U.S.A. v. Hayes, 00-1258

• Decision Date: 11 January 2001
• Docket Number: No. 00-1258,00-1258
• Citation: 236 F.3d 891
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MATTHEW HAYES, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 891

236 F.3d 891 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MATTHEW HAYES, Defendant-Appellant.

No. 00-1258

In the United States Court of Appeals For the Seventh Circuit

ARGUED SEPTEMBER 14, 2000

DECIDED JANUARY 11, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 99 CR 173--J.P. Stadtmueller, Chief Judge.

[Copyrighted Material Omitted] Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

ROVNER, Circuit Judge.

A grand jury indicted Matthew Hayes on one count of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1), and a jury convicted him of that charge. The Armed Career Criminal Act, 18 U.S.C. sec. 924 (e), applied and Hayes was ultimately sentenced to 250 months imprisonment, five years supervised release, a $1,500 fine and $100 special assessment. Hayes now appeals that conviction, arguing selective prosecution, insufficiency of the trial evidence, and absence of probable cause for the initial arrest.

I.

The path to his nearly 21-year sentence began when Hayes engaged in the rather unremarkable act of crossing a street when the pedestrian signal read "DON'T WALK." Hayes' traverse was ill-timed, however, because he stepped out in front of a police car that had to brake to avoid hitting him. Hayes proceeded across the street, and the police car completed a U-turn and approached him. The officers testified that they were following Hayes to issue him a pedestrian violation citation. Rather than waiting to see what the officers would do, however, Hayes began running away from them. One of the officers observed him trying to shove something into a couch that was located outside a secondhand furniture store. He then raced away again. The officers checked the couch and did not find anything there, but at that time a witness alerted them that Hayes had dropped something near the couch. The officers then recovered a firearm magazine containing nine-millimeter ammunition. Another witness, Larry Webb, informed the officers that he had observed that Hayes was carrying a gun, and that Hayes attempted to stuff it into the couch but then retrieved it and ran away. The officers then broadcast a description of Hayes, and other officers apprehended him approximately a block and a half away from the furniture store. He was placed under arrest for obstruction and on suspicion of carrying a concealed weapon. When the officers retraced Hayes' path of travel, they spotted a dumpster just north of the vacant lot by the secondhand furniture store, and resting on top of the dumpster was a black semiautomatic handgun with a brown handle. The witness who had observed Hayes carrying the weapon and attempting to place it in the couch cushions subsequently identified the gun as the one carried by Hayes. The loaded magazine retrieved from the sidewalk fit the gun recovered in the dumpster.

Hayes told the police that the firearm belonged to a friend of his named "James." Hayes further stated that James dropped the pistol when he was running, and that Hayes picked it up and the magazine fell out into his hand. He acknowledged that he tried to hide the gun under a couch on the sidewalk so he would not "catch a gun case," but then ran around the corner and threw it into the dumpster.

At trial, Hayes took a different tack in explaining the events of that night. He maintained that he ran from the police because he thought a warrant had issued for his failure to pay child support, and he denied putting the gun in the couch cushions or the dumpster. Hayes testified that he had lied to the police concerning his conduct because he was assured by the detective interviewing him that he would just get a misdemeanor charge, that his fingerprints were on the gun, and that the D.A. would "make it hard" for him because they had to release him on a murder charge he did not commit. The jury convicted him of being a felon in possession of a firearm.

II.

Hayes first argues that the court erred in refusing to suppress all evidence stemming from his arrest because the officers lacked probable cause to believe he had committed a misdemeanor or felony offense at the time of his arrest. According to Hayes, the only "offense" for which there was probable cause at the time of his arrest was for jaywalking, and that nonmoving traffic violation gave them authority to issue a municipal citation, but not to arrest him.

In order to have probable cause for an arrest, law enforcement agents must reasonably believe, in light of the facts and circumstances within their knowledge at the time of the arrest, that the suspect had committed or was committing an offense. United States v. Kincaid, 212 F.3d 1025, 1028 (7th Cir. 2000); United States v. Osborn, 120 F.3d 59, 62 (7th Cir. 1997). The probable cause standard is a flexible, practical common-sense one which is met if the facts are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. United States v. Colonia, 870 F.2d 1319, 1323 (7th Cir. 1989) (citations omitted); United States v. Evans, 27 F.3d 1219, 1228 (7th Cir. 1994).

At the time that Hayes was arrested, the officers had been presented with facts sufficient to indicate that Hayes was committing the offense of carrying a concealed weapon. At that time, the officers had already heard from Webb who told them that he observed Hayes with the gun, and that Hayes attempted to place the gun in the couch cushions but then ran off with it. That eyewitness account was consistent with the officer's own observation of Hayes attempting to place something in the couch. Moreover, the officers had recovered a magazine for a nine- millimeter firearm that another witness identified as having been dropped by Hayes. In conjunction with Hayes' flight upon seeing the officers approaching him, the facts certainly warranted a person of reasonable caution to believe that Hayes had committed the offense of carrying a concealed weapon. Because that evidence established probable cause for the arrest, we need not address the government's alternative argument that the seizure of the gun was not the fruit of the arrest.

Hayes next asserts that the district court erred in denying his motion to dismiss the superceding indictment on the grounds that he was a victim of selective prosecution (which he also terms "selective enforcement"). In that motion, Hayes argued that African-American felons are disproportionately selected for prosecution in federal court on charges of possession of a firearm by a felon, whereas members of other ethnic groups are charged only in state court. As support for this motion, Hayes presented an article from the Milwaukee Journal Sentinel indicating that about a dozen offenders per year were referred for federal rather than state prosecution. Hayes' counsel argued that based on information and belief and his own experience, the overwhelming majority of those offenders subject to such federal prosecution from Milwaukee County have been African-American. Hayes' counsel then stated that he recently represented two African-American defendants who, like Hayes, were not only referred for federal prosecution...