United States v. Wimbush, Quincy T. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3520
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUINCY WIMBUSH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 00 CR 50050—Phillip G. Reinhard, Judge.
____________
ARGUED APRIL 18, 2002—DECIDED JULY 28, 2003
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Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.,
and POSNER, Circuit Judges.
FLAUM, Chief Judge. In May 2000 a police officer in
Rockford, Illinois, pulled over the sport utility vehicle
driven by convicted felon Quincy Wimbush, suspecting that
Wimbush may have been involved in a shooting. While
questioning Wimbush, the officer smelled marijuana and
noticed an open container of alcohol in the console. A search
of the vehicle produced a weapon. A federal grand jury later
returned a one-count indictment accusing Wimbush of
possession of a firearm by a felon, 18 U.S.C. § 922(g)(1).
Wimbush eventually pleaded guilty, but in his plea agree-
ment reserved the right to appeal the denial of his motion
to suppress. The district court sentenced him to 120
2 No. 01-3520
months’ incarceration. On appeal Wimbush argues that the
court erred by denying his motion to suppress, and also
contends that his sentence was too severe. We affirm.
I. BACKGROUND
Late at night on May 16, 2000, Officer Todd Murr re-
sponded to a radio dispatch reporting a shooting in an alley
near Elm Street on the west side of Rockford. The dis-
patcher described the suspect as a black male, possibly
named “Sean Burks,” and relayed that he was driving a
burgundy or maroon Ford Explorer with shiny rims. Murr
set up surveillance at an intersection seven to eight blocks
away in a high-crime neighborhood.
Approximately fifteen minutes after the shooting, Murr
saw a purple Explorer with shiny rims drive through the
intersection. The vehicle was being driven by a black male
whose identity was unknown at the time. Murr pulled over
the car and asked the driver—Wimbush—for identification.
Wimbush responded that he did not have his license with
him. Murr then instructed Wimbush to step out of the car.
As Wimbush opened the door and stepped out of the vehicle,
Murr smelled marijuana and spotted an open bottle of
alcohol in the console next to the driver’s seat.
After Wimbush left the vehicle, Murr asked where he was
coming from. Wimbush replied, “From my cousin’s house on
Elm, I mean Avon.” Believing Wimbush was acting suspi-
ciously and knowing that the shooting had occurred on Elm
Street, Murr asked Wimbush to sit in the patrol car.
Wimbush complied. Murr then told Wimbush that he was
going to search the vehicle because of the marijuana and
open alcohol and asked whether he would find anything in
it. Wimbush replied “go ahead and look.” Another officer
who had arrived on the scene as back-up searched the
vehicle’s passenger compartment and discovered a mari-
No. 01-3520 3
juana cigarette, two ski masks, and an unloaded .380 semi-
automatic handgun.
In his suppression motion, Wimbush argued that evidence
of the gun should be excluded because the stop and subse-
quent search were unlawful. At a hearing Wimbush testi-
fied that before he had gotten out of the car, Murr reached
in the vehicle, placed it in park, turned off the ignition, and
then yanked the keys out of the ignition. He further
testified that Murr never asked to see identification, and
that Murr had pulled Wimbush out of the truck and placed
him in handcuffs. Murr refuted portions of Wimbush’s
account, testifying that he did ask for identification, and
that he never reached into the vehicle. The district court
credited Murr’s version of the facts and denied the motion.
II. DISCUSSION
A. Motion to Suppress
On appeal Wimbush argues that Murr lacked reasonable
suspicion to detain him, and that police lacked probable
cause to conduct a warrantless search of his vehicle. We
review the district court’s factual findings in a suppression
hearing for clear error, and its legal conclusions and mixed
questions of law and fact de novo. United States v. French,
291 F.3d 945, 950-51 (7th Cir. 2002). Under Terry v. Ohio,
392 U.S. 1, 30 (1968), police officers may conduct a brief,
investigatory stop of a suspect if they have reasonable
suspicion based on articulable facts that a crime is about to
be or has been committed. “Reasonable suspicion” must be
based on some objective manifestation that the suspect is
involved in criminal activity. United States v. Swift, 220
F.3d 502, 506 (7th Cir. 2000). Although police may not
detain a suspect based merely on a hunch, the likelihood of
criminal activity need not rise to the level required for
probable cause and falls well short of meeting a preponder-
4 No. 01-3520
ance of the evidence standard. United States v. Arvizu, 534
U.S. 266, 274 (2002); United States v. Hendricks, 319 F.3d
993, 1001 (7th Cir. 2003), petition for cert. filed (May 21,
2003) (No. 02-11129). In evaluating the reasonableness of
a stop, courts must examine the totality of the circum-
stances known to the officer at the time of the stop. United
States v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002).
The instant stop requires close scrutiny—Murr halted the
vehicle based on a general dispatch report, and the factual
foundation for the description supplied was unknown to
him. But Wimbush does not argue that Murr erred by
relying merely on the dispatch report; instead, he contends
that Murr stopped him only because he is black and
therefore the stop was unreasonable. As the government
correctly notes, however, Murr stopped Wimbush not only
because he matched the description of the suspect, but
also because Wimbush was driving a vehicle substantially
similar to the one driven by the suspect—a purple SUV
with shiny rims. Moreover, the shooting had occurred only
minutes earlier in an area just eight blocks away. In light
of these objective factors, the court did not clearly err by
refusing to suppress evidence of the gun based on the stop.
