U.S. v. Price

• Decision Date: 07 November 1989
• Docket Number: No. 89-1499,89-1499
• Citation: 888 F.2d 1206
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin PRICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1206

888 F.2d 1206

UNITED STATES of America, Plaintiff-Appellee, v. Kevin PRICE, Defendant-Appellant.

No. 89-1499.

United States Court of Appeals Seventh Circuit.

Argued Sept. 11, 1989.

Decided Nov. 7, 1989.

Thomas M. Durkin and John N. Gallo, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for the U.S., plaintiff-appellee.

Michael G. Berland, Chicago, Ill., for Kevin Price, defendant-appellant.

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

BAUER, Chief Judge.

Defendant Kevin Price brings this appeal from the district court's entry of final judgment on the jury verdict finding him guilty of unlawful possession of a sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d). Price claims that his arrest was made without probable cause in violation of the fourth amendment and that the district court's refusal to ask certain voir dire questions denied him his sixth amendment right to an impartial jury and his fourteenth amendment right to due process. ¹ For the reasons discussed below, we affirm Price's conviction.

I. Facts

On July 16, 1987, Agent John Gamboa of the United States Treasury Department's Bureau of Alcohol, Tobacco & Firearms (ATF) requested a search warrant for Apartment 9B, 914 North Austin Blvd., Oak Park, Illinois. According to the affidavit supporting the warrant request, Gamboa met with a confidential informant two days earlier. The informant, who had twice before provided accurate information leading to two weapons arrests, told Gamboa that he had been in Apartment 9B three times that week and had seen a black male known to him as "D. Price" (a.k.a. "Tino") walking through the apartment carrying a sawed-off shotgun. The informant described the weapon as a single barrel, single shot, break-open shotgun with both the barrel and the stock partially sawed off. The informant also told Gamboa that "D. Price" lived in the apartment with a woman named Crystal Hall and their two sons, and gave Gamboa a telephone number which checked out as being listed to Crystal Hall at that address. After his meeting with the informant, Gamboa checked with the National Firearms Registration and Transfer Records Section and determined that no firearms were registered to a "D. Price" or to a "Tino." ² The supporting affidavit further states that the informant showed Gamboa the location of the apartment and that the mailbox outside of the apartment read "D. Price."

Based on this information, a search warrant was issued. In the early morning hours of July 17, 1987, Gamboa, other ATF officers and members of the Oak Park police executed the warrant. Upon entering the apartment, the officers saw two small children in the front room and the defendant Kevin Price and Crystal Hall in the apartment's only bedroom. Hall was getting up from the bed putting on a robe, and Price was lying on the bed covered by a sheet. Gamboa removed the sheet and found that Price was naked. A female ATF agent took Hall out of the bedroom, and Gamboa ordered Price to lie on the floor, where he was held at gunpoint. Gamboa asked the defendant if his name was "Price" and he responded "yes." The officers immediately searched the bedroom and found a gym bag on the floor containing several small guns. They searched further and found, between the mattress and box spring of the bed on which Price and Hall had been lying, a sawed-off shotgun matching the description given to Gamboa by the informant.

After the bedroom had been secured, the officers gave Price his clothes and allowed him to get up from the floor. Once the shotgun was found and identified, Agent Gamboa told Price he was under arrest, handcuffed him and read him his Miranda warnings. Gamboa testified that he did not realize that the man he arrested was Kevin Price and not "D. Price" until he was processing the defendant at the ATF office. There was conflicting testimony, however, as to exactly when the officers learned the defendant's first name: the defendant testified that he told the officers that his name was Kevin before they left the apartment, and another ATF agent testified that she saw Gamboa looking through the defendant's wallet in the apartment. In any event, Gamboa and the other agents took Price to the ATF office. At all times prior to being questioned at the ATF office, Price denied owning the weapons seized during the search. At the ATF office, however, after again being advised of his rights and signing a waiver form, Price admitted owning the sawed-off shotgun. ³

On the strength of this evidence, the October 1987 Grand Jury returned a one-count indictment against Price for unlawful possession of an unregistered weapon in violation of 26 U.S.C. Sec. 5861(d). After a three-day jury trial, Price was found guilty as charged on December 19, 1988. The district court entered judgment on this verdict, denied Price's post-trial motions, and sentenced him. Price filed a timely appeal, raising the arguments discussed below.

