U.S. v. Wheeler

• Decision Date: 22 August 1986
• Docket Number: No. 85-2235,85-2235
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WHEELER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 100

800 F.2d 100

UNITED STATES of America, Plaintiff-Appellee, v. James WHEELER, Defendant-Appellant.

No. 85-2235.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1986.

Decided Aug. 22, 1986.

Irwin Levin, Indianapolis, Ind., for defendant-appellant.

Bruce D. Brattain, U.S. Attys. Office, Hammond, Ind., for plaintiff-appellee.

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

CUMMINGS, Chief Judge.

James Wheeler appeals his conviction for unlawful possession of a firearm, 18 U.S.C. app. II section 1202(a)(1). For the reasons discussed below, we affirm.

I. STATEMENT OF THE FACTS AND CASE

On July 27, 1984, James Wheeler was charged with two counts both relating to his possession and receipt, as a convicted felon, of a firearm in violation of 18 U.S.C. app. II Sec. 1202(a)(1) and 18 U.S.C. Sec. 922 (a)(1). He entered a not guilty plea on February 12, 1985. On April 18, 1985, the defendant made a motion to supress the firearm, arguing that it was taken as a result of an illegal search and seizure. After a hearing the district court denied the motion on April 24, 1985. The jury returned a guilty verdict as to both counts on May 21, 1985, and defendant was later sentenced to 5 years on Count I; Count II was dismissed by the trial judge on motion of the Government. Defendant brings this appeal pursuant to 28 U.S.C. Sec. 1291.

On July 13, 1983, off-duty police officer Arpad Hayes was working as a security officer at the Duchess Lounge in Hammond, Indiana. That evening 6 to 7 men entered the bar, some of whom Hayes recognized as being members of the Outlaw Motorcycle Club. None was wearing the Outlaw "colors" but some had clothing marked "Outlaw Motorcycle Club." Hayes observed that two of the men stayed by the door, two walked alongside the bar, and the remaining two or three went to the opposite end of the bar. Hayes also noticed bulges in several of the men's clothing and he suspected that they were weapons. Because another motorcycle club hostile to the Outlaws, the Invaders, frequented the Duchess Lounge, Hayes continued to watch the group for about 5 minutes. Fearing trouble, he called the Gary Police Department for assistance.

Shortly thereafter 5 or 6 officers arrived at the scene, at least one of whom had a shotgun. They entered the dimly lit bar where approximately 30 patrons were drinking and talking. There were no longer any men near the door or walking along the length of the bar. Hayes pointed to some of the patrons (including defendant) and told Sergeant Petro he thought some of them were armed.

Wheeler was at the opposite end of the bar from the door with his back to the approaching police officers. Petro approached Wheeler and ordered him to turn around, put his drink down, and place his hands against the wall. As the defendant complied, Petro noticed a gun in his waistband and took possession of it. He asked the defendant about a permit and the defendant replied that he had no permit because he was a convicted felon.

Defendant raises five issues on appeal. First, he argues that in disposing of the motion to suppress the trial judge erroneously placed the burden upon defendant, and second that there was no particularized reasonable suspicion that he was going to engage in criminal activity so as to warrant a Terry stop and frisk. ¹ Third, he contends that by failing to object to the introduction of inadmissible evidence his counsel was ineffective. Fourth, a comment by the prosecutor regarding the defendant's ability to bring a witness onto the stand impermissibly shifted the burden of proof. And fifth, the court erred in failing to tender to the jury a justification defense instruction.

II. TERRY STOP AND FRISK

Wheeler claims that the trial court erred in denying his motion to suppress evidence illegally seized. He claims that the trial court improperly placed on him the burden of showing that the seizure of the gun was illegal. Defendant further argues that the government failed to meet its burden of showing reasonable, articulable facts to justify the stop and search.

As the government concedes (Br. 11), the trial court was incorrect in placing the burden on the defendant. When the police initiate a search and seizure, the government bears the burden of establishing by a preponderance of the evidence that the search or seizure did not violate the Fourth Amendment. United States v. Longmire, 761 F.2d 411, 418 (7th Cir.1985). The burden is not appropriate for the defendant to carry because, inter alia, "[t]he facts allegedly constituting the reasonable suspicion are peculiarly within the knowledge and control of the police." Id. at 417. However, even with the burden properly shouldered by the government, its seizure of the gun and arrest of defendant were nevertheless justified.

