined with the officers’ experience 

amounted to reasonable suspicion. (Dkt. 54 at 12-13). The government largely relies 

on the Seventh Circuit’s cases where an officer observes a bulge in a defendant’s 

clothing. Id. at 9 citing United States v. Wilson, 963 F.3d 701, 703 (7th Cir. 2020) 

(reasonable suspicion based on “conspicuous bulge” in suspect’s pocket, in high-crime 

area, and suspect’s evasive behavior); Richmond, 924 F.3d at 411-14 (reasonable 

suspicion based on evasive behavior in a high-crime area at night and a gun-like bulge 

in pocket); United States v. Adair, 925 F.3d 931, 934 (7th Cir. 2019) (reasonable 

suspicion where there was a “conspicuous, large bulge in the front pocket of 

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[defendant’s] jeans”). The problem with the government’s argument is that neither 

Officer Cappello nor Agent Labno saw a bulge prior to the stop.5

Holloway responds that in cases where the officer did not see a bulge, a fidget 

or a furtive movement at the waist is more akin to the Seventh Circuit’s jurisprudence 

on hands in pockets. (Dkt. 55 at 6-7). The Court agrees. In Williams, 731 F.3d at 686–

87, when responding to a nighttime 911 call in a high crime area, Williams “had his 

hands in his pocket or near his waistband, avoided eye contact, and began to move 

away from” the group being questioned by the police. The Williams court reasoned 

that “the simple fact that one’s hands are in one’s pockets is of a similar nature to 

one’s avoiding eye contact. In other words, it is of little value.” Id. at 689. See also

United States v. Howell, 958 F.3d 589, 600 (7th Cir. 2020) (reasonable to stop 

defendant where police are responding to 911 call, defendant resembled suspect, 

looked panicked and refused to respond to police; but no reasonable suspicion to frisk 

where 911 was from anonymous source, no indication person armed, no reasonable 

suspicion where all officer saw was defendant “appear nervous and panicked, fall 

silent, and put his hands in his pockets”—the court noted that “nobody claims he had 

a bulge in his pocket or made any move to hide anything.”). 

While any conduct must be considered in the totality of the circumstances, the 

Court finds that fidgeting with one’s waistband or pulling up one’s pants is more akin 

to having one’s hands in pockets (meaning it is innocent behavior) than being seen 

5 The government asserts Labno saw a “bulge consistent with a firearm”. (Dkt. 54 at 11). As discussed 

below, Labno’s testimony on this point was grossly exaggerated and is not corroborated by the body 

cam footage. It is not credited by the Court. Moreover, Labno testified that he saw the bulge after he 

pulled his weapon, so it could not support the stop in any event. (Tr. 78:5-15).

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with a bulge. Holloway relies on an out of district case that analyzed the scenario 

where a defendant grabbed his waistband (as opposed to placing hands in pockets) 

and based on the totality of the circumstances, found such conduct did not amount to 

reasonable suspicion. United States v. Davis, No. CRIM. H-08-028, 2008 WL 4372705, 

at *4 (S.D. Tex. Sept. 22, 2008), surveyed the cases involving high-crime areas where 

the defendant “grabbed or held his waistband in a manner consistent with possession 

of a concealed firearm[.]” Davis concluded that “the cases that approved a Terry stop 

all involved additional factors-such as unprovoked flight, evasion, an informant’s tip, 

or other activity consistent with crime” to support reasonable suspicion.6 Id. at *3. 

Davis himself was holding his pants by his waist, and when he saw the officers his 

“face changed to a nervous or ‘panicked’ expression, and his hand holding the clothing 

near his waist ‘clutched’ a bit more tightly.” Id. at *1. The Court granted the motion 

to suppress because otherwise it would be allowing “a stop and frisk whenever an 

officer in a high-crime area encounters an individual with a criminal history who 

wears baggy clothing [and] ... appears nervous in reaction to seeing the police but 

does not try to evade or flee.” Id. at *5.

6 The Davis court noted cases where defendant reached for his waist required some incriminating 

activity to support reasonable suspicion. See United States v. Hart, 2006 WL 851172 at *2 (E.D.La. 

