U.S. v. Willis, 91-2467

• Decision Date: 10 August 1992
• Docket Number: No. 91-2467,91-2467
• Citation: 967 F.2d 1220
• Parties: UNITED STATES of America, Appellee, v. Corey WILLIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1220

967 F.2d 1220

UNITED STATES of America, Appellee, v. Corey WILLIS, Appellant.

No. 91-2467.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 4, 1991.

Decided June 26, 1992.

Rehearing and Rehearing En Banc Denied Aug. 10, 1992.

George H. Smith, Minneapolis, Minn., argued, for appellant.

Jeffrey S. Paulsen, Asst. U.S. Atty., Minneapolis, Minn., argued (Judy L. Hallett, Asst. U.S. Atty., on the brief), for appellee.

Before LAY, Chief Judge, ^* HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Corey Willis appeals his conviction for drug and weapon offenses in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c). He argues that the district court ¹ erred in denying his motion to suppress evidence, in denying his motion for judgment of acquittal, and in rejecting the contention that his more severe sentence for possession with intent to distribute cocaine base (crack cocaine), as opposed to cocaine powder, violates his Fifth Amendment right to equal protection. We affirm.

I.

At around 3:00 a.m. on Halloween morning, 1990, Brooklyn Park police received a phone call from a cab driver parked at a service station who was encountering "unknown problems." Two officers in separate vehicles responded to the call. Officer Brad Pearson pulled into the station where the cab was parked to speak with the driver. Pearson learned that the cab driver had called because he was afraid of being robbed but that no robbery had occurred.

Sergeant Kampa approached the station in the second car and saw Willis and his companion walking away. As Kampa drove past the station, Willis trotted across the street with a shopping bag in hand, cutting in front of Kampa's car. When Willis saw the police car his pace quickened from a slow run to an all-out sprint. Kampa followed Willis but lost him in the parking lot of a White Castle restaurant. Kampa found Willis's shopping bag lying in the parking lot, picked it up, and locked it in his car.

Officer Steve Pearson arrived next with a police dog. As Pearson waited in the parking lot, Kampa climbed to the roof of the White Castle where he saw Willis hiding behind a roof vent. Kampa radioed Steve Pearson that he had found Willis and, with his gun drawn, ordered Willis three times to come out of hiding. Willis finally left his hiding place, ran across the roof, and swung one leg over the side of the building as if to jump off and continue his flight. He was met by Steve Pearson and his barking dog and was ordered to "stop and stay where he was." Kampa repeated Pearson's command and Willis stopped, pulled his leg back onto the roof, and stood with his hands up against a stub wall.

Kampa then radioed for support, and Brad Pearson joined him on the roof. Brad Pearson and Kampa approached Willis and patted him down to check for weapons. Brad Pearson then told Kampa that Willis had not done anything to the cab driver, which prompted Kampa to ask Willis why he had fled. Willis answered that there was a gun in his bag and an outstanding warrant for his arrest. Kampa verified the warrant and placed Willis under arrest. The officers then instructed Willis to climb down from the roof and lie on the ground, where a fourth officer handcuffed Willis and searched him, finding a pager and $410.00 in cash.

Sergeant Kampa then returned to his car and looked in the shopping bag where he found a loaded .38 caliber revolver and a plastic bag filled with what appeared to be a large amount of crack cocaine. Willis was taken to the Brooklyn Park Police Department where he was given a Miranda warning and made a statement. A warrant was obtained to search Willis's residence, where police found another loaded .38 caliber revolver, an electronic gram scale, $119.00 in cash, and a small amount of crack cocaine.

Before trial, the district court denied Willis's motion to suppress all the seized evidence. The jury convicted Willis of possession with intent to distribute approximately 200 grams of cocaine base, and of using a firearm during a drug trafficking crime. He was sentenced to 188 months in prison on the drug count, an additional five years in prison on the firearm count, and five years of supervised release. This appeal followed.

II.

