CA7: RS man was casing a store for robbery made it reasonable to believe he was armed for a frisk

The cases that apply to plaintiff’s Terry stop don’t necessarily apply to plaintiff’s frisk. Here, the precedents were too dissimilar, and defendants are entitled to qualified immunity for the frisk. Plaintiff was a “suspicious person” believed to be casing a store for a robbery, and that strongly suggests he is armed. Green v Newport, 2017 U.S. App. LEXIS 16011 (7th Cir. Aug. 22, 2017):

Green has the burden of demonstrating that the frisk violated a clearly established law. See Kiddy-Brown, 408 F.3d at 359. Green relies on the same cases that he relied upon for his Terry stop analysis. As we stated above, much of this precedent is factually inapposite or simply irrelevant; Gentry is the only relevant case. However, in Gentry, we found that the police officers lacked any basis for their belief that the plaintiff was concealing a weapon or posed a danger to others, and therefore found the frisk unconstitutional. 597 F.3d at 847-48. Importantly, Officer Newport knew that the prior attack on the store involved a weapon so he had reason to suspect that when Lindsey leaned into the Malibu he was concealing a weapon in Green’s vehicle.

We note that, viewing the facts in the light most favorable to Green, Officer Newport did not see Lindsey stand next to the front passenger door of Green’s Malibu and did not see Lindsey lean into the Malibu’s front passenger window. However, as we have held, reasonable suspicion that someone has committed or is about to commit a burglary or another crime typically involving a weapon generally gives rise to a reasonable suspicion that the person might be armed. See United States v. Snow, 656 F.3d 498, 501-03 (7th Cir. 2011); United States v. Barnett, 505 F.3d 637, 640-41 (7th Cir. 2007) (collecting cases). This principle applies with equal force in this case and provides Officer Newport with an independent justification for conducting a protective frisk. Given these considerations, Officer Newport had a plausible reason to suspect that Green was armed and dangerous, in marked contrast with the facts of Gentry. Green has failed to meet the burden of establishing that the frisk violated clearly established law, and we find that Officer Newport is entitled to qualified immunity regarding the frisk.