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United States v. Whitaker

October 27, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
LONNIE WHITAKER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 123-Barbara B. Crabb, Chief Judge.

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

ARGUED SEPTEMBER 3, 2008

Before POSNER, RIPPLE and EVANS, Circuit Judges.

When Lonnie Whitaker's car was searched, a police officer found a gun. Mr. Whitaker was subsequently charged with unlawfully possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the gun obtained from his car. The magistrate judge, after holding an evidentiary hearing, recommended that the district court deny the motion. The district court adopted the magistrate judge's report. Mr. Whitaker pled guilty, but reserved his right to appeal the adverse decision on his suppression motion. The district court sentenced Mr. Whitaker to 41 months' imprisonment;*fn1 Mr. Whitaker filed a timely notice of appeal.*fn2 Because we believe that the district court correctly determined that the search was based on reasonable suspicion, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts*fn3

On June 17, 2007, shortly before 8:00 p.m., an anonymous individual called 911 to report a loud argument in a food store parking lot. The caller stated that he was unable to get close to the argument and, consequently, did not know the number of individuals involved or their genders. He did state, however, that, at the scene of the altercation, there were at least two people standing by a car, "two males, that I can see." R. 32. Later in the call, he described them as "pretty good-sized black guys." Id.

A second man called 911 soon after. He reported a man with a gun in the same parking lot. This second caller identified himself as "Travis" and provided the operator with a phone number. Travis stated that he had been shopping when he saw his female cousin and her boyfriend, Lonnie, arguing. Lonnie was standing next to his silver car; Travis' cousin stood next to her blue van. Travis reported that "we pulled up to ask was she all right and he pulled a gun on us!" Id. Travis' cousin urged them to leave, which they did. Travis then called 911.

After the first call to 911, the police dispatcher alerted units in the area. Police officers Caleb Bedford, Chad Joswiak and Becky Overland headed, each separately, toward the parking lot. As the officers were en route to the scene, "alert tones" went off on the radio,*fn4 and the dispatcher informed them that a second caller had reported that a black man and a black woman were arguing in a silver car in the parking lot and that the man had displayed a handgun. The officers did not know any of the other information provided by Travis.

The officers easily were able to locate a silver car parked near a van in the southwest corner of the parking lot. Officer Bedford arrived first and parked near the car, which actually was a gray Chevrolet Impala. He stepped out of his squad car and walked toward the driver's side of the Chevrolet Impala. The driver stepped out of the vehicle to face Officer Bedford. Officer Joswiak arrived and began walking toward the passenger side of the car.

Officer Bedford asked the man, soon identified as Lonnie Whitaker, if he and the woman were having an argument.*fn5 Officer Bedford saw nothing in Mr. Whitaker's hands and asked Mr. Whitaker for permission to frisk for a weapon. After receiving permission, he frisked Mr. Whitaker and found no weapon.

The female passenger, soon identified as Keisha Marsh, stepped out of the car to face Officer Joswiak. He observed that she was crying and that she had large wet circles on both shoulders of her shirt, which he presumed were from tears. Officer Joswiak asked Marsh if she and Mr. Whitaker had been arguing or fighting; she responded that they had been arguing in the car. He asked Marsh whether "everything was alright in the vehicle," and she said yes. R. 20, Ex. 2 at 6. Officer Joswiak asked Marsh if there was any problem where some type of weapon had been involved; she responded that there was not, and that there had just been an argument between her and Mr. Whitaker. When asked, she stated that she had no weapons. Officer Joswiak patted her down, but found no weapons.

Officer Joswiak announced to Marsh that he was going to do a weapons sweep of the passenger compartment of the car. Marsh said nothing but maintained her position blocking the passenger-side door. Officer Joswiak physically guided Marsh out of the way and searched the car; he found a black semiautomatic handgun in the center console. Officer Bedford then arrested Mr. Whitaker.

Later, after Mr. Whitaker had been conveyed to a detention facility, Officer Joswiak contacted the first 911 caller at the number listed in the records. Speaking with the first caller, Officer Joswiak was able to corroborate Mr. Whitaker's build and what he was wearing. The first caller also stated that, in addition to two men arguing, there was a third person seated in the front passenger seat of the car. Officer Joswiak was unable to reach the second caller who had identified himself as Travis, although the officer reached a voice mail box for ...


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