U.S. v. Longmire

• Decision Date: 13 June 1985
• Docket Number: No. 84-1821,84-1821
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darlene LONGMIRE, a/k/a Darlene Brown, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 411

761 F.2d 411

UNITED STATES of America, Plaintiff-Appellee, v. Darlene LONGMIRE, a/k/a Darlene Brown, Defendant-Appellant.

No. 84-1821.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 16, 1985.

Decided May 3, 1985.

Rehearing Denied June 13, 1985.

Dean J. Polales, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Thomas Peters, Chicago, Ill., for defendant-appellant.

Before WOOD and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant Darlene Longmire appeals from her conviction of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 1202(a)(1). The sole issue on appeal is whether the district court erred in denying her motion to suppress the firearm.

I.

At 4:00 p.m. on August 24, 1983, Chicago Police Department Officers Arpaia and Smetana responded to a radio call of "men with guns" at 5218 West Madison Street in Chicago. When they arrived at that location, no complainant came forward. Arpaia and Smetana resumed their normal patrol; within minutes they received a second radio broadcast concerning the same location. When they returned to that location, they met Officer Pacheco, who informed them that there had been people with guns at that address and that they had fled in a full-sized brown Buick. Arpaia and Smetana began patrolling the area in search of the car. Within minutes, a voice, recognized by Arpaia as Officer Pacheco's, transmitted a flash message ¹ over the police radio. The message asked officers to be on the lookout for a late-model light brown Buick occupied by two black females and two black males, who were armed with a handgun and were wanted in connection with an investigation of an aggravated assault; the message further informed officers of the Buick's license plate number and that it was registered to Vancie Howard of 4243 West Carroll. Arpaia and Smetana's patrol of the area was fruitless and they resumed their normal patrol.

At approximately 8:45 p.m., Arpaia and Smetana, who were driving south on Cicero Avenue approximately seven blocks from the Madison Street location, saw parked at 2 South Cicero Avenue a brown Buick that matched the description of the car involved in the earlier incident. They entered the license plate number into their mobile computer terminal and learned that the car was registered to Vancie Howard of 4243 West Carroll. They then parked the squad car behind the Buick. Smetana followed a male who walked away from the area of the Buick. Arpaia walked to the passenger side of the Buick and asked its occupants, two black females, to step out. Defendant Longmire occupied the passenger seat. At Arpaia's request the women stepped to the rear of the car where Arpaia asked them their names, addresses, and who owned the Buick. The women were not frisked, handcuffed, told they were under arrest, or told they were not free to leave.

After finishing his conversation with the man who had walked away from the area of the Buick upon the officers' initial approach, Smetana returned to the Buick where he saw Arpaia standing with the women and a black male who had approached the scene in the interim. Upon learning that Arpaia had not searched the car, Smetana said he would do so. On the floor of the passenger side of the Buick Smetana found a beige purse the size of a brief case. Inside he discovered a loaded H & R .22 caliber revolver and driver's license in the name of Darlene Brown. Smetana returned to the rear of the Buick and asked, "Who is Darlene Brown?" Defendant responded that she was. Defendant, her female companion, and the black male who had earlier approached the scene were arrested.

At the suppression hearing, defendant argued that Officers Smetana and Arpaia had no information on the reliability or credibility of the original complainant; that they lacked probable cause to arrest her and to search her purse; and that they should have secured a warrant to search her purse. The government contended that the officers effected an investigatory stop and a valid protective search. The court ruled that the officers possessed sufficient information to justify an investigatory stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968), and that the search of the car was lawful.

On appeal, Longmire challenges both the stop and the ensuing search. She contends that the stop was actually an arrest for which the officers had no probable cause and that the search incident thereto was therefore invalid. She argues that even if this court determines that the officers effected only a Terry stop, the stop was illegal because the officers had no personal knowledge of the facts that created the reasonable suspicion underlying the flash message and thus had no way of knowing whether the information was reliable and accurate. Finally, she contends that the search was unlawful because Officers Smetana and Arpaia did not possess sufficient specific articulable facts to sustain an objectively reasonable belief that she and her companion were armed and potentially dangerous.

