U.S. v. Thompson

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation906 F.2d 1292
Docket NumberNo. 89-5226,89-5226
PartiesUNITED STATES of America, Appellee, v. Douglas Wayne THOMPSON, Appellant.
Decision Date05 July 1990

Deborah Ellis, St. Paul, Minn., for appellant.

Joseph T. Walbran, Minneapolis, Minn., for appellee.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Douglas Wayne Thompson (appellant) pleaded guilty to aiding and abetting a robbery, conspiracy to commit bank robbery, possession of a firearm during a crime of violence, and interstate transportation of a firearm. For reversal of his conviction, appellant argues the district court 1 erred in (1) denying his motion to suppress evidence seized in violation of the fourth amendment and (2) denying his motions to withdraw his guilty plea. We affirm.

FACTS

On September 19, 1988, appellant was stopped by police on Interstate 94 approximately seven blocks west of the Battle Creek Bank in St. Paul, Minnesota. Appellant was a passenger in an automobile driven by Daniel Wilwerding. Earlier that day the Kansas City, Missouri, Police Department (KCMPD) received a telephone call from informant Maxine Janette Czirr who had previously provided the police with several tips regarding appellant. 2 Ms. Czirr informed Detective Luther that appellant and his year-long associate whom she identified as "Dan" were on their way to the Twin Cities to rob the First Bank of Minnesota, the Battle Creek Bank and "TFC." 3 Ms. Czirr said that the two men had cased the banks during the prior week and chosen them because of their proximity to a freeway for easy get-away. 4 Ms. Czirr told Detective Luther that the suspects would be driving a late model silver and blue Lincoln Continental with California license plates. She said the two men were armed with three large caliber handguns, including a chrome-plated long barrel .357 caliber revolver. Detective Luther knew appellant was a white male, 5'9" tall, 178 pounds, greying hair, slightly bald, born on October 18, 1933, a/k/a David White. Ms. Czirr described "Dan" as a white male between the ages of 36 and 38 with short, dark brown hair, an olive complexion and appearing to be of Italian descent. She said he was approximately six feet tall and weighed 170 pounds. Ms. Czirr said that appellant had been staying with her for approximately ten days prior to his departure for Minnesota on September 18, 1988. She stated that appellant was with her the night before he departed and that on September 18 she drove him to the house of an individual known by police to be involved in local organized crime where they met up with Dan.

Detective Luther immediately relayed the tip to the FBI in Kansas City who in turn notified the FBI in Minneapolis. The Minneapolis FBI notified the St. Paul Police Department which issued an all-points bulletin about the possible bank robberies and a description of the suspects.

Around noon on September 19, 1988, just hours after Ms. Czirr first contacted the police, St. Paul Police Officer Richard Schmidt observed a car which he believed to contain the suspects one block from the Battle Creek Bank. The car was a late model black and blue Lincoln Continental. Officer Schmidt followed the car in a westerly direction away from the bank on Interstate 94 and noticed that the license plates were from New Jersey not California. He pulled the car over and was joined by Sergeant Terry Trooien. The officers approached the car and began questioning the suspects. The driver identified himself as Joseph Daniel White and appellant identified himself as Robert Wayne Jennings. When asked what brought them to Minnesota, the driver of the vehicle replied they were salesmen passing through the state. The driver produced a New Jersey driver's license in the name of Joseph D. White that indicated he was born in 1943. Appellant produced a New Mexico driver's license in the name of Robert W. Jennings that indicated a 1933 birthdate. The car was registered to Joseph White.

The two officers stepped away from the Lincoln Continental to check the driver's licenses and confer. The radio check revealed nothing suspicious. The officers noted that the driver did not match the informant's description in every respect. For instance, his driver's license indicated he was over forty years of age. The officers also noted, however, that he identified himself as Joseph "Daniel" White and that he appeared to be of Italian extraction.

Meanwhile, several squad cars arrived at the scene. The officers decided to order the two men out of the car, frisk them for weapons, and place them in separate squad cars. After doing so, the officers searched the interior of the vehicle and its trunk and found in a briefcase on the back seat two loaded pistols, a .357 caliber revolver and a .38 caliber revolver. Police also found a police scanner, 5 a list of radio frequencies for the Twin Cities area, pages from a telephone directory listing banks in the area, sketches of locks and various disguises. The highway stop and search lasted a total of approximately one and one-half hours.

