USA v. Michael Ford
Filed opinion of the court by Judge Rovner. AFFIRMED. Kenneth F. Ripple, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6870599-1]  [16-3732]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
MICHAEL A. FORD,
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:16‐cr‐40008‐001 — Sara Darrow, Judge.
ARGUED JUNE 7, 2017 — DECIDED SEPTEMBER 20, 2017
Before RIPPLE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Michael Ford entered a conditional
guilty plea to possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1), preserving for this direct appeal his challenge to
the denial of a motion to suppress evidence. We uphold the
district court’s ruling.
Ford and Cameron Hoefle were passengers in a car driv‐
en by Tyler Mincks around 2:00 a.m. on December 4, 2015.
Mincks was stopped in Moline, Illinois, for a traffic violation,
and police officers noticed two open beer bottles. The offic‐
ers asked Mincks, Ford, and Hoefle to exit the car, and while
frisking Ford they found a loaded, two‐shot .38‐caliber pis‐
tol. Ford was arrested, and the matter was referred to federal
authorities for prosecution.
After his indictment, Ford moved to suppress the gun.
He argued that he was frisked without reasonable suspicion
and that the pat‐down exceeded the scope of a protective
frisk for weapons. (Ford also asserted that the initial stop of
the vehicle was unlawful and that he did not receive Miranda
warnings before making incriminating statements while in
custody, but he has abandoned those contentions on appeal.)
The government countered that the officers had reasonable
suspicion to believe that Ford and his companions were
armed and were about to avenge a shooting that had
wounded Hoefle a few days earlier. The government also
contended that the pat‐down was reasonable in scope be‐
cause, the prosecutor said, the officer who conducted the
frisk had kept his hands outside of Ford’s clothing until en‐
countering a heavy object weighing down his jacket.
At an evidentiary hearing on Ford’s motion, the sole wit‐
ness was Joe Kluever, the Moline police officer who initiated
the stop. According to Officer Kluever, the entire Moline po‐
lice force had been alerted by e‐mail that Hoefle suffered a
gunshot wound on December 2. Police in neighboring Rock
Island, Illinois, where the shooting occurred, suspected that
Hoefle had stolen marijuana from Bryan Brinker, who then
shot him. Even though he was wounded, Kluever said,
Hoefle would not cooperate with Rock Island investigators,
and neither did Mincks and Ford. Instead, the three men
said they would deal with the situation themselves. That
threat, Kluever explained, had prompted Rock Island police
to send an “officer safety” advisory to their counterparts in
Moline. That December 3 advisory described the shooting of
Hoefle and warned that he, Mincks, and Ford might go to
Brinker’s residence in Moline to retaliate. In turn, Moline of‐
ficers received from their department the e‐mail alert, which
urged using “caution when dealing with all of the people
That email was just 9½ hours old, said Officer Kluever
when he noticed a car with three male occupants entering
Moline from Rock Island around 2:00 a.m. on December 4.
Kluever ran the license plate after all three occupants had
looked away as they passed his marked car, and his inquiry
revealed that the car was registered to Mincks. Kluever rec‐
ognized Mincks’s name from the e‐mail alert and followed.
Mincks made a series of quick turns through a residential
neighborhood and eventually stopped at a red light. Accord‐
ing to Kluever, though, the car had halted well into the in‐
tersection. He then stopped Mincks.
Officer Kluever and Officer Dan Boudry, who had been
following Kluever in his own squad car, approached
Mincks’s car, and Kluever noticed an open beer bottle at the
feet of Ford, who was in the front passenger seat. After re‐
moving the bottle from the car, Kluever said, he collected
IDs from the three men and returned to his car to check
them. What he learned, Kluever continued, was that all three
occupants had extensive criminal histories and “alerts for
gang entries, weapons, drugs, that type of a thing” but no
outstanding warrants. By then a sergeant had arrived, and
all three officers now confronted the occupants of the car.
The sergeant noticed another open beer bottle tucked into
the pocket on the back of Ford’s seat, and the officers decid‐
ed to remove Mincks, Ford, and Hoefle from the car to
search for additional bottles.
Mincks followed by Hoefle exited the car and were
frisked, but neither had a weapon. But as Mincks was climb‐
ing from the car, said Officer Kluever, Ford appeared nerv‐
ous and “grabbed the handle of the door and started push‐
ing” it open. In response Kluever told Ford to wait his turn.
