124 F.3d 206 (7th Cir. 1997), 95-3726, U.S. v. Waletzki
| Citation | 124 F.3d 206 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. WALETZKI, Defendant-Appellant. |
| Case Date | September 04, 1997 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit |
Page 206
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)
Appeal from the United States District Court for the Western District of Wisconsin, No. 94 CR 72; Barbara B. Crabb, Judge.
Before Hon. RICHARD A. POSNER, Chief Judge Hon. DANIEL A. MANION, Circuit Judge Hon. ILANA DIAMOND ROVNER, Circuit Judge
ORDER
A jury found defendant Daniel J. Waletzki guilty of bank robbery by use of a dangerous weapon, 18 U.S.C. § 2113(a) and (d), and use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1), and defendant was sentenced to 341 months' imprisonment.
On appeal, defendant argues that his initial detention was actually an arrest without probable cause; that the district court should have suppressed all statements he made to police while held in the squad car since he was not given Miranda rights; that the police officers did not observe a gun in plain view on the seat of defendant's car; that the court failed to suppress all evidence stemming from the police officers' illegal conduct in listening, without probable cause or a warrant, to the contents of an unlabeled audio cassette tape found in defendant's car; that statements made by defendant to detectives on the day following his arrest should have been suppressed; that the district court misread a jury instruction; that it was error to permit a bank employee to make an in-court identification of defendant as the bank robber; and that the district court abused its discretion in granting the government's request to have defendant wear handcuffs and leg shackles during a pre-trial evidentiary hearing. The defendant has appeared pro se during both the jury trial and on appeal, and this court appointed an amicus curiae to represent him.
On January 10, 1994, a man dressed in a ski mask and jogging suit entered a bank in Madison, Wisconsin, announced a robbery, fired a shot into the ceiling, and stated, "I have a police scanner and I will know if you set off an alarm." The robber took approximately $44,000, including eleven $20 bills from which the bank had recorded serial numbers and which were used by the bank as "bait money." The robber then left the bank in a red Pontiac Grand Am, and a witness wrote down the car's license plate number.
Apparently the Madison police hit a dead end in their investigation of the robbery; at least, there is nothing in the record indicating they significantly progressed after this time, until February 15, 1994. On that day, the Madison police were contacted by the Minneapolis police, reporting that they had arrested defendant, who had recently been released from prison after serving nine years for bank robbery. The arrest was for violating a local ordinance prohibiting the carrying of a loaded, uncased handgun in the passenger compartment of a vehicle (later the charge was changed to being a felon in possession of a gun). The police thought the car might be stolen, or perhaps had been involved in a hit-and-run accident; they also surmised that Waletzki may have been involved in a burglary or robbery. But more significant to the Madison police was that in the car the Minneapolis police found an unlabeled cassette tape, which they listened to and discovered what they thought sounded like police radio traffic following a robbery in Madison. The Madison police joined (and soon took over) the Minneapolis investigation, and Waletzki was then separately charged with the Madison bank robbery.
Prior to trial, a magistrate judge recommended that all of defendant's suppression motions be denied, except: (1) the motion to suppress statements made in response to questions by the arresting police officers while defendant was held in the squad car, since no Miranda rights were given, and (2) the motion to suppress the audio cassette tape containing police radio transmissions, on the basis that the police failed to obtain a warrant before listening to the tape. The district court adopted the findings and recommendations of the magistrate judge.
Initial Detention
Waletzki begins by attacking his initial detention. See Terry v. Ohio, 392 U.S. 1 (1968). Officer Lopez of the Minneapolis Police Department stated in a report that he and his partner, Officer Perkins, were dispatched after the department had received a telephone call from a resident of 4322 15th Avenue, reporting that a car was parked "in the driveway" of 4323 14th Avenue, "sticking out into the alley." The front end of the car had "severe damage," the vehicle "was still running," and the neighbor thought "it was possibly a stolen motor vehicle." Officers Perkins and Lopez proceeded to that location, and as they walked toward the car, a maroon Ford Taurus, they saw defendant sit up in the left rear seat, with "a startled look on his face," slid to the opposite side of the car, and opened the car door. Perkins thought defendant "may be trying to get away." See United States v. Quinn, 83 F.3d 917, 921-22 (7th Cir.1996) (recognizing that flight from a police officer is a relevant and probative factor in establishing reasonable suspicion, although it is not necessarily enough standing alone). Because Waletzki's actions appeared elusive, the officers drew their weapons and ordered him to stand against the garage, but he "was very reluctant in doing so and his eyes glanced around as if looking for a place to run." As a result, the officers handcuffed Waletzki and placed him in the rear of the squad car.
