USA v. Randy Johnson
Filed opinion of the court by Judge Easterbrook. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge; Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge; Ilana Diamond Rovner, Circuit Judge; Ann Claire Williams, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge, dissenting. (Circuit Judge Hamilton, joined by Circuit Judges Rovner and Williams, dissenting.) [6879729-1]  [15-1366]--[Edited 10/27/2017 by MM to update docket text for clarification regarding dissent.]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14-CR-25 — Rudolph T. Randa, Judge.
ARGUED NOVEMBER 30, 2016 — DECIDED OCTOBER 27, 2017
Before WOOD, Chief Judge, and FLAUM, EASTERBROOK,
KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit
EASTERBROOK, Circuit Judge. Police in Milwaukee saw a
car stopped within 15 feet of a crosswalk, which is unlawful
unless the car is “actually engaged in loading or unloading
or in receiving or discharging passengers”. Wis. Stat.
§346.53. One police car drew up parallel to the stopped car,
while another drew up behind. Shining lights through the
car’s windows (it was after 7 P.M. in January), police saw a
passenger in the back seat try to hide a firearm. Randy Johnson, the passenger, was prosecuted for possessing a weapon
that, as a felon, he was forbidden to have. 18 U.S.C.
§922(g)(1). After the district court denied his motion to suppress the gun, see 2014 U.S. Dist. LEXIS 135367 (E.D. Wis.
Sept. 25, 2014), adopting 2014 U.S. Dist. LEXIS 135374 (E.D.
Wis. Aug. 7, 2014), Johnson entered a conditional guilty plea
and was sentenced to 46 months’ imprisonment. A panel of
this court affirmed the conviction, 823 F.3d 408 (7th Cir.
2016), but that decision was vacated when the full court decided to hear the appeal en banc.
Johnson concedes that the car was stopped 7 or 8 feet
from a crosswalk. The district court held that this gave the
police probable cause to issue a ticket, a process that entails a
brief seizure of the car and its occupants. As Officer Conway
approached he saw Johnson make movements that led him
to infer that Johnson was hiding something such as alcohol,
drugs, or a gun. Concerned for his safety, Conway ordered
Johnson to get out of the car. See Pennsylvania v. Mimms, 434
U.S. 106 (1977) (officers making a traffic stop on probable
cause may require a car’s occupants to get out). Once the
car’s door was open, Conway saw a gun on the floor. This
led to Johnson’s arrest.
Johnson says that the judge should have suppressed the
gun, because the statutory exception for receiving or discharging cargo or passengers means that the police did not
have adequate reason to issue a ticket or even to approach
the car until they had observed long enough to know that
the car was not within the scope of the exception. The district court rejected that contention, as do we.
First, the district court found that, when the police approached, all four doors of the car were shut and no one was
standing nearby, so that the exception was inapplicable. 2014
U.S. Dist. LEXIS 135374 at *6 (“there is simply no evidence
that the SUV was engaged in loading or unloading, or in receiving or discharging passengers, as the doors to the vehicle
were closed and there is no evidence that any individuals
were in the immediate vicinity of the vehicle”). That finding
is not clearly erroneous. Indeed, Johnson does not contest it.
Second, although Johnson contends that Wisconsin’s judiciary would treat a driver’s stop to buy something from a
nearby store as within the “loading or unloading or … receiving or discharging passengers” exception, we need not
address that issue of state law. Officers who had probable
cause—recall that it has been stipulated that the car was
within 15 feet of the crosswalk—were entitled to approach
the car before resolving statutory exceptions. Police possessed of probable cause can hand out tickets (or make arrests) and leave to the judicial process the question whether
a defense, exception, proviso, or other limitation applies.
See, e.g., Baker v. McCollan, 443 U.S. 137, 145–46 (1979);
Hurem v. Tavares, 793 F.3d 742, 745–46 (7th Cir. 2015); Askew
v. Chicago, 440 F.3d 894, 896 (7th Cir. 2006). Parkingenforcement patrols approach stopped cars countless times
every day. Depending on what they find, sometimes they
write tickets and sometimes they don’t. If the car is occupied, the difference may turn on what the driver says. The
Fourth Amendment requires searches and seizures to be reasonable; it does not demand that police and other public officials resolve all possible exceptions before approaching a
stopped car and asking the first question.
