U.S. v. Calvin Watson

• Decision Date: 12 March 2009
• Docket Number: No. 08-1938.,08-1938.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CALVIN WATSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

558 F.3d 702

UNITED STATES of America, Plaintiff-Appellee, v. CALVIN WATSON, Defendant-Appellant.

No. 08-1938.

United States Court of Appeals, Seventh Circuit.

Argued January 27, 2009.

Decided March 12, 2009.

Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

John Gekas, (argued), Kirkland & Ellis, Chicago, IL, Defendant-Appellant.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The defendant appeals from his conviction for illegal possession of guns and ammunition, for which he was sentenced to six years in prison. The only question is the legality of the seizure of the weapons, which were essential evidence of his guilt.

A police officer received an anonymous tip that a black man was dealing guns out of the trunk of a maroon Dodge Intrepid driven by a white woman. The word "tip" is a misnomer, since the tipster, who claimed to have actually witnessed the criminal activity, had talked to the police officer by phone for an hour, giving a wealth of detail about the car and its occupants. He refused to give his name on the ground that he feared retaliation by the criminal community (which, he said, had happened to him once before), but he gave his phone number and other information that would have made it a cinch for the police to identify him. The police located a maroon Dodge Intrepid driven by a white woman with a black male passenger (the) and ordered the driver to stop, which she did. Six police officers approached the car with guns pointed at the occupants, whom they ordered to leave the car and walk backwards toward them. The driver consented to a search of the car, which the police knew from a computer check of the license plate was hers, and they found the weapons in the trunk.

Anonymous tips have often been held to be an insufficient basis by themselves for a finding of reasonable suspicion that would justify a stop. E.g., Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); United States v. Robinson, 537 F.3d 798, 802 (7th Cir.2008); United States v. Brown, 401 F.3d 588, 595-96 (4th Cir.2005). But there is no flat rule that such a tip can never provide a valid basis for such a finding, especially since the fact that a tipster gives a name doesn't negate the possibility that the tip is anonymous; the name may be a fake. United States v. Wooden, 551 F.3d 647, 649 (7th Cir.2008). The tip in this case, moreover, was only quasi-anonymous, since the police could easily have identified the tipster— and that is important. Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir.1995); United States v. Andrade, 551 F.3d 103, 110 (1st Cir.2008) (per curiam); United States v. Casper, 536 F.3d 409, 414-15 (5th Cir. 2008). A tip is less likely to be malicious or irresponsible if the tipster knows that the police can find him, United States v. Kent, 531 F.3d 642, 648-49 (8th Cir.2008), though there is always the possibility that the identifying details are fake.

And the amount of detail the tipster gave the police, much of which they were able to corroborate, was evidence that the tipster had indeed seen the car and its occupants. See United States v. Torres, 534 F.3d 207, 210-11 (3d Cir.2008). It remained conceivable that he could have fabricated his witnessing of gun dealing, but that was not so likely as to deprive the police of reasonable suspicion that the car contained weapons, see United States v. Hicks, 531 F.3d 555, 560-61 (7th Cir.2008); United States v. Vongkaysone, 434 F.3d 68, 74 (1st Cir.2006); United States v. Johnson, 364 F.3d 1185, 1191 (10th Cir. 2004); compare United States v. Monteiro, 447 F.3d 39, 46 (1st Cir.2006)—as of course it did.

The icing on the cake is that the police did not stop the car until they observed a violation—the rear license plate was not illuminated, as state law required—which gave them a legal basis for stopping the car. That they would not have stopped it had they not suspected a more serious violation—as they obviously did, or they would not have approached with drawn and pointed guns-is of no moment. Arkansas v. Sullivan, 532 U.S. 769, 771-72, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Franklin, 547 F.3d 726, 733 (7th Cir.2008); United States v. Stachowiak, 521 F.3d 852, 855 (8th Cir.2008). And for further icing we note that the driver consented to the search, as she had every right to do because it was her car.

The defendant argues that even if the police could lawfully stop and lawfully search the car, they had no right to frighten him by pointing their guns at him. There are cases in which, although the police have every right to conduct a search or arrest a person or seize property, the manner in which they do so violates the Fourth Amendment. The usual case is that of the use of excessive physical force to effect an arrest. E.g., Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Walker v. Sheahan, 526 F.3d 973, 978-79 (7th Cir.2008); Parker v. Gerrish, 547 F.3d 1, 4-5 (1st Cir. 2008); Gill v. Maciejewski, 546 F.3d 557, 561 (8th Cir.2008). But the "excess" might consist of threats that put the arrested (or stopped) person in fear of bodily harm. Dorsey v. Barber, 517 F.3d 389, 401-02 (6th Cir.2008).

The defendant's case is weak; since the police had reasonable suspicion to think they were approaching an illegal seller of guns, who had guns in the car (and not necessarily just in the trunk of the car), they were entitled for their own protection to approach as they did. E.g., United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Askew, 403 F.3d 496, 507 (7th Cir.2005); United States v. Fisher, 364 F.3d 970, 973 (8th Cir.2004). But in any event, had they used excessive force his remedy would be a suit for damages under 42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search. Christopher Slobogin, "Why Liberals Should Chuck the Exclusionary Rule," 1999 U. Ill. L.Rev. 363, 401-02 (1999); cf. William J. Stuntz, "Privacy's Problem and the Law of Criminal Procedure," 93 Mich. L.Rev. 1016, 1072 (1995). As in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), where the Supreme Court ruled that a violation of the rule that (where feasible) the police must "knock and announce" their presence before breaking into a house that they are authorized to search does not justify suppression of the evidence found in the (otherwise lawful) search, there is no causal connection between the manner in which the police approached the defendant in this case and the search of the car that disclosed the weapons used in evidence against him. Had they said or done nothing to him, drawn and pointed no guns, but merely asked the driver for consent to search the car, the evidence would have been discovered.

Even closer is United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), where we read that "excessive or...