U.S.A. v. Brown III, 99-2991

• Decision Date: 14 November 2000
• Docket Number: No. 99-2991,99-2991
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Lawrence Brown III, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 589

232 F.3d 589 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Lawrence Brown III, Defendant-Appellant.

No. 99-2991

In the United States Court of Appeals For the Seventh Circuit

Argued September 15, 2000

Decided November 14, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-CR-17--Barbara B. Crabb, Judge.

Before Flaum, Chief Judge, and Kanne and Williams, Circuit Judges.

Flaum, Chief Judge.

Lawrence Brown III was convicted, following his guilty plea, of possession of two sawed-off shotguns and a destructive device. Brown now appeals his conviction, arguing that the district court erred in denying his motion to suppress evidence gathered as a result of a protective pat-down search. For the reasons stated herein, we affirm.

Background

December 27, 1998 turned out to be a difficult day for Brown. His encounter with Edgerton police officer Chris Chilson evolved from a series of incidents that occurred during the afternoon and early evening of that day. At approximately 4:15 p.m., Chilson received a dispatch order to investigate a citizen's complaint of intoxicated driving. He was told that the incident involved a red and black Chevy Blazer with the Wisconsin license plate number CEZ-802. Before arriving at the complainant's home, Chilson ran the plate number and learned that the vehicle was registered to Larry and Vicky Brown of Edgerton, Wisconsin. Chilson was familiar with Brown from an earlier contact and knew that he was a light-skinned African American male in his early 40's. Previously, Chilson had seen Brown "face- to-face" at Edgerton High School when Chilson, acting in a backup capacity, had run Brown's record for warrants.

Chilson talked to the complainant and ascertained that the red and black Chevy Blazer had just left her area. Initially she had approached the driver because he was honking his horn. The driver, who claimed to be in the wrong place, refused to tell her his name. When she asked the driver to leave her premises, he called her a bitch and proceeded to drive into the back of her Blazer, damaging it. After this exchange took place, the driver then drove toward the end of a cul de sac. He proceeded to turn around in a driveway that had a chain in front of it in order to prevent people from using it in this very manner. In the process of doing so, the driver drove over the chain and post, breaking both, and then drove away with the chain and post attached to the front of his Blazer, while he "flipped [the complainant] the bird." While being interviewed, the complainant described the driver as being a white male in his late 30's to early 40's with dark hair and a mustache. This description, according to Chilson, seemed to match that of Brown. The complainant felt that the driver was probably intoxi cated based upon the manner of his speech, his inappropriate language, and his driving. Another individual also witnessed these events and provided Chilson with a similar report.

While on duty later that evening Chilson received another dispatch message telling him that a Chevy Blazer with the license plate number CEZ-802 (Brown's Blazer license plate number) had left a McDonald's just outside the Edgerton city limits and that the driver seemed to be drunk. Chilson drove to the part of Edgerton nearest to the McDonald's, hoping to come across the allegedly intoxicated driver, whom he presumed to be Brown. State Trooper Kronau advised Chilson that the Blazer was approaching the city limits of Edgerton. Chilson discovered the Blazer parked on Wileman Drive, with its headlights on, and the engine running. Although parking on Wileman Drive is not illegal, it is not a residential street, and so Chilson thought this was an unusual place to stop. While driving toward the Blazer, Chilson noticed that a chain was hanging from the Blazer's front bumper. He turned on his red and blue lights to commence a stop and parked behind the Blazer. Thereafter, Rock County Deputy Davies arrived and stood to the rear of Brown's window while Chilson approached the driver's window. Chilson recognized the defendant as Brown and saw that he was eating a sandwich and drinking from a McDonald's cup. Chilson did not smell any odor of intoxicants nor did he observe any empty containers that might have held alcohol. What he did notice was that Brown's eyes were moving slowly and deliberately and that his speech was slurred. Brown was also wearing a jacket.

Chilson told Brown that his vehicle was suspected of being involved in two hit- and-run accidents and that several people had described a person matching his appearance who was driving intoxicated. Chilson then asked Brown to step out of the car because he desired to conduct field sobriety tests. Brown complied and Chilson directed him to place his hands on the truck while he proceeded to conduct a pat-down search. While the pat- down was occurring, State Trooper Kronau arrived on the scene and stood on Chilson's left while Deputy Davies stood to Chilson's right. During the pat-down, Chilson felt hard objects under Brown's arms and discovered a loaded .45 handgun. At this point, the officers handcuffed Brown behind his back. While continuing to pat down Brown, Chilson found a loaded Taurus .454 revolver in his waistband and discovered that Brown was wearing a bullet proof vest. The officers then arrested Brown for weapons violations and searched his trunk and found additional weapons and other suspected contraband. The Bureau of Alcohol, Tobacco, and Firearms later became involved and obtained a search warrant for Brown's house. This search resulted in the recovery of contraband and additional federal charges against Brown.

The district court denied Brown's motion to suppress the evidence that was obtained as a result of the protective pat-down and all the subsequent evidence arising out of this incident. The district court concluded that the frisk of Brown was appropriate: A reasonable officer in the situation of Chilson would have ensured that Brown was not armed. Brown's behavior earlier in the day as well as the circumstances at the time that he was stopped on Wileman Drive created a situation where a police officer would have found it necessary to conduct a protective pat-down search. The district court did not affirm, however, the magistrate judge's conclusion that the search was justified as a search incident to arrest. Brown pleaded guilty to Count 3 of the indictment (possessing two sawed-off shotguns and a destructive device), but the plea was conditional, so Brown reserved his right to appeal the district court's adverse determination on his motion to suppress. This appeal thereafter followed.

Discussion

In reviewing the district court's decision on a motion to suppress, we review questions of law de novo and questions of fact for clear error. United States v. Williams, 209 F.3d 940, 942 (7th Cir. 2000); United States v. Faison, 195 F.3d 890, 893 (7th Cir. 1999). Therefore, "we review de novo the ultimate conclusion that the police did not have reasonable suspicion to stop or search the individual, but we review all findings of historical fact and credibility determinations deferentially, under the clear error standard." United States v. Johnson, 170 F.3d 708, 712-13 (7th Cir. 1999). In this case, the defendant is not challenging the district court's factual findings. He is questioning the district court's conclusion that the protective pat-down search was proper based upon reasonable suspicion under the Fourth Amendment and accordingly we review the district court's finding de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996) ("[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.").

When an individual is stopped by a police officer, this incident can potentially involve two stages: (1) the actual stop itself; and (2) a protective pat-down search. The initial detention of an individual is justified if the police officer is stopping and briefly detaining "a person for investigative purposes, so long as the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.'" Johnson, 170 F.3d at 713 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Brown does not contend that Chilson lacked the authority to stop and detain him for investigative reasons. The protective pat-down, which occurred during the second part of the investigatory stop, is what Brown argues was unwarranted. When conducting a protective pat-down during a Terry stop, "the officer must be able to point to specific and articulable facts that the individual is armed and presents a risk of harm to the officer or to others." Id. at 713.

The district court stated that it was incumbent upon "the government to show that Chilson had a reasonable suspicion that defendant might be armed and dangerous." In deciding whether Brown was dangerous or not, the district court concluded that "[t]he inquiry is objective: would a reasonably prudent person believe in the circumstances that the individual he is dealing with is armed and dangerous?" The events leading up to the protective pat-down of Brown revealed his "potential dangerousness." Chilson had "reliable reports" that Brown appeared drunk at approximately 4:00 p.m. and 8:00 p.m. Furthermore, reports relayed that Brown had used his "sport utility vehicle as a battering ram" and that he was not "particularly cooperative" when...