When denying Johnson’s motion to suppress, the district
court relied on Whren v. United States, 517 U.S. 806 (1996),
which holds that probable cause to believe that a car’s driver
is engaged in speeding or another motor-vehicle violation
supports a stop and arrest—and that the possibility of an ulterior motive, such as a desire to investigate drugs, does not
matter, because analysis under the Fourth Amendment is
objective. Johnson, who believes that the police had an ulterior motive for approaching his car, contends that Whren
does not apply to infractions by stopped cars, which he labels parking violations rather than moving violations.
Yet Whren did not create a special rule for moving offenses. The two doctrines that underlie Whren’s holding—(1)
that probable cause justifies stops and arrests, even for fineonly offenses, and (2) that analysis of search-and-seizure issues disregards the officers’ thoughts—are of general application. See, e.g., Los Angeles v. Mendez, 137 S. Ct. 1539, 1546–
47 (2017) (collecting cases); Arkansas v. Sullivan, 532 U.S. 769,
771 (2001); Atwater v. Lago Vista, 532 U.S. 318 (2001).
We assumed in United States v. Shields, 789 F.3d 733, 744–
46 (7th Cir. 2015), that Whren applies to parked as well as
moving vehicles, and to parking violations as well as moving violations. Every other circuit that has addressed the issue expressly has so held. See Flores v. Palacios, 381 F.3d 391,
402–03 (5th Cir. 2004); United States v. Copeland, 321 F.3d 582,
594 (6th Cir. 2003); United States v. Choudhry, 461 F.3d 1097,
1101 (9th Cir. 2006) (collecting cases). If there were to be a
difference, it would be easier to deem “reasonable” (the constitutional standard) an officer’s approach to a car already
stopped than the halting of a car in motion. “[I]f police may
pull over a vehicle if there is probable cause that a civil traf-
fic violation has been committed, then [the police] surely did
not violate the Fourth Amendment by walking up to [a suspect], who was sitting in a car that rested in a spot where it
was violating one of [a city’s] parking regulations.” United
States v. Thornton, 197 F.3d 241, 248 (7th Cir. 1999).
United States v. Paniagua-Garcia, 813 F.3d 1013 (7th Cir.
2016), and United States v. Flores, 798 F.3d 645 (7th Cir. 2015),
do not hold otherwise. Both of these decisions concern the
circumstances under which moving vehicles may be stopped
on reasonable suspicion. Cf. Terry v. Ohio, 392 U.S. 1 (1968).
The stop of a moving vehicle is more intrusive than approaching a parked car. Because the police approached
Johnson’s car with probable cause to believe that the driver
was violating a traffic law, and the car was not moving, it is
unnecessary to consider today how Terry applies when cars
are in motion. It is enough to conclude that Whren applies to
both parking and moving offenses.
We grant that the police did more than just stroll up: two
squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away. The
district judge treated this as a seizure; so do we. But issuing
a ticket always entails a brief seizure. Johnson concedes that
the driver of a car approached with probable cause to investigate a parking offense is not entitled to leave. What is
more, when the officers approached this parked car, no one
was in the driver’s seat. (The driver was inside a liquor store
making a purchase.) So both as a matter of the suspects’ legal entitlements and as a matter of brute fact, it did not make
any difference whether the police approached with two cars
rather than one, or whether the cars’ spotlights were on.
Johnson’s car was not going anywhere.
The district court concluded that the way in which the
stop was conducted was not responsible for the gun’s discovery. 2014 U.S. Dist. LEXIS 135374 at *13–16. That finding is
not clearly erroneous. We therefore do not consider whether
the officers’ show of force was excessive under the circumstances. The United States contends that the use of two cars
and searchlights was reasonable to reduce the risk the officers faced in making a nighttime stop in a high-crime area,
circumstances in which a city will not rely on foot patrols to
enforce traffic laws. Cf. Arizona v. Johnson, 555 U.S. 323 (2009)
(discussing steps that officers may take for self-protection
during auto stops). The district court did not address that
subject; we do not either.
