U.S. v. Tirrell
| Decision Date | 15 July 1997 |
| Docket Number | Nos. 96-2752,96-3031,s. 96-2752 |
| Citation | 120 F.3d 670 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Theodore A. TIRRELL, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jeffrey B. Lang (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee, Cross-Appellant.
Gregory J. McHugh (argued), Appleton & McHugh, Aledo, IL, for Defendant-Appellant, Cross-Appellee.
Before EASTERBROOK, RIPPLE and MANION, Circuit Judges.
A jury convicted Theodore Tirrell of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In sentencing Mr. Tirrell, the court decided not to apply 18 U.S.C. § 924(e), which contains a 15-year mandatory minimum sentence for defendants who violate § 922(g) and have three prior convictions for a violent felony, on the ground that Mr. Tirrell's prior Michigan conviction for attempted unarmed robbery did not qualify as a violent felony under § 924(e). We affirm Mr. Tirrell's conviction but reverse the district court's § 924(e) sentencing determination.
On July 25, 1992, Robert Johnson was accosted by three African-American males in Rock Island. He and another victim, Willie Williams, described to the police the suspects and the brown Chrysler New Yorker in which the suspects had left. Williams also stated that Mr. Tirrell had pulled a gun on him during the incident and demanded to know what was in Williams' pockets. Williams rode with the police and located the Chrysler at a motel. After midnight, the police set up surveillance of the motel. Officer Robert Schroeder parked in an alley across the street, and Officer Mark Poulos watched the back of the motel.
Officer Schroeder observed five African-American males leave one of the motel rooms. One of the men matched a description of one of Johnson's attackers. He was an African-American male wearing light-colored clothing and was stocky or heavy. The five men got into a blue Pontiac Grand Am, which was parked twenty feet from the brown Chrysler, and drove away. The police made a traffic stop of the car. 1
Mr. Tirrell was seated in the right rear seat of the car. The police ordered all the men to show their hands. All the men did so except for the man seated in the middle of the rear seat, Terrance Owens, who kept dropping his right hand. When the police approached the car, they viewed a gun on the seat in between Owens and Mr. Tirrell. Four other guns were found in the car: one under the driver's seat by the driver, one under the driver's seat by the left rear seat passenger, one under the passenger seat by the front seat passenger, and one in the trunk. After the suspects were removed from the car, a gun--apparently the one that had been in between Owens and Mr. Tirrell--was found on the right rear floorboard. In total, five firearms were found in the Pontiac.
Based on these events, Mr. Tirrell was tried in state court for the unlawful use of firearms by a convicted felon, armed robbery and armed violence. He was convicted of the unlawful use of firearms offense, but was acquitted of armed robbery and armed violence. He was sentenced to 30 months' probation in May 1993. In early 1995, he was found to have violated his probation and was sentenced to 8 years' imprisonment.
In July 1993, the Rock Island County State's Attorney requested that Mr. Tirrell be federally prosecuted. No action was taken on the request. The request was renewed in April 1995. At that time, the United States Department of Justice agreed to reprosecute Mr. Tirrell for the firearms offense under § 922(g). The jury found Mr. Tirrell guilty of possessing all five of the firearms found in the Pontiac. The district court found that sufficient evidence existed to convict Mr. Tirrell of possessing only one firearm. Mr. Tirrell was sentenced to 53 months' imprisonment to be served concurrently with the state sentence.
Mr. Tirrell's first submission is that the officers lacked reasonable suspicion to stop the Pontiac and its occupants on the night he was arrested. See Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979) (). The investigatory stop in this case was reasonable if there was "at least articulable and reasonable suspicion" that the occupants were "subject to seizure for violation of law." Id. at 663, 99 S.Ct. at 1401; see United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989). We look to "the totality of the circumstances" and apply common sense to determine whether the officers' articulated facts provide "a particularized and objective basis for suspecting the particular person[s] stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); see United States v. Jerez, 108 F.3d 684, 693 (7th Cir.1997). We review de novo whether the officers' articulated facts would raise a reasonable suspicion of criminal wrongdoing. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).
Although this issue is a close one, the totality of facts here adds up to a particularized basis for the stop. The blue Pontiac matched the description of an automobile that had been involved in a robbery on the night prior to the stop. The Pontiac was parked two or three spaces away from the brown Chrysler New Yorker that Willie Williams had identified as the vehicle that had been driven by the three African-American males who had accosted him. Both cars were parked close to the motel room door exited by Mr. Tirrell and his associates. There was some evidence that one of the men may have walked over to the brown Chrysler before entering the blue Pontiac. See Tr.II at 5-6. The suspects exited the motel room at 1:30 in the morning, shortly after the officers had set up surveillance. Of the five African-American males that Officer Schroeder saw at that time, at least one of them matched the general description (race, sex, build and clothing) that had been given to the officers by Williams and Johnson. He was wearing light clothing, top and bottom, and was heavyset. We hold that these facts support a reasonable suspicion that the individuals stopped had been involved in an armed robbery. It was therefore reasonable for the officers to stop the individuals to ascertain who they were.
We think that this was a close issue for two reasons. First, the blue Pontiac was suspected in a robbery different from the one involving the brown Chrysler. Nevertheless, the totality of the facts in this case produces a common-sense linking of the two cars and the suspects. Second, we are troubled by the fact that Officer Schroeder changed his testimony between the suppression hearing and the trial. 2 On reconsideration of its suppression ruling, the district court was persuaded nonetheless that Officer Schroeder had recognized the significance of the four-door Grand Am before the stop, even if he had not seen the car's plates. Assessing the total picture, we must conclude the officers had an objective basis for suspecting these particular individuals.
Mr. Tirrell maintains that the district court erred in giving a joint possession instruction in addition to a constructive possession instruction. The court instructed the jury as follows:
Possession may be either actual or constructive. Constructive possession is the ability to control an object.
Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.
R.118 at 22. Mr. Tirrell confesses that this instruction was proper. He maintains, however, that reversible error arose when the court gave the following instruction in addition:
Constructive possession may be either sole or joint. The fact that one person had access to a firearm does not negate the possibility of its possession by another person also. In other words, possession need not be exclusive but may be joint.
R.118 at 23. Mr. Tirrell asserts that it was improper for the district court to extend the joint custody concept to a situation involving a vehicle; he insists that joint possession is a concept that should be limited to cases in which multiple individuals possess weapons in a house. Mr. Tirrell perceives an additional problem with the instruction; in his view, the instructions would permit a jury to find no actual or constructive possession but still to convict on a joint ownership theory.
On appeal, "we will not overturn the use of a jury instruction if it fairly and adequately advises the jury of the law in this Circuit." United States v. Bruce, 109 F.3d 323, 327 (7th Cir.1997). Here, the instructions accurately stated the law of possession. This court recently explained in United States v. Kitchen, 57 F.3d 516 (7th Cir.1995), that "[p]ossession may be either actual or constructive" and that " '[c]onstructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.' " Id. at 520 (quoting United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990)). In Mr. Tirrell's case, the wording of the court's instructions mirrored the language we set forth in Kitchen and Garrett.
We said further in Kitchen that "[c]onstructive possession...
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