                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2372
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellant,
                                 v.

DARION FORD,
                                                Defendant-Appellee.
                          ____________
         Appeal from the United States District Court for the
          Northern District of Indiana, Hammond Division.
                No. 02 CR 13—Rudy Lozano, Judge.
                          ____________
      ARGUED JANUARY 9, 2003—DECIDED JUNE 26, 2003
                          ____________


  Before RIPPLE, ROVNER and EVANS, Circuit Judges.
  RIPPLE, Circuit Judge. Darion Ford activated a metal
detector at the entrance of a roller skating rink. An off-
duty police officer, acting as a security guard at the rink,
frisked him and discovered a drug scale, crack cocaine,
and approximately $1,500 in cash. Mr. Ford subsequently
was charged with violating 21 U.S.C. § 841(a)(1) by know-
ingly possessing with the intent to distribute a controlled
substance. The district court granted Mr. Ford’s motion
to suppress the evidence that had been found on his per-
son. The Government appeals that decision. For the rea-
sons set forth in this opinion, given the record and the pro-
2                                              No. 02-2372

cedural posture of this case, we must affirm the decision
of the district court.


                            A.
  The Roller Dome, a roller skating rink in Hammond,
Indiana, employs two off-duty uniformed police officers
on Saturday nights as security guards. Officer Thomas
began his shift at 10:30 p.m., immediately after the end of
his police patrol shift. While working at the Roller Dome,
he remained dressed in his full uniform and was wearing
his service revolver. His patrol car was parked outside
the Roller Dome; his canine partner remained inside his
vehicle.
  Prior to beginning his shift at the Roller Dome, Officer
Thomas saw Mr. Ford in the parking lot of the establish-
ment. Mr. Ford had parked in a parking space designated
for handicap persons. Officer Thomas advised Mr. Ford
of the designation, and Mr. Ford moved his car to an-
other space without incident.
  There is a foyer immediately inside the Roller Dome.
The ticket window is located there. Signs advise patrons
that items such as alcohol and weapons are prohibited.
Beyond the ticket window is the entrance to the facility’s
skating rink. Above this doorway is a sign that reads: “You
are important to us and we are doing even more to pro-
tect you.” Hr’g Tr. 04/12/02 at 15. A metal detector is
located beyond this interior doorway. The “doing even
more to protect you” sign was put up after the metal
detector was installed. The owner of the Roller Dome
testified that the reason she installed the metal detector
was for the safety of her clientele, most of whom are
children and teenagers. The rink is in a high crime area;
gang members have been known to patronize the rink,
No. 02-2372                                              3

and screwdrivers and knives have been found by the
owner near the Roller Dome’s dumpster.
  There is no place near the metal detector for patrons to
empty their pockets of benign metal objects. Nor are
patrons asked to remove or identify any metal items be-
fore they walk through the metal detector. Officer Thomas
testified that, pursuant to Roller Dome policy, he per-
forms a pat-down search on every male patron who acti-
vates the metal detector. Officer Thomas further testified
that the detector was activated frequently. Items such
as pens, watches and buckles would cause the alarm to
sound. See id. at 47.
  Mr. Ford went through the metal detector and activated
the alarm. Officer Thomas, who was at his post near the
detector, said “step forward.” Id. at 31. Mr. Ford ap-
peared nervous, looked around, reached for his breast
pocket, and started to back away—but said nothing. Officer
Thomas pulled Mr. Ford’s hands up and performed a pat-
down search. Officer Thomas felt a hard, heavy, metal
object in Mr. Ford’s breast pocket. He looked inside
Mr. Ford’s pocket and saw a scale and residue of what
he believed to be crack cocaine. Officer Thomas asked Mr.
Ford to step outside.
  Once outside, Mr. Ford pushed Officer Thomas and tried
to run, but Officer Thomas quickly apprehended him,
conducted him to his patrol car and threatened to release
his canine partner unless Mr. Ford stopped resisting. Offi-
cer Thomas then performed another pat-down in which
he discovered crack cocaine and approximately $1,500
on Mr. Ford’s person.
  Officer Thomas testified, and the district court found
his testimony credible. He said that searches of Roller
Dome patrons had produced weapons such as Chinese
4                                             No. 02-2372

stars, knives and homemade knives. He had never found
any firearms. Officer Thomas further stated that Roller
Dome patrons have walked into the facility but exited
prior to passing through the detector. He does not
search such people. He also testified that people have
walked through the metal detector, turned around and
walked out, and that he does not follow such people out
of the building and search them. He testified that, if Mr.
Ford had turned around and walked out of the Roller
Dome after activating the metal detector, Officer Thomas
would not have searched Mr. Ford. Notably, neither Offi-
cer Thomas nor any signs at the Roller Dome informed
Mr. Ford that he could refuse to be searched and just
exit the Roller Dome.
  Mr. Ford was charged with knowingly possessing
with intent to distribute a controlled substance in viola-
tion of 21 U.S.C. § 841(a)(1). Mr. Ford moved to have the
scale, crack cocaine and cash suppressed on the ground
that it was discovered through an unlawful search. He
contended that both the search by the metal detector and
the subsequent pat-down were unreasonable searches.
  The district court held that the metal detector search
implicated the Fourth Amendment because of Officer
Thomas’ involvement with the search, but that the Roller
Dome’s practice of employing a metal detector to search
patrons was reasonable. Nevertheless, the district court
held that the pat-down was an unreasonable search. The
Government argued that the pat-down was reasonable
because Mr. Ford appeared nervous, looked around,
stepped backward and reached for his pocket after he
activated the metal detector. The Government addi-
tionally relied on the facts that the rink is in a high
crime area, it was 10:30 p.m., numerous children were
present and Mr. Ford had parked in a handicap parking
space. The district court stated,
No. 02-2372                                                5

