In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2991

United States of America,

Plaintiff-Appellee,

v.

Lawrence Brown III,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-17--Barbara B. Crabb, Judge.


Argued September 15, 2000--Decided November
14, 2000




  Before Flaum, Chief Judge, and Kanne and
Williams, Circuit Judges.

  Flaum, Chief Judge. Lawrence Brown III
was convicted, following his guilty plea,
of possession of two sawed-off shotguns
and a destructive device. Brown now
appeals his conviction, arguing that the
district court erred in denying his
motion to suppress evidence gathered as a
result of a protective pat-down search.
For the reasons stated herein, we affirm.

Background
  December 27, 1998 turned out to be a
difficult day for Brown. His encounter
with Edgerton police officer Chris
Chilson evolved from a series of
incidents that occurred during the
afternoon and early evening of that day.
At approximately 4:15 p.m., Chilson
received a dispatch order to investigate
a citizen’s complaint of intoxicated
driving. He was told that the incident
involved a red and black Chevy Blazer
with the Wisconsin license plate number
CEZ-802. Before arriving at the
complainant’s home, Chilson ran the plate
number and learned that the vehicle was
registered to Larry and Vicky Brown of
Edgerton, Wisconsin. Chilson was familiar
with Brown from an earlier contact and
knew that he was a light-skinned African
American male in his early 40’s.
Previously, Chilson had seen Brown "face-
to-face" at Edgerton High School when
Chilson, acting in a backup capacity, had
run Brown’s record for warrants.

  Chilson talked to the complainant and
ascertained that the red and black Chevy
Blazer had just left her area. Initially
she had approached the driver because he
was honking his horn. The driver, who
claimed to be in the wrong place, refused
to tell her his name. When she asked the
driver to leave her premises, he called
her a bitch and proceeded to drive into
the back of her Blazer, damaging it.
After this exchange took place, the
driver then drove toward the end of a cul
de sac. He proceeded to turn around in a
driveway that had a chain in front of it
in order to prevent people from using it
in this very manner. In the process of
doing so, the driver drove over the chain
and post, breaking both, and then drove
away with the chain and post attached to
the front of his Blazer, while he
"flipped [the complainant] the bird."
While being interviewed, the complainant
described the driver as being a white
male in his late 30’s to early 40’s with
dark hair and a mustache. This
description, according to Chilson, seemed
to match that of Brown. The complainant
felt that the driver was probably intoxi
cated based upon the manner of his
speech, his inappropriate language, and
his driving. Another individual also
witnessed these events and provided
Chilson with a similar report.

  While on duty later that evening Chilson
received another dispatch message telling
him that a Chevy Blazer with the license
plate number CEZ-802 (Brown’s Blazer
license plate number) had left a
McDonald’s just outside the Edgerton city
limits and that the driver seemed to be
drunk. Chilson drove to the part of
Edgerton nearest to the McDonald’s,
hoping to come across the allegedly
intoxicated driver, whom he presumed to
be Brown. State Trooper Kronau advised
Chilson that the Blazer was approaching
the city limits of Edgerton. Chilson
discovered the Blazer parked on Wileman
Drive, with its headlights on, and the
engine running. Although parking on
Wileman Drive is not illegal, it is not a
residential street, and so Chilson
thought this was an unusual place to
stop. While driving toward the Blazer,
Chilson noticed that a chain was hanging
from the Blazer’s front bumper. He turned
on his red and blue lights to commence a
stop and parked behind the Blazer.
Thereafter, Rock County Deputy Davies
arrived and stood to the rear of Brown’s
window while Chilson approached the
driver’s window. Chilson recognized the
defendant as Brown and saw that he was
eating a sandwich and drinking from a
McDonald’s cup. Chilson did not smell any
odor of intoxicants nor did he observe
any empty containers that might have held
alcohol. What he did notice was that
Brown’s eyes were moving slowly and
deliberately and that his speech was
slurred. Brown was also wearing a jacket.


