U.S. v. Lane

• Decision Date: 31 July 1990
• Docket Number: No. 89-4067,89-4067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman E. LANE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 895

909 F.2d 895

UNITED STATES of America, Plaintiff-Appellee, v. Herman E. LANE, Defendant-Appellant.

No. 89-4067.

United States Court of Appeals Sixth Circuit.

Argued June 14, 1990.

Decided July 31, 1990.

Marilyn A. Bobula (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Michael G. Dane, Federal Public Defender, Debra M. Hughes (argued), Office of the Federal Public Defender, Cleveland, Ohio, for defendant-appellant.

Before MILBURN and NELSON, Circuit Judges, and ENGEL, Senior Circuit Judge.

MILBURN, Circuit Judge.

Herman Edward Lane appeals his conviction for unlawful possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1), arguing that the district court erred by denying his motion to suppress evidence and his motion to dismiss sentence enhancement under the Armed Career Criminal Act, 18 U.S.C Sec. 924(e). For the reasons that follow, we affirm.

I.

A.

On February 23, 1989, at 12:21 p.m., Cuyahoga Metropolitan Housing Authority (CMHA) police officer Nickolas Barry and three other CHHA officers responded to a dispatcher's request to investigate an anonymous complaint about an unauthorized person in the hallway, possible drug trafficking, at 6402 Haltnorth Walk, a three-story apartment building located within CMHA's King-Kennedy Housing Project in Cleveland, Ohio. The officers knew that this particular apartment building had problems with drug trafficking and the presence of unauthorized occupants.

The building has a front and rear entrance with separate stairways which lead to a joint hallway on both the second and the third floors. Upon arriving at the building, two officers entered the front door while Barry and another officer used the rear entrance. The two officers who entered the front door encountered four males in the first floor hallway. The four men began running toward the stairs leading to the second floor, but the officers were able to detain two of them. The other two men continued to flee up the stairs toward the second and third floors.

Officer Barry and the officer accompanying him were climbing the rear stairway, and on a landing between the second and third floors they encountered a man running down the stairs. The officer accompanying Barry detained this individual, and Barry proceeded to climb the stairs toward the third floor. Before reaching the third floor, Barry received a radio message from one of the other officers that a male was fleeing up the front stairs to the third floor in an attempt to exit the rear of the building.

At approximately the same time that Barry reached the third floor, Herman Lane, the defendant, arrived at the top of the front stairway on the third floor. Officer Barry, who was in uniform and had his gun drawn and pointed at a 45-degree angle to the ground, saw Lane across the hallway, and he ordered Lane to put his hands up and face the wall. Lane complied and placed his hands against the wall but he subsequently removed his right hand from the wall and attempted to reach into his left coat pocket. Officer Barry physically placed Lane's right hand back on the wall and told him to leave it there, but Lane again attempted to reach into his pocket. Officer Barry again stopped Lane and told him to keep his hands on the wall. Barry then conducted a pat-down search of Lane's outer clothing and discovered what felt like a weapon. Barry reached inside Lane's clothing and removed a .12 gauge sawed-off shotgun. Barry then arrested Lane for carrying a concealed weapon.

B.

On May 31, 1989, a federal grand jury returned a three-count indictment against Herman Lane, charging him with (1) unlawful possession of a firearm by one who has previously been convicted of a felony in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1); (2) unlawful possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. Secs. 5861(d) and 5871; and (3) unlawful possession of a sawed-off shotgun not identified with a serial number in violation of 26 U.S.C. Secs. 5861(i) and 5871. Count I of the indictment also charged that Lane had previously been convicted of three violent felonies, providing a basis for sentence enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Sec. 924(e)(2)(B).

On June 20, 1989, Lane filed a motion to suppress evidence discovered during the search of his person and several motions relating to application of sentence enhancement under the ACCA. On July 7, 1989, Lane filed a motion to dismiss the sentence enhancement portion of the indictment for failure to allege three prior violent felony convictions. On September 7, 1989, the district court denied Lane's motions relating to sentence enhancement under the ACCA, and, following a hearing, it also denied his suppression motion.

On September 11, 1989, Lane entered into a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(a)(2), whereby he pleaded guilty to Count I of the indictment, and Counts II and III were dismissed. Pursuant to the conditional guilty plea, Lane preserved his right to appeal the district court's denial of his motion to suppress search evidence and his motion to dismiss the sentence enhancement portion of the indictment. On November 20, 1989, Lane was sentenced to fifteen years imprisonment, to be followed by three years of supervised release, and ordered to pay a special assessment of $50. This timely appeal followed.

The principal issues on appeal are whether the district court erred by denying Lane's motion to suppress evidence discovered during a search of his person, and whether the district court erred by denying Lane's motion to dismiss the sentence enhancement portion of the indictment.

II.

A. Suppression of Evidence

A district court's "denial of a motion to suppress will be affirmed on appeal if proper for any reason." United States v. Barrett, 890 F.2d 855, 860 (6th Cir.1989). "In reviewing a challenged investigatory stop, 'the totality of the circumstances--the whole picture--must be taken into account.' " Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). "In assessing the reasonableness of the stop, the facts are 'judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?' " United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987) (quoting Terry v. Ohio, 392 U.S 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968)).

Lane argues that the district court erred by judging the validity of his seizure under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Lane asserts that Officer Barry effectuated an arrest rather than an investigatory stop, and he contends that his arrest was invalid under the Fourth Amendment because Officer Barry lacked probable cause to arrest him. Therefore, Lane concludes, the evidence discovered during the search of his person must be suppressed as the fruit of an illegal seizure.

Alternatively, Lane argues that if Barry's conduct is properly characterized as an investigative stop, the district court erroneously applied the Terry principles. Lane asserts that his seizure was not supported by reasonable and articulable suspicions of criminal activity as required under Terry because Officer Barry was acting in response to an anonymous tip. Moreover, Lane contends that Barry's intrusion into his personal security was unreasonable in that Barry approached Lane with his weapon drawn, but he had no basis for believing that Lane was armed. Therefore, Lane concludes that his seizure does not fit within Terry 's narrow exception to the Fourth Amendment.

In Terry, the Court held that a police officer may conduct a "stop" and "frisk" of an individual "for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest" so long as the officer is "able to point to specific and articulable facts" which give rise to a reasonable suspicion of criminal activity.

Hardnett, 804 F.2d at 356 (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-80). The distinction between an investigative stop and an arrest "generally depends on the reasonableness of the stop under the circumstances." Hardnett, 804 F.2d at 356.

In Hardnett, we identified two factors to be examined in testing the reasonableness of a seizure. First, we must decide "whether there was a proper basis for the stop, which is judged by examining whether the law enforcement officials were aware of specific and articulable facts which gave rise to a reasonable suspicion." Id. Second, we must decide "whether the degree of intrusion into the suspect's personal security was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials' conduct given their suspicions and the surrounding circumstances." Id. Applying these two factors to the present case, we conclude that Lane's seizure was a valid investigative stop, rather than an arrest.

Officer Barry had a proper basis for stopping Lane. Officer Barry was "aware of specific and articulable facts which gave rise to a reasonable suspicion [of criminal activity]." Id. First, Barry and the other officers entered the apartment building in response to an informant's tip that there was an unauthorized person in the building possibly engaging in drug trafficking. "An informant's tip is sufficient to establish reasonable suspicion; it need not be based exclusively on an officer's personal observations." Id. Lane argues that the informant's tip in this case is insufficient to establish reasonable suspicion because the tip was vague and the informant was anonymous. The Supreme Court has held that a sufficiently corroborated anonymous tip can furnish reasonable...