When Ford did exit at Kluever’s direction, the officer right
away focused on Ford’s jacket because “it was sagging heav‐
ily as if something very heavy” was inside both front pock‐
ets. Kluever first compressed the right pocket and felt a
phone and another object. “I could feel the bottom side” of
the unknown object, Kluever testified, “and it felt like a han‐
dle.” Kluever then asked what the unknown object was, and
Ford said it was a phone. Kluever responded that he meant
the other object, not the phone. He did not wait for Ford’s
answer, however, because the feel of a handle “could be in‐
dicative of a firearm.” Kluever “reached in and retrieved”
the small pistol. Kluever had “scrunched” Ford’s pocket just
two or three times before removing the gun.
The district court denied Ford’s motion to suppress in an
oral ruling. The court credited Officer Kluever and conclud‐
ed that the totality of the circumstances, including the con‐
tent of the e‐mail alert and the fact that Mincks had been
heading in the direction of the suspected target, gave the of‐
ficers reasonable suspicion to perform a protective pat‐
down. And, the court continued, Kluever had not exceeded
the permissible scope of a protective pat‐down for weapons.
Ford then pleaded guilty but reserved the right to appeal
the denial of his motion to suppress. He was sentenced to 57
On appeal Ford first argues that the district court erred in
concluding that Officer Kluever had reasonable suspicion to
believe that he might be armed. Ford challenges only the
frisk, not the stop of the car.
A police officer conducting an investigatory stop may
frisk the suspect for weapons if the officer has an objectively
reasonable suspicion that the suspect might be
armed. Arizona v. Johnson, 555 U.S. 323, 332 (2009); Terry v.
Ohio, 392 U.S. 1, 27, 30–31 (1968); United States v. Patton,
705 F.3d 734, 737–38 (7th Cir. 2013); United States v. Snow, 656
F.3d 498, 501 (7th Cir. 2011). Certainty about the presence of
a weapon is unnecessary; “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, 392 U.S. at 27; see Snow, 656 F.3d at 501. In reviewing a
ruling on the lawfulness of a “Terry frisk,” this court analyz‐
es the district judge’s factual findings for clear error but the
judge’s determination of reasonable suspicion de novo. Unit‐
ed States v. Barnett, 505 F.3d 637, 639 (7th Cir. 2007).
Ford argues that Officer Kluever did not have reasonable
suspicion to frisk him because more than nine hours had
passed since the e‐mail alert had been sent; the lapse of time,
Ford insists, means that “the police were not confronting ex‐
igent circumstances.” Ford also asserts that the e‐mail could
not supply reasonable suspicion because, Ford says, Hoefle’s
statements to police were vague and the e‐mail does not de‐
scribe a particular incident or threat that would lead a reader
to believe that Ford was armed at the time of the stop. And,
Ford adds, the traffic stop occurred less than a block from
Mincks’s apartment, undermining the government’s empha‐
sis on the direction of the car. The government asserts that
the frisk was justified by (1) the e‐mail alert, (2) the 2:00 a.m.
time and Mincks’s route toward the potential target’s home,
(3) his evasive turns after seeing the police car, (4) the pres‐
ence of open beer bottles in the car, (5) the officers’
knowledge of Ford’s involvement with gangs, weapons, and
guns, (6) Ford’s apparent nervousness while Mincks and
Hoefle were being frisked, and (7) the sagging pockets of
We first note that the government has never argued that
the police officers had probable cause to arrest Ford for vio‐
lating Illinois’s open container law, see 625 ILCS 5/11‐502(b).
By itself this obvious violation of law would have justified
denying Ford’s motion to suppress. See Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001) (holding that police of‐
ficer may arrest person who has committed “even a very
minor criminal offense in his presence”); Rawlings v. Ken‐
tucky, 448 U.S. 98, 111 (1980) (stating that search incident to
arrest may occur before arrest is announced); United States v.
Leo, 792 F.3d 742, 748 n.1 (7th Cir. 2015) (same); United States
v. Jackson, 377 F.3d 715, 716–18 (7th Cir. 2004) (affirming de‐
nial of motion to suppress contraband when the defendant
was originally arrested for a traffic violation). But the gov‐
ernment’s oversight does not matter because, as the district
court concluded, the Moline police officers had reasonable
suspicion to frisk Ford.
We agree with the government that reasonable suspicion
to frisk Ford existed under these circumstances. The officers
had been warned via e‐mail that Ford and his companions
might seek to retaliate for the shooting of Hoefle two days
earlier. Recent shootings, reports of discharged weapons,
and indications of recent gang activity are factors that can
contribute to reasonable suspicion. See Patton, 705 F.3d at
738–39; United States v. Mitchell, 256 F.3d 734, 737–38 (7th Cir.