See Swift, 220 F.3d at 507 (police officer reasonably stopped
a red jeep based on reports that bank robbers had escaped
in a matching vehicle that included some of the same
license plate numbers, coupled with knowledge that a red
jeep involved in other robberies might be found in complex
where jeep was stopped); United States v. Tilmon, 19 F.3d
1221, 1225 (7th Cir. 1994) (upholding stop of vehicle that
matched description of vehicle involved in bank robbery
committed two hours earlier at a location 50 miles away);
see also United States v. Chapman, 954 F.2d 1352, 1357
(7th Cir. 1992) (officers had probable cause to arrest de-
fendant hiding in vehicle based on matching description
of getaway vehicle); Creighton v. Anderson, 922 F.3d 443,
450 (8th Cir. 1990) (upholding stop of vehicle even though
No. 01-3520 5
defendant’s vehicle was slightly different color and different
make of supposed getaway car).
Wimbush also challenges the warrantless search of his
vehicle, but it is apparent that the police acted appropri-
ately for several reasons. Officers may conduct a protective
search of a vehicle’s passenger compartment when they
have a reasonable belief that the suspect poses a danger
and that their safety may be threatened by the possible
presence of weapons. Michigan v. Long, 463 U.S. 1032, 1049
(1983); United States v. Mancillas, 183 F.3d 682, 699-700
(7th Cir. 1999). Here, Murr reasonably believed that Wim-
bush posed a danger—there had just been a shooting near-
by involving a vehicle and driver matching Wimbush’s
description. Moreover, Wimbush initially said he was com-
ing from the street where the shooting occurred, only to
change his story. And it does not matter that Wimbush was
out of the SUV and in the patrol car before the protective
search. See United States v. Sholola, 124 F.3d 803, 818 (7th
Cir. 1997).
The search was also justifiable on other grounds. Wim-
bush admitted to driving without a license, a crime, see 625
ILCS 5/6-101, that authorized a warrantless arrest and an
incidental search of the vehicle’s passenger compartment.
See New York v. Belton, 453 U.S. 454, 460, 460-61 n.4
(1981). The search also was proper under the “automobile
exception” to the Fourth Amendment’s warrant require-
ment, which allows police to search a vehicle without a war-
rant when they have probable cause to believe it contains
contraband or evidence of a crime. Alabama v. White, 496
U.S. 325, 332 (1990). Murr saw an open container of alcohol
inside the car and smelled marijuana, further justifying the
search. See United States v. McGuire, 957 F.2d 310, 314
(7th Cir. 1992) (discovery of open container of alcohol in car
in violation of state law gave police probable cause to con-
duct warrantless search of car); United States v. Taylor, 162
6 No. 01-3520
F.3d 12, 21 (1st Cir. 1998) (marijuana odor emanating from
car justified searching it for drugs). Finally, the warrantless
search was valid as a routine post-arrest inventory search,
which authorizes police to search vehicles in lawful custody
in order to secure or protect the car and its contents.
Colorado v. Bertine, 479 U.S. 367, 371 (1987); Sholola, 124
F.3d at 818. Here, police lawfully arrested Wimbush for
driving without a license and for driving with an open
container of alcohol, and it was undisputed that the car was
searched in a manner consistent with the police depart-
ment’s inventory policy. For all of these reasons, the district
court did not clearly err by denying Wimbush’s motion to
suppress based on the search of his vehicle.
B. Sentencing Adjustments
Wimbush also challenges his sentence. Specifically, he
contends that the district court erred by imposing a two-
level upward adjustment in his offense level for obstruction
of justice under U.S.S.G. § 3C1.1. He also complains that
the court erred by failing to award him a three-level
reduction in his offense level under U.S.S.G. § 3E1.1 for
accepting responsibility for the crime. However, we will not
entertain either of these arguments because Wimbush
unequivocally waived his right to appeal the term imposed.
Paragraph 13 of the plea agreement states that “the de-
fendant knowingly waives the right to appeal any sentence
within the maximum provided in the statute of conviction
(or the manner in which that sentence was determined) on
the grounds set forth in [18 U.S.C.] Section 3742 or on any
ground whatsoever.” During the plea colloquy, the district
court adequately explained the consequences of that waiver,
and Wimbush confirmed that he understood that he was
relinquishing his right to appeal his sentence. Because
Wimbush was sentenced within the statutory maximum
and because he does not dispute that his plea was knowing
No. 01-3520 7
and voluntary, he waived these challenges to his sentence.
See United States v. Rhodes, 330 F.3d 949, 951 (7th Cir.
2003).
III. CONCLUSION
The initial stop and subsequent search of Wimbush’s
vehicle without a warrant was reasonable under the circum-
stances, and the district court correctly denied Wimbush’s
motion to suppress evidence obtained from the search.
Moreover, Wimbush knowingly and expressly waived his
right to challenge any upward adjustments to his sentence
by the terms of his plea agreement. His conviction and
sentence is therefore affirmed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-03