    It would be disingenuous to justify the pat-down
    performed on Defendant based on the above factors
    given Officer Thomas never testified that the high
    crime area, time of day, or parking event factored
    into his decision to search and based on the fact that
    the decision to search Defendant, as indicated by Offi-
    cer Thomas saying, “step forward,” was made prior
    to Defendant reaching for his pocket. Also, as noted
    previously, Officer Thomas testified he initially decided
    to search Defendant because of Roller Dome policy.
    Therefore, the Government may only rely upon the
    activation of the metal detector to justify the pat-down.
R.32 at 20-21 (internal citations omitted).
  The court then concluded that activation of the de-
tector alone was not sufficient to give rise to reasonable
suspicion and was distinguishable from other metal de-
tector activation cases because Mr. Ford was not asked if
he was carrying any metal or to otherwise explain, nor
was he asked to remove metal items from his pocket.
  Finally, the court found that Mr. Ford did not consent
to the pat-down search, noting that he stepped away from
Officer Thomas. The district court therefore granted
Mr. Ford’s motion to suppress.


                             B.
  We begin our analysis of this matter by addressing sev-
eral threshold, but important issues.
  First, we note that the standard of review for the situa-
tion before us is well-established:
    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. Therefore, we
6                                              No. 02-2372

    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 . . . under the clear error standard.
United States v. Brown, 232 F.3d 589, 591-92 (7th Cir. 2000)
(internal quotation marks and citations omitted). The par-
ties expressly state that they do not dispute the district
court’s findings of facts, see Br. of Appellant at 7; Br. of
Appellee at 4, thus our review of the question presented
is de novo.
  Before proceeding further, we also must note—indeed,
we stress—the unusual posture in which this case comes
to us for decision. The Government, in its brief and ex-
pressly at oral argument, stated that it had chosen not
to argue either that Officer Thomas was not a state actor
or that Mr. Ford had consented to the pat-down search
by proceeding through the metal detector. Because both
of these arguments have been waived expressly, the issues
of state action and consent to the pat-down search are
not before us. Consequently, the only issue before us is
whether Officer Thomas had a reasonable suspicion to
undertake a protective pat-down for weapons because
of Mr. Ford’s activation of the metal detector, his other
activity prior to the search, and the surrounding circum-
stances such as the late hour, the high crime area and
Mr. Ford’s initial parking in a handicap space.


                            C.
  The principles that govern the factual situation before
us are well-settled. “An officer may conduct a protective
pat-down for weapons if a reasonably prudent man in
the circumstances would be warranted in the belief that
his safety or that of others was in danger.” United States
No. 02-2372                                                   7

v. Holifield, 956 F.2d 665, 667 (7th Cir. 1992) (internal quota-
tion marks and citations omitted). That is, “[a] protective
pat-down search . . . is appropriate only if the agents
have at a minimum some articulable suspicion that the
subject is concealing a weapon or poses a danger to the
agents or others (unless, of course, the subject consents to
the search).” United States v. Pedroza, 269 F.3d 821, 827 (7th
Cir. 2001). This analysis is objective: “It is important to
remember that we are not limited to what the stopping offi-
cer 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.” Brown, 232 F.3d at 594 (internal quotation
marks and citations omitted; emphasis added). Moreover,
we look at “the totality of circumstances known to the
officer[].” United States v. Jackson, 300 F.3d 740, 745 (7th
Cir. 2002) (internal quotation marks and citations omit-
ted). Given the objective nature of this standard, the
district court erred to the extent that it failed to consider
the totality of the circumstances and to the extent that
it relied upon the subjective intent of Officer Thomas.
Nevertheless, as we shall explain in more detail in the
following paragraphs, given the narrow ground on which
the Government attempts to sustain the search, we
must conclude that the district court reached the correct
result when it held that the pat-down was unreasonable.
  Our first task is to ascertain the point at which Fourth
Amendment concerns became implicated. We have ex-
plained:
    [T]he Supreme Court applied a two-part test to decide
    whether a person had been seized such that Fourth
    Amendment protections are triggered (whether that
    seizure be an arrest, a Terry stop, or otherwise): first,
8                                               No. 02-2372

