U.S. v. Bentley, 93-4134

• Decision Date: 20 July 1994
• Docket Number: No. 93-4134,93-4134
• Citation: 29 F.3d 1073
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry BENTLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1073

29 F.3d 1073

UNITED STATES of America, Plaintiff-Appellee, v. Larry BENTLEY, Defendant-Appellant.

No. 93-4134.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1994.

Decided July 20, 1994.

Dana M. Peters (argued and briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

Richard A. Cline (argued and briefed), Mitchell, Allen, Catalano & Boda, Columbus, OH, for defendant-appellant.

Before: JONES, RYAN, and BATCHELDER, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendant-Appellant Larry Bentley was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g), and knowingly receiving, concealing, or storing a stolen firearm in violation of 18 U.S.C. Secs. 922(j) and 924(a)(2). He was sentenced under 18 U.S.C. Sec. 924(e) for possession of a firearm having previously been convicted of three or more violent felony offenses. He appeals his conviction on Fourth Amendment grounds, contending that the evidence against him was uncovered pursuant to an illegal search and seizure. He also appeals his sentence, contending that two of his three underlying convictions do not qualify as violent felonies.

Because we find that, under our precedents, the search and seizure was reasonable, we affirm Bentley's conviction. However, because we also find that one of Bentley's underlying convictions was not a violent felony, we hold that Sec. 924(e) is inapplicable. Therefore, we vacate Bentley's sentence and remand for resentencing.

I.

On April 13, 1992, an unidentified citizen--a local businessman to whom the parties refer as "the source"--called the Bureau of Alcohol, Tobacco & Firearms ("ATF") to report that an unidentified person had just telephoned the source offering to sell 150 new Smith & Wesson handguns. Because the caller's asking price was between $7,000 and $8,000, and the fair market value of 150 new handguns would have been more than $25,000, the source suspected that the caller's guns were stolen.

The source spoke with ATF Agent Don Mapley. Mapley had spoken to the source before, and knew him to be knowledgeable about firearms, but the source had never before acted as an informant. Mapley and ATF Agent Rodney Russell went to the source's place of business, hoping in vain that the caller would call back or show up while they were present. The agents spoke to the source for two hours and decided that he was credible. Russell gave the source his pager number so that the source could contact Russell quickly if the caller contacted the source again.

On April 14, 1992, the agents tried to verify the theft of 150 new handguns. They were unable to do so at that time. On April 15, 1992, the source paged Russell, and informed him that the caller was at the source's place of business with the guns. Russell drove immediately to the source's place of business. While he was en route, the source called the ATF office and reported that: the would-be gun seller had just left to get more guns and would return shortly; the seller was an African-American male driving a 1992 green and tan Ford Explorer with Ohio license plate number KEA-366; a female passenger was in the vehicle; the guns were in boxes that were in green garbage bags in the back of the vehicle; and the vehicle was traveling north on Westerville Road toward Schrock Road.

Mapley, in an unmarked car, drove to Schrock Road, and found the Explorer parked at 6659 Concourse Loop Road. After a short wait, the vehicle left its parking place, driven by an African-American male later identified as Bentley, along with a passenger later identified as Linda Ramos. Mapley followed the Explorer as it drove past the source's business. Mapley believed then that he had probable cause to stop the vehicle. At Mapley's order, unmarked ATF vehicles pulled in front of and behind the Explorer, forcing it to stop. Marked police cruisers followed right behind. At least two agents approached the Explorer with guns drawn and ordered Bentley and Ramos to get out. Bentley and Ramos were immediately searched, handcuffed, and placed in the back of a police cruiser. ATF Agent Dave Taylor then observed, in plain view, Smith & Wesson firearm boxes inside a partially open green garbage bag on the floor of the passenger's seat. Mapley noticed a second green garbage bag in the rear of the vehicle. The agents searched the vehicle and found three new handguns in one of the garbage bags and six new handguns in the other.

