U.S. v. Whitaker

• Decision Date: 27 October 2008
• Docket Number: No. 08-1259.,08-1259.
• Citation: 546 F.3d 902
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie WHITAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

546 F.3d 902

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie WHITAKER, Defendant-Appellant.

No. 08-1259.

United States Court of Appeals, Seventh Circuit.

Argued September 3, 2008.

Decided October 27, 2008.

Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

David L. Mandell (argued), Mandell & Ginsberg, Madison, WI, for Defendant-Appellant.

Before POSNER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

When Lonnie Whitaker's car was searched, a police officer found a gun. Mr. Whitaker was subsequently charged with unlawfully possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the gun obtained from his car. The magistrate judge, after holding an evidentiary hearing, recommended that the district court deny the motion. The district court adopted the magistrate judge's report. Mr. Whitaker pled guilty, but reserved his right to appeal the adverse decision on his suppression motion. The district court sentenced Mr. Whitaker to 41 months' imprisonment;¹ Mr. Whitaker filed a timely notice of appeal.² Because we believe that the district court correctly determined that the search was based on reasonable suspicion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts³

On June 17, 2007, shortly before 8:00 p.m., an anonymous individual called 911 to report a loud argument in a food store parking lot. The caller stated that he was unable to get close to the argument and, consequently, did not know the number of individuals involved or their genders. He did state, however, that, at the scene of the altercation, there were at least two people standing by a car, "two males, that I can see." R. 32. Later in the call, he described them as "pretty good-sized black guys." Id.

A second man called 911 soon after. He reported a man with a gun in the same parking lot. This second caller identified himself as "Travis" and provided the operator with a phone number. Travis stated that he had been shopping when he saw his female cousin and her boyfriend, Lonnie, arguing. Lonnie was standing next to his silver car; Travis' cousin stood next to her blue van. Travis reported that "we pulled up to ask was she all right and he pulled a gun on us!" Id. Travis' cousin urged them to leave, which they did. Travis then called 911.

After the first call to 911, the police dispatcher alerted units in the area. Police officers Caleb Bedford, Chad Joswiak and Becky Overland headed, each separately, toward the parking lot. As the officers were en route to the scene, "alert tones"⁴ went off on the radio, and the dispatcher informed them that a second caller had reported that a black man and a black woman were arguing in a silver car in the parking lot and that the man had displayed a handgun. The officers did not know any of the other information provided by Travis.

The officers easily were able to locate a silver car parked near a van in the southwest corner of the parking lot. Officer Bedford arrived first and parked near the car, which actually was a gray Chevrolet Impala. He stepped out of his squad car and walked toward the driver's side of the Chevrolet Impala. The driver stepped out of the vehicle to face Officer Bedford. Officer Joswiak arrived and began walking toward the passenger side of the car.

Officer Bedford asked the man, soon identified as Lonnie Whitaker, if he and the woman were having an argument.⁵ Officer Bedford saw nothing in Mr. Whitaker's hands and asked Mr. Whitaker for permission to frisk for a weapon. After receiving permission, he frisked Mr. Whitaker and found no weapon.

The female passenger, soon identified as Keisha Marsh, stepped out of the car to face Officer Joswiak. He observed that she was crying and that she had large wet circles on both shoulders of her shirt, which he presumed were from tears. Officer Joswiak asked Marsh if she and Mr. Whitaker had been arguing or fighting; she responded that they had been arguing in the car. He asked Marsh whether "everything was alright in the vehicle," and she said yes. R. 20, Ex. 2 at 6. Officer Joswiak asked Marsh if there was any problem where some type of weapon had been involved; she responded that there was not, and that there had just been an argument between her and Mr. Whitaker. When asked, she stated that she had no weapons. Officer Joswiak patted her down, but found no weapons.

Officer Joswiak announced to Marsh that he was going to do a weapons sweep of the passenger compartment of the car. Marsh said nothing but maintained her position blocking the passenger-side door. Officer Joswiak physically guided Marsh out of the way and searched the car; he found a black semiautomatic handgun in the center console. Officer Bedford then arrested Mr. Whitaker.

