U.S. v. Hendricks
| Decision Date | 21 February 2003 |
| Docket Number | No. 02-2693.,02-2693. |
| Citation | 319 F.3d 993 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James C. HENDRICKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas L. Kirsch, II (Argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
Daniel L. Toomey, Jerome T. Flynn (Argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.
Before EASTERBROOK, RIPPLE and MANION, Circuit Judges.
A jury convicted James C. Hendricks of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Mr. Hendricks to 188 months' imprisonment as an armed career criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4. Mr. Hendricks challenges both his conviction and his sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
At 5:42 a.m. on May 10, 2001, Millie McDonald, a newspaper carrier, called the Lowell, Indiana Police Department to report what she perceived to be suspicious activity. After furnishing her name and occupation, McDonald informed the police dispatcher that an occupied white car was parked behind the Oil Exchange on Route 2. That business was closed at that hour of the morning. McDonald stated that she initially had observed the car parked behind the Oil Exchange facing east, that she had continued on her paper route, and that she had returned sometime later to find the same vehicle still parked behind the Oil Exchange, but this time facing west. The dispatcher immediately relayed McDonald's information to Officer John Swisher, who was present at the police station when the call was received.
Because the police station and the Oil Exchange are located within the same block on Route 2, Officer Swisher was able to respond to the call immediately. As Officer Swisher was leaving the police station, he observed a white car drive from behind the Oil Exchange, turn right onto Route 2, and then make a sharp right turn into a Mobile gas station. Officer Swisher observed that the white car failed to make a complete stop before pulling onto Route 2 and did not use a turn signal when leaving the Oil Exchange or entering the gas station. He also observed two occupants in the car and noticed that the passenger was moving about. The driver of the car was Marlissa Barnes and the only passenger was her fiancé, Mr. Hendricks.
Without activating his patrol car's emergency lights, Officer Swisher followed Barnes into the Mobile station and stopped his patrol car approximately fifteen feet behind where she had stopped her vehicle. There was nothing in front of the white car to prevent its exit. By the time Officer Swisher pulled into the Mobile station and stopped his car, Barnes had stopped, was out of the car and was rapidly approaching Officer Swisher's patrol car. Officer Swisher testified that it was unusual for a driver to approach him in such a manner. He further testified that his suspicions were elevated because her car had been parked behind a closed business establishment and there had been quite a few burglaries in the area during that time. For these reasons, Officer Swisher radioed for back-up.
Before a back-up officer arrived, Barnes engaged Officer Swisher in conversation. She told Officer Swisher that she was lost and looking for the interstate. When Officer Swisher asked her why she had been parked behind the closed Oil Exchange, Barnes avoided the question; she continued to state that she was lost and looking for the interstate. According to Officer Swisher, Barnes appeared nervous, her hands were shaking, and she kept looking back at her car as if something were wrong. Officer Swisher also noticed that Mr. Hendricks continued to move about the passenger side of the car and that Barnes was attempting to obstruct his view of Mr. Hendricks by repeatedly moving into his line of sight.
About a minute into Officer Swisher's conversation with Barnes, Officer Jeff Burk arrived at the Mobile station; the emergency lights of his patrol car were activated. Once Officer Burk arrived, Officer Swisher decided to approach the white car. As he approached, Officer Swisher noticed that Mr. Hendricks was slumped down in the passenger seat so that his head was barely visible from the rear of the car. He further noticed that the lock on the passenger door was completely missing; it had been "spun off." Suppression Hearing at 56. Officer Swisher testified that this condition indicated a forced entry. Upon reaching Mr. Hendricks, Officer Swisher asked him if he could see some identification. At this point, Officer Swisher noticed that the key in the ignition was turned upside down and that the key was barely stuck into the ignition lock; he also noticed that wires and broken plastic were hanging from the steering column. Officer Swisher testified that these observations indicated to him that the vehicle had been stolen.