Officer Lopez questioned Waletzki, who said he owned the car and had bought it from a Chinese couple. Lopez ran a check on the car, finding that the registered owner (a man with an Oriental-sounding name) had no listed telephone number and therefore could not be reached to verify ownership. In the meantime, Officer Perkins walked over to the car, looked through the driver's window, and saw the barrel of gun showing under an armrest in the front seat. Perkins and Lopez then officially advised defendant that he was under arrest.
The initial detention of Waletzki was based on reasonable suspicion and was proper in scope. The cumulative factors articulated by the officers--Waletzki's sleeping in the back seat of the oddly-parked, damaged car with the engine still running, a car unknown to the neighbors, and particularly the officers' perception that Waletzki was going to try to flee--amounted to reasonable suspicion and justified briefly detaining Waletzki for further investigation. Cf. United States v. Cervantes, 19 F.3d 1151 (7th Cir.1994) ("No right of privacy (or of property) of Cervantes' was invaded by the search of his car; he had sacrificed his vehicular privacy by engaging in conduct that gave the police ample grounds for believing that he was using the vehicle for drug trafficking.").
Waletzki argues that even if it was initially permissible to inquire into the car's precarious position, the encounter swiftly escalated into a de facto arrest because the officers drew their weapons, handcuffed him, searched his pockets and the contents of his wallet, and placed him in the squad car for as many as 15 minutes to question him, before finally arresting him. If the initial detention was actually an arrest, it was without probable cause since the police had not yet seen the handgun. See Terry v. Ohio; United States v. Finke, 85 F.3d 1275, 1279 (7th Cir.1996).
Even without probable cause for arrest, the police officers were permitted to draw their weapons and use handcuffs in a situation like this, where the officers were investigating a possibly stolen vehicle which initially appeared empty, had the engine running, was parked precariously, and had the front end severely damaged, then saw someone sit up in the back of the car and appear to try to flee from the officers. The situation confronting the officers was permeated with exactly the type of unpredictability and potential for violence which the Constitution does not require street officers to ignore. See, e.g., Maryland v. Wilson, 117 S.Ct. 882, 885 (1997).
We find that there was nothing done by the police here that escalated the detention into an arrest, and therefore probable cause was not needed for this initial detention. See California v. Hodari D., 499 U.S. 621, 624-27 (1991); United States v. Wilson, 2 F.3d 226, 230 (7th Cir.1993). Moreover, we note that had Waletzki not appeared furtive and elusive, the officers easily would have had the opportunity to glance into the parked car and would have immediately noticed the handgun sitting on the front seat; in fact, anyone strolling by the car could have seen the gun.
Plain View Observance of Gun
Waletzki argues that if the police had not violated his Fourth Amendment rights by permitting the stop to immediately escalate into an arrest, for which they had no probable cause, they would never have seen the handgun. This makes little sense, because even if Waletzki did not wake up or did not appear elusive, the officers still would have seen the handgun sitting on the front seat when they asked Waletzki if the car belonged to him.
Waletzki also contends that the police officers lied, that his gun was not in plain view on the front seat of his car. Waletzki testified at the pretrial suppression hearing that he sat in the squad car with Lopez, verifying identification information, while he watched Perkins return to the car:
I noticed Officer Perkins open the front door of my vehicle and start to search inside. I had a satchel of some type, a sports bag on my front seat.... And it was on my front seat, and it would have been covering the armrest. There's no way a person viewing from the...
To continue reading
Request your trial