U.S. v. Ware, 88-2435

• Decision Date: 01 October 1990
• Docket Number: No. 88-2435,88-2435
• Citation: 914 F.2d 997
• Parties: 31 Fed. R. Evid. Serv. 335 UNITED STATES of America, Plaintiff-Appellee, v. Daniel WARE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 997

914 F.2d 997

31 Fed. R. Evid. Serv. 335

UNITED STATES of America, Plaintiff-Appellee, v. Daniel WARE, Defendant-Appellant.

No. 88-2435.

United States Court of Appeals Seventh Circuit.

Argued April 19, 1989.

Decided Oct. 1, 1990.

Jacqueline O. Stern, David J. Stetler, Asst. U.S. Attys., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

John A. Meyer, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This case concerns the authority of an Illinois police officer to seize a weapon At approximately 1:30 a.m., on October 19, 1986, a white male using a sawed-off shotgun attempted to rob the Pour House Tavern in Calumet City, Illinois. During the robbery attempt the owner of the establishment called the Calumet City Police. Shortly thereafter, the Calumet City Police Department issued a general radio dispatch that an attempted robbery had just occurred at the Pour House Tavern and that the suspect had fled.

from a get-away vehicle followed into Indiana from the scene of an Illinois robbery. Also at issue is the extent to which an expert witness may use personal research to testify regarding the interstate transportation of weapons.

Calumet City Police Officer Bertha Shannon was on patrol in the area and upon hearing the radio dispatch, she immediately headed toward the crime scene. As she continued driving, a second radio dispatch described the robbery suspect. At about this time, a small white car that Officer Shannon had observed earlier pulled away from the curb in front of her and traveled east toward the Indiana state line. A third radio transmission aired and the dispatcher described the robbery suspect's vehicle as a small white car. Officer Shannon followed the white automobile for a distance of about five blocks from Calumet City, Illinois, across the state line into Hammond, Indiana, and into the parking lot of St. Margaret's Hospital. ¹

Officer Shannon called in the license plate number of the white car and was informed that it was registered to Daniel Ware and Betty Scott. Officer Shannon requested assistance and parked about 25 feet away from the vehicle she had under surveillance. Two male occupants got out of the white automobile. Ware exited the passenger side and another man got out of the driver's side. They walked to the front door of St. Margaret's Hospital and attempted to enter. The doors were locked and they walked to the hospital courtyard area leading to the other side of the building. Officer Shannon lost sight of Ware and the other man. At about the same time, Officer James Rupcich, also of the Calumet City Police Department, arrived in another squad car. He had heard the radio transmissions and proceeded to the hospital location to assist Officer Shannon. Officer Shannon spoke with Officer Rupcich and then drove to the other side of the hospital building. Shortly thereafter, Officer Rupcich heard another radio dispatch which indicated that two suspects had been taken into custody on the opposite side of the hospital. At that point, Officer Rupcich walked to the white automobile, looked through the passenger window and saw the butt of a shotgun protruding from under the passenger seat. The officer retrieved the weapon from the automobile and noticed a shotgun shell also on the passenger side of the car. He unloaded the gun, which had one shell in it, and turned over the shotgun and two shells to an evidence technician from the Hammond, Indiana Police Department. Daniel Ware was subsequently identified by three witnesses as the man who attempted the armed robbery.

Ware was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C.App. II Sec. 1202(a)(1), and with possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). Following a jury trial guilty verdicts were returned on both counts. Ware was sentenced to fifteen years imprisonment on count one, and ten years imprisonment on count two. The sentence in count two runs concurrently with the sentence imposed in count one. Ware appeals his convictions arguing that the court erred in admitting the shotgun and shells into evidence and that the testimony of an expert witness was improper. We find no error and affirm.