Finally, it is worth noting that Johnson has never contended that the police considered the race of the car’s occupants when deciding to approach it, or when deciding to use
two cruisers rather than one. Indeed, Johnson has not contended that the police even observed the race of the car’s occupants until after they approached it; recall that Johnson’s
principal contention is that police had the car in view for only an instant before deciding to approach. We therefore do
not consider whether, and if so when, using racial criteria to
select among potential targets of investigation would require
the suppression of evidence.
HAMILTON, Circuit Judge, joined by ROVNER and WILLIAMS,
Circuit Judges, dissenting. Five officers in two police cars
seized the passengers of a stopped car. The officers swooped
in on the car, suddenly parking close beside and behind it
with bright lights shining in from both directions, opening the
doors, pulling all the passengers out and handcuffing them.
The district court found, and the majority and I agree, that the
passengers were seized as the officers swarmed them, before
the officers had any sign that one passenger had a firearm.
The sole basis for this intrusive and even terrifying “investi‐
gatory stop”? A suspected parking violation … for parking
too close to an unmarked crosswalk.
The majority errs by extending Terry v. Ohio, 392 U.S. 1
(1968), and Whren v. United States, 517 U.S. 806 (1996), to allow
this pretextual seizure based on the suspected parking viola‐
tion. This extension is not supported by existing law. It also
runs contrary to the core Fourth Amendment standard of rea‐
sonableness. No other appellate court has tolerated such po‐
lice tactics to address a suspected parking violation. Nor
should we, at least absent extraordinary circumstances not
present here. We should find a Fourth Amendment violation
in this seizure of the passengers in the car idling outside a
As applied to moving traffic violations, Fourth Amend‐
ment doctrine has evolved in recent decades to give police of‐
ficers so much discretion, including the power to conduct pre‐
textual traffic stops, that some scholars have described this
power as the “the twentieth‐century version of the general
warrant.” Sarah A. Seo, The New Public, 125 Yale L.J. 1616, 1669
(2016); see also Barbara C. Salken, The General Warrant of the
Twentieth Century? A Fourth Amendment Solution to Unchecked
Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221
(1989) (written before the most dramatic expansions of this
discretion). The doctrinal evolution has enabled stops for
what is often called “driving while black.” See generally, e.g.,
David A. Harris, “Driving While Black” and All Other Traffic Of‐
fenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim.
L. & Criminology 544 (1997). Unless the target of such a sei‐
zure can offer evidence of racial motivation in the particular
case, which is rarely available, such seizures are difficult to
By extending Terry and Whren to the suspected parking vi‐
olation in this case, the majority errs by taking the further step
of enabling seizures that can be used for “parking while
black.” The majority’s extension of doctrine is arguably defen‐
sible. But defensible does not mean correct. Cf. City of Indian‐
apolis v. Edmond, 531 U.S. 32, 41–42 (2000) (drawing line to
block drug checkpoints in city, despite arguable support for
practice in Supreme Court precedents, “to prevent such intru‐
sions from becoming a routine part of American life”). The
police tactics here would never be tolerated in more affluent
neighborhoods. This extension will further erode the Fourth
Amendment, trading away privacy rights of some for the
hope of more security for others, and stripping those targeted
in searches of both security and privacy. We should find that
the tactics in this case violated the Fourth Amendment. I re‐
The Fourth Amendment provides: “The right of the peo‐
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be vio‐
lated … .” “This inestimable right of personal security belongs
as much to the citizen on the streets of our cities as to the
homeowner closeted in his study to dispose of his secret af‐
fairs.” Terry v. Ohio, 392 U.S. 1, 8–9 (1968). In Terry, the Su‐
preme Court struck a practical and necessary balance between
protecting privacy and allowing effective law enforcement. Id.
at 20–21. Terry did so by allowing a brief investigatory stop in
response to signs of an imminent armed robbery.
In applying Terry, “which is grounded in the standard of
reasonableness embodied in the Fourth Amendment,” the
court “balances the nature and quality of the intrusion on per‐
sonal security against the importance of the governmental in‐
terests alleged to justify the intrusion.” United States v. Hens‐
ley, 469 U.S. 221, 228 (1985); see also 4 Wayne R. LaFave,
Search and Seizure § 9.2(c) (5th ed. 2012) (“The Terry rule
should be expressly limited to investigation of serious of‐
fenses.”). When the governmental interest is based on a car
parked too close to a crosswalk, the balance looks very differ‐
ent from the balance in Terry. The alleged governmental inter‐
ests pale in comparison to the intrusion on personal security
in this seizure.
