U.S. v. Weaver

• Decision Date: 09 December 1993
• Docket Number: No. 93-1427,93-1427
• Citation: U.S. v. Weaver, 8 F.3d 1240 (7th Cir. 1993)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald N. WEAVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1240

8 F.3d 1240

UNITED STATES of America, Plaintiff-Appellee, v.Ronald N. WEAVER, Defendant-Appellant.

No. 93-1427.

United States Court of Appeals Seventh Circuit.

Argued Aug. 3, 1993.

Decided Nov. 5, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 9, 1993.

Colin S. Bruce, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, IL (argued), for plaintiff-appellee.

Timothy E. Duggan, Springfield, IL (argued), for defendant-appellant.

Before POSNER, Chief Judge, and BAUER and MANION, Circuit Judges.

BAUER, Circuit Judge.

Pursuant to a conditional plea agreement, Ronald N. Weaver pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), preserving his right to challenge the district court's denial of his motion to quash arrest and suppress evidence.Fed.R.Crim.P. 11(a)(2).Weaver now appeals the denial of that motion.Weaver also contends that the district court erred in increasing his base offense level under U.S.S.G. § 3A1.2(b), which provides for a three-level increase for creating a substantial risk of serious bodily injury to a law enforcement officer.We affirm.

I.BACKGROUND

On April 19, 1992, Officer John Bolinger of the Springfield, Illinois police department, Investigator Pitchford of the State Appellate Prosecutor's Office, and several other police officers were executing a state search warrant for illegal drugs in a private residence located at 100North State Street in Springfield, Illinois.At about 12:30 a.m. the telephone rang, and Officer Bolinger answered it.A person who identified himself as "Ron" asked whether Bolinger had his "stuff."Bolinger replied that he did, and Ron asked why he had not delivered it.When Bolinger explained that he had been tied up, Ron asked whether he could come over and get it.Ron also asked whether Bolinger had his "tool."Bolinger said that he did, and told Ron to come over.Ron asked in a suspicious tone whether "everything was cool," and Bolinger assured him that it was.The conversation then ended.In anticipation of the visit, marked police cars were removed from the immediate vicinity of the house.Approximately five to ten minutes later, the phone rang again.This time, Investigator Pitchford answered it.After Pitchford got off the phone, he told Bolinger that he had just spoken with a person who identified himself as Ron and asked for directions to the house.

Approximately five to ten minutes after the second telephone call, there was a knock at the front door.Pitchford told the person at the door to come in.The front door opened and the person, later identified at the suppression hearing as Weaver, started to come in.He then stated, "No, I'm not coming in.I think I'm going to leave," and began to move rapidly away from the front door.Pitchford, who was in plainclothes, went out the door after Weaver, stating that he was a police officer and that he wanted to talk to Weaver.Bolinger, also in plainclothes, joined the pursuit.Weaver appeared to be headed in the direction of a car parked nearby when Pitchford grabbed him by the jacket and said, "I want to talk to you."Weaver broke free and began to run.Both Bolinger and Pitchford were yelling "Police!" as they pursued him.Bolinger caught up with Weaver and tackled him in the front yard.In an effort to get away, Weaver kicked Bolinger in the chest, knocking him backwards.At that point, Bolinger decided that he was going to place Weaver under arrest for aggravated battery to a police officer.Bolinger, Pitchford and two other officers struggled with Weaver and managed to subdue him.During the struggle, Weaver yelled, "Kill me, I don't want to go back to prison," and repeatedly reached inside his jacket with his right hand.After Weaver was handcuffed, one of the officers retrieved a fully loaded Smith and Wesson .44 Magnum revolver from the inside of Weaver's jacket.

On the basis of this seizure, Weaver was charged in a one-count indictment with unlawful possession of a firearm by a felon.Weaver moved the district court to quash the arrest and suppress the revolver on the grounds that police initially had no reasonable suspicion to stop him, and that his subsequent arrest was not supported by probable cause.A hearing was held, at which Weaver testified that when he arrived at 100North State Street, he realized that he had come to the wrong house and immediately turned to leave.As he was leaving, Pitchford allegedly drew a gun and pointed it at him.Weaver claimed that he did not struggle when the officers tackled him, and that he was never informed by any of them that they were police officers.The district court discredited Weaver's account of the incident, determining that Weaver's initial encounter with Pitchford and Bolinger began as an investigatory stop supported by reasonable suspicion, and that once Weaver had kicked Bolinger, police had probable cause to place him under arrest.The subsequent search of his jacket, which yielded the revolver, was thus justified as incident to a lawful arrest.The district court accordingly denied the motion to suppress.