    determine whether any physical force simultaneously
    accompanied the officer’s show of authority, and
    second, determine whether the defendant failed to
    comply with that show of authority. If no physical force
    accompanied the show of authority and a person
    chose to ignore or reject that show of authority, the
    defendant is not seized until the officer applied
    physical force and the person submitted to the offi-
    cer’s show of authority. . . .
      . . . [U]nder this test, a fleeing suspect—even one who
    is confronted with an obvious show of authority—is
    not seized until his freedom of movement is ter-
    minated by intentional application of physical force
    or by the suspect’s submission to the asserted authority.
United States v. $32,400.00, in United States Currency, 82
F.3d 135, 138-39 (7th Cir. 1996) (internal quotation marks
and citations omitted).
  Under the approach that we have outlined, we believe
that Mr. Ford was seized when Officer Thomas pulled up
his arms and began to pat him down. Had Mr. Ford
stepped forward, as asked, his submission to the officer’s
show of authority would have triggered the protections
of the Fourth Amendment. However, according to the
record, when the officer said, “step forward,” Mr. Ford
stepped back, which does not constitute submission to
the asserted authority. Therefore, the Terry stop began
when Officer Thomas pulled up Mr. Ford’s arms and
performed the pat-down.
  Having determined the point at which Fourth Amend-
ment concerns control, we must now evaluate, under an
objective standard, the totality of the circumstances
known to Officer Thomas at that time and determine if “a
reasonable officer in those circumstances would have
been suspicious.” Brown, 232 F.3d at 594 (internal quota-
No. 02-2372                                                  9

tion marks and citations omitted). Consequently, in deter-
mining whether the pat-down was reasonable, we must
evaluate all of the circumstances prior to Officer Thomas
pulling up Mr. Ford’s arms.
  We look first at what the record tells us about Mr.
Ford’s appearance at that moment. As we have just noted,
he stepped backward, not forward, he exhibited a ner-
                                                  1
vous appearance, and reached at his breast pocket.
  The circumstances surrounding the encounter are
also relevant to our inquiry. At this particular metal de-
tector checkpoint, and unlike most such checkpoints, the
patrons were not asked to remove benign metal objects.
Indeed, the record affirmatively shows that the patrons
were not provided with a place to remove any benign
metal objects, such as keys, change, or a watch, from
their pockets or persons. Under these circumstances, Mr.
Ford’s activation of the metal detector and subsequent
reaching at his pocket was insufficient to create a reason-
able suspicion that would justify a protective pat-down.
Almost anyone who passes through a metal detector and
activates it is alarmed and reaches for those areas of cloth-
                                             2
ing that might have triggered the alarm. Such actions
do not give rise to reasonable suspicion to perform a pat-


1
  As testified to by Officer Thomas, after Mr. Ford activated
the metal detector and was asked to step forward, “[h]e immedi-
ately started looking around and looking real nervous. He
took his hand and actually went for his pocket.” Hr’g Tr.
04/12/02 at 31.
2
  Again, we emphasize that the Government has waived ex-
pressly the argument that Mr. Ford’s passage through the
metal detector manned by a uniformed officer constituted
consent to the pat-down search. It also has waived the argu-
ment that the police officer was a private actor.
10                                               No. 02-2372

down, which requires that “a reasonably prudent man in
the circumstances would be warranted in the belief that
his safety or that of others was in danger.” Holifield, 956
F.2d at 667 (internal quotation marks and citations omit-
ted). Other factors such as the late hour and high crime
area hardly improve the Government’s case. The fact
remains that anyone with a pen, a watch, a bet buckle or
other such benign metal object would have triggered
the alarm.
  We note that our decision today is compatible with
the approaches of other courts that have had to rule on
the reasonableness of searches involving the activation
of metal detectors. Notably, in those cases, a determination
of reasonable suspicion was not premised merely on the
circumstances here. Rather, the person, having initially
activated the detector, was asked to remove metal from his
pocket, to go through the detector a second time, or to
take some other measure to improve the accuracy of the
test. See United States v. Epperson, 454 F.2d 769, 770, 772
(4th Cir. 1972) (upholding frisk where person activated
metal detector, was subsequently asked to remove metal
objects from clothing or person and pass through a second
time, and then activated detector a second time before
officer frisked his jacket); McMorris v. Alioto, 567 F.2d 897,
901 n.3 (9th Cir. 1978) (upholding courthouse search
procedures directing that if person activated detector,
he subsequently would be asked to remove any metal
from his person and pass through a second time, if ac-
tivated on second pass, the person was only admitted
to courthouse if he expressly consented to a pat-down);
United States v. Dalpiaz, 494 F.2d 374, 375 (6th Cir. 1974)
(upholding search where defendant had activated
metal detector three times and was asked each time to
remove all metal objects from his pockets).
No. 02-2372                                               11

  Because, on this record, the pat-down was unreason-
                                                         3
able, we must affirm the judgment of the district court.


                       Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                  AFFIRMED

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




3
  We need not address Mr. Ford’s argument that the metal
detector search itself was unreasonable.


                   USCA-02-C-0072—6-26-03