Before digging into the doctrinal issues, consider the cir‐
cumstances of this seizure. It was just after 7:30 p.m. on Janu‐
ary 8, 2014 in Milwaukee. It was dark and very cold, during
the memorable “Polar Vortex” of that winter. The air temper‐
ature was eight degrees Fahrenheit, with a wind‐chill of
twenty degrees below zero and eight inches of snow on the
ground. The streets were quiet.
In a tough neighborhood in Milwaukee, five police officers
were patrolling together in two squad cars. They were part of
the Milwaukee Police Department’s Neighborhood Task Force
Street Crimes Unit assigned to patrol so‐called “hot spots.” As
one officer testified, “part of our initiative is to look for
smaller infractions and hope that possibly they may lead to
bigger and better things,” posing the danger of police over‐
reach that was realized here.
In this search for “bigger and better things,” the officers
saw a car parked on a side street in front of a liquor store. The
motor was running. The officer in charge saw an opportunity.
The car was within fifteen feet of a crosswalk. That meant it
might have been parked illegally.
The officer in charge made a split‐second decision. The po‐
lice cars quickly turned onto the side street and closed in on
the parked car—one police car pulled up next to and a little in
front of the parked car, and the other pulled up right behind
it. From both directions, the police lit up the parked car with
headlights and spotlights. The five officers got out of their
cars and immediately opened the doors of the parked car,
shined a flashlight at the passengers, and ordered the passen‐
gers out of the car and handcuffed them. One, defendant
Johnson, was unlawfully in possession of a firearm that he
had placed on the floor of the car.
The district court found, and the majority agrees, that the
car’s passengers were seized the moment the police cars
pulled up next to and behind the parked car. From that mo‐
ment, the passengers could not have felt free to walk away.
This was not a reasonable seizure. It cannot be justified as
the constitutional equivalent of an officer strolling up to a
parked car to see if the driver or passengers are willing to
chat. The passengers in the car were seized, and in a sudden,
terrifying, and unjustified way. Absent the most extraordi‐
nary circumstances, these intrusions on privacy and restraints
on liberty—by police officers looking for “bigger and better
things”—simply are not justifiable to write a parking ticket.
And the government has not argued for any other ground to
justify this seizure.
There are two distinct grounds for reversal here. The first
is that the doctrines allowing pretextual traffic stops under
the combination of Terry and Whren v. United States, 517 U.S.
806 (1996), should not be extended to mere parking violations.
The second and narrower ground is that even if such an ex‐
tension might be available in theory, the police did not have a
reasonable basis for this particular seizure.
On the first ground for reversal, the Supreme Court itself
has not gone so far as to allow seizure of a person to investi‐
gate a possible parking violation. The core Fourth Amend‐
ment standard of reasonableness is what drove the balance
between privacy and law enforcement in Terry. 392 U.S. at 20–
21; see also United States v. Hensley, 469 U.S. 221, 228 (1985)
(balancing governmental interest against intrusion on per‐
sonal security). Extending Terry and Whren to allow police to
use a mere parking violation as a pretext for seizing a car’s
passengers, and then using the occasion to remove them and
handcuff them, loses sight of reasonableness and proportion.
Terry authorizes investigatory stops without a warrant
when a police officer has a reasonable suspicion that a person
is engaged or is about to engage in crime. The logic of Terry
has been understood to authorize traffic stops for moving vi‐
olations. E.g., Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)
(“no question about the propriety” of stop because car had
expired tags); see also Rodriguez v. United States, 575 U.S. —,
—, 135 S. Ct. 1609, 1614 (2015) (routine traffic stop more anal‐
ogous to Terry stop than to formal arrest). Since Whren, Fourth
Amendment law allows the police to carry out intrusive traf‐
fic stops based on the pretext of investigating a moving traffic
This combination of constitutional decisions already ena‐
bles a host of aggressive and intrusive police tactics. Police of‐
ficers are trained to exploit those powers, as the officers tried
to do here in their search for “bigger and better things.” Of‐
ficers who have probable cause for a trivial traffic violation
can stop the car under Whren and then order all occupants out
of the car, Maryland v. Wilson, 519 U.S. 408 (1997), often frisk
them, Arizona v. Johnson, 555 U.S. 323 (2009), question them in
an intimidating way, visually inspect the interior of the car,
Colorado v. Bannister, 449 U.S. 1, 4 & n.3 (1980), often search at
least portions of the vehicle’s interior, Arizona v. Gant, 556 U.S.
