U.S. v. Gilbert, 94-2730

• Decision Date: 30 January 1995
• Docket Number: No. 94-2730,94-2730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lester W. GILBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1163

45 F.3d 1163

UNITED STATES of America, Plaintiff-Appellee, v. Lester W. GILBERT, Defendant-Appellant.

No. 94-2730.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1994.

Decided Jan. 30, 1995.

Gregory M. Gilmore, Springfield, IL (argued), for plaintiff-appellee.

James D. Green, Flynn, Palmer, Tague & Lietz, Champaign, IL (argued), for defendant-appellant.

Before FLAUM, RIPPLE, and GARZA, ^* Circuit Judges.

FLAUM, Circuit Judge.

Lester Gilbert pled guilty to one count of unlawful possession of a firearm by a convicted felon. 18 U.S.C. Sec. 922(g)(1). The district court sentenced him to 188 months in prison. On appeal Gilbert presents two arguments. First, he asserts that the seizure of the firearm was pursuant to an illegal arrest and thus should have been suppressed. Second, Gilbert contends that the district court wrongly sentenced him under the Armed Career Criminal Act and under the Sentencing Guidelines. We hold that the district court properly denied Gilbert's motion to suppress and properly sentenced him. We thus affirm.

I.

In October, 1993, Champaign County Sheriff Investigator Scott Swan arrested Cecil Relation on an outstanding burglary warrant. In exchange for a promise of leniency in connection with pending burglary charges, Relation provided Swan with information regarding approximately fifteen to twenty burglaries in the Champaign County area. Specifically, Relation told Swan that he had committed the burglaries with his three roommates: Lester Gilbert, Ernesto Gonzales, and Kathy O'Malley. Relation supplied Swan with detailed information about the burglaries, including their locations, the methods by which they were accomplished, the vehicles used, and the items taken. Relation additionally informed Swan that Gilbert and Gonzales had met in the Pontiac penitentiary when they were inmates in the same cellblock and had used and sold heroin. Relation also told Swan that Gilbert carried a handgun. Relation described the gun as a semi-automatic Colt with pearl handgrips. After receiving this information, Swan verified it and found all of the details to be accurate.

Relation informed Swan that Gilbert, O'Malley and Gonzales were contemplating an armed robbery of an Arby's restaurant. Relation agreed to help Swan and Bureau of Alcohol, Tobacco and Firearms ("ATF") Agent Paul Vido catch Gilbert. At approximately 10:30 a.m. on November 2, 1993, Swan and other officers staked out Gilbert's residence. Around noon, Swan observed Relation and O'Malley leave the residence in a car. Relation and O'Malley drove to a nearby grocery store and paged Swan from there, an arrangement upon which Swan and Relation had previously agreed. Relation informed Swan that Gilbert and Gonzales would soon be leaving the residence in a blue station wagon to purchase drugs. Relation returned to the residence.

At about 1:10 p.m., Gilbert and Gonzales exited the house and drove away in a blue station wagon. Swan could not observe whether Gilbert was carrying a gun. Swan did not follow the station wagon because he was waiting for a call from Relation. At 2:40 p.m., Relation, O'Malley and an unidentified woman left the house again. Relation contacted Swan and told Swan that Gilbert was carrying the handgun in a shoulder holster and would be returning to the residence shortly. Five minutes later, Swan spotted Gonzales driving the car with Gilbert in the passenger seat. Swan followed the vehicle and turned on his red police light. Gonzales pulled into the driveway of the residence. ¹ The district court found:

Swan pulled up parallel to the passenger side, opened his door, pointed his firearm at the defendant, and said, "Lester, put your hands on the dashboard." Investigator Bolt drew up on the other side within about 10 seconds time and pointed his firearm at Gonzales. It is not clear what the defendant did. He apparently did not put his hands on the dashboard, but he did not do anything else either. Within a very brief period of time, Swan had opened the passenger door, seized the defendant by the collar, and hauled the defendant out onto the ground. In the process of that maneuver, Swan had a clear view of the firearm in a shoulder holster carried by the defendant.