Willis first argues that the district court erred when it denied his motion to suppress the evidence found in the shopping bag, the evidence seized when he was arrested, and the evidence seized during the subsequent search of his residence. Willis contends that the police pursued him and seized the shopping bag with no reasonable, articulable suspicion that criminal activity may be afoot, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that any permissible Terry stop escalated into an arrest without probable cause on the White Castle roof. We review questions of seizure de novo. See United States v. McKines, 933 F.2d 1412, 1424 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). We agree with the district court's analysis of the Fourth Amendment issues raised by this encounter.

1. Willis was not seized at the point during his flight from Sergeant Kampa when he dropped the shopping bag in the parking lot. As Willis conceded at oral argument, this aspect of the district court's ruling is now beyond dispute:

In sum, assuming that Pertoso's pursuit in the present case constituted a "show of authority" enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991).

The district court found that Willis abandoned the shopping bag and therefore concluded that Kampa did not violate Willis's Fourth Amendment rights by retrieving the bag and looking inside. We review this finding under the clearly erroneous standard. See United States v. Ruiz, 935 F.2d 982, 984 (8th Cir.1991). As numerous cases make clear, the finding that Willis intended to abandon a bag containing crack cocaine and a loaded firearm with police in hot pursuit is anything but clearly erroneous. See, e.g., United States v. Koessel, 706 F.2d 271, 274 (8th Cir.1983). Willis's motion to suppress the shopping bag's contents was properly denied.

2. Sergeant Kampa had reasonable suspicion to pursue the fleeing Willis and to make a Terry investigative stop. The officers were responding to a late-night call for assistance from the taxicab driver. As Kampa arrived, and before he learned that nothing had happened to the driver, he observed Willis leaving the scene. Willis began to flee when he realized that police had arrived; he then dumped his shopping bag and hid on a roof.

The district court's finding of reasonable suspicion will not be reversed unless clearly erroneous. See United States v. Peoples, 925 F.2d 1082, 1085 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 370, 116 L.Ed.2d 322 (1991). In these circumstances, if Kampa had known that a crime had been committed, Willis's flight would have provided probable cause to arrest. See Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) ("deliberatively furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea "). Because the cab driver's call for assistance suggested that late-night criminal activity might be afoot, Willis's conduct in fleeing and dropping the bag provided Kampa with the reasonable suspicion that warrants a Terry investigative stop. Compare Peoples, 925 F.2d at 1086; United States v. Turpin, 920 F.2d 1377, 1385 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1428, 113 L.Ed.2d 480 (1991); United States v. Lane, 909 F.2d 895, 899 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 977, 112 L.Ed.2d 977 (1991); United States v. Espinosa, 827 F.2d 604, 608 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); United States v. Jones, 759 F.2d 633, 643 (8th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985).

Willis argues that, when Kampa learned Willis had not done anything to the cab driver, Kampa went beyond a reasonable investigative stop by questioning him. However, Willis had behaved suspiciously in fleeing, dropping the shopping bag, and refusing to come out of hiding on the roof. Having properly stopped Willis, Kampa was justified in asking him to explain his actions even though the initially suspected crime had apparently not occurred. See Jones, 759 F.2d at 643; United States v. Beardslee, 609 F.2d 914, 918 (8th Cir.1979), cert. denied, 444 U.S. 1090, 100 S.Ct. 1053, 62 L.Ed.2d 778 (1980) ("[a]lthough the detectives received a radio broadcast to the effect that no bank robbery or attempted bank robbery had taken place, this did not detract from the possibility that criminal activity had taken place").

3. When the police caught up with Willis on the White Castle roof, he was seized when he complied with Sergeant Kampa's order to stop and put his hands on the roof wall. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (a person is seized "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave"). Willis argues that this seizure went beyond a Terry investigative stop and became an arrest without the constitutionally requisite probable cause. We disagree.

There is no bright line test to determine when police conduct exceeds the bounds of an investigative stop:

The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case.... [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly,...