U.S. v. Hope, 88-3134

• Citation: 906 F.2d 254
• Decision Date: 27 June 1990
• Docket Number: No. 88-3134,88-3134
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William HOPE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 254

906 F.2d 254

UNITED STATES of America, Plaintiff-Appellee, v. William HOPE, Defendant-Appellant.

No. 88-3134.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1989.

Decided June 27, 1990.

Thomas M. Durkin, Asst. U.S. Atty., Scott Levine, Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Gregory J. Schelsinger, Schlesinger & Krasny, Chicago, Ill., for defendant-appellant.

Before CUDAHY and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

FACTS

GRANT, Senior District Judge.

At approximately 1:15 a.m. on September 3, 1987, Chicago Police Officers Duane Leonard, James Naughton and John Cotter stopped two vehicles within close proximity of one another for purported traffic violations. Officers Leonard, Naughton and Cotter and other officers who arrived at the scene were assigned to the Nineteenth District Tactical Unit which focused on gang activity and narcotics. They worked in unmarked cars and wore plain clothes.

Theresa Ramirez, the driver of the first car, was stopped by Officers Leonard and Naughton when she was observed running a stop sign. Police searched the interior of the car, found marijuana in the back seat and placed Ramirez under arrest. The trunk of the car was subsequently searched, although officers at the scene testified that nothing was found during that search.

The driver of the second car was William Hope. At the time, Hope was a leading member of the notorious Black Gangster Disciples gang in Chicago. Officers Leonard, Naughton and Cotter testified at trial that they recognized Hope as the driver of the second car, and that they knew, based on a check run a week or so earlier, that his driver's license had been suspended. Based upon that information, they stopped Hope's vehicle and asked if he could produce a valid driver's license, to which he responded "no". In a routine search of the interior of Hope's car, police reported that they found a bullet and battery casing on the floorboard; that the top of the battery casing came ajar; and, that they discovered a loaded .38 revolver inside the hollowed out interior.

Hope, a convicted felon, was placed under arrest and was subsequently indicted for unlawful possession of a firearm which had previously travelled in interstate commerce, in violation of 18 U.S.C. Sec. 922(g)(1). A superseding indictment was returned on June 27, 1988 charging the same offense.

Hope went to trial on September 6, 1988. He called one witness in his defense, Theresa Ramirez, a friend and neighbor and the driver of the first vehicle stopped by the police on September 3, 1987. Contrary to her prior statements to police, Ramirez testified at trial that the battery casing and the gun were hers, and that they were in the trunk of her car when she was stopped by the police.

The jury returned a verdict of guilty on September 9, 1988. During the sentencing phase of the proceedings, the government sought sentence enhancement under 18 U.S.C. Sec. 924(e) on the ground that Hope had been convicted of three prior felonies. Hope's attorney filed a "Motion to Prevent Government from Using Alleged Convictions ... to Enhance Sentencing," which the court denied. Finding the existence of the requisite three prior felonies, the district court sentenced Hope to thirty years without parole pursuant to 18 U.S.C. Sec. 924(e). This appeal followed.

ISSUES

Hope challenges his conviction on several grounds. He contends that police lacked probable cause to arrest him on September 3, 1987 and to make a search of his vehicle incident to that arrest; that the district court improperly admitted a stipulation showing that he had previously been convicted of deviate sexual assault, a felony, without a limiting instruction; and that the evidence admitted at the trial was insufficient, as a matter of law, to permit a rational trier of fact to find him guilty beyond a reasonable doubt. Hope also challenges the enhancement of his sentence under 18 U.S.C. Sec. 924(e), and the effectiveness of his counsel both at trial and during sentencing.

CONCLUSIONS

I. Probable Cause for Arrest

Hope maintains that his arrest was pretextual and without cause, and that any search incident to that arrest was therefore improper. In support of his position, Hope argues in rather summary fashion that the arrest was predicated on stale information; that the arresting officers were part of a tactical unit "engaged in aggressive police work to combat gang activity [and] narcotics ..." whose responsibilities would not normally have included traffic patrol; and that they were obviously motivated by an improper purpose "to use a traffic arrest as a pretext for searching [his person] and his vehicle to potentially secure incriminating evidence against him" because he was a gang member.