Shortly thereafter, Bentley admitted that he had more guns in his apartment at 6659 Concourse Loop Road, and gave the agents permission to search there. The agents found another 109 guns in the apartment. The agents later learned that all of the guns had been stolen from Smith & Wesson.

Bentley subsequently moved to suppress the weapons seized during the searches of his car and apartment. After the district court denied the motion, Bentley entered a conditional guilty plea, reserving the right to appeal both the denial of the motion to suppress evidence and the applicability of the sentencing enhancement provision of Sec. 924(e). Bentley had previously been convicted of aggravated robbery, and two separate charges of breaking and entering under Ohio law; he argued that the latter two convictions were not "violent felonies" within the meaning of Sec. 924(e).

Bentley was sentenced to 190 months in prison plus 5 years of supervised release. He now appeals his sentence and the denial of his motion to suppress.

II.

A.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where a law enforcement officer lacks probable cause, but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances. "[T]he stop and inquiry must be 'reasonably related in scope to the justification for their initiation.' " United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (quoting Terry, 392 U.S. at 29, 88 S.Ct. at 1883-84). It is well settled that the Terry doctrine applies to investigative stops of a moving automobile. See, e.g., Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); United States v. Hardnett, 804 F.2d 353, 355-58 (6th Cir.1986) (applying Terry doctrine to police officer's forced stop of a car), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987).

In the present case, the parties agree that the ATF agents lacked probable cause when they stopped the Explorer. The government argues, however, that the agents had a reasonable suspicion that justified the initial stop, and that the Smith & Wesson boxes in plain view sufficed to justify a full search of the vehicle. By not arguing that the agents had probable cause at the time of the initial stop, the government implicitly concedes that the agents erred by arresting Bentley and Ramos prior to conducting the search.

Bentley does not dispute that once the agents saw the gun boxes in plain sight, the search of the car became permissible. Rather, Bentley treats the stop, the arrest, and the subsequent search as one collective action that must be supported by probable cause in order to be constitutional. However, our precedents indicate that these three acts should be considered separately. Granted that handcuffing Bentley and Ramos and placing them in a police cruiser constituted a premature arrest, this wrongful act would be relevant to Bentley's motion to suppress the guns found in the Explorer only if the officers searched the vehicle as a mere incident of the arrest. The government does not attempt to justify the search of the car on this basis. Rather, it argues that: (1) the initial stop was constitutionally permissible under Terry and its progeny, (2) the discovery of the Smith & Wesson boxes was permissible under the plain view doctrine, and (3) the subsequent search of the vehicle was justified by the discovery of the incriminating gun boxes.

We agree with the government and find that the premature arrest played no role in the seizing of the evidence from the Explorer. It follows that the fact that the arrest was premature is not grounds for the suppression of the evidence.

B.

Bentley also argues that the agents lacked reasonable suspicion to justify their forced stop of the Explorer. He points out that: Bentley and Ramos had not committed any traffic violation that could justify the stop; the agents had no specific information that the weapons allegedly contained in the Explorer were stolen; they had no knowledge that Bentley was a felon; the source had no history of reliability as an informant; and the agents had already seen that the source had falsely predicted that Bentley would return to the source's place of business.

However, the source's information had already been verified to a significant extent. The agents had already verified that the source had accurately described the vehicle, its passengers, and the direction in which it was going. As the court below explained:

With each confirmation of the specific nature of the tip, the reliability of the tip increased. Because of the actual verifications, it became reasonable for the officers to determine that the anonymous tip was reliable. Thus, the officers had reasonable grounds to believe that the remaining, but unverified, bit of the tip--that the Defendants were in possession of stolen firearms--was indeed true and accurate.

J.A. at 28 (Order denying Defendants' Motion to Suppress). We agree with this analysis.

Moreover, although the record does not reveal the source's identity, the source was not anonymous to the ATF agents. Mapley already knew the source personally and believed him to be credible. Russell had spoken with the source for at least two hours. In this respect, the present case is similar to Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972...