II.

The trial court ruled that Longmire was not arrested until after the handgun was found in her purse. At the suppression hearing, counsel for Longmire argued that she had been arrested before the search because she was not free to leave, and because when the officers initially stopped the vehicle they intended to arrest her.

Among the circumstances courts consider in determining whether an arrest was made are the officer's intent in stopping the individual, Sibron v. New York, 392 U.S. 40, 46-7, 88 S.Ct. 1889, 1894, 20 L.Ed.2d 917 (1968); the length of the stop, United States v. Vanichromanee, 742 F.2d 340, 345 (7th Cir.1984); the questions, if any, asked, id. at 344; and the extent of the search, if any, made by the officers, Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979).

We think it clear that Officers Arpaia and Smetana intended merely to question the occupants of the Buick with regard to the reported aggravated assault. Their actions were consistent with such an intent. Longmire and her companion were asked, not ordered, to step out of the car; Officer Arpaia merely asked them their names, addresses and who owned the car; the women were not frisked, handcuffed, told they were under arrest or told they were not free to leave; ² Officer Arpaia's gun was not drawn; and the length of the detention prior to arrest does not appear to have been unreasonable. United States v. Sharpe, --- U.S. ----, ----, 105 S.Ct. 1568, 1574, 84 L.Ed.2d 605 (1985). Finally, as we will make clear, the search conducted by Officer Smetana did not exceed the area search for weapons permissible in an investigatory stop. We find that the detention constituted a Terry investigatory stop in terms of its purpose and the scope of the intrusion, and we turn to the issue whether that stop was based upon a reasonable articulable suspicion.

III.

Longmire relies largely upon Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), in support of the proposition that the stop was unreasonable because it was effected pursuant to a radio bulletin rather than on the basis of information received directly from the complainant. In Whiteley, a sheriff, acting on a tip, swore out a complaint that consisted of nothing more than his conclusion that defendants had committed the offense charged and obtained an arrest warrant from a magistrate. A police radio bulletin was issued, naming and describing the suspects, the type of car they were probably driving, and the amount and type of money taken. Relying on this bulletin, an officer in another county made a warrantless arrest of the suspects, and conducted a search of the car which yielded incriminating items used to convict defendant.

The Supreme Court found the warrant lacking in probable cause, and rejected the state's argument that the arrest and search were legal because the arresting officer, who relied upon the radio bulletin in making the arrest, reasonably assumed that whoever authorized the bulletin had probable cause for the arrest. The Court made clear that an arresting officer is entitled to act on the strength of a radio bulletin, but where it is later determined that the warrant underlying the bulletin was unsupported by probable cause, the arrest will not necessarily be insulated from challenge merely because the instigating officer chose to rely upon other officers to make the arrest. Id. at 568, 91 S.Ct. at 1037.

Longmire contends that Whiteley requires that the arresting officer have knowledge of the specific facts that established probable cause for the warrant underlying the radio bulletin. By parity of reasoning, she argues that because Officers Arpaia and Smetana did not know the source of Officer Pacheco's information, they could not rely upon the radio bulletin to stop and question the occupants of the Buick. We do not read Whiteley to stand for that proposition and neither have other courts. See, e.g., United States v. Robinson, 536 F.2d 1298, 1300 (9th Cir.1976).

Indeed, the Supreme Court recently found that language in Whiteley suggests that, had the sheriff who issued the radio bulletin possessed probable cause for an arrest, the arresting officer could have effected a legal arrest even though he was unaware of the specific facts that established probable cause. United States v. Hensley, --- U.S. ----, ----, 105 S.Ct. 675, 682, 83 L.Ed.2d 604 (1985). The admissibility of any evidence discovered during a search incident to the arrest turns on whether the officer who issued the bulletin possessed probable cause to make the arrest. Id. The Hensley Court, which was addressing the legality of a Terry stop to investigate a past crime, found that Whiteley's reasoning logically extends to the situation in which an officer effects a Terry stop on the basis of a flyer indicating...