In response, the government contends that Hope waived any pretextual arrest argument by failing to raise it at trial. Even if the issue had been properly raised, the government maintains that the arresting officers possessed sufficient information to give them probable cause to arrest, namely the fact that Hope's driver's license had been suspended, and that the search of his car, including any containers within the passenger area, was proper.

Although Hope urges us to adopt a subjective or "usual police practices" test in determining whether his arrest was pretextual we note that the test in this circuit has been, and remains, purely an objective one. United States v. Trigg, 878 F.2d 1037, 1040 (7th Cir.1989); United States v. Kordosky, 878 F.2d 991, 992 (7th Cir.1989); United States v. McCarty, 862 F.2d 143, 148 (7th Cir.1988). "Under the objective test, the search incident to the arrest is legal so long as the arresting officer possesses sufficient information to give him probable cause to arrest," Kordosky, 878 F.2d at 993, and is authorized by law to effect a custodial arrest for the particular offense. Trigg, 878 F.2d at 1041 (refusing to follow "usual police practice" approach). Probable cause to arrest exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent [person] in believing that a [suspect] had committed or was committing an offense." McCarty, 862 F.2d at 147 (quoting United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987)). The officer's subjective reasons, or "motive", for stopping the defendant are relevant, if at all, only in establishing what facts the officer actually had knowledge of at the time of the arrest. Kordosky, 878 F.2d at 993; McCarty, 862 F.2d at 148 and n. 3.

In the present case, the arresting officers testified that a computer check had been run on Hope a week or so before his arrest which revealed that Hope's driver's license had been suspended. When asked whether he could produce a valid license, Hope responded that he could not. Contrary to Hope's contention, we find that the information upon which the officers relied was not "stale." Our decision in United States v. Longmire, 761 F.2d 411, 420 (7th Cir.1985), does not suggest otherwise. While the officers may have been assigned to a tactical unit involved in gang activity, there is nothing in the record to indicate that they were not authorized to effect a custodial arrest for a traffic violation. The officers had sufficient information to warrant the belief that Hope was operating a vehicle without a valid driver's license in violation of state law, and thus had probable cause to arrest Hope on September 3, 1987. Their actual motive in stopping Hope was therefore irrelevant. Kordosky, 878 F.2d at 993; McCarty, 862 F.2d at 148 and n. 3. Under the circumstances the search of the passenger compartment of Hope's car, including any containers within the passenger area, was proper. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); United States v. Karlin, 852 F.2d 968, 970 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989).

II. Sufficiency of the Evidence

Hope maintains generally that the testimony of the three arresting officers (Cotter, Leonard and Naughton) was "conflicting [and] inherently implausible," and that Ramirez's testimony to the effect that the gun and battery casing were hers was "not materially contradicted or impeached." He concludes therefore that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. We do not agree.

It is our job on appeal to determine whether any rational trier of fact could have concluded given the evidence presented at trial that Hope was guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Muehlbauer, 892 F.2d 664, 666 (7th Cir.1990). In making that determination, we look at the evidence in a light most favorable to the government. Muehlbauer, 892 F.2d at 666-67. To prove a violation of 18 U.S.C. Sec. 922(g), the government must have shown: (1) that Hope possessed a firearm; (2) that the firearm moved in or affected interstate commerce; and (3) that Hope had a prior felony conviction. United States v. King, 897 F.2d 911, 913 n. 1 (7th Cir.1990). Our review of the record shows that the government did, in fact, meet its burden of proof, and that there was sufficient evidence to convict.

To the extent Hope contends that the police officers' testimony was conflicting, we find the conflicts generally immaterial and note that "questions of credibility and the weight to be afforded conflicting evidence are for the jury to resolve and their conclusions on such matters are accorded tremendous deference." United States v. Jones, 808 F.2d 561, 569 (7th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). We would also note that, contrary to Hope's contentions, Ms. Ramirez's testimony that the gun was actually in...