2001). Ford and the others likely had been drinking, as evi‐
denced by the beer bottles, and their alcohol use gave the
police greater reason to worry that one of them “might do
something unpredictable, unwise, and dangerous.” Patton,
705 F.3d at 739; see also United States v. Knight, 562 F.3d 1314,
1327 (11th Cir. 2009) (stating that smell of alcohol contribut‐
ed toward finding of reasonable suspicion). Moreover, the
officers knew that all three men had extensive criminal his‐
tories. See United States v. Johnson, 427 F.3d 1053, 1057 (7th
Cir. 2005) (explaining that officer’s knowledge of suspect’s
criminal history, though not sufficient, is relevant to reason‐
able suspicion); United States v. Jackson, 300 F.3d 740, 746 (7th
Cir. 2002) (same).
Some of the government’s other justifications for the frisk
of Ford also are relevant, but those above, in our view, are
most persuasive. Still, the government notes that the stop
occurred around 2:00 a.m., and that a “nighttime traffic stop,
especially in an area where crime is not a stranger, is more
fraught with potential danger to an officer than would be a
stop during the light of day.” United States v. Brown, 273 F.3d
747, 748 (7th Cir. 2001); see also United States v. Tinnie, 629
F.3d 749, 752 (7th Cir. 2011). Ford also appeared nervous
while the officers removed Mincks and Hoefle from the car,
and nervous movements can contribute to reasonable suspi‐
cion. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Tinnie,
629 F.3d at 752. Much less significant, though, is the direc‐
tion the car was headed, since, as Officer Kluever conceded
at the suppression hearing, the target’s home was on the
other side of Moline from where he spotted Mincks’s car and
the stop was close to Mincks’s own home.
Ford attempts to liken this case to United States v. Wil‐
liams, 731 F.3d 678 (7th Cir. 2013), in which we overturned a
determination that a frisk had been reasonable. In Williams
an anonymous 911 caller reported that a group of 25 men
were brandishing guns outside a bar, but when the police
arrived moments later they found only 8 to 10 men standing
in the parking lot without any visible weapons. 731 F.3d at
681. The police focused on Williams and frisked him. Ford
asserts that, like the phone call in Williams, the e‐mail alert
was vague because it did not detail how, when, or where the
supposed retaliatory shooting was to occur. Ford also asserts
that the e‐mail did not describe contemporaneously occur‐
ring events or single him out as armed and dangerous.
Williams is distinguishable. The Williams panel focused
on the fact that “neither Mr. Williams nor the group as a
whole was acting illegally in any way,” Williams, 731 F.3d at
688, but here Ford was part of a group that was violating Il‐
linois’s open‐container law in full view of the officers. Also,
in this case the police had a stronger basis for suspecting that
the occupants of the car were armed because of the e‐mail
about them, in contrast with Williams where authorities were
acting on an anonymous tip about unidentified men whom
the officers could not even be sure were part of the group in
the parking lot when they arrived. Id. at 680–81. And the
group stopped in Williams was 8 to 10 men in a parking lot,
which is “a group significantly less likely to be acting in con‐
cert” than a few “people travelling together in a car.”
See United States v. Lyons, 733 F.3d 777, 783 (7th Cir. 2013).
Ford next argues that Officer Kluever impermissibly ex‐
ceeded the scope of a pat‐down by “scrunching” his pocket
several times. According to Ford, Minnesota v. Dickerson, 508
U.S. 366 (1993), establishes that it was unlawful for Kluever
to continue manipulating the object when its incriminating
character was not “immediately apparent.” The government
rightly responds that this court held in United States v. Rich‐
ardson, 657 F.3d 521, 524 (7th Cir. 2011), that the “immediate‐
ly apparent” restriction from Dickerson “does not apply until
the officer concludes that the object at issue is not a weap‐
on.” Ford concedes in his reply brief that Richardson decided
as much, but attempts to distinguish that decision on the ba‐
sis that the defendant in Richardson tried to flee from police
while they were searching him. But that difference is not rel‐
evant to whether an officer exceeded the scope of a permis‐
sible frisk for weapons. An officer encountering a small,
hard object may have reasonable suspicion to believe that
object is a weapon, see Richardson, 657 F.3d at 524; United
States v. Brown, 188 F.3d 860, 865–66 (7th Cir. 1999); see also
United States v. Robinson, 615 F.3d 804, 808 (7th Cir. 2010)
(noting that officer was “entitled to assure himself that his
first impression” of a hard object was correct by continuing a
frisk “a minute or so” later), and the “handle‐like” object
that Officer Kluever said he felt fits that category.
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