U.S. v. Vickers

• Decision Date: 12 August 2008
• Docket Number: No. 07-10767. Summary Calendar.,07-10767. Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Dewayne VICKERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

540 F.3d 356

UNITED STATES of America, Plaintiff-Appellee, v. Michael Dewayne VICKERS, Defendant-Appellant.

No. 07-10767. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

August 12, 2008.

Delonia Anita Watson, Fort Worth, TX, for U.S.

Jason Douglas Hawkins, Dallas, TX, for Vickers.

Appeal from the United States District Court for the Northern District of Texas.

Before STEWART, OWEN and SOUTHWICK, Circuit Judges.

SOUTHWICK, Circuit Judge:

Michael Dewayne Vickers was convicted, after a jury trial, of being a felon in possession of a firearm in violation of federal law. Vickers timely appeals and challenges both his conviction and sentence. We AFFIRM.

I. BACKGROUND

On August 5, 2005, at approximately 3:00 p.m., the Dallas Police Department received a 911 call reporting a burglary. The caller described the burglar as a black male dressed in a red T-shirt and a dark-colored pair of shorts, and stated that the perpetrator might still be in the area. Vickers was walking down the street of his neighborhood in Dallas, Texas. The Dallas Police Department dispatched officers to investigate.

The first officer to arrive at the scene observed a black male wearing a red T-shirt and dark shorts walking on the sidewalk near the house that had been burglarized. It was Vickers. The officer stepped out of his patrol car and ordered Vickers to put his hands on the hood of the police vehicle. Vickers initially complied, but as the officer began to pat him down, Vickers said, "I can't go to jail," and attempted to flee. Vickers ran only a few steps before he was subdued and handcuffed.

After Vickers was subdued, the officers completed the search and discovered a .38 caliber pistol in the front left pocket of Vickers's pants. After Vickers's arrest, the person who had placed the 911 call approached and told the officers they "had the wrong guy." It is now undisputed that Vickers was not involved in the burglary that prompted the 911 call. Vickers's arrest was based solely on possession of the weapon found as a result of the search.

Vickers was charged with being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1) & 924(e)(1). Vickers's prior felony convictions justifying the charge included murder, burglary of a habitation, and unlawful delivery of a controlled substance. At his trial, Vickers presented no defense. His counsel informed the jury in closing arguments that the trial essentially "pertain[ed] to Mr. Vickers' right to appeal." After brief deliberations, the jury returned a verdict of guilty.

At sentencing, the district court adopted the recommendation of the Presentence Report. The PSR determined that Vickers's three prior felony convictions constituted either a "violent felony" or a "serious drug offense," and designated Vickers as an Armed Career Criminal for purposes of sentencing. This designation mandated the imposition of a minimum sentence of fifteen years. Vickers objected to the characterization of his prior state conviction for delivery of a controlled substance as a "serious drug offense." The district court overruled the objection. The district court also denied Vickers's request for a two-level reduction in his sentence for acceptance of responsibility.

The final calculation placed Vickers's offense level at 33 with a Criminal History Category of IV. This resulted in a Sentencing Guideline range of 188-235 months. The district court sentenced Vickers to 190 months' imprisonment and three years of supervised release. The court adjusted the sentence from 190 months to 168 months to account for 22 months of incarceration by the state of Texas that would not be credited to his sentence by the U.S. Bureau of Prisons.

On appeal, Vickers challenges both his conviction and sentence.

II. DISCUSSION

A. Motion to Suppress

Vickers's first argument is that the district court erred in denying his motion to suppress. In evaluating a refusal to suppress evidence, we review questions of law de novo and factual findings for clear error. United States v. Mata, 517 F.3d 279, 284 (5th Cir.2008). In addition, where, as here, the police acted without a warrant, the burden is on the Government to prove that the search was valid. United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.2005).

Vickers argues that the initial police action—pulling up in marked police vehicles and immediately instructing Vickers to place his hands on the police car—constituted an unconstitutional seizure under the Fourth Amendment because the officers had neither a warrant nor probable cause. The Government, on the other hand, characterizes the officers' actions as a permissible "stop and frisk" because the officers had reasonable suspicion that Vickers was involved in the reported burglary based on the information provided in the 911 call.

The Fourth Amendment provides these relevant protections:

The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops by persons or vehicles that fall short of traditional arrest. Because the balance between the public interest and the individual's right to personal security tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot.

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotes and citations omitted). The legality of a "stop and frisk" requires this analysis: were the officer's initial actions justified when they occurred, and was there a reasonable relation between subsequent actions and the circumstances that supported the stop? United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (en banc).

(a) The initial stop

The initial stop in a situation such as this is proper when "the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (emphasis and citation omitted). Reasonable suspicion requires less information and certainty than the probable cause needed to make an arrest. United States v. Jones, 234 F.3d 234, 241 (5th Cir.2000). Whether an officer has reasonable suspicion to stop is answered from the facts known to the officer at the time.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The record shows that the police received an emergency phone call, in which the caller reported that his own home had just been burglarized. The victim provided his name, address, telephone number, as well as other personal information. In response to the call, the following dispatch was sent: "Burglary just occurred by unknown black male last seen wearing red shirt, blue or black shorts. Suspect near location." Upon arriving at the location, the officers discovered Vickers—about 75 to 100 yards from the burglarized home— wearing clothing that met the description of the reported burglar. Considering the totality of the circumstances in this case, we find that the officers had a "particularized and objective basis" to believe that a crime had been committed and that Vickers was involved. Arvizu, 534 U.S. at 277, 122 S.Ct. 744.

Vickers argues that the 911 call was nothing more than an unreliable anonymous tip, which did not provide reasonable suspicion. Vickers is factually and legally incorrect. This was not anonymously-provided information; an identified citizen had been victimized by a crime and was reporting it. The question of whether a 911 call has a sufficient indicia of reliability to provide reasonable suspicion to justify a stop is evaluated based on the circumstances of each case. A good starting point is the presumption of "the reliability of an eyewitness 911 call reporting an emergency situation for purposes of establishing reasonable suspicion, particularly when the caller identifies" who he or she is. United States v. Drake, 456 F.3d 771, 775 (7th Cir.2006); see also United States v. Burbridge, 252 F.3d 775, 778-79 (5th Cir.2001) ("when an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.") (citation omitted).

In this case, a burglary victim not only gave his name, he also provided several other pieces of information to identify himself and the burglar. The 911 call in this case was sufficiently detailed that the police were justified in relying on it to establish reasonable suspicion.

(b) Scope of the stop

Though the police had reasonable suspicion to stop Vickers, the officers' actions must not exceed the permissible scope of the stop. United States v. Dortch, 199 F.3d 193, 198 (5th Cir.1999). The question is whether the police "diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

The means of investigation pursued here was a frisk, which the Supreme Court has held is appropriate when the officer fears that the suspect is...