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

No. 05-2130
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                               v.

TROY S. BURTON,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 04-CR-245—J. P. Stadtmueller, Judge.
                        ____________
    ARGUED FEBRUARY 15, 2006—DECIDED MARCH 20, 2006
                        ____________


 Before POSNER, ROVNER, and SYKES, Circuit Judges.
  POSNER, Circuit Judge. Troy Burton appeals from his
conviction for being a felon in possession of a gun. He
argues that the gun was seized in violation of the Fourth
Amendment and should therefore not have been used as
evidence against him.
  Three police officers on bicycles were watching a house
from which, according to an informant, illegal drugs were
being sold. They saw a car, driven by Burton, who was
accompanied by a woman in the front passenger’s seat, stop
near the house with its motor running. A man named
2                                                 No. 05-2130

Johnson came from the adjacent house and, standing in the
street on the driver’s side of the car, leaned through the
driver’s open window. After seeing two passing cars swerve
to avoid hitting Johnson, the police approached the car on
their bicycles. One of the police officers placed his bicycle in
front of the car and the others placed their bikes on either
side of the car. An officer asked Johnson why he was
standing in the street and he replied that he was “just
talking to friends,” but when the officer asked him who the
friends were he was unable to identify either Burton or
Burton’s passenger. The officer then asked Burton whether
he had a driver’s license on his person. Burton answered
that he did not. An officer patted down Johnson, discover-
ing a knife. When the officers noticed Burton, still inside the
car, repeatedly reaching into one of his pockets, they
ordered him out of the car, patted him down, and discov-
ered a gun. They issued Johnson a ticket for impeding
traffic. Wis. Stat. § 346.29(2).
  It is a reasonable, in fact a compelling, inference that the
police placed their bikes where they did in order to make
sure that Burton didn’t drive away before they satisfied
themselves that there was no criminal activity afoot. By
doing this they “seized” the car, though in a severely
attenuated sense. Burton’s car was stopped, albeit with its
motor running, when the police approached, because
he was talking (probably transacting) with Johnson. He
could hardly have driven away with Johnson leaning into
the window. Between the time the police moved Johnson
away from the car to frisk him and the time they learned
that Burton was not carrying a driver’s license and was
fussing in a suspicious manner with something in his
pocket—a concatenation of suspicious circumstances that
justified their ordering him out of the car and frisking
him—only a few minutes elapsed. The net delay may
No. 05-2130                                                   3

have been zero, since Burton’s transaction with Johnson was
not complete. Had the police kept their distance, Burton
would have remained stopped until he finished striking the
drug deal with Johnson and the latter went and fetched the
drugs.
  Contrary to popular belief, the Fourth Amendment does
not require that a search be based on probable cause to
believe that the search will yield contraband or evidence
of crime. The amendment requires that warrants be based on
probable cause, but forbids only unreasonable
searches. What is unreasonable depends on circum-
stances, including how intrusive the search is—how
costly, in other words, to the person searched. There is a big
difference between police ransacking a house in a search for
evidence and stopping a pedestrian and asking him whether
he’s seen a fleeing man in a Santa Claus costume. Even
though “approaching a person on the street (or at work, or
on a bus) to ask him a question causes him to stop for at
least the time needed to hear the question and answer (or
refuse to answer),” United States v. Childs, 277 F.3d 947, 950
(7th Cir. 2002) (en banc), the curtailment of the bystander’s
mobility, privacy, and peace of mind is so slight that neither
probable cause nor reasonable suspicion is required to
justify the police action. No suspicion at all is required in
such a case, id.; United States v. Broomfield, 417 F.3d 654, 656
(7th Cir. 2005); United States v. Hooper, 935 F.2d 484, 489 (2d
Cir. 1991), or is present if the person stopped really is a
bystander—the police do not suspect the bystander of being
the Santa Claus imposter. Cf. Illinois v. Lidster, 540 U.S. 419
(2004). The intermediate case is the Terry stop, that is, a stop
and frisk; since people are averse to being frisked, the courts
require reasonable suspicion, Terry v. Ohio, 392 U.S. 1 (1968),
except in special circumstances, such as airport searches.
4                                                 No. 05-2130

  The principle that emerges from the cases is that the less
protracted and intrusive a search is, the less suspicion the
police need in order to be authorized by the Fourth
Amendment to conduct it, and vice versa. As we ex-
plained years ago in United States v. Chaivez, 919 F.2d 1193,
1197-98 (7th Cir. 1990) (citations omitted),
    It is “common sense that if the Fourth Amendment is
    intended to strike a balance between the interest of the
    individual in being left alone by the police and the
    interest of the community in being free from the menace
    of crime, the less the interest of the individual is im-
    paired the less the interest of the community need be
    impaired to justify the restraint.” Consideration of the
    extent of intrusion abounds in modern Fourth Amend-
    ment doctrine. Stops that do not entail detention need
    not be justified by any suspicion. Searches incident to
    arrest may be justified by the reduced marginal intru-
    sion of searching a defendant already in custody. The
    Court based Terry itself on the fact that a protective
    search is a “brief, though far from inconsiderable,
    intrusion upon the sanctity of the person.” Recently the
    Court upheld automobile checkpoints where the police
    made stops without any individual suspicion, in part
    because of the minimal “intrusion resulting from the
    brief stop at the sobriety checkpoint.” . . . The scale
    extends in both directions. If an intrusion is greater than
    a traditional arrest, probable cause is not enough.
      These cases describe a continuum in which the
    necessary degree of confidence increases with the
    degree of intrusion. A “stop” without limiting the
    suspect’s freedom requires no suspicion; a brief deten-
    tion calls for reasonable suspicion; an arrest requires
    probable cause; invasive techniques such as surgery
No. 05-2130                                                   5