  Chilson told Brown that his vehicle was
suspected of being involved in two hit-
and-run accidents and that several people
had described a person matching his
appearance who was driving intoxicated.
Chilson then asked Brown to step out of
the car because he desired to conduct
field sobriety tests. Brown complied and
Chilson directed him to place his hands
on the truck while he proceeded to
conduct a pat-down search. While the pat-
down was occurring, State Trooper Kronau
arrived on the scene and stood on
Chilson’s left while Deputy Davies stood
to Chilson’s right. During the pat-down,
Chilson felt hard objects under Brown’s
arms and discovered a loaded .45 handgun.
At this point, the officers handcuffed
Brown behind his back. While continuing
to pat down Brown, Chilson found a loaded
Taurus .454 revolver in his waistband and
discovered that Brown was wearing a
bullet proof vest. The officers then
arrested Brown for weapons violations and
searched his trunk and found additional
weapons and other suspected contraband.
The Bureau of Alcohol, Tobacco, and
Firearms later became involved and
obtained a search warrant for Brown’s
house. This search resulted in the
recovery of contraband and additional
federal charges against Brown.

  The district court denied Brown’s motion
to suppress the evidence that was
obtained as a result of the protective
pat-down and all the subsequent evidence
arising out of this incident. The
district court concluded that the frisk
of Brown was appropriate: A reasonable
officer in the situation of Chilson would
have ensured that Brown was not armed.
Brown’s behavior earlier in the day as
well as the circumstances at the time
that he was stopped on Wileman Drive
created a situation where a police
officer would have found it necessary to
conduct a protective pat-down search. The
district court did not affirm, however,
the magistrate judge’s conclusion that
the search was justified as a search
incident to arrest. Brown pleaded guilty
to Count 3 of the indictment (possessing
two sawed-off shotguns and a destructive
device), but the plea was conditional, so
Brown reserved his right to appeal the
district court’s adverse determination on
his motion to suppress. This
appealthereafter followed.

Discussion

  In reviewing the district court’s
decision on a motion to suppress, we
review questions of law de novo and
questions of fact for clear error. United
States v. Williams, 209 F.3d 940, 942
(7th Cir. 2000); United States v. Faison,
195 F.3d 890, 893 (7th Cir. 1999).
Therefore, "we review de novo the
ultimate conclusion that the police did
not have reasonable suspicion to stop or
search the individual, but we review all
findings of historical fact and
credibility determinations deferentially,
under the clear error standard." United
States v. Johnson, 170 F.3d 708, 712-13
(7th Cir. 1999). In this case, the
defendant is not challenging the district
court’s factual findings. He is
questioning the district court’s
conclusion that the protective pat-down
search was proper based upon reasonable
suspicion under the Fourth Amendment and
accordingly we review the district
court’s finding de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996)
("[A]s a general matter determinations of
reasonable suspicion and probable cause
should be reviewed de novo on appeal.").

  When an individual is stopped by a
police officer, this incident can
potentially involve two stages: (1) the
actual stop itself; and (2) a protective
pat-down search. The initial detention of
an individual is justified if the police
officer is stopping and briefly detaining
"a person for investigative purposes, so
long as the officer has a reasonable
suspicion supported by articulable facts
that criminal activity ’may be afoot.’"
Johnson, 170 F.3d at 713 (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
Brown does not contend that Chilson
lacked the authority to stop and detain
him for investigative reasons. The
protective pat-down, which occurred
during the second part of the
investigatory stop, is what Brown argues
was unwarranted. When conducting a
protective pat-down during a Terry stop,
"the officer must be able to point to
specific and articulable facts that the
individual is armed and presents a risk
of harm to the officer or to others." Id.
at 713.

  The district court stated that it was
incumbent upon "the government to show
that Chilson had a reasonable suspicion
that defendant might be armed and
dangerous." In deciding whether Brown was
dangerous or not, the district court
concluded that "[t]he inquiry is
objective: would a reasonably prudent
person believe in the circumstances that
the individual he is dealing with is
armed and dangerous?" The events leading
up to the protective pat-down of Brown
revealed his "potential dangerousness."
Chilson had "reliable reports" that Brown
appeared drunk at approximately 4:00 p.m.
and 8:00 p.m. Furthermore, reports
relayed that Brown had used his "sport
utility vehicle as a battering ram" and
that he was not "particularly
cooperative" when approached by Chilson.
According to the district court, the
"[d]efendant could be characterized as a
belligerent drunk, that is, one who is a
potential danger even if unarmed."
Nonetheless, the district court
acknowledged that it was a "close
question" as to whether a reasonable
police officer would have believed Brown
might be armed and that it was necessary
to conduct a protective pat-down. What
made the protective pat-down a "close
question" was the lack of specific facts
indicating that Brown possessed a weapon.
Chilson had no report that Brown was
carrying a weapon nor did he see anything
in Brown’s Blazer suggesting that he was
armed. Nonetheless, the district court
judge concluded that a reasonable police
officer would have conducted a pat-down
of Brown based on: (1) his "very strange
behavior during that day;" (2) the fact
that Brown was wearing a jacket that
could have been concealing a weapon; (3)
the fact that Brown was eating in a dark
and unpopulated area; and (4) the reality
that Brown was going to be outside his
vehicle for the sobriety tests and not in
physical custody. All of these factors
combined made it prudent, in the judgment
of the district court, for Chilson to
ensure Brown was unarmed.