332 (2009); Michigan v. Long, 463 U.S. 1032 (1983), and hold the
driver and passengers while a drug‐detection dog inspects
the vehicle, Illinois v. Caballes, 543 U.S. 405, 406–08 (2005).
In these encounters, the danger of further escalation is al‐
ways present. With authority to stop comes the authority to
require the subject to submit to the stop, and to use reasonable
force in doing so. Hensley, 469 U.S. at 235; Tom v. Voida, 963
F.2d 952, 958 (7th Cir. 1992) (no violation where Terry stop led
to fatal shooting by police officer). The Fourth Amendment
also allows police to arrest suspects for minor traffic infrac‐
tions even if a court could impose only a fine, Atwater v. City
of Lago Vista, 532 U.S. 318 (2001), and arrested persons can be
strip‐searched, Florence v. Board of Chosen Freeholders, 566 U.S.
318, 339 (2012), fingerprinted, photographed, and per‐
haps even subjected to a DNA test, see Maryland v. King, 569
U.S. —, —, 133 S. Ct. 1958, 1989 (2013) (Scalia, J., dissenting).
Moreover, a Terry stop can even be justified by an officer’s mis‐
take of either law or fact. Heien v. North Carolina, 574 U.S. —,
—, 135 S. Ct. 530, 536 (2014).
Adding these doctrines together gives the police broad
discretion to impose severe intrusions on the privacy and free‐
dom of civilians going about their business. This potential is
not entirely new. In 1940, the future Justice Jackson said: “We
know that no local police force can strictly enforce the traffic
laws, or it would arrest half the driving population on any
given morning.” R. Jackson, The Federal Prosecutor, Address
Delivered at the Second Annual Conference of United States
Attorneys, April 1, 1940, quoted in Morrison v. Olson, 487 U.S.
654, 727–28 (1988) (Scalia, J., dissenting); see also, e.g., David
A. Sklansky, Traffic Stops, Minority Motorists, and the Future of
the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 273 (“Since vir‐
tually everyone violates traffic laws at least occasionally, the
upshot of these decisions is that police officers, if they are pa‐
tient, can eventually pull over almost anyone they choose, or‐
der the driver and all passengers out of the car, and then ask
for permission to search the vehicle without first making clear
the detention is over.”).
Courts usually examine these aspects of Fourth Amend‐
ment doctrine piecemeal, focusing on the one or two aspects
most salient for the particular case. But when we consider a
significant extension of Fourth Amendment authority, such as
extending Terry and Whren to suspected parking violations,
we must consider the cumulative effects of the doctrine. Those
effects mean that authority to conduct an investigatory stop
can trigger sweeping intrusions and even dangers. See Devon
W. Carbado, From Stopping Black People to Killing Black People:
The Fourth Amendment Pathways to Police Violence, 105 Calif. L.
Rev. 125 (2017) (reviewing cumulative effects); Gabriel J. Chin
& Charles J. Vernon, Reasonable but Unconstitutional: Racial
Profiling and the Radical Objectivity of Whren v. United States, 83
Geo. Wash. L. Rev. 882, 884 n.2 (2015) (collecting literature on
consequences of Whren).
The government’s theory here is that the suspected park‐
ing violation justified the seizure of the passengers. The gov‐
ernment sees no difference between parking violations and
suspected traffic violations, so that all the police tactics per‐
mitted in a pretextual traffic stop under Whren can be used
when a car might be parked illegally.