Mr. Hendricks told Officer Swisher that he had identification, but he did not produce it; instead, he kept reaching for something on the left side of his body in the seat. Because it appeared to Officer Swisher that Mr. Hendricks was having difficulty with something that the officer could not see, he became concerned for his safety and asked Mr. Hendricks to get out of the car. Officer Swisher then conducted a protective pat-down search of Mr. Hendricks' outer clothing and felt a metal object in the right pocket of his pants. From prior experience, the officer recognized the object as the magazine for a handgun. Having ascertained that the magazine was full, Officer Swisher asked Mr. Hendricks where the gun was and whether he had a permit. Mr. Hendricks did not tell Officer Swisher where the gun was, but he responded that he did not have a permit. Officer Swisher then handcuffed Mr. Hendricks for officer safety. While the car door was still open, Officer Swisher observed a fully loaded Lorcin nine-millimeter handgun on the floor-board but partially hidden beneath the passenger seat. The magazine in Mr. Hendricks' pocket fit this weapon.
Mr. Hendricks was placed under arrest. At the police station, Officer Swisher performed a more thorough pat-down of Hendricks; during this search, in the same pocket in which he previously had found the loaded magazine, the officer found a single loose bullet that matched the bullets in the magazine found in Hendricks' pocket and the bullets in the magazine recovered from the handgun. No fingerprints were recovered.
Both Mr. Hendricks and Barnes testified at trial. Barnes testified that, although she had pleaded guilty to auto theft in state court, she had not stolen the car, but rather had taken the car from a friend after it had been stolen. According to Barnes, she drove the stolen car from a party to her home in Gary sometime after 2:00 a.m. on the morning of May 10, 2001. She left the car running outside her home while she went inside to find Mr. Hendricks. At that point, Barnes and Mr. Hendricks began arguing, and Barnes went back to the stolen car. Mr. Hendricks followed her and positioned himself in the passenger seat. The two continued to argue, and Barnes drove off. She drove aimlessly until they ended up in Lowell.
Both Mr. Hendricks and Barnes testified that they did not know the handgun was in the car until they were in Lowell. However, ATF Special Agent David Coulson testified that, on the morning of May 10, Barnes told him that she and Mr. Hendricks were aware of the gun's presence in the car while they were in Gary. Mr. Hendricks and Barnes both admitted that, once Mr. Hendricks found the gun, which they testified was under the passenger seat, he held it in his hand. Mr. Hendricks testified that he had reached under the seat, found the handgun, picked it up and started screaming at Barnes for having a firearm in the car. He further testified that Barnes grabbed the gun, that he took the gun back from Barnes, and that he placed it under the passenger seat. Mr. Hendricks testified that, shortly after placing the gun under the passenger seat, he got out of the car and used a pay phone that was located next to the Mobile station. According to Mr. Hendricks, he attempted to call his aunt to see if she could pick him up, but the aunt did not answer the phone. Mr. Hendricks testified that a few minutes went by, that he observed a police vehicle, and that he then decided to get back into the car.
During trial, Mr. Hendricks objected to the district court's instruction on possession and submitted instructions on two theories of defense. The district court gave its own instruction over Mr. Hendricks' objection and refused to give either of Mr. Hendricks' instructions in its charge to the jury. On March 26, 2002, the jury convicted Mr. Hendricks of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On June 11, 2002, Mr. Hendricks was sentenced by the district court. Mr. Hendricks objected to a 2 level enhancement of his offense level for obstruction of justice and also a 2 level enhancement for an obliterated or altered firearm serial number. The district court denied Mr. Hendricks' objections and granted both of the enhancements. Mr. Hendricks also objected to the court's application of the Armed Career Criminal Act, 18 U.S.C. § 924(e), without having the issue presented to the jury. The district court denied Mr. Hendricks' objection and sentenced him as an armed career criminal under U.S.S.G. § 4B1.4. The court also denied Mr. Hendricks' request for a 3 level reduction for acceptance of responsibility. Mr. Hendricks was sentenced to a term of 188 months in prison.
Mr. Hendricks filed a motion to suppress the nine-millimeter handgun...
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