Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 993 - THOMAS R. McMILLEN, Judge.
Wood and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn*
Defendant-appellant Darlene Longmire appeals from her conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 1202(a)(1). The sole issue on appeal is whether the district court erred in denying her motion to suppress the firearm.
At 4:00 p.m. on August 24, 1983, Chicago Police Department Officers Arpaia and Smetana responded to a radio call of "men with guns" at 5218 West Madison Street in Chicago. When they arrived at that location, no complainant came forward. Arpaia and Smetana resumed their normal patrol; within minutes they received a second radio broadcast concerning the same location. When they returned to that location, they met Officer Pacheco, who informed them that there had been people with guns at that address and that they had fled in a full-sized brown Buick. Arpaia and Smetana began patrolling the area in search of the car. Within minutes, a voice, recognized by Arpaia as Officer Pacheco's, transmitted a flash message*fn1 over the police radio. The message asked officers to be on the lookout for a late-model light brown Buick occupied by two black females and two black males, who were armed with a handgun and were wanted in connection with an investigation of an aggravated assault; the message further informed officers of the Buick's license plate number and that it was registered to Vancie Howard of 4243 West Carroll. Arpaia and Smetana's patrol of the area was fruitless and they resumed their normal patrol.
At approximately 8:45 p.m., Arpaia and Smetana, who were driving south on Cicero Avenue approximately seven blocks from the Madison Street location, saw parked at 2 South Cicero Avenue a brown Buick that matched the description of the car involved in the earlier incident. They entered the license plate number into their mobile computer terminal and learned that the car was registered to Vancie Howard of 4243 West Carroll. They then parked the squad car behind the Buick. Smetana followed a male who walked away from the area of the Buick. Arpaia walked to the passenger side of the Buick and asked its occupants, two black females, to step out. Defendant Longmire occupied the passenger seat. At Arpaia's request the women stepped to the rear of the car where Arpaia asked them their names, addresses, and who owned the Buick. The women were not frisked, handcuffed, told they were under arrest, or told they were not free to leave.
After finishing his conversation with the man who had walked away from the area of the Buick upon the officers' initial approach, Smetana returned to the Buick where he saw Arpaia standing with the women and a black male who had approached the scene in the interim. Upon learning that Arpaia had not searched the car, Smetana said he would do so. On the floor of the passenger side of the Buick Smetana found a beige purse the size of a brief case. Inside he discovered a loaded H & R .22 caliber revolver and driver's license in the name of Darlene Brown. Smetana returned to the rear of the Buick and asked, "Who is Darlene Brown?" Defendant responded that she was. Defendant, her female companion, and the black male who had earlier approached the scene were arrested.
At the suppression hearing, defendant argued that Officers Smetana and Arpaia had no information on the reliability or credibility of the original complainant; that they lacked probable cause to arrest her and to search her purse; and that they should have secured a warrant to search her purse. The government contended that the officers effected an investigatory stop and a valid protective search. The court ruled that the officers possessed sufficient information to justify an investigatory stop, Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and that the search of the car was lawful.
On appeal, Longmire challenges both the stop and the ensuing search. She contends that the stop was actually an arrest for which the officers had no probable cause and that the search incident thereto was therefore invalid. She argues that even if this court determines that the officers effected only a Terry stop, the stop was illegal because the officers had no personal knowledge of the facts that created the reasonable suspicion underlying the flash message and thus had no way of knowing whether the information was reliable and accurate. Finally, she contends that the search was unlawful because Officers Smetana and Arpaia did not possess sufficient specific articulable facts to sustain an objectively reasonable belief that she and her companion were armed and potentially dangerous.
The trial court ruled that Longmire was not arrested until after the handgun was found in her purse. At the suppression hearing, counsel for Longmire argued that she had been arrested before the search because she was not free to leave, and because when the officers initially stopped the vehicle they intended to arrest her.
Among the circumstances courts consider in determining whether an arrest was made are the officer's intent in stopping the individual, Sibron v. New York, 392 U.S. 40, 46-7, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); the length of the stop, United States v. Vanichromanee, 742 F.2d 340, 345 (7th Cir. 1984); the questions, if any asked, id. at 344; and the extent of the search, if any, made by the officers, Ybarra v. Illinois, 444 U.S. 85, 93, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).
We think it clear that Officers Arpaia and Smetana intended merely to question the occupants of the Buick with regard to the reported aggravated assault. Their actions were consistent with such an intent. Longmire and her companion were asked, not ordered, to step out of the car; Officer Arpaia merely asked them their names, addresses and who owned the car; the women were not frisked, handcuffed, told they were under arrest or told they were not free to leave;*fn2 Officer Arpaia's gun was not drawn; and the length of the detention prior to arrest does not appear to have been unreasonable. United States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 53 U.S.L.W. 4346, 4348 (1985). Finally, as we will make clear, the search conducted by Officer Smetana did not exceed the area search for weapons permissible in an investigatory stop. ...