Gonzales was found to be carrying 13.2 grams of cocaine.

Gilbert was indicted on January 5, 1994, for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). ² On February 4, 1994, Gilbert filed a motion to suppress evidence of the firearm seized on the day of his arrest. After hearing evidence, the district court denied Gilbert's motion. On March 2, 1994, Gilbert entered a guilty plea, contingent on his right to appeal the denial of his motion to suppress, in accordance with Rule 11(a)(2) of the Federal Rules of Criminal Procedure. Gilbert's sentencing hearing was held on July 15, 1994. In an Order of Final Disposition entered on July 19, 1994, the district court sentenced Gilbert to a prison term of 188 months, ruling that Gilbert was eligible for sentencing under the armed career criminal provisions of 18 U.S.C. Sec. 924(e), because he had four previous violent felony convictions. This appeal followed.

II.

Gilbert first argues that the district court erred in its denial of his motion to suppress the evidence of the handgun. Gilbert contends that Swan's apprehension of Gilbert was an illegal warrantless arrest and that the seized handgun, the fruit of that arrest, should not have been considered. ³ We review a district court's ruling on a motion to suppress evidence for clear error. United States v. Evans, 27 F.3d 1219, 1228 (7th Cir.1994); United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994). "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." Tilmon, 19 F.3d at 1224 (citing United States v. Rice, 995 F.2d 719, 722 (7th Cir.1993)).

In order to make an arrest without a warrant, the police must have probable cause, under the totality of the circumstances, to reasonably believe that a particular individual has committed a crime. See Evans, 27 F.3d at 1228. The sole thrust of Gilbert's argument is that the police lacked probable cause to arrest him for possession of a weapon by a felon. The determination of probable cause involves "a practical, common-sense decision whether, given all of the circumstances set forth ... there is a fair probability that contraband or evidence of a crime will be found in particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see Evans, 27 F.3d at 1228; United States v. Foxworth, 8 F.3d 540, 543 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1414, 128 L.Ed.2d 85 (1994). While probable cause requires more than the mere suspicion, we do not require it to reach the level of virtual certainty. See Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2335 n. 13 ("probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity"); United States v. Levy, 990 F.2d 971, 973 (7th Cir.1993); United States v. Burrell, 963 F.2d 976, 986 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992).

In examining the conduct of investigating police officers, we have held that "[p]olice officers have probable cause to make an arrest where 'the fact and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " Levy, 990 F.2d at 973 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). "Trustworthy information" can include a tip from an informant, as long as the tip is reliable. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332; United States v. Scott, 19 F.3d 1238, 1242 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). Reliability may be shown by the informant's past record of reliability, through independent confirmation or personal observation by the police, or by other methods. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In the instant case, the district court did not clearly err when it concluded that "Officer Swan had a substantial basis for concluding that probable cause existed that the defendant was committing a crime." Swan had reasonably trustworthy information that the defendant was involved in criminal activity. Relation reliably informed Swan that Gilbert was carrying a handgun and that the defendant was a convicted felon. Moreover, for each piece of information which Relation provided, Swan either independently verified it or confirmed that Relation had first-hand knowledge of its accuracy.

First, Relation gave a detailed description of the gun to Swan as a Colt semi-automatic handgun with pearl handgrips. Relation was able to accurately identify the weapon because he lived in the same house with and had been shown the weapon by Gilbert. Relation also described the blue station wagon in which Gilbert would be travelling and Swan verified that a car matching that description was registered to a resident of the house in which Gilbert lived.

Furthermore, Relation provided Swan with detailed, accurate information of about 15 to 20 burglaries in the surrounding area in which Gilbert was involved. These details included: the location of the burglaries (including which building or business, and the address), how the burglars entered the dwellings, and what they stole. Swan was able to verify the details--some of which were not public information--with other local law enforcement officials.

Swan also had a reliable basis to believe that Gilbert was a convicted felon. Relation informed Swan that Gonzales and Gilbert had met while inmates together at Pontiac...