  Brown argues that the district court
erred in its conclusion because: (1)
Chilson subjectively did not fear that
Brown was armed; and (2) the objective
facts do not suggest that Chilson was
warranted in conducting a protective-pat-
down. Brown contends that the test as to
whether a police officer has properly
conducted a protective pat-down is not
strictly objective, but rather the test
has a subjective component as well.
Chilson did say that he frisked Brown for
his own safety and for the safety of
others. However, Chilson also admitted
that he usually frisked people when he
suspected them of drunk driving. Brown
argues that this shows Chilson’s practice
of frisking drunk drivers is routine and
is not based on any particularized facts.

  Alternatively, Brown contends it would
have been unreasonable for a police
officer to believe that he was armed and
dangerous considering the circumstances.
Brown argues that he was legally parked
along a non-residential roadside. At the
time, he contends that he was eating
something and drinking from a McDonald’s
cup. During the two minute conversation
with Chilson, Brown talked slowly and in
a slurred tone. Although initially
sarcastic and hesitant, Brown then fully
cooperated with Chilson. All the alleged
prior events at the time of the pat-down,
according to Brown, were not yet
confirmed. Brown also argues that his car
was illuminated by the headlights of the
two marked police cars and neither
officer drew his gun before the pat-down.
When Chilson approached Brown, Brown did
not smell of alcohol, Chilson did not see
any weapons, nor did Brown appear to have
weapons in his truck. Brown asserts that
he was not physically assaultive toward
anyone that day, and after initially
being sarcastic, he cooperated with
Chilson. All of these facts taken
together, according to Brown, indicate
that a reasonable police officer would
not have perceived him as armed or
dangerous.

  Factual circumstances can be painted in
various lights, as seen by the differing
versions presented by the district court
and Brown regarding the events that
occurred on December 27, 1998. Brown’s
account of the events that day portrays
his situation in a sympathetic light,
although his rendition on closer
inspection raises some suspicions. That
fateful day, among other incidents, Brown
had run into the complainant’s car and
drove over a chain and post fence. Brown
perceives the consequences of the day’s
incidents as unlucky and unjustified.
These very events though were not viewed
by others as mere disturbances. The
complainant was concerned about Brown’s
behavior enough to notify the police and
provide them with his license plate
number. Whether Brown’s behavior rises to
the level of being a danger to the police
and others is at the heart of the issue
in this case. We therefore have to try to
envision the position of Chilson on the
night in question.

  We should try to step back and observe
what an outsider would think of the day’s
events. In Terry itself the court said
that a police officer "need not be
absolutely certain that the individual is
armed" because "the issue is whether a
reasonably prudent man in the
circumstances would be warranted in the
belief that his safety or that of others
was in danger." Terry v. Ohio, 392 U.S.
1, 27 (1968). With this perspective in
mind, we can begin to look at how
oneparticular day in Brown’s life led to
his current situation. One must remember
that Brown had not started his day on a
positive note; he had run into the
complainant’s car and run over a chain
and post fence. Brown heightened the
level of concern regarding his actions by
showing indications that he was drunk and
belligerent. This type of behavior would
make a reasonable police officer question
Brown’s state of mind.