II. Discussion

A. The Arrest

Price first argues that probable cause did not exist at the time of his arrest and that therefore his confession and all other evidence obtained as fruits of the arrest should have been excluded. This is essentially the argument Price raised in his unsuccessful pre-trial motion to quash and suppress. The district court held an evidentiary hearing on that motion, at which Judge Marshall found that Price's freedom was restrained when the officers entered the apartment and forced him onto the floor at gunpoint, i.e., before Agent Gamboa found the shotgun and formally arrested Price. Therefore, Judge Marshall stated, the officers' actions were justified only if probable cause to arrest existed at the time of the initial restraint. After receiving further briefing on the question, Judge Marshall ruled that "the totality of circumstances were sufficient for there to be probable cause to arrest Mr. Price at the time the officers appeared to execute the search warrant," and, in the alternative, that "in the circumstances confronting the officers, they were authorized by reason of the warrant to restrain Mr. Price for a period of time while the warrant was being executed." Transcript of Proceedings of December 7, 1988 at pp. 2-4. We agree.

In reviewing probable cause determinations, this court does not disturb the district court's underlying factual findings unless they are clearly erroneous. United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987); United States v. Goudy, 792 F.2d 664, 668 (7th Cir.1986). This court's review of the probable cause determination itself is de novo, and we employ the following standard:

The police have probable cause to arrest an individual where "the facts and circumstances within their knowledge and of which they [have] reasonabl[y] trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 [85 S.Ct. 223, 225, 13 L.Ed.2d 142] (1964).... "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13 [103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527] (1983).

Lima, 819 F.2d at 688 (additional citations omitted); see also United States v. De Soto, 885 F.2d 354, 367-68 (7th Cir.1989).

In this case, the district court's factual findings meet this probable cause standard. An informant who had twice proven his reliability provided Agent Gamboa with specific, recent, first-hand information. Gamboa verified that information by having the informant show him the location of the apartment, checking the mailbox, and checking the telephone number. Upon entering the apartment, the officers' observations verified the information given by the informant: they found two children in the front room and a man fitting the description given by the informant and answering to the name of "Price" in the bedroom with Crystal Hall. Viewing these facts, as we are required to, in light of "the factual, practical considerations of everyday life upon which reasonable, prudent [persons], not legal technicians act," United States v. Watson, 587 F.2d 365, 368 (7th Cir.1978), we conclude that the officers were reasonable in believing that the defendant was committing an offense--namely the possession of an unregistered, sawed-off shotgun--when they first entered the bedroom and restrained Price's freedom. Thus, there was probable cause to arrest the defendant at that time, and the fourth amendment is satisfied. Cf. McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 1059, 18 L.Ed.2d 62 (1967) (information from a reliable informant verified by direct observation can give police probable cause to make warrantless arrest); Draper v. United States, 358 U.S. 307, 312-14, 79 S.Ct. 329, 332-33, 3 L.Ed.2d 327 (1959) (same). ⁴

Alternatively, we are persuaded, as was Judge Marshall, that the officers' detention of Price during the search was reasonable under Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In Summers, the Court held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 705, 101 S.Ct. at 2595 (footnotes omitted). Here, the officers entered the apartment pursuant to a valid warrant which authorized a search for very dangerous contraband. The officers immediately detained Price and held him for several minutes while the bedroom was searched for weapons. Once the bedroom was secured, Price was permitted to get up and move about the room, and once the sawed-off shotgun was found, he was properly arrested. Such a limited detention is permissible under Summers.

B. The Voir Dire

Price's second challenge is that the district court committed reversible error in refusing to ask three of the defendant's...