    require more. What if the intrusion lies somewhere
    between Terry and arrest, neither a “brief, investiga-
    tory” stop nor a traditional arrest, where the defendant
    is handcuffed, trundled into a paddy wagon, carted to
    the station, fingerprinted, and held in a 12’ x 8’ cell?
    One answer would be to deny that there is a “be-
    tween”—to insist that all encounters must be either
    Terry stops or arrests. Yet circumstances defy such
    simple categorization, and if a line must nonetheless
    be drawn it will be arbitrary, with nearly identical cases
    on opposite sides. Trying to force a continuous world
    into two categories is not only impossible but also
    unnecessary when the text of the Constitution calls for
    inquiry into “reasonableness”. Why abandon the search
    for reasonableness when the intrusion falls between
    arrest and stop?
       Pigeonholing is no boon for defendants: it has put
    considerable pressure on the limits of the Terry doctrine.
    Both the permissible reasons for a stop and search and
    the permissible scope of the intrusion have expanded
    beyond their original contours, in order to permit
    reasonable police action when probable cause
    is arguably lacking.
In the present case, no frisk of the defendant occurred
until the police had grounds for reasonable suspicion based
on the tip about the drug house (uncorroborated, yet
deemed solid enough to justify assigning three police
officers to watch the house), Johnson’s emergence from the
adjacent house (though even if he’d been coming from the
suspected drug house itself, this would not by itself have
justified the stop, United States v. Johnson, 170 F.3d 708, 716-
17 (7th Cir. 1999)), his curious positioning of himself in the
street, his not knowing his “friend” ’s name, his possessing a
knife, and the defendant’s furtive gestures. A natural
6                                                 No. 05-2130

inference was that Johnson was negotiating a sale to
Burton of illegal drugs. The car was “seized,” however,
earlier, on the basis merely of the drug-house tip, Johnson’s
emergence from the adjacent house, and the position he
assumed in the street. The government doesn’t argue that
the mounting suspicion of illegal activity had yet reached
a point at which they could have ordered Burton out of his
car so that they could frisk him. No matter. For it justified
their taking the less intrusive step of keeping him from
driving away while they checked out Johnson, since if
Johnson was a criminal, Burton might well be one too. See
United States v. Clark, 337 F.3d 1282, 1283-84, 1288 (11th Cir.
2000). That was a minimal stop, requiring only minimal
suspicion; and that the police had.
                                                    AFFIRMED.




  ROVNER, Circuit Judge, concurring in the judgment. After
seeing two cars swerve to avoid striking Johnson as he
leaned through the window of Burton’s car, police offi-
cers had ample cause to effectuate at least a limited sei-
zure of Johnson—if for no other reason than to get him
out of the way of moving traffic. Having legitimate rea-
son to seize Johnson, I believe the officers were also justified
in temporarily detaining Burton and his passenger by
surrounding his car. The officers were approaching three
strangers on the street in the immediate vicinity of a house
reputed to be the site of narcotics trafficking. They had
reason to be concerned for their own safety as well as that of
passing motorists and pedestrians. Stationing themselves on
three sides of Burton’s automobile—against which Johnson
was leaning—was a reasonable means of asserting control
No. 05-2130                                                 7

over the scene until such time as Johnson was cleared from
the roadway and the officers were satisfied that neither he
nor Burton nor his passenger posed a danger. In the mo-
ment or two that it legitimately took the officers to do this,
it is possible that they acquired the information that inde-
pendently justified the (further) detention of Burton—he
was driving without a license. As the record stands, we do
not know whether the questioning that produced that
disclosure prolonged the initial seizure, nor do we know
whether during that questioning the officers removed one
or more of the bicycles that were blocking the path of
Burton’s car. Gaps in the record such as these are readily
explainable: Burton did not make below the particular
seizure argument that he is making on appeal, resulting in
an evidentiary record that is not as well developed as it
should be and depriving us of relevant factual findings by
the magistrate and district judges. The government un-
wisely has not argued that Burton forfeited his argument;
consequently, it waived the forfeiture. But that waiver does
not fill in what is missing from the record, and because
Burton is responsible for the omissions, it is reasonable
to resolve any evidentiary ambiguities against him. Based
on the record we have, it is reasonable to assume that
the police officers initially detained Burton no longer
than was necessary to deal with Johnson’s obstruction of
traffic and to provide for their own safety and that with-
in that time period Burton disclosed his own traffic in-
fraction. That is sufficient to resolve Burton’s Fourth
Amendment claim, and I would say no more about whether
seizures that are unsupported by either probable cause or
reasonable suspicion may nonetheless be sustained as
reasonable based on their relative brevity and minimal
degree of intrusiveness.
8                                            No. 05-2130

A true Copy:
       Teste:

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




                USCA-02-C-0072—3-20-06