Before the Terry exception to the probable cause requirement applies, there must be reasonable suspicion to believe that the individual stopped has committed or is about to commit a crime. Terry v Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889. Furthermore, in order to frisk an individual stopped there must be reasonable suspicion that he or she is armed and presents a danger to the officer or community. Id. at 27, 88 S.Ct. at 1883; Sibron v. New York, 392 U.S. 40, 64-66, 88 S.Ct. 1889, 1903-04, 20 L.Ed.2d 917. Terry does not permit a patdown for weapons unless there is a reasonable belief that a particular individual is armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 91, 92-93, 100 S.Ct. 338, 342-43, 62 L.Ed.2d 238; United States v. Cortez, 449 U.S. 411. When--as here--the suspected criminal activity reflects a violent nature, the possibility that the individual is armed and dangerous is increased. Terry, 392 U.S. at 33, 88 S.Ct. at 1886 (Harlan, J., concurring) (daytime burglary likely necessitates the use of a weapon). But simply because someone is in the company of others who themselves are suspected of criminal activity does not alone give rise to a Terry stop and frisk justification because the probable cause must be "particularized with respect to that person." Ybarra, 444 U.S. at 91, 100 S.Ct. at 342; United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210.

The facts of this case suffice to show that, given the information provided by Hayes, arresting officer Petro had a reasonable suspicion that Wheeler was armed and dangerous. Although it is clear that knowledge of one officer may be imputed to another officer, Williams v. United States, 308 F.2d 326, 327 (D.C.Cir.1962), that information must be communicated in sufficient detail. United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.1975), certiorari denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685; Evergreen Helicopters, Inc. v. NLRB, 564 F.2d 1293 (9th Cir.1977). United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604, requires that (1) the officer act in objective reliance on the information; (2) the police officer who provided the information have had reasonable suspicion justifying a stop or frisk; and (3) the stop or frisk be no more intrusive than would have been permitted for the initial officer. For purposes of this case, the district court had to determine whether Officer Hayes had a reasonable suspicion that Wheeler himself was armed and dangerous and whether that information was sufficiently communicated to Officer Petro. Judge Moody so ruled in an opinion denying the motion to suppress (reproduced in defendant's Appendix).

The facts available to Hayes can be summarized as follows:

(1) A group of six or seven men entered the bar together;

(2) the group initially behaved in a manner suggesting that they were "covering" the entrance;

(3) some were recognized as Outlaw gang members;

(4) some members of the group were wearing clothing with "Outlaw Motorcycle Club" printed on it;

(5) some of the men had bulges in their clothing indicating the possibility of weapons;

(6) the Invaders, who frequented the Duchess Lounge, were hostile to the Outlaws, and a fight between the two gangs seemed likely.

According to the record, the defendant was not identified as wearing Outlaw insignia or as a member of the Outlaws, but was one of the suspect group whose weapons bulged from their clothing. Hayes of course knew that Wheeler was a member of the group that entered the bar and aroused his fear of a fight. The question before the district court was whether an inference that Wheeler was armed and dangerous because he entered a bar with a group of men who are Outlaws, seemingly armed, and behaving suspiciously was reasonable. It is significant that the behavior of the group as a whole was suspicious and that led Hayes to believe they were about to commit a crime involving violence. He feared there was to be a violent confrontation between the Outlaws and the Invaders. It is not just that Wheeler happened to be with people whom the police independently suspected of criminal behavior, the group itself (of which Wheeler was a member) was behaving suspiciously. Although it was not necessary for every member of the group to wear Outlaw insignia for Hayes to have reasonably inferred that the others were somehow affiliated with the Outlaw members, it was still an inference that the government had to support. Likewise, whether the fact that some were possibly armed, coupled with the suspicion of a potential violent encounter, could lead to a reasonable inference that they were all possibly armed and dangerous. These burdens were on the Government but, as noted, were erroneously placed on defendant to disprove.

The defendant argues that although Officer Hayes may have had sufficient suspicion to stop and frisk him, Sergeant Petro did not. The defendant contends that Hayes failed to indicate specifically to Petro that defendant was a person armed or a member of the group of six or seven Outlaws. Rather, Wheeler alleges that Hayes only pointed generally toward...