U.S. v. Packer

• Decision Date: 11 July 1994
• Docket Number: No. 93-2372,93-2372
• Citation: 15 F.3d 654
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogest PACKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 654

15 F.3d 654

UNITED STATES of America, Plaintiff-Appellee, v. Rogest PACKER, Defendant-Appellant.

No. 93-2372.

United States Court of Appeals Seventh Circuit.

Argued Dec. 15, 1993.

Decided Jan. 31, 1994.

Rehearing Denied July 11, 1994.

Steven M. Biskupic, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

Michael Holzman, Rosen & Holzman, Waukesha, WI (argued), for defendant-appellant.

Before CUDAHY, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

In this case, Rogest Packer ("Defendant") stands convicted of violating 18 U.S.C. Sec. 922(g)(1) (felon in possession of a firearm). During his trial Defendant motioned to suppress the shotgun and other evidence seized by the police during an investigatory stop. After the district court denied this motion, Defendant entered a conditional plea of guilty, reserving the right to appeal the denial of his suppression motion. Fed.R.Crim.P. 11(a)(2). Here Defendant so appeals. We reverse Defendant's firearm conviction holding that the district court should have suppressed the evidence seized by police at the investigatory stop, and remand this case for further proceedings consistent with this opinion.

I. Background

On December 22, 1992, shortly after 1:00 o'clock in the morning, the Milwaukee Police Department received a citizen's telephone call reporting a suspicious vehicle, described as a yellow Cadillac with four black male occupants, on the 2600 block of N. 25th Street in a predominantly black neighborhood. Officers Diane Wiesmueller and Franklin Gayle received the dispatch and Officer Mark Buetow responded as backup. Officer Buetow arrived at the location first, drove past and observed a greenish Cadillac, and then parked some distance away from the vehicle to wait for the arrival of Officers Wiesmueller and Gayle. Arriving two minutes later in a police van, Wiesmueller and Gayle pulled directly behind the Cadillac and activated the white "take down lights" on top of the van to illuminate the Cadillac. At the same time, Officer Buetow pulled his police car in front of and facing the Cadillac such that the Cadillac could not quickly exit from the parked position. Wiesmueller and Gayle exited the van and proceeded toward the Cadillac. The officers' testimony and the occupants' testimony diverges from this point.

The officers testified that they intended to conduct a field interview; that is, to ask such general questions as whether they lived in the area and their reasons for being there, and to explain that a complaint had been made with respect to their presence in the area. Officer Wiesmueller approached the Cadillac on the driver's side, pointing a flashlight at the vehicle and focusing her attention on the driver and the passenger directly behind the driver. As she approached, she asked the occupants of the Cadillac to put their hands in the air where she could see them. Moments later, she heard a car door open and heard Officer Buetow yell "gun." She then drew her weapon and stepped back. Up to this point, she did not ask the occupants any questions.

Meanwhile, Officer Buetow was approaching the front of the vehicle on the passenger's side with his flashlight out and Officer Gayle had taken up a position on the same curb side two feet behind and three feet to the rear bumper of the vehicle. Neither of the officers had their weapons drawn. Officer Buetow testified that the vehicle's occupants, including their facial characteristics, were relatively visible. Both officers saw the rear right door open and observed Defendant exit through the open door. As Defendant put his right foot out of the car, Officer Gayle saw a dark, pipe-shaped object protruding approximately two inches from Defendant's unzipped knee-length coat alongside Defendant's right leg. Officer Gayle told Officer Buetow that he thought he saw a gun.

Officer Gayle saw more of the object as Defendant emerged further from the car with his coat swung open. Believing the object to be a gun, Gayle reached into Defendant's coat, grabbed the object, and yelled "gun." At the same time, Officer Buetow grabbed Defendant's right wrist to prevent Defendant from reaching for the shotgun. Defendant's body was not completely out of the vehicle at that point. Officer Buetow testified that it was a matter of seconds between the time he parked the police squad and the time he grabbed Defendant. Buetow then handcuffed Defendant and conducted a search of Defendant and the car.

