U.S. v. Lepage, 06-1881.

Decision Date15 February 2007
Docket NumberNo. 06-1881.,06-1881.
Citation477 F.3d 485
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael LePAGE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

The appellant entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 120 months' imprisonment. On appeal he challenges the district court's denial of his motion to suppress the firearm and he challenges his sentence. We affirm.

I. HISTORY

On August 23, 2005, police in Superior, Wisconsin, received a phone call from a girl who reported a group of people acting suspiciously outside the building that she was in, apparently prowling around a car and a nearby building that she thought was supposed to be empty. Relaying information from others in the house, she continued to update the police about the activities of the group of people, she named one of the suspicious people as Michael LePage, and she whispered that he had a gun. She identified herself by name to the dispatch operator.

When officers arrived, they found a group of three people at the location. By this time the police officers at the scene had been informed by dispatch that Michael LePage was one of the group and was reported to be armed. An officer, who knew LePage by sight and also knew him to be a prior felon, saw him on the porch of a house carrying a duffel bag. He ordered LePage to drop the bag and move to the sidewalk, and then frisked him. When LePage dropped the bag, the officer had heard a "thump" as it hit the porch. Finding nothing on LePage's person, the officer walked to the porch and looked at the bag. The officer's report states that the bag was half-opened and he could see part of a sawed-off shotgun. LePage was then arrested.

LePage moved to suppress the admission of the shotgun as the fruit of an improper search and seizure. The magistrate recommended that the district court deny the motion to suppress, and the district court adopted that recommendation. LePage then pled guilty, reserving the right to appeal the admission of the shotgun.

At sentencing, the district court enhanced the sentence for conduct that involved more than two firearms and for possessing the firearm in connection with another felony. LePage appeals the sentence on the grounds that those enhancements were incorrectly applied. He also challenges the sentence as unreasonable.

II. ANALYSIS
A. Suppression of the Sawed-Off Shotgun

LePage argues that the detention, search, and seizure were made in violation of his Fourth Amendment rights and that the district court should have suppressed the shotgun. We disagree.

When reviewing a decision on a motion to suppress, district court determinations of reasonableness are reviewed de novo. United States v. Scheets, 188 F.3d 829, 836 (7th Cir.1999). LePage first argues that the police did not have reasonable suspicion to stop him when they arrived on the scene on August 23. Police officers may briefly stop and detain somebody for investigation if they have a reasonable suspicion that the suspect has committed a crime or is about to do so. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This reasonable suspicion need not rise to the level of probable cause, but it must be more than a mere hunch. United States v. Ganser, 315 F.3d 839, 843 (7th Cir.2003). A Terry stop must not only be valid at its inception, but the officers must not exceed the scope or nature of the stop. United States v. Askew, 403 F.3d 496, 508 (7th Cir.2005). Although a single anonymous tip seldom has the indicia of reliability to support a finding of reasonable suspicion for a Terry stop, a tip from a named informant that can be corroborated might support such a stop. Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). When a single informant provides the tip that brought police to a Terry stop, this court looks to the amount of information given, the degree of reliability, and the extent that the officers can corroborate some of the informant's information. Ganser, 315 F.3d at 843.

In this case, the informant gave her name and location to the police. She also described a group of people repeatedly walking in circles around a building that she thought was empty — behavior that was very similar to the behavior that gave the police officer reasonable suspicion in the original Terry case. Terry, 392 U.S. at 5-6, 88 S.Ct. 1868. She described what she thought was an attempt to break into a car next to that building. Most significantly, she said that although she had not seen a gun, she believed that LePage was armed because he was carrying something in front of himself.

When the police arrived, they were able to corroborate some of this information. There was a group of people in the area, although it was a smaller group than the caller had reported. Michael LePage was in fact a member of the group and the small group was walking from a car toward the house that the caller had said they had been circling. This is not a case where a single anonymous caller told the police that some unnamed person at the location had a gun and then hung up. The officers who arrived at the scene had received corroborated information from a caller who was willing to give her name to the police and they had reasonable suspicion to believe that one of two crimes was in progress. They could have reasonably suspected that the group was involved in casing or prowling the cars and buildings, or, given that the officers knew LePage's criminal history, they could also have reasonably suspected that he was a felon in possession of a firearm. At its inception the decisions to stop LePage, to ask him to step from the porch to the sidewalk, and to briefly detain him were supported by a reasonable, particularized suspicion that one or more crimes were being committed and that LePage was armed.

LePage then argues that, even if the initial stop was valid, the subsequent actions of the police by looking into the duffel bag on the porch were unreasonable in scope. We disagree. The officers had arrived to find LePage exactly where the caller had said he would be. When ordered to drop the bag, the officers heard a sound, described as a thump, that was consistent with a weapon being in the bag. See United States v. Quinn, 83 F.3d 917, 921-22 (7th Cir.1996) (finding reasonable suspicion to pat down a jacket when it made a thudding sound, consistent with a weapon, upon bumping into a car). Officers may walk up to that part of private property that is open to visitors or delivery people. United States v. French, 291 F.3d 945, 953 (7th Cir.2002). The officers did that, and saw a sawed-off shotgun in LePage's partially-opened duffel bag. At that point they had probable cause to arrest LePage and did so. The decision by the district court not to suppress the shotgun as evidence was correct.

B. The Sentence

LePage also challenges his sentence. The district court started with a base offense level of 20 under Sentencing Guidelines § 2K2.1(a)(4)(B). The court added two levels under Guidelines § 2K2.1(b)(1)(A) because the offense involved three or more firearms and two levels under § 2K2.1(b)(4) because the firearms were stolen. The court added an additional four levels for possessing the firearms in connection with another felony under Guidelines § 2K2.1(b)(6).1 The court subtracted three levels for acceptance of responsibility, arriving at an offense level of 25. With a criminal history category of VI, the advisory range was 110-137 months. The court then considered the necessary factors under 18 U.S.C. § 3553(a) and sentenced LePage to the statutory maximum of 120 months' imprisonment.

LePage argues that two of the sentencing enhancements were incorrect and that the sentence as a whole is unreasonable. Although he does not dispute that the firearms were stolen, he argues that there was not enough evidence to support finding that the gun was used in connection with another felony. He also argues that the district court should not have enhanced the sentence for a quantity of firearms greater than two because only two were found that night. Finally, LePage argues that by sentencing him to the statutory maximum, the district court unreasonably deprived him of the benefit of having cooperated with the prosecution.

When the police arrested LePage they searched his duffel bag and his girlfriend's car. In the car they found methamphetamine packaged for sale. In his bag they found a large amount of a chemical used to cut methamphetamine. Earlier in the summer, LePage had sold methamphetamine to a confidential informant. The district court concluded that these facts were sufficient to support the conclusion that the sawed-off shotgun was being possessed in connection with the felony of drug trafficking.

In order to enhance the sentence for possessing the gun in connection with another felony, the court must find that the gun had some purpose or effect in relation to that second crime. United States v. Haynes, 179 F.3d 1045, 1047 (7th Cir.1999). Mere contemporaneous possession while another felony is being committed is not necessarily sufficient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs. United States v. Wyatt, 102 F.3d 241, 247 (7th Cir.1996). But when the guns are possessed along with the materials of a drug trafficker, it is a reasonable inference that the guns protect or embolden the criminal enterprise. Id. at 247-48. LePage argues that the other evidence before the district court did not support a...

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