Later, after Mr. Whitaker had been conveyed to a detention facility, Officer Joswiak contacted the first 911 caller at the number listed in the records. Speaking with the first caller, Officer Joswiak was able to corroborate Mr. Whitaker's build and what he was wearing. The first caller also stated that, in addition to two men arguing, there was a third person seated in the front passenger seat of the car. Officer Joswiak was unable to reach the second caller who had identified himself as Travis, although the officer reached a voice mail box for "Smokey." Detectives later were able to locate and interview this second caller despite the fact that he had given a false name and phone number.

II DISCUSSION

We review a district court's legal analysis on a motion to suppress de novo. United States v. Riley, 493 F.3d 803, 808 (7th Cir.2007). Pure findings of fact, however, are reviewed for clear error. United States v. Faison, 195 F.3d 890, 893 (7th Cir.1999).

A.

Mr. Whitaker submits that the police did not have reasonable suspicion to believe that a crime had been committed. He contends that the police lacked reasonable suspicion to conduct a search of the car for weapons because the 911 caller identified as "Travis" was anonymous. He notes that Travis intended to conceal his identity and was successful in doing so, undermining the reliability of the 911 call. Mr. Whitaker further submits that the first anonymous phone call was too vague to corroborate Travis' later call.

Mr. Whitaker further contends that the police did not observe any behavior that justified a Terry pat-down. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In his view, the anonymous tip could not be a valid basis for the search because the information was not verified independently by the police. See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Mr. Whitaker distinguishes this case from United States v. Drake, 456 F.3d 771 (7th Cir.2006), in which the caller to 911 identified herself by her first and last name, stayed on the scene until the police arrived and provided detailed information to the operator. Id. at 772-74. He notes that, in this case, Travis provided a false name and phone number. He points out that Travis failed to provide a contemporaneous description of an emergency or a detailed account of the suspect car, and did not remain at the scene.

Mr. Whitaker further submits that, even if the second caller cannot be characterized as anonymous, the officers still lacked collective knowledge of the details of Travis' call at the time of the search. He acknowledges that, under the collective knowledge doctrine, law enforcement officers are considered to possess information known to other officers but not known to them. United States v. Lenoir, 318 F.3d 725, 728 (7th Cir.2003) (holding that when police officers are in communication regarding a suspect, "the knowledge of one officer can be imputed to the other officers under the collective knowledge doctrine"). Nevertheless, he submits that the doctrine does not apply to knowledge that civilian 911 operators do not share with the officers. See United States v. Colon, 250 F.3d 130, 137 (2d Cir.2001) (holding that a 911 operator was not capable of determining whether reasonable suspicion existed for a stop and frisk). In Mr. Whitaker's view, at the time of the search, the officers were aware only that a man and a woman were in a silver car and that a weapon was involved. He concludes that this information was not predictive and that it therefore could not be used to establish reasonable suspicion under J.L., 529 U.S. at 271-72, 120 S.Ct. 1375.

The Government takes a different view. It contends that the district court was correct in determining that J.L. is not relevant because that case dealt with whether the initial stop was justified. It emphasizes that there can be two stages to a Terry stop: the actual stop itself and a protective pat-down search. United States v. Brown, 232 F.3d 589, 592 (7th Cir.2000). Because the holding in J.L. is limited to an actual stop, submits the Government, the reasoning in J.L. is not applicable to this case; this case concerns only the legality of a search or protective sweep after a consensual encounter of the police with the defendant. J.L., 529 U.S. at 274, 120 S.Ct. 1375. The Government submits that the only issue is whether, under an objective test, the police officers had a reasonable suspicion that Mr. Whitaker had a gun in his possession. Brown, 232 F.3d at 594. In the Government's view, the district court identified "specific, articulable suspicions" that Mr. Whitaker possessed a gun. Appellee Br. at 14. When Travis called 911, he identified himself as Marsh's cousin, and described an encounter in which Mr. Whitaker had waved him away with a handgun. This call alone, contends the Government, was enough to establish articulable suspicion. It further agrees with the district court's conclusion that the first caller provided some minimal corroboration....