Relevant case law is both sparse and divided, perhaps be‐
cause the notion of using such aggressive police tactics in re‐
sponse to parking violations seems so audacious. As noted,
the Supreme Court has not extended these powers to the
parking context. It should not do so, particularly with an eye
toward practical consequences, including whether the cumu‐
lative effects of Fourth Amendment doctrine are reasonable
and whether such intrusions may become “a routine part of
American life.” City of Indianapolis v. Edmond, 531 U.S. 32, 42
(2000) (limiting “special needs” doctrine).
In United States v. Thornton, 197 F.3d 241 (7th Cir. 1999), two
officers in a “high crime” neighborhood walked toward a car
parked in a no‐parking zone. They saw the driver get out of
the car with what looked like a police‐radio scanner. The of‐
ficers patted down the driver and spotted what looked like a
package of cocaine on the floor of the back seat. We said that
whether “an illegally parked car, a crime‐ridden neighbor‐
hood, the driver’s sudden exit, and the driver’s possession of
a device that was monitoring police radio traffic adds up to
sufficient suspicion to justify a Terry stop is a close call.” Id. at
248. In this case, by contrast, the police had much less to go
on than the police had with that “close call” in Thornton. And
the police tactics here were much more intrusive than walking
up to the car, as in Thornton.
In United States v. Shields, 789 F.3d 733 (7th Cir. 2015), the
panel treated a parking violation as enough to support an in‐
vestigatory Terry stop, though the real action in Shields con‐
cerned the driver’s decision to flee from the officers. The panel
supported that extension of Terry to a parking citation by cit‐
ing United States v. Choudhry, 461 F.3d 1097, 1103–04 (9th Cir.
2006) (allowing investigatory stop of vehicle in no‐stop‐
ping/tow‐away zone), which cited in turn United States v.
Copeland, 321 F.3d 582, 594 (6th Cir. 2003) (allowing stop based
on parking violation). 789 F.3d at 745.
These extensions of Terry to suspected parking violations
remain few in number and are mistaken when there is no ad‐
ditional basis for the seizure. And at least two state supreme
courts have taken a different view of the Fourth Amendment.
See State v. Duncan, 43 P.3d 513, 517 (Wash. 2002) (Terry did
not extend to seizure to investigate suspected civil infractions
such as possession of open container of alcohol in public);
State v. Holmes, 569 N.W.2d 181, 184–86 (Minn. 1997) (Terry did
not authorize seizure to investigate suspected parking viola‐
tion). An illegally parked car is a far cry from the would‐be
robbers casing their target in Terry v. Ohio.1
1 Where a parking violation may, under the circumstances, signal a threat
to security or safety, the Fourth Amendment does not and should not pre‐
vent reasonable responses by law enforcement to protect safety or secu‐
rity. Consider, for example, a van stopped illegally beside a federal office
Extending Terry stops and the further intrusions they en‐
tail to pretextual parking violations loses sight of the core test
of reasonableness and the balance at the core of Terry and the
Fourth Amendment itself. “The makers of our Constitu‐
tion … conferred, as against the Government, the right to be
let alone—the most comprehensive of rights and the right
most valued by civilized men. To protect that right, every un‐
justifiable intrusion by the Government upon the privacy of
the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment.” Olmstead v.
United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting),
overruled in relevant part, Katz v. United States, 389 U.S. 347,
353 (1967). We should find a violation of the Fourth Amend‐
ment in the unreasonable and intrusive seizure of the passen‐
gers in this case for the supposed purpose of investigating this
Extending Terry and Whren to real parking violations is
bad enough. The seizure here had even less foundation be‐
cause the police did not have a reasonable basis for suspecting
a parking violation. That is the second and narrower ground
for reversal here.
building or a car idling in front of a street full of marching demonstrators.
Those are not mere parking violations.
2 The majority suggests that a seizure of an already‐stopped car is less in‐
trusive than a seizure of a moving car. I disagree. It is not less intrusive to
seize a person sitting on a park bench than to seize a person walking past
that park bench.
The police relied on a Wisconsin statute that provides:
No person shall stop or leave any vehicle stand‐
ing in any of the following places except tempo‐
rarily for the purpose of and while actually en‐
gaged in loading or unloading or in receiving or
discharging passengers and while the vehicle is
attended by a licensed operator so that it may
promptly be moved in case of an emergency or
to avoid obstruction of traffic:
In a loading zone.
