US v. Rousseau, PLAINTIFF-APPELLEE

• Decision Date: 03 July 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-30214,00-30214
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. JOHN LEONARD ROUSSEAU, JR
• Court: U.S. Court of Appeals — Ninth Circuit

Page 925

257 F.3d 925 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JOHN LEONARD ROUSSEAU, JR. DEFENDANT-APPELLANT.

No. 00-30214

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 7, 2001

July 3, 2001

[Copyrighted Material Omitted] Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant.

Sean B. Hoar, Assistant United States Attorney, Eugene, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. 99-60095-HO.

Before: Alfred T. Goodwin, Morton I. Greenberg,^* and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Greenberg; Concurrence by Judge Rawlinson.

Greenberg, Circuit Judge

I. INTRODUCTION AND BACKGROUND

John Leonard Rousseau, Jr. appeals from his conviction on two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Rousseau raises three issues on appeal: (1) he was arrested unconstitutionally because the police did not have probable cause for the arrests; (2) the district court erred in denying his motion to sever the two felon in possession counts; and (3) he was wrongfully convicted under section 922(g)(1) because the statute is unconstitutional both on its face and as applied in this case, or, alternatively, that the district court erred by failing to instruct the jury as to the effect on and recency of transportation in interstate commerce of the firearms. Because each of Rousseau's arguments is without merit, we affirm his conviction.

The indictments involved charges relating to two different dates. The first was January 26, 1999, when the Lane County Sheriff's Office ("LCSO") received a telephone call from Pamela Long in Eugene, Oregon, reporting that a man with a gun, later identified as Rousseau, had entered her apartment. Shortly thereafter, in responding to a dispatch with respect to the matter, LCSO Sergeant Byron Trapp observed a red sedan parked at a convenience store parking lot which he recognized as the vehicle the armed suspect reportedly occupied. Trapp also recognized an individual, who in fact was Rousseau, seated in the driver's seat of the red sedan as matching the description of the person reportedly in possession of the firearm. Trapp detained Rousseau and another individual, David Hutchinson, who also had been at Long's apartment and who was standing in the vicinity of the vehicle when Trapp arrived, at gunpoint until other officers arrived at the scene.

After Rousseau and Hutchinson were handcuffed, another LCSO officer searched the red sedan for the reported firearm and located a loaded .9 mm semi-automatic pistol, with a round of ammunition in the chamber under the front passenger seat.¹ The officer found this firearm within approximately five minutes of the initial contact between Trapp and the suspects, and approximately eleven minutes after Long's 911 call. An officer read Rousseau his Miranda rights, which Rousseau acknowledged he understood, following which he gave a statement. In his statement Rousseau denied knowing that there was a gun in the red sedan and stated that he had no idea who owned the weapon or what was its source. The officers then transported Rousseau to the Lane County Jail were he was booked for unlawful possession of a firearm and being a felon in possession of a firearm. The police learned from subsequent investigation that Rousseau purchased the firearm from Cleo Alan Wigget during a drug transaction. Wigget informed Rousseau that the firearm recently had been stolen. Moreover, there was testimony that the firearm had been manufactured in Spain and imported through New Jersey before it was taken to Oregon.

The second offense was for events on August 13, 1999, when Springfield Police Department ("SPD") officer Ryan Porath, who was on patrol at 3:31 a.m., observed Rousseau standing at a telephone booth near a 1973 Ford pickup truck in the parking lot outside a Safeway store. Upon making this observation, Porath requested information from the dispatcher about the vehicle and about Rousseau. The dispatcher informed him, among other things, that Rousseau was 32-years old and had a caution indicator stating that he carried a six-inch hunting knife. The dispatcher also told Porath that Rousseau's driver's license had been suspended because he had been driving without insurance. Notwithstanding his receipt of this information, Porath continued his patrol as he was not aware that Rousseau was committing any crime.

