U.S. v. Tilmon

• Citation: 19 F.3d 1221
• Decision Date: 24 March 1994
• Docket Number: No. 93-2329,93-2329
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Spencer Ray TILMON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1221

19 F.3d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Spencer Ray TILMON, Defendant-Appellant.

No. 93-2329.

United States Court of Appeals Seventh Circuit.

Argued Dec. 15, 1993.

Decided March 24, 1994.

Larry Wszalek (argued), Office of U.S. Atty., Madison, WI, for plaintiff-appellee.

Robert G. Malone (argued), St. Paul, MN, for defendant-appellant.

Before CUDAHY, FLAUM and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

A jury found the defendant, Spencer Ray Tilmon, guilty of the armed robbery of a Wisconsin bank, and the court sentenced him to 70 months' imprisonment. On appeal, Tilmon contends that the police transformed an investigatory stop into an arrest without probable cause; that the government failed to prove him guilty beyond a reasonable doubt; and that the district court erred in refusing to instruct the jury on the meaning of reasonable doubt. We affirm.

I. FACTS

Before trial, a hearing was held on Tilmon's motion to suppress. The evidence related to an alleged unlawful arrest occurring when Tilmon's car was stopped on the highway. The district court denied the motion to suppress. Subsequently, a jury found Tilmon guilty of armed bank robbery, 18 U.S.C. Sec. 2113.

The evidence at the pre-trial hearing and at trial showed that a bank robbery had occurred in Eau Claire, Wisconsin, on June 18, 1992, at about 11:05 a.m.; $3,786 was taken. The suspected getaway car had been parked around the corner from the bank. The robber was described as a black male in his early twenties, 5'10" tall and weighing 160 pounds. He had worn black netting over his face, black sweat pants with several stripes down the side and a hooded tan sweat jacket with a dark blue stripe across the chest.

Police radio dispatches indicated that a blue Mustang with a gray stripe, bearing Minnesota license plates, was involved in the 11:00 a.m. robbery. At 1:05 p.m., Trooper Lewis was parked at Exit 19 off Interstate 94, about 50 miles from Eau Claire, when he saw a dark blue Mustang with a light gray or silver stripe and Minnesota license plates pass him. The car was heading away from Eau Claire toward Minnesota. Lewis followed the Mustang and radioed for back-up units. The police dispatcher's log indicates that Lewis sent a message saying that the driver of the Mustang "slid down in the driver's seat" as the police car approached. A back-up unit arrived, drove up beside the Mustang and ascertained that it was being driven by a black male.

After Lewis' back-up arrived, the police cars activated their flashing lights and Tilmon pulled over. Over a loud speaker, Tilmon was informed by Officer Klanderman that he should get out of the car with his hands up and lie face down on the shoulder of the road. Tilmon immediately complied. (According to Officer Klanderman, some of the weapons were pointed at Tilmon, and some were pointed at his car.) After he lay down as directed, Tilmon was handcuffed and placed in a squad car. A shotgun was pointed at Tilmon's head while he was handcuffed, searched and seated in the squad car. Within a few minutes, Lewis read Tilmon his Miranda rights, and he was advised that he was in custody for investigation of an armed robbery. Tilmon agreed to let the police search his car. Nothing was found in the car that would connect him with the robbery. Tilmon was taken to the police station, questioned and released within an hour.

At the scene of the highway stop, Tilmon's car had been effectively blocked. There were at least five squad cars abreast of and behind his car, and another police car stopped one-quarter mile ahead of Tilmon's car on the shoulder of the road for use in the event Tilmon tried to flee. Officer Klanderman testified that drawing weapons was standard procedure for a felony stop "for the safety of the officers and any other persons that may be in the area."

II. POLICE CONDUCT PRIOR TO ARREST

In reviewing a motion to suppress evidence, we review for clear error. United States v. Wilson, 2 F.3d 226, 229 (7th Cir.1993), pet'n. for cert. filed Jan. 3, 1994; United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993); United States v. Spears, 965 F.2d 262, 269 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. United States v. Rice, 995 F.2d at 722.

In reviewing a suppression motion, we may consider evidence introduced both at the pre-trial hearing and at the trial itself. See United States v. Chapman, 954 F.2d 1352, 1357 n. 5 (7th Cir.1992) (evidentiary hearing transcript not in appellate record, so court bases review of motion to suppress on trial testimony); United States v. Ferreira, 821 F.2d 1, 3 n. 3 (1st Cir.1987) (normally court only reviews record created at suppression hearing, but here court reviewed trial transcript as well).

The government argues that the initial highway stop was justified on the basis of information the arresting officers had received from the police radio transmissions and that, notwithstanding the show of force used to effect the stop, it did not constitute, at the outset, an arrest. Of course, certain seizures of the person need not be supported by probable cause. An investigatory stop not amounting to an arrest is authorized if the officer making the stop is "able to point to specific and articulable facts" that give rise to a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); United States v. Adebayo, 985 F.2d 1333, 1339 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993). In assessing the reasonableness of a Terry stop, the facts are "judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. The reasonableness of a particular stop depends in turn on the extent of the intrusion on the rights of the individual as well as on the reason for the restraint. United States v. Chaidez, 919 F.2d 1193, 1197 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991), citing United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988). Reasonable suspicion depends, in part, on some minimal level of objective justification for making a stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). The totality of the circumstances controls. "The process does not deal with hard certainties, but with probabilities." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981).

Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest and a de facto arrest. For example, probable cause may be required when police restraint is so intrusive that, while not technically an "arrest," it may be "tantamount" to an arrest. Dunaway v. New York, 442 U.S. 200, 212-16, 99 S.Ct. 2248, 2256-58, 60 L.Ed.2d 824 (1979). Given the "endless variations in the facts and circumstances," there is no "litmus-paper test for determining when a seizure exceeds the bounds of an investigative stop" and becomes an arrest. Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983).

The reasonableness of an investigatory stop may be determined by examining: (1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts. In other words, the issue is whether the police conduct--given their suspicions and the surrounding circumstances--was reasonable. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-79. In the recent past, the "permissible reasons for a stop and search and the permissible scope of the intrusion [under the Terry doctrine] have expanded beyond their original contours." United States v. Chaidez, 919 F.2d at 1198. The last decade "has witnessed a multifaceted expansion of Terry," including the "trend granting officers greater latitude in using force in order to 'neutralize' potentially dangerous suspects during an investigatory detention," United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir.1993). For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.

A. Proper Basis for the Stop

With respect to the case before us and the requirement for specific and articulable facts, we must assess the totality of the circumstances and the reasonable inferences that may be drawn from it. On this basis, we believe that the police justifiably held a reasonable suspicion that the car and its driver were involved in the bank robbery. While two hours had passed since the robbery and the car was spotted 50 miles west of Eau Claire, these temporal and geographic gaps were not enough to dispel the reasonable suspicion based on the exact match of a unique automobile with a driver fitting the general description of the bank robber. See United States v. Chapman, 954 F.2d at 1357 (police stopped vehicle closely matching the description of bank robbery getaway vehicle; however, propriety of stop not at issue); United States v. Harrington, 923 F.2d 1371, 1373 (9th Cir.) (reasonable stop of defendant matching general physical description of bank robbery suspect, notwithstanding fact that an hour and ten minutes had passed since suspect last seen by witnesses), cert. denied, --- U.S. ----, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991); Creighton v. Anderson, 922 F.2d 443, 450 (8th Cir.1990) (reasonable to stop car even though description of...