U.S. v. Walker

• Decision Date: 26 January 2009
• Docket Number: No. 06-3137.,06-3137.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aaron Derrell WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

555 F.3d 716

UNITED STATES of America, Plaintiff-Appellee, v. Aaron Derrell WALKER, Defendant-Appellant.

No. 06-3137.

United States Court of Appeals, Eighth Circuit.

Submitted: May 28, 2008.

Filed: January 26, 2009.

Timothy R. Anderson, argued, Minneapolis, MN, for appellant.

Michael A. Dees, AUSA, argued, Minneapolis, MN, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Aaron Derrell Walker entered a conditional plea of guilty to the charge of being a felon in possession of a firearm in violation 18 U.S.C. § 922(g)(1). The district court sentenced Walker to 180 months' imprisonment, five years of supervised release, and a $100 special assessment, concluding that two previous convictions for auto theft and temporary auto theft were violent felonies and that Walker was subject to the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1). On appeal, Walker argues that (1) his stop and arrest were unlawful; and (2) the ACCA sentencing enhancement does not apply to him because his previous convictions for auto theft and temporary auto theft are not violent felonies for purposes of the ACCA, and the district court erred in refusing to consider two other felony convictions as related. On July 20, 2007, we issued an opinion affirming the district court. United States v. Walker, 494 F.3d 688 (8th Cir.2007). In light of Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court vacated the opinion. Walker v. United States, ___ U.S. ___, 128 S.Ct. 2050, 170 L.Ed.2d 790 (2008). On reconsideration, we reverse the district court's finding that auto theft and temporary auto theft are violent felonies and, thus, that the Armed Career Criminal Act enhancement applies to Walker. We remand for resentencing.

On November 11, 2005, Walker was driving his vehicle in Minneapolis, traveling eastbound on Lake Street near the intersection of Cedar Avenue. Officer Daniel Ungurian of the Minneapolis Police Department testified that as Walker turned left from Lake Street to Cedar Avenue, Walker swerved in front of his vehicle on Cedar Avenue, nearly striking it. Ungurian also testified that as Walker turned left, he observed some sort of altercation occurring between Walker and a female passenger. Officer Matthew Blade of the Minneapolis Police Department was traveling on Lake Street at the same time, approximately one car length behind Walker's vehicle. He testified that he observed Walker turning left on to Cedar Avenue, squealing his tires as he turned. Both officers then began to follow Walker as he traveled northbound on Cedar Avenue. Officer Blade pulled behind Walker first and ran Walker's license plate to determine if it was stolen. The search revealed that the vehicle was not stolen. Officer Ungurian testified that as he approached Walker's vehicle, he continued to observe movement in the vehicle, indicating a fight. Ungurian decided to activate his lights and siren in order to pull Walker's vehicle over. Walker, however, did not immediately pull over, but instead drove for several more blocks and made two additional turns.

After Walker stopped, Ungurian pulled up, immediately stepped out of his squad car, and approached Walker's vehicle. As Ungurian neared the vehicle, the driver's side door opened and Walker placed his hands outside of the car. Ungurian pulled Walker out of the vehicle and immediately handcuffed him. Blade testified that he stopped his vehicle soon after Ungurian pulled Walker over. Blade observed that the female passenger was "moving around in the front seat" and that it appeared as though "she was trying to put something on the floor by her feet." Blade then approached the passenger and opened the passenger door in an effort to see her hands. After opening the passenger door, Blade immediately noticed a rifle lying between the passenger's legs, partially obscured by a gray sweatshirt. Blade removed the passenger from the vehicle and handcuffed her. On November 14, 2005, investigators interviewed Walker. After being read his Miranda¹ rights, Walker agreed to speak with the investigators, stating that he "got real close to the police car" and that he made a "bad decision in his turn."

Walker was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Walker filed two motions to suppress, challenging the stop of his vehicle, his subsequent arrest, and statements made to investigators following his arrest. A magistrate judge recommended the denial of the motion, concluding that "Officer Ungurian had specific and articulable facts, taken together with rational inferences, to detain Walker and determine if there was criminal activity underway." The district court adopted the report and recommendation of the magistrate judge following a de novo review.² Walker now brings the present appeal.

I.

When reviewing a district court's denial of a motion to suppress, we examine the findings of fact for clear error and review de novo whether the investigatory stop and search violated the Fourth Amendment. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Morgan, 270 F.3d 625, 630 (8th Cir.2001).

Walker contests the legality of the investigatory stop and subsequent search. He argues that the police officers did not have reasonable suspicion to stop the vehicle. For an officer to perform an investigatory stop of a vehicle, there must be reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007) (applying the Terry standard of reasonable suspicion to an investigatory traffic stop). Under the Terry standard, law enforcement officers are permitted to detain an individual for a brief period of time if they have a reasonable suspicion that criminal activity is afoot. See 392 U.S. at 30, 88 S.Ct. 1868. In order for such a stop to be constitutional under the Fourth Amendment, the officer must be aware of "particularized, objective facts, which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed." United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983). "Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances." United States v. Halls, 40 F.3d 275, 276 (8th Cir. 1994) (quotation marks omitted). "While `reasonable suspicion' must be more than an inchoate `hunch,' the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop." United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004).

The district court cited the following facts in concluding that Officer Ungurian possessed a reasonable suspicion to stop the vehicle: (1) Walker swerved towards Officer Ungurian's squad car as he turned left onto Cedar Avenue; (2) Officer Ungurian observed a possible altercation between Walker and another passenger; and (3) Walker failed to pull over immediately after Ungurian activated his lights. In its factual conclusions, the district court relied on the testimony of officers Ungurian and Blade and the videotape of the stop recorded by Officer Ungurian and submitted into evidence.

Walker offers two arguments as to why these circumstances do not support a determination that Officer Ungurian possessed reasonable suspicion to perform an investigatory stop of Walker's vehicle. First, Walker argues that because Officer Ungurian did not testify that Walker's erratic driving constituted a traffic violation, the driving could not support a reasonable suspicion of criminal activity. Walker is correct that any traffic violation provides probable cause for a traffic stop. See United States v. Olivera-Mendez, 484 F.3d 505, 509 (8th Cir.2007). However, that does not require the conclusion that for driving behavior to support a reasonable suspicion of criminal activity, it must necessarily violate some traffic law. We have held before that police properly relied on unusual, but not illegal, driving behavior in determining that an investigatory stop was warranted. See United States v. Wright, 565 F.2d 486, 489 (8th Cir.1977) (holding that it was permissible for the police in performing an investigatory stop to take into account, together with other suspicious circumstances, that defendants' "forward-backward driving activity was not necessary to move from the curb into the road"). In this case, considering the totality of the circumstances, Walker's erratic driving supported Officer Ungurian's suspicion that criminal activity was occurring. Officer Ungurian observed an altercation and what was possibly a criminal assault. Walker's driving therefore confirmed for Ungurian the seriousness of the altercation and the potential threat not only to the occupants in the vehicle but to the other vehicles on the road. The district court was correct that Walker's erratic driving supported a reasonable suspicion of criminal activity.

Second, Walker contests the district court's factual determinations that (1) Walker engaged in unusual driving; (2) he and his passenger were involved in an altercation; and (3) Walker failed to pull over immediately. Reviewing the evidence, we are unable to conclude that the district court committed clear...