Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 94 CR 79 J. P. Stadtmueller, Chief Judge.
Before RIPPLE, MANION and KANNE, Circuit Judges.
ARGUED SEPTEMBER 24, 1997
Gregory Brown was convicted of three federal offenses relating to his illegal possession of firearms. He was sentenced to 240 months in prison on each count, to be served concurrently with one another. One of the convictions involved firearms recovered from a bag on the floor of Brown's automobile after Brown and a friend were stopped by police on suspicion of prowling. In United States v. Brown, 79 F.3d 1499 (7th Cir. 1996) (Brown I), we affirmed Brown's convictions with one exception: we remanded and instructed the district court to determine whether the search of the bag was justified as a protective search under the Fourth Amendment. On remand, the district court determined the search was constitutional, and Brown again appealed. But he filed his notice of appeal one day late, requiring him to ask the district court for a retroactive extension of time. The district court complied. We find that under the circumstances the district court did not abuse its discretion in granting the extension; we also affirm the court's decision on the merits.
Late one night in November 1993, a Milwaukee woman suspected prowlers in her neighborhood, prompting her to call the police. Milwaukee Police Officers Rebecca Pixley and Curtis Rueda responded to the call. The complainant described the prowlers as two black males (approximately 25 years old) dressed in dark clothing. Meanwhile, just down the street, Officers Joseph Erwin and Jesse Benitez were driving south on 48th Street when they noticed a black male in dark clothing sitting in the front passenger seat of a station wagon parked northbound at 3236 North 48th Street. A second black male in dark clothing (defendant Brown, it turns out) walked from the south side yard of that address, entered and started the station wagon, and drove away northbound.
Officers Erwin and Benitez then joined Officers Pixley and Rueda at the scene of the prowling, where they obtained a description of the alleged prowlers. Believing the profile matched the two men they had just observed driving away, Officers Erwin and Benitez caught up with and stopped Brown and his passenger about six blocks away. Officer Erwin yelled at Brown to shut off the car, step out, and come back to the squad car. Brown complied and Officer Erwin immediately handcuffed him, patted him down, and placed him in the squad car. While this was occurring, Officer Benitez instructed the passenger, Ronald Jones, to step out of the car for questioning. As a safety precaution, Officer Benitez then scanned the vehicle with his flashlight for additional occupants and for weapons. As he scanned the vehicle, he noticed a partially open black bag on the passenger side of the car. Protruding from the bag was a "shiny chrome object"; thinking it might be a weapon, Officer Benitez moved in closer and opened the bag. His hunch was correct: the shiny object was a .44 Magnum with a scope connected to its top. The bag also contained a second handgun, ammunition, handcuffs, a black knit mask, and a scanner. Officer Benitez then handcuffed Jones, placed him under arrest and put him in another squad car that had just pulled up to the scene.
In May 1994, Brown was indicted for three firearms-related crimes, one of which pertained to the November prowling incident. He was convicted on all counts and sentenced to 240 months in prison on each count, with the sentences to run concurrently. As we noted above, we affirmed those convictions with one exception: we determined that it was clear error for the district court (pursuant to a magistrate judge's recommendation) to admit the evidence seized from the black bag under the plain view doctrine. 79 F.3d at 1509. But we remanded so that the district court could determine whether the search of the bag was justified as a protective search under the Fourth Amendment. On remand, the district court examined the record and concluded that the search was a lawful protective search:
[T]he officers had observed [Brown and Jones] lurking in front of a residence on the same block where a complainant had called in a prowler complaint involving two men. . . . The descriptions from the complainant matched the two men. Therefore, . . . the officers, when pulling over Brown and his passenger, had reason to believe that the defendant was involved in criminal conduct. Also, the stop occurred at nighttime which elevated the safety issue. In addition, [Officer] Benitez saw a shiny, metallic, chrome object which he thought could be a weapon within a bag inside the car. . . . [And] the search occurred in a high crime area. These facts raise significant and very reasonable concerns regarding the dangerousness and threat of hidden weapons inherent in the situation which Officer Benitez faced in this case and created a reasonable need for protective measures that included the search of the bag inside the car.
Now Brown again has appealed; he challenges the district court's determination that Officer Benitez conducted a lawful, warrantless protective search. But under the rules he had only 10 days in which to file his appeal, Fed. R. App. P. 4(b), and it is undisputed that he filed the appeal one day late. Accordingly, before we can resolve the single substantive issue on appeal--whether Officer Benitez's search was lawful under the Fourth Amendment--we must determine whether we have jurisdiction over Brown's appeal in the first place. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam) (stating that a timely notice of appeal is "mandatory and jurisdictional"); see also Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1561 (7th Cir. 1990) (en banc; per curiam) ("This means what it says: if an appellant does not file his notice of appeal on time, we cannot hear his appeal.").
Filing his appeal one day late required Brown to return to the district court and ask for a retroactive extension of time. Upon a showing of "excusable neglect," Rule 4(b) allows the district court to extend the time for filing a notice of appeal up to 30 days. Fed. R. App. P. 4(b). In his affidavit supporting his motion for an extension, Brown's attorney (who was appointed appellate counsel by this court) explained that he had confused Wisconsin state rules with the Federal Rules. Specifically, he believed that weekends and holidays tolled the 10-day period, which they do in Wisconsin (and would do under Fed. R. Civ. P. 6(a)) because the prescribed filing period is less than 11 days. But under the Federal Rules of Appellate Procedure, Saturdays and Sundays are excluded only if the prescribed period is less than seven days. Fed. ...