Mar.14, 2006) (defendant saw police, immediately placed hands on waistband, then turned and headed 

toward front door of house); and United States v. Sutton, 2001 WL 238221 (E.D.La. Mar.9, 2001) (defendant saw police, grabbed waistband, turned and ran away from officers). In other cases where defendant grabbed his waistband, the officers had other reasons to suspect that the defendant was engaged in criminal activity. See United States v. Gooden, 2000 WL 1092856 *1 (E.D.La. Mar.2, 2000) 

(police responding to tip robbery taking place by suspect with a gun and defendant, who matched the 

description, grabbed for his waist); United States v. Samuels, 131 Fed. Appx. 859, 862-63 (3d Cir.2005) 

(bulge visible when officers responded to tip and defendant moved hand toward waist after being ordered to put hands up).

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The government argues that Officer Cappello relied on his experience. Officer 

Cappello testified he made the decision to stop Holloway because “[b]ased on my 

experience, just I believe that he was, in fact, in possession of that firearm.” (Tr. 

33:24-25). With respect, Officer Cappello had a hunch. Compare, United States v. 

Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (finding reasonable suspicion where 

officers questioning group and defendant “separated himself from the group by taking 

a few steps backward [and] angled his body away from [police] so that they were 

unable to view [his] right side” and defendant kept lowering his hand to his pants 

pocket after being ordered to raise hands and officers testified they relied on their 

experience and training because they were “trained to watch for such behavior” as a 

person who “pats his waistband may be trying to confirm that his gun is concealed 

and secured.”).

The Court concludes that the officers did not have reasonable suspicion—

meaning “specific and articulable facts” that crime is afoot—to justify stopping Romeo 

Holloway on July 21, 2020. Officer Capello, relying on Holloway’s criminal record, his 

fidgeting with this waistband, in his high crime neighborhood, had a hunch that he 

was carrying a firearm. The Fourth Amendment requires more. See e.g., United States 

v. Walden, 146 F.3d 487, 490–91 (7th Cir. 1998) (emphasis added) (cautioning that 

“[r]easonable suspicion of criminal activity cannot be based solely on a person’s prior 

criminal record” and finding that Walden’s criminal record combined with a traffic 

violation, and an “officer safety alert” that the Defendant was armed and dangerous

justified the stop and frisk to support reasonable suspicion finding); Matz v. Klotka, 

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769 F.3d 517, 523 (7th Cir. 2014) (emphasis added) (officers’ identification of 

Defendant as a member of the Latin Kings gang, was combined with their knowledge 

of his open warrant, and Defendant’s flight as officers approached, justified the stop).

B. The Frisk

As Officer Cappello rounded the back of the officers’ vehicle and approached 

Holloway he testified he saw Holloway “manipulating his front waistband area 

frantically” and making “a downward motion.” (Tr. 33:19–22). This testimony is not 

supported by Officer Cappello’s body camera footage. The footage shows Holloway 

moving his hand in the vicinity of his waistband but no frantic motion. (Dkt. 28 at 3). 

Additionally, according to Cappello, Holloway became visibly nervous.7 Officer 

Capello also testified that Holloway “bec[ame] very confused [and] almost attempted 

to run away from the vehicle.” (Tr. 48:16–17). The Court finds that this is contradicted 

by the body camera footage. At no time did Holloway make any movement that could 

be interpreted as an attempt to flee. Cappello immediately detained Holloway and 

“performed a protective pat-down [search].” (Tr. 34:18-19). 

Agent Labno was standing on the running board of the driver’s side ordering 

Holloway to show his hands. From this elevated vantage point he testified that he 

saw Holloway “pushing something down and throwing something. It was very—it was 

a very weird motion that he made. It was a two-handed at the same time, where he 

7 Nervousness is a natural response when law enforcement approaches and, while it is one factor that 

to consider when analyzing reasonable suspicion, “[n]ervousness alone, at least as a categorical matter, 

does not create reasonable suspicion that a suspect is armed and dangerous.” Howell, 958 F.3d at 593 

(citing Williams, 731 F.3d at 687 (recognizing that ‘[m]ost people, when confronted by a police officer, 

are likely to act nervous, avoid eye contact, and even potentially shift their bodies as if to move away 

from the area’).”

