United States of America v. Aubrey Jones

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2023
Decided October 19, 2023
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-3218
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AUBREY JONES,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-cr-00240
Sharon Johnson Coleman,
Judge.
O R D E R
After a brief chase, Chicago police subdued Aubrey Jones and found a loaded
handgun with an extended magazine in his pants. Jones unsuccessfully moved to
suppress the gun and pleaded guilty to being a felon in possession of a firearm. He
argues, however, that the district court should have suppressed the firearm because the
police lacked reasonable suspicion justifying a stop and frisk under Terry v. Ohio, 392
U.S. 1 (1968). We disagree and affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-3218 Page 2
In the early afternoon of September 24th, 2020, Chicago Police Officer Johnathon
Martinez and another officer were remotely viewing and operating a Police
Observation Device (POD) on the city’s far west side. While watching the live feed, the
officers zoomed in to observe Jones walking in full view of the POD camera. Jones’s
right arm was “stiff and straight,” and he was holding his pants near the crotch. His
fingers were curled toward his leg, as if gripping an object. Jones also looked around in
several directions as he walked past the POD camera. Having patrolled this area for five
years, Officer Martinez knew it to be rife with gang violence, shootings, narcotics sales,
and illegal firearm possession. He also had previously arrested people acting the same
way as Jones and recovered concealed firearms. All of this led Officer Martinez to
suspect that Jones was concealing a firearm in his pants.
Officer Martinez and two other uniformed officers left in an unmarked vehicle to
talk to Jones. When they drove up to him, he was still gripping his pants and looking
around. Officer Martinez got out of the car and yelled “police … stop!” Jones turned
and fled, his right hand still clutching his front groin area. After a brief chase, officers
tackled Jones and recovered a pistol from his pants.
The government charged Jones with one count of being a felon in possession of a
firearm under 18 U.S.C. § 922(g)(1). He moved to suppress the gun, but the district court
denied his request. The court concluded that the POD video showed a gun-shaped
bulge in Jones’s pants and this, combined with the other evidence presented at the
motion to suppress hearing, gave police reasonable suspicion to initiate a Terry stop.
Jones pleaded guilty, reserving the right to challenge the adverse ruling. The district
court accepted his plea and sentenced him to 48 months’ imprisonment.
On appeal, Jones argues that police seized him in violation of Terry because there
was no bulge visible in his pants on the POD video and the remaining facts were
insufficient to create reasonable suspicion. In reviewing the denial of a motion to
suppress, we review the district court’s factual findings for clear error and its
conclusion that officers had reasonable suspicion de novo. United States v. Olson, 41
F.4th 792, 798 (7th Cir. 2022).
To conduct a Terry stop, police must have an objectively reasonable suspicion of
involvement in criminal activity. Id. at 800 (citing Terry, 392 U.S. at 30). Reasonable
suspicion requires “more than a hunch but less than probable cause.” United States v.
Richmond, 924 F.3d 404, 411 (7th Cir. 2019). Police must point to “specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant” the stop. Id. (internal quotations omitted).

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No. 22-3218 Page 3
Jones first contends that the district court clearly erred in finding that the POD
video showed a gun-shaped bulge. He maintains that his hand obstructed the relevant
area nearly the entire time and that, when he brushed his hand away from the front of
his pants, no bulge was visible.
We have reviewed the POD video, however, and are not left with a “definite and
firm conviction” that the district court erred. Olson, 41 F.4th at 802 (internal quotations
omitted). On the video Jones appears to curl his fingers under a rigid object, using his
thumb to grip the opposite side of the object. The object also seems to extend down the
front of his right pant leg, jutting out at points as he walks.
Jones further contends that the district court made contradictory rulings on what
the POD video shows. He asserts that the court alternatively prohibited Officer
Martinez from testifying about the nature of the object in Jones’s pants yet later
concluded that the object was gun shaped. But Jones takes the court’s comments out of
context. In the first comment, the court responded to Jones’s evidentiary objection by
limiting the scope of Martinez’s testimony. The court’s later comment appropriately
drew upon Martinez’s testimony that, based on his training and experience, Jones
appeared to conceal a firearm in his pants.
Jones next argues that reasonable suspicion is not suggested by other facts in the
record—the way he gripped his pants, his apparent nervousness, his immediate flight
upon seeing officers, and the high-crime location of the stop. But we have already
considered the significance of facts like these and reached the opposite conclusion. In
United States v. Wilson, 963 F.3d 701 (7th Cir. 2020), we concluded that police had
reasonable suspicion when the defendant—in a high-crime area—grabbed at a
conspicuous bulge in his pocket, moved evasively, and fled when police attempted
contact. Id. at 703–04. Although the police in Wilson also had received a report of
criminal activity just minutes earlier, we deemed the suspect’s unprovoked flight, not
the criminal report, to be the decisive fact. Id. The same holds true here.
Jones’ flight in a high-crime area provides further support to find the police had
reasonable suspicion. The Supreme Court has held that unprovoked flight in a high-
crime area gives police reasonable suspicion to conduct a Terry stop. Illinois v. Wardlow,
528 U.S. 119, 124–25 (2000). For the first time, Jones now argues that the government
lacks statistical support for its characterization of the neighborhood as high in crime,
but he waived this argument by failing to raise it in the district court. Johnson v. Prentice,
29 F.4th 895, 903 (7th Cir. 2022). Jones also justifies his flight as simply his way of saying
he did not want to talk with the police, but a suspect’s subjective motivations have no

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No. 22-3218 Page 4
bearing on the validity of a Terry stop. Instead, the focus of the analysis is on the
objective reasonableness of officers’ suspicion. See Olson, 41 F.4th at 800.
Seeking to distinguish Wardlow, Jones argues that his “inherently futile flight”
should not be singled out as a basis upon which to find reasonable suspicion. But the
Supreme Court has rejected this approach, instructing courts not to isolate factors in a
“divide-and-conquer analysis.” United States v. Arvizu, 534 U.S. 266, 274 (2002). Rather,
courts should consider the totality of the circumstances, analyzed through officers’
experience and specialized training. Olson, 41 F.4th at 800. Here the police knew the
area to be crime-ridden, and they saw Jones acting nervously, grabbing at his clothing
(gun-shaped bulge aside), and fleeing at the sight of officers. Based on these
circumstances and their experience, officers had “more than a hunch” to believe that
Jones was armed and possibly engaged in criminal activity. Richmond, 924 F.3d at 411.
Jones was not seized unlawfully, so the district court correctly denied his motion
to suppress. The district court’s ruling and Jones’s conviction are therefore AFFIRMED.

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