U.S. v. Evans

• Citation: 994 F.2d 317
• Decision Date: 08 June 1993
• Docket Number: No. 92-1304,92-1304
• Parties: 38 Fed. R. Evid. Serv. 1174 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth D. EVANS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 317

994 F.2d 317

38 Fed. R. Evid. Serv. 1174

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth D. EVANS, Defendant-Appellant.

No. 92-1304.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 20, 1992.

Decided May 6, 1993.

Rehearing Denied June 8, 1993.

Maxine A. White, Matthew L. Jacobs, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.

Laurence M. Moon, Whitefish Bay, WI, for defendant-appellant.

Before KANNE and ROVNER, Circuit Judges, and WILL, Senior District Judge. ^*

KANNE, Circuit Judge.

The defendant, Kenneth D. Evans, was charged in a one-count indictment of knowingly possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). A revolver seized from the defendant's car provided the basis for the charge. The defendant filed a motion to suppress the admission of the revolver into evidence, as well as statements he made following his arrest, arguing that these items were the product of an illegal search. The magistrate judge recommended that the defendant's motion to suppress be granted. However, the district judge denied the motion to suppress, and the defendant was convicted of violating § 922(g)(1) and sentenced to 235 months imprisonment. The defendant appeals, arguing that the district court erred in denying his motion to suppress the revolver and his incriminating statements. He also contends that during his testimony, the district court questioned him in a prejudicial manner, depriving him of a fair trial. Finding these arguments without merit, we affirm.

I. Background

While on undercover patrol at approximately 6:30 p.m. on July 2, 1992, Milwaukee City Police officers Jackson and Sandoval observed the defendant, with a passenger, driving at a high rate of speed and weaving in and out of traffic. Suspecting that the defendant's car was stolen, the officers followed him in their unmarked squad car. They noted the defendant's license plate number and radioed the station to check if the car had been reported as stolen. The officers continued to follow the defendant as he drove, now legally, through the neighborhood, at one time making eye contact with the defendant. Several minutes later, the officers still had not received the results of the requested check of the license plate number, when the defendant pulled over and stopped in front of a duplex. Based on previous citizen complaints, the officers knew the duplex was a reputed distribution point for drugs, or "drug house."

As the defendant was pulling over, Officer Sandoval placed the flashing police light on top of their unmarked car, and Officer Jackson activated the siren. Both officers testified that at that time, they observed the defendant's upper body lean forward in the driver's seat. The officers could not see the defendant's hands or arms, but believed his actions indicated he was reaching under the seat to place or retrieve something. Officer Sandoval warned Officer Jackson of the defendant's movement in the car.

Both the defendant and the passenger began to step out of the car, but the officers got out of the squad car and told them to remain seated. With their guns drawn, the officers approached the car and asked the defendant and his passenger to get out of the car and place their hands on the roof. Fearing the men were armed, the officers conducted a pat down search of them, which revealed no weapons. The defendant and his passenger were escorted to the rear of the car, where at the officers' request the defendant produced identification.

As a protective measure, Officer Sandoval placed the passenger in handcuffs and then returned to the front of the vehicle to search for weapons. He leaned in the passenger side of the car and glanced under the passenger's seat, finding nothing. When he looked under the driver's seat, Officer Sandoval discovered a loaded revolver. After unloading the gun, he radioed for assistance, returned to the rear of the car, and arrested the defendant and his passenger.

When another police unit arrived, the defendant and the passenger were placed in separate police cars. After being informed of his constitutional rights by Officer Jackson, the defendant indicated he understood those rights and was willing to answer questions. The defendant admitted to speeding and indicated that he was just "testing out" the car, which belonged to his girlfriend. The defendant admitted that he owned the gun and that it was loaded, but maintained the weapon was required for protection in the neighborhood. In response to further questions, the defendant stated that he had previously been arrested for robbery and other serious offenses, that he was a convicted felon, and that he knew he should not possess a gun. The defendant was subsequently indicted for knowingly possessing a gun as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

II. The Motion to Suppress

Following his indictment and arraignment, the defendant filed a motion to suppress the admission of the revolver and the statements he made following his arrest as the products of an illegal search. The Fourth Amendment does not preclude all searches and seizures, but rather only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). In Terry v. Ohio, the Supreme Court approved brief investigatory stops by the police, provided that "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Here, the officers' observation of the defendant driving over the speed limit unquestionably justifies their initial stop and detention of the vehicle and the defendant. United States v. Lewis, 910 F.2d 1367, 1370 (7th Cir.1990); United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990). The dispute lies in whether, after detaining the defendant, Officer Sandoval could legally proceed to search the car for weapons.

In Michigan v. Long, the Supreme Court upheld the warrantless search of automobiles under certain circumstances:

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880). In other words, the legality of such a search depends on "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Long, 463 U.S. at 1050, 103 S.Ct. at 3481 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). In making such a determination, we must consider "the totality of the circumstances," United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), and "due weight must be given, not to the inchoate and unparticularized suspicion, or 'hunch,' but to the specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience." Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

While finding credible the officers' testimony concerning the defendant's movement in the car, the magistrate judge felt such a gesture, standing alone, did not cause the officers to reasonably fear for their safety, and thus did not justify the search for weapons. He did not believe that in making the search the officers actually considered their location in a high crime area and near a reported drug house because the official police report made no mention of these facts. The magistrate judge also relied on the facts that the search was conducted in daylight and the defendant voluntarily stopped the car to support his finding that the officers' fear was unreasonable.

After holding an evidentiary hearing, the district judge rejected the magistrate's recommendation and denied the motion to suppress. The district judge found that the officers could have reasonably feared for their safety, given their observation of the defendant's gesture of leaning forward as if he was placing or retrieving something under the seat, and the location of the search near a reported drug house in a high crime area. The district court found the magistrate judge misinterpreted the officers' testimony that the search took ten to fifteen minutes as referring to the time spent by the officers in the interior of the car. The district judge determined that the entire encounter lasted only ten to fifteen minutes, with a de minimis amount of time actually spent searching the car. The revolver and the defendant's statements were subsequently entered into evidence, resulting in his conviction for violating § 922(g)(1).

In reviewing the denial of a motion to suppress, "[w]e give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of witnesses," United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990), and will not disturb such a decision unless it is clearly erroneous. United States v. Spears, 965 F.2d 262, 269 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). Viewing the totality of the circumstances, we uphold the district court's decision that based on specific and articulable facts, the officers reasonably feared for their safety and thus were justified in conducting a protective search of the defendant's car.

The officers' contact with the defendant occurred after they observed him driving over the speed limit and weaving through traffic. The Supreme Court has recognized that such "roadside encounters between police and suspects...