2 F.3d 226 (7th Cir. 1993), 92-3022, United States v. Wilson

Docket Nº:92-3022.
Citation:2 F.3d 226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Zachery Lee WILSON, Defendant-Appellant.
Case Date:August 13, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 226

2 F.3d 226 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Zachery Lee WILSON, Defendant-Appellant.

No. 92-3022.

United States Court of Appeals, Seventh Circuit

August 13, 1993

Argued April 1, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 8, 1993.

Gail Joy Hoffman, Office of the U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Brian W. Gleason, Milwaukee, WI (argued), for defendant-appellant.

Before POSNER and RIPPLE, Circuit Judges, and TIMBERS, Senior Circuit Judge. [*]

Page 227

RIPPLE, Circuit Judge.

Following a jury trial, Zachery L. Wilson was found guilty of knowingly and intentionally possessing with intent to distribute in excess of five grams of a cocaine mixture in violation of 21 U.S.C. Sec. 841(a)(1); with knowingly using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c); and with being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2). Prior to trial Mr. Wilson filed a motion to suppress evidence obtained from the stop and arrest made by Milwaukee police officers. After an evidentiary hearing, the magistrate judge recommended that the motion be denied and Mr. Wilson filed objections, but the district court adopted the recommendation. Following a jury trial, Mr. Wilson was found guilty on all three counts and was sentenced to 168 months on Count 1 and 120 months on Count III to run concurrently, and 60 months on Count 2 to run consecutively. Mr. Wilson now appeals the denial of his motion to suppress evidence. For the following reasons, we affirm the judgment of the district court.

I

BACKGROUND

At approximately 1:00 a.m. on April 9, 1992, Milwaukee police officers Bodo Gajevic and his partner David Dalland received a broadcast from Squad 710 saying that there had been some sort of incident and that Squad 710 had someone in custody. 1 The broadcast also said that the officers in Squad 710 were pursuing a suspect at 11th and Wright Street and that a brown station wagon had fled the scene and was travelling west on West Wright Street. When Officer Gajevic heard the broadcast, his squad car was located two blocks south of Wright Street and fifteen blocks east of 11th Street. The officers sped toward the scene and some thirty seconds after hearing the broadcast saw a dark colored station wagon travelling south on North Teutonia.

Believing that this vehicle might be the station wagon to which the broadcast had referred, Officer Gajevic, in an unmarked police car and using neither siren nor lights, followed it into an alley. Once in the alley, the driver of the station wagon, who later proved to be the defendant, Zachery L. Wilson, jumped out of his moving car and fled on foot; the car came to rest against a light pole. Mr. Wilson ran for a short distance along the alley and then through some yards towards 14th Street. Officer Gajevic followed him on foot; at one point, the officer found Mr. Wilson lying down on a front porch, drew his gun, and told him to freeze, but Mr. Wilson began to run again, jumping over several fences. Officer Gajevic testified that he saw Mr. Wilson "make a motion with his arm" at a point when Mr. Wilson was confronted by Officer Gajevic and another officer, Officer Koch, who had arrived at the scene. Tr. of May 14, 1992 at 9.

Finally, Officer Gajevic located Mr. Wilson hiding under a porch and ordered him to come out. Officer Gajevic then handcuffed Mr. Wilson. When asked at the suppression hearing whether Mr. Wilson was placed under arrest at that time, Officer Gajevic said that he was. 2 Very shortly after the arrest, Officer Koch arrived and told Officer Gajevic that he had found a couple of baggies containing suspected marijuana, which Mr. Wilson had thrown away when confronted by the two officers during the chase. Officer Dalland informed Officer Gajevic, again within less than a minute of the handcuffing, that in Mr. Wilson's automobile, in plain view, were a small Raven arms .25 caliber semi-automatic handgun and a Llama .32 handgun.

Before Mr. Wilson was transported to the station, officers from Squad 710 informed Officer Gajevic that Mr. Wilson's car was not

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the one that was the object of the broadcast. When Mr. Wilson was booked and searched at the police station, the officers found what turned out to be crack cocaine, packaging material, and a pager. At that time, he was charged only with the cocaine and firearms offenses. Mr. Wilson moved to suppress the guns found in the car and the drugs and pager found on his person after arrest.

At the evidentiary hearing held before a magistrate judge, Officer Gajevic responded affirmatively when asked whether it was a violation of law to alight from a moving vehicle. On further questioning from the court, however, the government's counsel acknowledged that the alleged violation was not the basis of the arrest. Tr. of May 14, 1992 at 14-15. The defense explored in detail the positioning of the brown station wagon in order to show that there was no basis for a reasonable suspicion that the car was the same one referred to in the broadcast. At the hearing, the magistrate judge summed up the evidence offered to show probable cause by saying that, at the arrest, the only information that the officer had was the broadcast. Only after the arrest were the marijuana and the firearms found. Tr. of May 14, 1992 at 67. The magistrate judge recommended that the motion to suppress evidence be denied because

Officer Gajevic's observation of defendant Wilson's flight from his moving vehicle provided probable cause for his arrest for the violation of Wis. Stat. Sec. 346.94(9) which prohibits alighting from a moving vehicle. No Fourth Amendment violation was occasioned by the defendant's arrest or the seizure of items from his person.

Report and Recommendation at 5 (E.D.Wis. May 21, 1992). The Report also stated that the plain view doctrine authorized the officers to seize, as evidence of unlawful activity, the firearms that they had observed in the automobile. Id.

On June 2, 1992, in open court and on the day voir dire began, the district court ruled on the defendant's objections to the Report and Recommendation. Mr. Wilson protested that the magistrate judge had articulated no nexus between the weapons and any illegal activity, and that there had been no probable cause to arrest. The district court denied the motion to suppress "for the reasons stated by the Magistrate." Tr. of June 2, 1992 at 7.

Following trial, the defense filed a motion to allow additional evidence on the subject of the moving automobile, which it had not been able to present in the evidentiary hearing. 3 The court denied the motion, stating that the evidence offered on the subject at trial had been satisfactory and credible and that there was no reason to elicit further testimony. Tr. of Aug. 18, 1992 at 4. In so doing, the court elaborated on the issue of probable cause:

[G]iven what occurred here, police looking for an automobile involved in an automobile accident and following the Wilson car in this case into the alley, even though it was not the same car, but even if it was brought to a complete stop and the driver then got out and proceeded on to run away the police would have been justified in this case in following him ... following this individual who ran away. For the police not to have followed...

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