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United States v. Howard

United States Court of Appeals, Seventh Circuit

February 26, 2018

United States of America, Plaintiff-Appellee,
Devon M. Howard, Defendant-Appellant.

          Argued February 8, 2018

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:14-cr-99 - J. P. Stadtmueller, Judge.

          Before Flaum, Easterbrook, and Manion, Circuit Judges.


         In April 2014, a Verizon store in the Milwaukee area was robbed. Prior to the robbery, witnesses in the store noticed a Mercedes sitting in the parking lot for an extended time. Just before the robber entered through the store's rear door, the Mercedes drove to the back of the store. As the robber fled, the Mercedes sped away at a high speed. Police stopped the Mercedes and arrested its occupants, including defendant. He moved to suppress evidence obtained after his arrest, arguing police lacked probable cause. The district court denied that motion. We affirm.

         I. Background

         On April 4, 2014, a Verizon store located in Hartford, Wisconsin was robbed. Hartford Police Department (HPD) Sergeant Timothy Hayes conducted the investigation. He spoke with two eyewitnesses: Eric Safranski, a Verizon employee, and Marshall Retler, a customer. According to the witnesses, the robber, later identified as Londell King, entered through the rear of the store, threw a black duffle bag on the ground, and demanded cell phones. When his demands were not immediately met, King pulled out a pistol. After Safranski provided cell phones from the store's inventory, the robber ran out the back door of the store.

         Both witnesses noticed a suspicious Mercedes in the Verizon store's parking lot in the moments preceding and following the robbery. In Sergeant Hayes's words:

They had said that shortly before the robbery took place there was a tan Mercedes that was in front of the store with two subjects inside; and they appeared-in their opinion [to be] watching them, watching the store. The individuals in the car did not go into any of the stores. They simply stayed and watched the store. After doing this for a few minutes, the Mercedes drove to the rear of the building out of their sight. And shortly after [the Mercedes] went back there, the individual came up and robbed the store. … [A]fter the store was robbed, the witnesses said the Mercedes came in there [sic]-their own words-flying from the back-one said zoomed at a high rate of speed … . [Safranski] said that he did not believe that the robber would have been able to get in this vehicle with the direction that he was running in. And he also made the comment to me at one point that he thought that this vehicle was some sort of decoy, getting the attention away from the actual robber [and] where he was going after he committed the robbery.

         Neither Safranski nor Retler could say for certain whether the robber arrived at the store in the Mercedes.

         Based on his experience, training, and the eyewitness testimony about the Mercedes's actions, Sergeant Hayes concluded the "vehicle … wanted to draw attention to itself" and "was used as a decoy to get law enforcement and witnesses to follow it … while the individual who actually did the robbery was able to basically run out and get away in another vehicle." In short, Hayes believed the two individuals in the Mer- cedes "were involved" as "an accessory" to the robbery.

         Safranski provided Sergeant Hayes the Mercedes's license plate number, and Retler told Hayes that the Mercedes had tape on the driver's side front bumper. Hayes relayed that in- formation to HPD dispatch, which put out a notice that the Mercedes was involved in "an armed robbery in progress." Soon thereafter, a police officer from a neighboring village saw the Mercedes. After advising HPD, he stopped the vehicle at HPD's request.

         The driver of the Mercedes was Naqur Bean; the passenger was defendant Devon Howard. The occupants did not match Sergeant Hayes's description of the suspected robber, and police found no evidence in the Mercedes suggesting involvement in the robbery. However, because Hayes believed the Mercedes acted as a decoy, he ordered Bean and Howard to be arrested and driven to HPD headquarters.

         At headquarters, police separately interrogated both suspects. Bean initially declined to speak. Howard at first denied any participation in the robbery, but later admitted his involvement over the course of a five-hour interrogation.[1] Howard told police that Bean drove him to the store because he did not have a valid driver's license. He also identified King as the robber. After Howard confessed, he spoke with Bean for ten-to-fifteen seconds. At that point, Bean was willing to speak with police, and she implicated herself and Howard by stating they acted as lookouts. After Howard and Bean's statements, the police arrested King. He confirmed Howard and Bean assisted with the Verizon robbery, and also said they were involved with prior robberies. The next day, police executed a search ...

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