U.S. v. Galaviz

• Citation: 645 F.3d 347
• Decision Date: 06 May 2011
• Docket Number: No. 07–2518.,07–2518.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jose GALAVIZ, also known as Jose Galaviz, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

645 F.3d 347

UNITED STATES of America, Plaintiff–Appellee,

v.Jose GALAVIZ, also known as Jose Galaviz, Jr., Defendant–Appellant.

No. 07–2518.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 14, 2011.Decided and Filed: May 6, 2011.

ARGUED: Rod O'Farrell, Saginaw, Michigan, for Appellant. Margaret Marie Smith, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Rod O'Farrell, Saginaw, Michigan, for Appellant. Jennifer J. Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellee.Before: MERRITT, ROGERS, and WHITE, Circuit Judges.WHITE, J., delivered the opinion of the court, in which MERRITT and ROGERS, JJ., joined. MERRITT, J. (pp. 363–65), delivered a separate concurring opinion.

OPINION

HELENE N. WHITE, Circuit Judge.

Defendant Jose Galaviz appeals his conviction and sentence following his plea of guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He challenges the district court's denial of his motion to suppress the warrantless seizure of a gun from his vehicle, and asserts that the district court erred in calculating the applicable sentencing guideline range because it improperly counted a past crime as part of his criminal history. Galaviz also raises a new challenge to his sentence in an untimely reply brief. We affirm the district court's denial of Galaviz's motion to suppress, but reverse its calculation of his sentence under the United States Sentencing Guidelines and remand for resentencing.

I

On December 27, 2006 at 2:46 AM, a woman placed a 911 call from the Admiral gas station on Dixie Highway in or near Bridgeport, Michigan reporting that she had just been robbed at gunpoint. The caller, who was distraught and intermittently sobbing, reported that a black male and/or a black female had held her up at gunpoint and had left the scene in a “white car.” After asking a series of clarifying questions, the 911 operator asked the caller, “can you describe the—would it have been like a white Cavalier?” The caller, while sobbing, replied “yes,” but then after several unintelligible words, told the dispatcher that he should talk to her sister because she would know better what kind of car it was. The sister took the phone and the dispatcher asked, “can you describe the vehicle at all?” The sister responded, “I don't know what kind. It was a white car.... It was a white car.” At that point officers arrived at the scene and the dispatcher instructed the sister to end the call and speak to the responding officers.

At 2:48 AM, a dispatcher broadcast via police radio that the suspects were “last seen driving a white vehicle south on Dixie.” When asked by an officer to clarify the description, the dispatcher said, “all I have is a white vehicle, sir.” In the next few minutes, several officers made radio transmissions indicating that they were investigating white cars they encountered on the road.

Saginaw County Sheriff's Deputy Kurt Webber was on patrol in a squad car during this time and was listening to these transmissions. At the intersection of Webber Street and Genesee Avenue in Saginaw,¹ Deputy Webber saw a white Lincoln Town Car stopped at a traffic light facing westbound on Webber, across Genesee from him. The driver of this car was Defendant Galaviz. Thinking that it might be the car described in the transmissions about the robbery, Deputy Webber drove past the white Lincoln and then turned his car around to follow it. Webber testified that after he turned his car around the Lincoln “accelerated away from [him]” and, according to his visual estimation, exceeded the posted 25 mile per hour speed limit.² Deputy Webber followed the car as it made several turns in a residential area. The white car then turned into a driveway at 332 Carter Street and parked. Deputy Webber pulled his car up at the base of the driveway, blocking the white car. When Webber exited his vehicle, the driver of the white Lincoln, Galaviz, was already out of his car and walking toward the front door of the house. Webber observed that Galaviz “looked like a Hispanic male,” not a black male or black female as the suspect was described in the radio transmissions. Webber ordered Galaviz to return to his vehicle. When Galaviz continued to walk toward the house, Webber activated the overhead flashing lights on his car. Webber ordered Galaviz to stop several times. Galaviz repeatedly stated that he “didn't do anything,” as he walked up a wheelchair ramp to the front door of the house.

