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United States v. Wheeler

decided: August 22, 1986.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES WHEELER, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 84 CR 40 - James T. Moody, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge, 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. §§ 1202(a)(1) and 922(a)(1). He entered a not guilty plea on February 12, 1985. On April 18, 1985, the defendant made a motion to suppress 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. § 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.*fn1 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 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 is 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, "the 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, 20 L. Ed. 2d 889, 88 S. Ct. 1868 . 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; Sibron v. New York, 392 U.S. 40, 64-66, 20 L. Ed. 2d 917, 88 S. Ct. 1889 . 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, 62 L. Ed. 2d 238, 100 S. Ct. 338 ; United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 . 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 (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; United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 .

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, 113 U.S. App. D.C. 371, 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, 83 L. Ed. 2d 604, 105 S. Ct. 675,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 ...


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