In a well-known search and seizure case, Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that a police officer could conduct a "brief investigatory stop" based on reasonable suspicion and, in conjunction with that stop, pat down the target for weapons. In Terry, the police officer "had become thoroughly suspicious" based upon his observation of two men engaged in "elaborately casual and often repeated reconnaissance," which appeared to him to be efforts of "casing a job, a stickup." "Reasonable suspicion" requires more than an "inarticulate hunch," but Terry permitted this limited intrusion based on a lower threshold than the showing of probable cause required to obtain a search warrant. In four recent cases, the U.S. Court of Appeals for the Seventh Circuit has explored the outer limits of the Terry doctrine.

United States v. Richmond, 924 F. 3d 404 (7th Cir. 2019), dealt with a man, Antoine Richmond, who was observed shortly before midnight in the "high crime area" where he happened to live.  He had his hand in a pocket and the police observed a bulge in the pocket. The police officer suspected Richmond had a gun. After noticing the police, Richmond crossed the front lawn of a residence (coincidentally, his home), walked onto the porch, and placed an unknown object between the outer screen door and the closed front door of the house. The police approached Richmond. One stood between him and the closed door. The police officer opened the door, observed a weapon, and arrested Richmond. The Seventh Circuit upheld the denial of the suppression motion. The court found Richmond was engaged in suspicious conduct supporting a Terry stop and a search of the area in which Richmond might access a weapon.

Chief Judge Diane Pamela Wood dissented. She emphasized the search was of Richmond's home and its "curtilage." An individual's home is "first among equals" under the Fourth Amendment and the basis for the officer's suspicion was equally descriptive of lawful conduct.  To Wood, the search was based on nothing but a hunch, which was insufficient to justify the Terry stop.

In United States v. Rickmon, 952 F. 3d 876 (7th Cir. 2020), the court dealt with a search prompted by a surveillance network of GPS-enabled acoustic sensors called "ShotSpotter" used to triangulate the source of gunfire. An officer received a ShotSpotter report of gunshots at a location. The officer received a radio report that several cars had been seen leaving the location where the shots had been fired. As he neared the location, the officer saw a car heading in his direction. The officer activated his emergency lights and stopped the vehicle. The car's occupants pointed in the direction from whence they had come, where a crowd of 15 to 20 people were gathered 300 feet away at the street's dead end, and said "they are down there!"  The office stayed with the car and, after backup arrived, the officer noticed that a passenger of the vehicle had been shot in the leg. A search of the vehicle revealed a weapon, for which Rickmon was convicted.

On appeal, Rickmon argued that ShotSpotter, on its own, does not allow police officers to stop a vehicle without any individualized suspicion of the occupants of the vehicle. The court generally agreed, but concluded the totality of the circumstances supported the investigatory stop.  Those circumstances included that there were two ShotSpotter alerts (which the court analogized to an anonymous tip); the officer was responding to an emergency report of gunshots, not a report of general criminality; the officer encountered Rickman less than six minutes after the ShotSpotter reports; there was no other traffic in the area; and the officer was familiar with prior shootings in that area.

Wood again dissented. To her, the only fact that distinguished the car the officer choose to stop "was that it existed, and that it was the only car in the street at that early hour of the morning." To conclude that an occupant in the car was associated with the shots was, to the dissenting judge, pure speculation.

The court again addressed the Terry doctrine in Hall v. City of Chicago, 953 F. 3d 945 (7th Cir. 2020), a recent civil case. The plaintiff brought a Section 1983 action against the city of Chicago alleging that the city violated the rights of plaintiff and the class he sought to represent by stopping him for violating a city panhandling ordinance. During these street stops, officers ask the detained individual to produce identification, which the officers use to check for outstanding warrants. The plaintiff argued the investigatory stop exceeded the outer bounds of Terry. The Seventh Circuit upheld the police conduct. It concluded that officers may execute a name check on an individual "incidental to a proper stop under Terry" as long as "the resulting delay is reasonable." While the length of the detention could transform the stop into an unlawful seizure, the court found the officer's warrant check during a street stop was not per se unreasonable where the officer had reasonable suspicion of criminal activity, in this case aggressive panhandling. Even where that stop resulted in an extended delay, the court found it to be reasonable within the bounds of the Fourth Amendment.

Very recently, the Seventh Circuit addressed the Terry doctrine in United States v. Howell, No. 18-3157 (7th Cir. May 4, 2020). In Howell, the police responded to a 911 call reporting a man climbing under a warehouse fence. The officers arrived on the scene, found someone who matched the description of the suspect, but determined that he was not engaged in any crime. That individual directed the police to Howell, who was walking towards the police. The police approached Howell and questioned him. He did not answer, looked "panicked," and put his hands in his pockets. After patting down Howell, the police found a gun. Howell was convicted on the gun charge arising out of that search; the Seventh Circuit reversed. Evaluating the record from the pretrial suppression hearing, rather than considering additional facts adduced at trial, the court concluded the initial Terry stop was a reasonable seizure. The frisk, however, was not.  The anonymous tip was insufficient to justify the frisk and there was no corroboration. There was no emergency, ongoing crime, report of weapons or any imminent danger. Moreover, the court found the police officer's report that Howell was nervous and "panicked" when approached by the police was insufficient to create a reasonable suspicion that Howell was armed and dangerous. Nervousness is more salient, the court observed, when accompanied by other suspicious behavior that suggests a risk to the officer's safety. A panicked look and silence, not accompanied by furtive movements, does not justify a pat down search.

As these cases demonstrate, the Terry doctrine requires courts to assess the reasonableness of police conduct in the fast-changing and often dangerous world of law enforcement. On one hand, these cases reveal the difficult issues courts face in deciding when a suspicion is reasonable, as opposed to being just a hunch, and in distinguishing pretextual stops from legitimate police conduct. On the other hand, these cases may signify judicial willingness to defer to police judgment and practices where the initial detentions are brief and the police officers' hunches prove to be correct.

Michael T. Brody is a partner at Jenner & Block. Brody serves as co-chair of the firm's appellate and Supreme Court practice and co-chair of its class action practice.