None of the officers had asked Defendant to exit the car, although Officer Buetow stated in the police report that Defendant was removed from the car. At the hearing, Officer Buetow explained that what he meant to convey was that he took control of Defendant as he was emerging from the vehicle. The officer also testified that although he described the color of the Cadillac as green in the police report, the color appeared yellow from a distance under the street lighting.

The occupants of the vehicle testified that the windows were foggy and even with the police lights shining on the car, they speculated that the police could not see in their car. According to the occupants, they had been at the location where the car had stalled, for about one and a half hours, and were about to leave when the police vehicles arrived. The driver, Carl Wesley, testified that Officer Wiesmueller told him to turn off the car and had her hand on her holster as she approached.

Contrary to the officers' testimony, Defendant testified that his coat was zipped while he was sitting in the car, and that he had a shotgun hidden between his legs. ¹ According to Defendant, one of the officers asked him for identification and when he responded that he had no identification, the officer told him to get out of the vehicle and to put his hands up. The officer then searched him, discovering the shotgun. Michael Johnson, who was sitting next to Defendant, testified that he heard Officer Wiesmueller ask Wesley for his license and question why they were there. According to Johnson, he also heard an officer, whom he believed to be Wiesmueller, tell Defendant to leave the vehicle. However, Johnson did not hear any officer ask Defendant for his identification.

In denying the motion to suppress the evidence seized during the stop, the district court found that the degree of intrusion was minimal given that the Cadillac had been parked there for more than an hour and that the occupants made no attempt to communicate their intention to leave. The district court further found that there was a sufficient degree of suspicion to justify the intrusion because of the report of a suspicious vehicle, the lateness of the hour, the fogged car windows, and the officers' reasonable belief that the Cadillac was the one reported in the dispatch. After considerable review and reflection, we are unable to agree with the district court's finding.

II. Analysis

This court reviews a denial of a motion to suppress evidence for clear error, and will not retry issues of fact or substitute the district court's judgment with respect to such issues if the factual findings are amply supported by the record. United States v. Adebayo, 985 F.2d 1333, 1337 (7th Cir.1993); United States v. Spears, 965 F.2d 262, 268-271 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). The district court found the testimony of the officers more credible than that of the occupants of the automobile, and the record clearly supports this factual determination. See United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir.1990). Nevertheless, Defendant argues that the police's intervention amounted to a seizure in violation of the Fourth Amendment because it was allegedly conducted without a reasonable and articulable suspicion.

A police intervention may be a seizure if, "taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991); McGann v. Northeast Illinois Regional Commuter R.R. Corp., 8 F.3d 1174, 1185 (7th Cir.1993). Factors relevant to this determination include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); McGann, 8 F.3d at 1185. Two categories of seizure come within the meaning of the Fourth Amendment: an investigatory stop, which is limited to a brief and non-intrusive detention, and an arrest. United States v. Adebayo, 985 F.2d 1333, 1337 (7th Cir.1993); United States v. Withers, 972 F.2d 837, 841 (7th Cir.1992).

In this case, the officers' vehicles were parked both in front and behind the Defendant's car with the "take down" light shining through Defendant's windows. As Officer Wiesmueller approached the car with a flashlight, she asked the occupants to put their hands in the air where she could see them. While the officer's prudential procedures are of course fully justified by concerns for police safety, ² a reasonable person in Defendant's position would not feel that he was free to leave. In any event, while stating that the intrusion was minimal, the district court recognized that an investigatory "Terry" stop had occurred. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also United States v. Lechuga, 925 F.2d 1035, 1039-40 (7th Cir.1991) (police officer's placement of their vehicles directly in front of and directly behind defendant's vehicle is an investigatory stop); United States v. Pavelski, 789 F.2d 485, 488-89 (7th Cir.), cert. denied, 479 U.S. 917, 107 S.Ct. 322,...