DISCUSSION

A. Admission of Evidence Seized from Automobile

Prior to trial Ware filed a motion to suppress regarding the shotgun and shells On appeal, Ware argues that the trial court erred by denying the motion to suppress the shotgun and shells because: (1) the search of his car by Officer Rupcich was not authorized under Indiana law; and (2) there were no exigent circumstances to justify the search.

seized by Officer Rupcich from the get-away vehicle. Ware argued that an Illinois law enforcement officer had no legal authority to act as a law enforcement officer in the state of Indiana. Following a hearing the district judge denied the motion to suppress, holding that the Calumet City police officers had been in hot pursuit of Ware's vehicle and therefore were justified in acting outside their jurisdiction. Further, the judge found that the examination of the car and seizure of the shotgun and shells were justified to ensure the immediate safety of the investigating officers and others in the area.

We will affirm a district court's denial of a motion to suppress evidence unless it is clearly erroneous. United States v. D'Antoni, 856 F.2d 975, 978 (7th Cir.1988); United States v. Binder, 794 F.2d 1195, 1199 (7th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 234, 93 L.Ed.2d 159 (1986).

Ware explicitly repudiates reliance on the fourth amendment of the United States Constitution. Rather, he argues that Officer Rupcich had no legal authority to conduct a search ² in the state of Indiana and therefore the shotgun and shells should have been suppressed. An initial issue raised by this argument is that if Officer Rupcich had absolutely no governmental authority in Indiana and thus was a private person, then the state and federal constitutional prohibitions do not apply and suppression of the evidence would not be a remedy. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Hutchinson v. State, 477 N.E.2d 850, 853 (Ind.1985); Torres v. State, 442 N.E.2d 1021, 1023 (Ind.1982). We will address Ware's arguments, however, because in light of all the circumstances here, it is arguable that Officer Rupcich was acting to assist Indiana law enforcement efforts. See United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987) (the determination of governmental involvement in a search and seizure is made in light of all the circumstances with the two critical factors being whether the government acquiesced in the intrusive conduct and whether the private party's purpose for conducting the search was to assist law enforcement efforts or to further his own ends).

Ware relies on a decision of the Indiana Supreme Court to support his argument that the "search" was unauthorized under Indiana law. He argues that in Walker v. State, 503 N.E.2d 883 (Ind.1987), the court held that a search conducted by an "arresting person," other than an Indiana police officer, was limited to the area immediately under the arrested person's control. Therefore, he argues, the search by Officer Rupcich was unauthorized under Indiana law because neither Ware nor his companion were near the car when Officer Rupcich looked through its windows.

Initially, we do not read Walker to set forth limitations on the right to search. In Walker, Chicago police officers during surveillance, followed three suspects as they drove into Indiana. Later, two of the suspects were observed entering an apartment while the third remained in the car. When the two suspects emerged from the apartment The two suspects arrested by Illinois police were convicted. They argued on appeal that because the Chicago police officers had no legal authority in Indiana the trial court erred in refusing to suppress the evidence seized by them. The Indiana Supreme Court held that the arrest was valid under the Indiana citizens arrest statute. Id. at 886. Further, the court said, "in effecting [an arrest without a warrant], the arresting person may also search the area immediately under the arrested person's control." Id. Read in context it is plain that the court was not attempting to limit the right of an arresting person to search, but was merely noting that the search by the Illinois police in the case before it was proper.

they were carrying articles which they did not carry into the building. The Chicago police officers checked the apartment to confirm that it had been burglarized and immediately informed the local Indiana police. As the Indiana police were en route to the scene of the burglary, the Illinois police informed the Indiana police that two of the suspects were attempting to leave. The Chicago police officers were asked to arrest them. They did so, and seized items from their persons and from the open trunk of their car.

Moreover, under the circumstances here Officer Rupcich did not conduct a "search" of the car. Ware does not argue that the laws or constitution of Indiana offer him a broader definition of what constitutes a "search." Indeed, both the Indiana and federal decisions on point hold that there is no expectation of privacy and thus no "search" when a person merely observes something through an automobile's window. ³ See Avant v. State, 528 N.E.2d 74, 76 (Ind.1988) (merely looking through windows of a vehicle to see that which is inside is not a search because officer did not have to pick up, open up, or pull back anything to see the clothing lying on the back seat); Marsh v. State, 477 N.E.2d 877 (Ind.1985) (when officer aimed a flashlight into vehicle and observed the butt of a gun, two ski masks and a money bag, the evidence taken from the car was in plain...