According to Webber, when Galaviz reached the front door, he “knocked,” “kicked” and “banged” on the door and was “screaming and yelling for someone inside to let him in.” Webber ordered Galaviz to stop and to get on the ground, and then drew his taser. Galaviz refused to stop or to get on the ground. Webber warned Galaviz that if he entered the house, Webber would employ the taser on him. Soon after this warning, the door opened and Galaviz began to enter the house; Webber testified that it was unclear to him whether Galaviz forced the door open or was let into the house. Webber fired the taser, which struck Galaviz. Galaviz screamed and then the door closed. When the door closed, Webber radioed for assistance and then entered the house with the permission of the residents.³ The residents of the house told Webber that Galaviz had run out the back door. Webber looked through the back door and did not see anyone; as he was looking, other police cars arrived. He described the driver of the car over the radio as a “Mexican male, mustache, wearing a gray shirt, short hair.” The responding officers searched the house with Webber, found Galaviz in the basement, and removed him from the house.

While Galaviz was still inside the house, police officers at the scene made a visual inspection of the white car parked in the driveway and observed what looked like part of a handgun sticking out from under the front seat. Unable to obtain car keys from Galaviz, police called a wrecker service to unlock the car. Once the car was unlocked, they seized a revolver located on the driver-side floor, partially under the seat.

Galaviz was indicted on a federal charge of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Galaviz filed a suppression motion arguing that the gun was seized in violation of the Fourth Amendment. After an evidentiary hearing,⁴ the district court denied the motion. Galaviz then entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11, in which he preserved the right to appeal the denial of his suppression motion. The court accepted the plea, held a sentencing hearing, and sentenced Galaviz to 70 months in prison, followed by three years of supervised release. Galaviz timely appealed.

II

A. Standard of Review

This Court reviews a district court's factual findings in a decision on a motion to suppress for clear error and its legal conclusions de novo. United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009). “A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. Navarro–Camacho, 186 F.3d 701, 705 (6th Cir.1999)). “When a district court has denied a motion to suppress, this Court reviews the evidence in the light most likely to support the district court's decision.” Id. (internal quotation marks omitted).

B. The District Court's Order Denying Galaviz's Motion to Suppress

The district court denied Galaviz's motion to suppress solely on the basis that Deputy Webber “had specific and articulable facts, under the totality of the circumstances, to justify stopping Defendant to investigate whether he committed the robbery” in accordance with the standard set out in Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Galaviz, No. 07–20009–BC, 2007 WL 2324949, at *1 (E.D.Mich. Aug. 14, 2007). In order to make an investigative Terry stop without a warrant, an officer must have reasonable articulable suspicion that “the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009); Terry, 392 U.S. at 21, 88 S.Ct. 1868. When making reasonable-suspicion determinations, reviewing courts “must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

The district court identified several relevant factors justifying the Terry stop:

(1) the short time (about ten minutes or less) between the occurrence of the armed robbery and Webber's observation of Defendant's vehicle; (2) the close geographic proximity of the location of the robbery and the site where Webber observed Defendant's car; (3) the color of the vehicle that corresponded to that announced by the police dispatcher; and (4) the minimal traffic due to the hour of the night. Those details sufficed to justify Webber's interest in further investigation. Additionally, as stated on the record, Defendant rapidly accelerated his vehicle away from a marked police car that turned to follow him, and he later disregarded the officer's directives to stop. Also, Defendant knocked, kicked, and banged on the door of a residence to which he sought entry, which showed his apparent lack of authorization to enter the residence.

Galaviz, 2007 WL 2324949, at *1. The court did not, however, provide any discussion of the basis for upholding the warrantless search of Galaviz's car, apparently assuming that if Webber had reasonable suspicion to support an investigative seizure of Galaviz, then the search of the car and the seizure of the gun would be justified....