U.S. v. Wimbush, 01-3520.

• Decision Date: 28 July 2003
• Docket Number: No. 01-3520.,01-3520.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Quincy WIMBUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

337 F.3d 947

UNITED STATES of America, Plaintiff-Appellee, v. Quincy WIMBUSH, Defendant-Appellant.

No. 01-3520.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 2002.

Decided July 28, 2003.

Daniel L. Olson (argued), Paul G. Casey, Office of the U.S. Atty., Rockford, IL, for Plaintiff-Appellee.

Rene Hernandez (argued), Rockford, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and WOOD, Jr., and POSNER, Circuit Judges.

FLAUM, Chief Judge.

In May 2000 a police officer in Rockford, Illinois, pulled over the sport utility vehicle driven by convicted felon Quincy Wimbush, suspecting that Wimbush may have been involved in a shooting. While questioning Wimbush, the officer smelled marijuana and noticed an open container of alcohol in the console. A search of the vehicle produced a weapon. A federal grand jury later returned a one-count indictment accusing Wimbush of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). Wimbush eventually pleaded guilty, but in his plea agreement reserved the right to appeal the denial of his motion to suppress. The district court sentenced him to 120 months' incarceration. On appeal Wimbush argues that the court erred by denying his motion to suppress, and also contends that his sentence was too severe. We affirm.

I. BACKGROUND

Late at night on May 16, 2000, Officer Todd Murr responded to a radio dispatch reporting a shooting in an alley near Elm Street on the west side of Rockford. The dispatcher described the suspect as a black male, possibly named "Sean Burks," and relayed that he was driving a burgundy or maroon Ford Explorer with shiny rims. Murr set up surveillance at an intersection seven to eight blocks away in a high-crime neighborhood.

Approximately fifteen minutes after the shooting, Murr saw a purple Explorer with shiny rims drive through the intersection. The vehicle was being driven by a black male whose identity was unknown at the time. Murr pulled over the car and asked the driver — Wimbush — for identification. Wimbush responded that he did not have his license with him. Murr then instructed Wimbush to step out of the car. As Wimbush opened the door and stepped out of the vehicle, Murr smelled marijuana and spotted an open bottle of alcohol in the console next to the driver's seat.

After Wimbush left the vehicle, Murr asked where he was coming from. Wimbush replied, "From my cousin's house on Elm, I mean Avon." Believing Wimbush was acting suspiciously and knowing that the shooting had occurred on Elm Street, Murr asked Wimbush to sit in the patrol car. Wimbush complied. Murr then told Wimbush that he was going to search the vehicle because of the marijuana and open alcohol and asked whether he would find anything in it. Wimbush replied "go ahead and look." Another officer who had arrived on the scene as back-up searched the vehicle's passenger compartment and discovered a marijuana cigarette, two ski masks, and an unloaded .380 semiautomatic handgun.

In his suppression motion, Wimbush argued that evidence of the gun should be excluded because the stop and subsequent search were unlawful. At a hearing Wimbush testified that before he had gotten out of the car, Murr reached in the vehicle, placed it in park, turned off the ignition, and then yanked the keys out of the ignition. He further testified that Murr never asked to see identification, and that Murr had pulled Wimbush out of the truck and placed him in handcuffs. Murr refuted portions of Wimbush's account, testifying that he did ask for identification, and that he never reached into the vehicle. The district court credited Murr's version of the facts and denied the motion.

II. DISCUSSION

A. Motion to Suppress

On appeal Wimbush argues that Murr lacked reasonable suspicion to detain him, and that police lacked probable cause to conduct a warrantless search of his vehicle. We review the district court's factual findings in a suppression hearing for clear error, and its legal conclusions and mixed questions of law and fact de novo. United States v. French, 291 F.3d 945, 950-51 (7th Cir.2002). Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may conduct a brief, investigatory stop of a suspect if they have reasonable suspicion based on articulable facts that a crime is about to be or has been committed. "Reasonable suspicion" must be based on some objective manifestation that the suspect is involved in criminal activity. United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000). Although police may not detain a suspect based merely on a hunch, the likelihood of criminal activity need not rise to the level required for probable cause and falls well short of meeting a preponderance of the evidence standard. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); United States v. Hendricks, 319 F.3d 993, 1001 (7th Cir.2003), petition for cert. filed (May 21, 2003) (No. 02-11129). In evaluating the reasonableness of a stop, courts must examine the totality of the circumstances known to the officer at the time of the stop. United States v. Jackson, 300 F.3d 740, 745-46 (7th Cir.2002).

The instant stop requires close scrutiny — Murr halted the vehicle based on a general dispatch report, and the factual foundation for the description supplied was unknown to him. But Wimbush does not argue that Murr erred by relying merely on the dispatch report; instead, he contends that Murr stopped him only because he is black and therefore the stop was unreasonable. As the government correctly notes, however, Murr stopped Wimbush not only because he matched the description of the suspect, but also because Wimbush was driving a vehicle substantially similar to the one driven by the suspect — a purple SUV with shiny rims. Moreover, the shooting had occurred only minutes earlier in an area just eight blocks away. In light of these objective factors, the court did not clearly err by refusing to suppress evidence of the gun based on the stop. See Swift, 220 F.3d at 507 (police officer reasonably stopped a red jeep based on reports that bank robbers had escaped in a matching vehicle that included some of the same license plate numbers, coupled with knowledge that a red jeep involved in other robberies might be found in complex where jeep was stopped); United States v. Tilmon, 19 F.3d 1221, 1225 (7th Cir.1994) (upholding stop of vehicle that matched description of vehicle involved in bank robbery committed two hours earlier at a location 50 miles away); see also United States v. Chapman, 954 F.2d 1352, 1357 (7th Cir.1992) (officers had probable cause to arrest defendant hiding in vehicle based on matching description of getaway vehicle); Creighton v. Anderson, 922 F.2d 443, 450 (8th Cir.1990) (upholding stop of vehicle even though defendant's vehicle was slightly different color and different make of supposed getaway car).

Wimbush also challenges the warrantless search of his vehicle, but it is apparent that the police acted appropriately for several reasons. Officers may conduct a protective search of a vehicle's passenger compartment when they have a reasonable belief that the suspect poses a danger and that their safety may be threatened by the possible presence of weapons. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d...