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pushed it through. And it was, quite honestly, confusing to me at first because I—I 

saw it and I—it was almost like he was making a giant motion and doing two things 

at once.” (Tr. 96:23–97:4). Agent Labno elaborated that “there appeared to be a bulge 

in his clothing which I thought was consistent with the butt of a handgun that he was 

pushing down.” (Tr. 97:7–9). The Court finds this testimony exaggerated. None of it 

is corroborated by the bodycam evidence. The parties displayed portions of the video-

-slowed it to frame by frame--and Holloway is never seen pushing “two handed” or 

making what would be considered a “very weird motion”. In addition, Officer Cappello 

would not be privy to Labno’s observations when he decided to frisk Holloway. The 

Court does not consider Labno’s testimony in determining reasonable suspicion to 

frisk. 

The government must establish Officer Cappello had “articulable facts that 

would establish the separate and specific condition that the detainee has a weapon 

or poses some danger.” Williams, 731 F.3d at 686 (citing Terry, 392 U.S. at 27). 

Because the Court does not find it credible that Holloway either tried to flee or 

“frantically” manipulated his waistband, the Court determines whether Officer

Cappello had reasonable suspicion to frisk based on Holloway’s felony record, known 

membership in a gang, furtive movements at his waist in his high crime 

neighborhood. The government stresses that the officers were “specifically patrolling 

areas on the west side that evening as part of a nationwide effort to combat violent 

crime in Chicago” and the block (2700 West Flournoy) “was Cali Boy territory, [and] 

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the Cali Boys were involved in shootings and carjackings, and ... that specific block 

was the site of violent crime and narcotics transactions.” (Dkt. 54 at 10). 

The violence plaguing Chicago is of great concern to the Court. And Officer 

Cappello’s knowledge of the area and Holloway’s felony and gang membership are 

part of the totality of the circumstances. But Fourth Amendment standards are not 

lower on 2700 West Flournoy. The officers were not responding to a 911 call or a 

shotspotter. They turned onto Flournoy and observed Holloway walking to a parked 

car, not engaging in any criminal activity (drinking on the public way, passing a 

baggie in a window, etc). He was not subject to an active warrant. He did not flee 

when he saw the unmarked police vehicle. The only conduct Holloway engaged in was 

touching has waistband—Officer Cappello, based on his experience and knowing 

Holloway, had a hunch Holloway was carrying a weapon. He appeared nervous to 

Officer Cappello. But he complied when told to raise his hands. The Court has 

exhaustively reviewed the case authority, the parties’ submissions, the officers’ 

testimony and the exhibits and does not believe the government has met its burden 

to establish Officer Cappello, who was correct in his hunch, had a reasonable 

suspicion to stop or frisk Holloway on July 21, 2020. 

C. Fruit of the Poisonous Tree

The Government does not contest Holloway’s assertion that, if the stop and 

frisk were unconstitutional, his subsequent statement, following Miranda warnings,

about possessing a gun and the photographs found in his phone following his consent 

are fruits of the poisonous tree. (Dkt. 23, 14–15). The government has therefore 

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waived any objection to this argument. See United States v. Leo, 792 F.3d 742, 749 

(7th Cir. 2015). Holloway relies on United States v. Ienco, 182 F.3d 517, 526 (7th Cir. 

1999) (suppressing statement and evidence from a subsequent search that were 

obtained as a consequence of an unlawful Terry stop); United States v. Williams, 702 

F. Supp. 2d 1021, 1026 (N.D. Ill. 2010) (“even if a consent to search is voluntary, it is 

still invalid unless the taint of the preceding illegality is sufficiently purged”). See 

also United States v. Jerez, 108 F.3d 684, 695 (7th Cir. 1997) (“we follow the strong 

body of case law in our circuit, as well as in other circuits, that has held ... that the 

voluntary consents [to search] were tainted by illegal stops, detentions or arrests.”); 

United States v. Palomino-Chavez, 761 F. App'x 637, 644 (7th Cir. 2019) (reversing 

denial of motion to suppress where stop and frisk was illegal and that illegality 

tainted defendant’s consent). The Court adopts the reasoning of these cases and 

suppresses the statement and search of the phone. 

CONCLUSION

For the reasons detailed above, the motion to suppress [23] is granted. This 

Order is stayed for thirty (30) days. The court strikes the status set for 12/21/21 and 

resets it to January 13, 2022 at 10:15 AM. Defendant will be present telephonically. 

Defendant shall remain in custody pending the stay. The time between today’s date 

and January 13, 2022 is excluded pursuant to 18 U.S.C. §§ 3161 (h)(1)(D), (H) and 

(h)(7)(A).

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Dated: December 13, 2021

E N T E R:

MARY M. ROWLAND

United States District Judge

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