  Brown continued to act in an unusual
manner. After Chilson had already heard
from the complainant and another witness
about the events earlier in the day, he
received a dispatch around 8:20 p.m. that
a driver, who appeared drunk, had just
left from McDonald’s in a Blazer
andChilson presumed that this was Brown.
Upon arriving at the scene, Chilson saw a
chain hanging from the front bumper of
the Blazer--a remnant from Brown’s
earlier escapade. At this point Chilson
identified himself and told Brown why he
was there, to which Brown responded by
asking whether it was illegal to park and
eat where he was located. This remark led
Chilson to categorize Brown as a "maybe"
person. A "yes" person is someone Chilson
believes will cooperate and a "no" person
is an individual that he believes will
not cooperate. Brown even said that
"[b]ased on his attitude, [he] felt there
was a risk of him possibly leaving or
fleeing or fighting." One must remember
that Chilson had knowledge of Brown’s
earlier behavior in the day and had no
reason to trust that Brown would
cooperate. Chilson even said that he
conducted the pat-down search for his
"safety and the safety of everyone on the
scene." If one were observing the
interaction between Brown and Chilson
that evening, it would be apparent that
Brown was not the most cooperative
individual. Furthermore, Brown was parked
in a less than populated area with
inadequate lighting and there were
reports that he was drunk.

  What perhaps makes this case somewhat
unusual is that Chilson was very candid.
Chilson admitted that he "usually"
conducts a protective pat-down during
sobriety tests. Had Chilson only said
that he labeled Brown as a "maybe" person
and that he felt Brown was a danger to
himself and others, then it would have
been difficult for Brown to question
Chilson’s subjective state of mind.
However, to take this one admission by
Chilson and extrapolate that he
improperly frisked Brown without any
individualized suspicion that he
presented a danger to himself and others
appears unfair in the context of this
case.

  Chilson should not be penalized because
he did not provide a very sensationalized
version of the facts in order to shore up
his justification for the protective pat-
down. His honest responses should be
commended. He merely characterized Brown
as a "maybe" person, mentioned that he
was a possible danger, and that he
usually pats down people during sobriety
tests. He did not expound upon the fear
that he felt when approaching Brown in
his car or describe Brown’s behavior in
such a manner as to preclude anyone from
questioning his rationale for conducting
the protective pat-down search. A police
officer conducting a stop is not required
to "precisely and individually articulate
the facts that added up to suspicion in
his mind." United States v. McKie, 951
F.2d 399, 402 (D.C. Cir. 1991) (per
curiam). Perhaps Chilson is not the type
of officer who can articulate readily his
sense of fear or perhaps his own
particular disposition makes him less
forthcoming about these potentially
dangerous situations.

  If we were to parse every reason as to
why Chilson decided to conduct a
protective pat-down search of Brown, we
would inevitably find inconsistencies and
a scenario riddled with competing
justifications. This still would not
negate the reality that Brown was acting
erratically and somewhat aggressively
throughout the late afternoon to early
evening period and therefore posed some
concern. It 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." Id. at 402.

  To judge Chilson’s behavior solely upon
his subjective and very personal reaction
to the Brown situation would lead to
"judicial micromanagement, oversight, and
second-guessing of officers’ behavior to
far-reaching dimensions, quite beyond
that required to ensure compliance with
the law (and into the very danger-laden
areas where officers must confront the
most delicate and dangerous decisions)."
United States v. Bonner, 874 F.2d 822,
829 (D.C. Cir. 1989). Chilson did not
conduct a pat-down of Brown based upon
some sort of "inchoate and
unparticularized suspicion or ’hunch.’"
Terry, 392 U.S. at 27. Brown provided
Chilson with adequate provocation to be
concerned about his own safety and the
safety of others, considering his
behavior earlier in the day and his
initial reaction to Chilson as well as
his slow eye movement and deliberate and
slurred speech. Taken as a whole, Brown
had acted erratically throughout the day,
and a reasonable police officer would
have wondered whether Brown posed a
threat to himself or herself or others.
However, notwithstanding our decision
that the officer’s conduct was reasonable
in this case, considering the stated
practice of Chilson, one should not read
into the opinion any implicit approval of
the frisking of drivers during routine
traffic stops for drunk driving.

Conclusion

  Brown’s behavior on December 27, 1998
would have caused a reasonable individual
to pause and wonder about his or her
safety, thereby warranting a protective
pat-down search. Chilson acted as a
prudent person in the situation and
therefore we Affirm the district court’s
decision.