In an alley in a business district.
Within 10 feet of a fire hydrant, un‐
less a greater distance is indicated
by an official traffic sign.
Within 4 feet of the entrance to an
alley or a private road or driveway.
Closer than 15 feet to the near limits
of a cross‐walk.
Upon any portion of a highway
where and at the time when parking
is prohibited, limited or restricted
by official traffic signs.
Wis. Stat. § 346.53.
The seized car and passengers could stand lawfully where
they were if the car was there “temporarily for the purpose of
and while actually engaged in loading or unloading or in re‐
ceiving or discharging passengers and while the vehicle is at‐
tended by a licensed operator.” That was all the police saw
here: the driver had gone into a store, and the motor was run‐
A car stopped in front of a store with its motor running is
not itself suspicious. Given the sensible statutory proviso for
cars that are loading and unloading, the police here could not
reasonably decide, in the few seconds it took them to swoop
in to seize this car and its passengers, that this seizure was
Yet the majority treats what the police saw as suspicious
enough to justify the seizure. That rationale overlooks the
statute itself, which of course does not require the driver to
“occupy” the car while loading or unloading. It requires only
that the car be “attended” so it can be moved if needed. At the
risk of stating the obvious, a driver making deliveries and
pick‐ups will not always occupy the vehicle, but he or she
may “attend” it for these purposes.
To avoid the logic of the provision for loading and unload‐
ing, the majority cites cases from quite different contexts
where police officers who receive conflicting information can
make arrests and “leave to the judicial process the question
whether a defense applies.” Ante at 3, citing Baker v. McCollan,
443 U.S. 137, 145–46 (1979) (arrest based on mistaken iden‐
tity), and other arrest cases, such as Hurem v. Tavares, 793 F.3d
742 (7th Cir. 2015) (trespass arrest of apartment tenant who
could not produce copy of lease), and Askew v. Chicago, 440
F.3d 894 (7th Cir. 2006) (arrest for threat based on eyewitness
The majority’s treatment of the loading‐and‐unloading
proviso bears no practical relationship to reality or to what
happened here on the streets of Milwaukee. Imagine that the
police tried these tactics in Milwaukee’s affluent east side. Cit‐
izens would be up in arms, and rightly so. No police officer
could expect to keep his job if he treated a car standing in front
of a store as worthy of such an intrusive Terry stop. The gov‐
ernment’s theory—that the seizure of a stopped car by the po‐
lice would be justified because the occupants could always ex‐
plain in court that they had merely stopped the car to make a
purchase—invites intolerable intrusions on people just going
about their business.
We have rejected similar efforts to authorize stops on
grounds that would apply to a high proportion of people en‐
gaged in lawful behavior. United States v. Paniagua‐Garcia, 813
F.3d 1013, 1014–15 (7th Cir. 2016) (reversing denial of motion
to suppress; police could not distinguish between driver’s
lawful and unlawful use of mobile telephone); United States v.
Flores, 798 F.3d 645, 648–49 (7th Cir. 2015) (reversing denial of
motion to suppress where police made traffic stop on unrea‐
sonable theory that would render illegal a “substantial
amount” of lawful conduct).
What made the officers decide so fast to swoop in to seize
this car? On this record, the only explanation is the neighbor‐
hood, and the correlation with race is obvious. It is true that
Johnson has not made an issue of race, but we should not close
our eyes to the fact that this seizure and these tactics would
never be tolerated in other communities and neighborhoods.
If we tolerate these heavy‐handed tactics here, we enable tac‐
tics that breed anger and resentment, and perhaps worse, to‐
ward the police.
Defendant Johnson is not a sympathetic champion of the
Fourth Amendment, of course. That is not unusual in Fourth
Amendment litigation. But the practical dangers of the major‐
ity’s extension of Terry and Whren to suspected parking viola‐
tions will sweep broadly. Who among us can say we have
never overstayed a parking meter or parked a little too close
to a crosswalk? We enforce the Fourth Amendment not for the
sake of criminals but for the sake of everyone else who might
be swept up by such intrusive and unjustified police tactics. I
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