A presentence report was prepared, and Weaver filed numerous written objections, which the district court rejected.The court found by a preponderance of the evidence that a three-level increase in Weaver's base offense level was warranted under U.S.S.G. § 3A1.2(b) for assaulting an officer in a manner creating a substantial risk of serious bodily injury.Weaver's total offense level was thus set at 25, with a criminal history category of III, resulting in a range of 70 to 87 months imprisonment and two to three years of supervised release.The court accepted the government's recommendation that Weaver be sentenced at the low end of the applicable guideline range, sentencing him to 70 months in prison, followed by three years of supervised release.

II.ANALYSIS

A.The motion to quash arrest and suppress evidence.

The district court determined that Weaver's initial encounter with Pitchford and Bolinger was a lawful investigatory stop, and that the force used to detain Weaver was reasonable in view of Weaver's efforts to resist the officers' request to talk to him.The court also determined that Weaver was properly placed under custodial arrest after he kicked Bolinger.Two types of Fourth Amendment"seizure" are thus at issue: an investigatory stop, for which an officer must have specific, articulable facts that give rise to a reasonable suspicion that the person stopped has committed or is about to commit a crime, seeUnited States v. Hensley, 469 U.S. 221, 227, 229, 105 S.Ct. 675, 679, 680, 83 L.Ed.2d 604(1985);Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889(1968);United States v. Johnson, 910 F.2d 1506, 1508(7th Cir.1990), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783(1991), and an arrest, which must be supported by probable cause, seeBeck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142(1964);Johnson, 910 F.2d at 1508.

The parties dispute when the investigatory stop of Weaver became an arrest.There is no bright-line test which separates a lawful investigatory stop from an illegal arrest; when police officers are faced with what is essentially a fluid situation, they are permitted to graduate their responses to the demands of the particular circumstances confronting them.SeeGraham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443(1989);United States v. Sharpe, 470 U.S. 675, 685-86, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605(1985);United States v. Glenna, 878 F.2d 967, 971(7th Cir.1989);United States v. Serna-Barreto, 842 F.2d 965, 966-68(7th Cir.1988);see alsoUnited States v. Lechuga, 925 F.2d 1035, 1039-41(7th Cir.1991);United States v. Chaidez, 919 F.2d 1193, 1197-99(7th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 209, 116 L.Ed.2d 167(1991).The crux of our inquiry in each case is whether police conduct meets the Fourth Amendment's standard of objective reasonableness.SeeSharpe, 470 U.S. at 682-83, 105 S.Ct. at 1573;see alsoGraham, 490 U.S. at 397, 109 S.Ct. at 1872;Terry, 392 U.S. at 19-21, 88 S.Ct. at 1878-79.In determining whether the degree of intrusiveness of an investigatory stop was objectively reasonable, we consider whether the suspect's own actions in resisting the legitimate efforts of police to stop and question him played a role in bringing about the challenged police conduct.SeeGraham, 490 U.S. at 396, 109 S.Ct. at 1871;Tom v. Voida, 963 F.2d 952, 958-59 & n. 6(7th Cir.1992)(citation omitted).

We begin our analysis by evaluating the reasonableness of the officers' initial stop of Weaver.SeeSharpe, 470 U.S. at 682, 105 S.Ct. at 1573;Terry, 392 U.S. at 20, 88 S.Ct. at 1879.While executing the search warrant, Officer Bolinger and Investigator Pitchford received two telephone calls from a person who identified himself as "Ron," and stated that he would come over to pick up his "stuff."Based on his extensive experience in narcotics investigation, Bolinger recognized this term as referring to illegal drugs.Bolinger also noticed that "Ron" sounded suspicious, and asked whether everything was "cool," thus adding to Bolinger's impression that the person on the other end of the line might have some illegal activity in mind.When Weaver arrived at the door ten minutes later, Pitchford and Bolinger had specific, articulable reasons why they wanted to question him: they reasonably believed that he was the "Ron" who had called, and they wanted to determine whether he was implicated in any criminal activity involving the narcotics which were the object of their search.Upon being invited by Pitchford to come inside, Weaver immediately began to retreat.These circumstances, viewed in their totality, gave rise to the officers' reasonable suspicion that Weaver had come to the residence with the intention of obtaining narcotics.

Weaver contends...