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United States v. Hicks

July 9, 2008


Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 05-CR-043-William C. Lee, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge

ARGUED JUNE 10, 2008

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

Kevin Hicks was arrested when police responded to a 911 caller who reported that an armed man was beating a woman. Hicks was charged with being a felon in possession and moved to suppress the gun on the grounds that the officers lacked reasonable suspicion to stop him because of the striking inconsistencies in the 911 call. Specifically, the caller gave two different names for himself, said that he was inside a house before admitting that he was outside, and revised his position on whether the man he was reporting had a gun. The district court denied the motion, and Hicks entered a plea of guilty that preserved the suppression issue for appeal. Although the transcript of the 911 call reveals a somewhat questionable accusation, the responding officer, who did not hear the call, reasonably relied on the straightforward information that was transmitted to him. Thus, we affirm.

I. Background

The strange story behind this case begins with a romantic triangle involving Hicks, Sylvia Lynn McClendon, and David Woodbury. Today, Hicks and McClendon are married. While Hicks was in pretrial custody, the district court granted his Motion for Order to Allow Defendant to Have a Marriage Ceremony Performed at the Allen County Jail. But in the summer of the 2005, the two had recently split up and McClendon sought amorous attention from Woodbury. As McClendon put it, after having a few drinks with Woodbury, she "decided to have some needs met." After their intimate encounter, Woodbury telephoned Hicks. Although Woodbury did not say anything except repeating "hello," Hicks recognized his voice and immediately went to his house. Woodbury met Hicks outside the house and told him that McClendon was there. After Hicks pushed his way inside, he and McClendon argued loudly, though McClendon testified that he did nothing physical to her beyond grabbing her arm and forcing her to sit when she attempted to leave.

While McClendon and Hicks argued inside the house, Woodbury-who was still outside-made another phone call, this time to 911. He gave the address of the house where McClendon and Hicks were arguing and told the operator, "There's a guy beating a woman up in my house." He also told the operator that the man in question had a pistol and that he was threatening to shoot the woman. When asked, Woodbury gave a fake name, "Albert C." Woodbury had claimed to be inside the house, but when the operator said that she didn't hear any fighting over the phone, Woodbury told her that he was actually outside on a cell phone. When she asked for his name a second time, he answered, honestly, that it was David Woodbury. Then the operator asked Woodbury the cell phone number from which he was calling, but he told her that he was calling from his home phone. Woodbury contradicted himself a third time when the operator attempted to confirm that the man Woodbury was reporting had a pistol. First he hesitated, but later he told the operator that the man he was reporting did not have a gun. The 911 operator asked Woodbury, "What color shirt do you have on just so we know that it's you when we approach?" Woodbury told the operator that he was dressed in black and she confirmed that Woodbury was a black man dressed in black.

While Woodbury was talking to the 911 operator, the operator was relaying the information to the dispatcher, but the record does not reveal how she relayed the information. The operator's testimony suggests that the dispatcher was listening to the call or that the operator was entering the information into a computer system to which the dispatcher had access, but the dispatcher testified that sometimes such information is communicated by shouting it across the room. In any case, the dispatcher sent police to the address given by the 911 caller and told them to respond to a "46/62," codes for domestic disturbance and suspect armed, respectively.

Officer David Tinsley was the first officer to respond to the dispatcher's call. According to his report, after he saw a man wearing all black who he believed was walking away from the reported address, he radioed dispatch. The dispatcher informed Tinsley, "He is a male black wearing a black shirt," but the dispatcher did not clarify to whom the pronoun "he" referred. Officer Tinsley believed that "he" referred to the suspect, explaining later that he was "advised that the perpetrator of the domestic disturbance had just left and was a black male wearing a black shirt and black pants." Officer Tinsley believed that he had located an armed suspect-Hicks later agreed that he was dressed in black-and approached Hicks, who had walked to the driveway of a neighboring house where he was talking to Woodbury. Tinsley reported that Hicks asked Woodbury, "Man, Dave, why'd you do me like this?" and began to walk away. When Hicks began to enter the door of a nearby home, Tinsley and Sergeant Lapp, who had just arrived, ordered him to stop. Hicks did not stop, though, so Tinsley opened the door himself, grabbed Hicks's arm, and placed him in handcuffs. Tinsley reported that he was about to start a pat-down search when Hicks informed him that he had a gun in his right front pants pocket. Tinsley removed a loaded revolver from Hicks's pocket and, after discovering that Hicks was a felon, placed him under arrest.

Hicks testified at the suppression hearing and did not substantially contradict Officer Tinsley's version of events. He agreed that he had ignored the officers' commands and tried to elude them by walking into the nearby house. Hicks also testified that he had picked up the gun when he was in the house arguing with McClendon in order to protect himself from Woodbury and to protect McClendon from herself.

The district court denied Hicks's motion to suppress twice, holding both times that Officer Tinsley had reasonable suspicion to stop him. In its second denial, the court explained that the information relayed to the 911 operator and to the dispatcher was irrelevant to determining what Officer Tinsley knew at the time he made the stop. Looking only at what Tinsley actually knew, the court concluded that he had reasonable suspicion to stop Hicks. The court also noted the presumption of reliability given to emergency reports made in 911 calls that we recognized in United States v. Drake, 456 F.3d 771, 774-75 (7th Cir. 2006), and held that Tinsley could rely on the dispatch report because he was not aware of the inconsistent information the caller had given.

II. Discussion

Hicks argues that the district court erred when it held that Officer Tinsley had reasonable suspicion to stop him. In an appeal of a ruling on a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. See United States v. Barnett, 505 F.3d 637, 639 (7th Cir. 2007).

Hicks and the government agree that Officer Tinsley's conduct must be reviewed under Terry v. Ohio, 392 U.S. 1 (1968), which holds that an officer may conduct "a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). The determination of whether the officer had reasonable suspicion is an objective inquiry based on the totality of the circumstances known to the officer at the time of the encounter. United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). Under most circumstances, when an officer observes someone who fits the description given by a dispatcher of a person involved in a disturbance and the observation is near in time and place to the disturbance, the officer may stop the suspect. See United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003). Hicks argues, however, that ...

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