Appellant and the driver of the vehicle, who was later identified as Daniel Wilwerding, were arrested and charged in an indictment for various crimes including conspiracy to commit bank robbery. A joint trial of both defendants was set for January 3 or 4, 1989. Both defendants filed motions to suppress the evidence obtained from the search of their vehicle. After a hearing, their motions were denied.

On December 30, 1988, Wilwerding pleaded guilty and agreed to testify against appellant. His testimony would have implicated appellant in the Battle Creek Bank robbery attempt, in a previously indicted robbery of the United Postal Savings Association in Kansas City on July 5, 1988, and three other robberies in Kansas City. Reserving his right to appeal the denial of his motion to suppress, appellant agreed to plead guilty to robbing the United Postal Savings Association in Kansas City, a charge which was transferred to the District of Minnesota pursuant to Fed.R.Civ.P. 20, and to three of the four charges in the Minnesota indictment. 6 His plea was entered on January 4, 1989.

Three weeks after entering his guilty plea and before sentencing, appellant filed a pro se motion to withdraw his plea. As grounds for withdrawal, appellant alleged ineffective assistance of counsel. Specifically, he alleged that his counsel failed to tell him about Wilwerding's testimony about the Kansas City robberies and failed to investigate the truth of this testimony. Appellant claims he has evidence that he was not involved in these other robberies. In a supplemental motion, appellant alleged that the government falsely accused appellant of a June 28, 1988, bank robbery in Milwaukee in order to induce a guilty plea. The district court denied both motions and sentenced appellant to a total of twenty years imprisonment, three years supervised release and a $200 special assessment. This appeal followed.

MOTION TO SUPPRESS

Appellant argues that the police did not have reasonable suspicion to stop the automobile in which he was riding or probable cause to make an arrest and search the vehicle. We disagree.

In order to make an investigatory stop, police must have a reasonable and articulable suspicion that a crime has been or is being committed and need not possess the probable cause necessary to make a full arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Reasonable suspicion may be based on an informant's tip as long as it is sufficiently reliable. See Alabama v. White, --- U.S. ----, ----, 110 S.Ct. 2412, 2414-2415, 110 L.Ed.2d 301 (1990) (anonymous tip corroborated by independent police work); Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972) (informer known personally to officer and had provided officer with information in the past); United States v. McBride, 801 F.2d 1045, 1046-48 (8th Cir.1986) (anonymous tip), cert. denied, 479 U.S. 1100, 107 S.Ct. 1325, 94 L.Ed.2d 177 (1987).

We hold that Ms. Czirr's telephone call to the police on the morning of September 19, 1988, was sufficiently reliable to form the basis of Officer's Schmidt's suspicion that a crime was about to be or had been committed by the two occupants of the Lincoln Continental. 7 Ms. Czirr had been supplying the KCMPD with information about appellant since June 1987. Some of the information she supplied had been corroborated by the police. For instance, Ms. Czirr told Detective Luther that she once accompanied appellant under the alias of David White to Albert Lea, Minnesota, where he intended to commit a robbery. Detective Luther confirmed that a man by the name of David White had registered in a motel in Albert Lea on the dates specified by Ms. Czirr. Detective Luther also verified that Douglas Wayne Thompson and David White were indeed the same person by matching their fingerprints. In addition, Detective Luther was able to verify Ms. Czirr's tip that appellant associated with a known organized crime figure in Kansas City. Furthermore, Ms. Czirr's tip on September 19, 1988, described in detail the names of the banks, the specific weapons in appellant's possession, the time and date of the robberies, and the manner in which appellant planned on robbing the bank.

The informant's tip was substantially corroborated when Officer Schmidt saw two men in a late model black and blue Lincoln Continental just one block from the Battle Creek Bank around noon on September 19, 1988. That the car was not the exact color described by the informant and carried New Jersey license plates rather than California plates did not destroy Officer Schmidt's reasonable suspicion that the vehicle he observed was the same vehicle described in the all-points bulletin. 8

We turn now to the events following the stop, namely appellant's arrest and the search of...

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