Porath returned to the same location at 6:45 a.m. and at that time observed Rousseau sleeping in the driver's seat of the pickup truck. As Porath walked up to its passenger side he observed a double-edged knife on the floorboard between the driver's and passenger's seats. Porath also noticed a sharpened metal hook with a long handle on the dashboard near the passenger side. After he made these observations, Porath woke up Rousseau who identified himself with an Oregon photographic identification card. Porath then confirmed with the dispatcher that Rousseau was a convicted felon and that he had caution indicators for carrying large hunting knives. Once Rousseau was out of the truck, Porath reached in through the driver's side of the truck and seized the knife. At that time he observed a brown box containing two nylon sheaths with silver metal handles protruding. The handles appeared to be from throwing knives, so Porath went to the passenger side of the vehicle and took control of them. Thereafter Porath arrested Rousseau on the charge of being a felon in possession of a restricted weapon.

After Porath arrested Rousseau, he advised him of his Miranda rights, which Rousseau acknowledged that he understood. Then SPD Officer Russ Boring arrived and assisted Porath in searching the truck. Boring located a loaded .357 magnum revolver in an open and otherwise empty black purse near the driver's seat. Subsequent investigation revealed the gun had been left in a car that Rousseau and his girlfriend used a few weeks earlier. The gun had been stolen from David Rossow on or about June 19, 1999. Finally, there was testimony at trial that the gun had been manufactured in New Hampshire before being transported interstate to Oregon.

On September 23, 1999, a grand jury returned an indictment against Rousseau charging him with two counts of pos session of a firearm by a convicted felon in violation of section 922(g)(1). Thereafter, Rousseau moved to suppress the weapons as evidence and moved to sever the two counts for trial. On February 22, 2000, the district court, after holding a hearing, denied the motions. At the ensuing trial, the jury convicted Rousseau on both counts. On May 31, 2000, the court sentenced Rousseau to a custodial term of imprisonment of 120 months on count 1 and to a consecutive custodial term of 40 months on count 2, to be followed by a three-year period of supervised release. Rousseau then filed a timely appeal.

II. DISCUSSION

Rousseau argues that the district court erred in denying his motions to suppress the weapons.² First, he contends that his seizure on January 26, 1999, was too intrusive to be deemed an investigatory stop and thus constituted an arrest. He builds on this premise by contending that the police did not have probable cause for the arrest which thus was illegal. He then completes this point by arguing that inasmuch as his arrest was illegal so was the subsequent search leading to the discovery and seizure of the pistol and the ammunition.

To determine whether a stop has turned into an arrest, a court must consider the "totality of the circumstances." United States v. Del Vizo, 918 F.2d 821, 824 (9th Cir. 1990). In doing so, a court considers both the intrusiveness of the stop (the aggressiveness of the methods used by police and the degree to which the suspect's liberty was restricted) and the justification for using such tactics (whether the officer had sufficient basis to fear for his or her safety warranting a more intrusive action). See Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996); United States v. Robertson , 833 F.2d 777, 780 (9th Cir. 1987). "In short, [the court] decide[s] whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances." Washington, 98 F.3d at 1185 (emphasis in original); see Del Vizo, 918 F.2d at 824-25.

The Supreme Court and this court have permitted limited intrusions on a suspect's liberty during a Terry stop to protect the officer's safety and have held that the use of force does not convert the stop into an arrest if it is justified by a concern for the officer's personal safety. See United States v. Hensley, 469 U.S. 221, 235-36 105 S. Ct. 675, 683-84 (1985); Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881 (1968); United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (upholding stop as a Terry stop rather than an arrest where police officers forced suspects to exit car and lie down on pavement at gunpoint); see Alexander v. County of Los Angeles, 64 F.3d 1315, 1321 (9th Cir. 1995) (upholding investigatory stop where, following vehicle stop, officers surrounded car with weapons drawn); United States v. Alvarez, 899 F.2d 833, 838 (9th Cir. 1990) (finding totality of circumstances justified a stop under Terry where police ordered suspect in car to keep hands in view, approached vehicle with their weapons drawn and ordered suspect out of car).

In this case, the totality of the circumstances indicates that the officers initially conducted an investigatory stop on January 26, 1999, during which they discovered inculpatory evidence. Trapp, upon entering the parking lot, observed the red sedan reportedly occupied by the armed intruder and recognized that the individual in...