United States v. Arnold Brewer ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3257
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RNOLD B REWER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:07-cr-00123-RLM-1—Robert L. Miller, Jr., Chief Judge.
A RGUED JANUARY 27, 2009—D ECIDED A PRIL 2, 2009
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. The defendant appeals from his
conviction for illegal possession of a gun, for which he
was sentenced to six years in prison. The only question
presented by his appeal is whether he was stopped with-
out reasonable suspicion, for it was in the course of the
stop that the gun was discovered.
It was 2:30 a.m. when a South Bend police officer
named Tutino was told by the dispatcher that there was
a fight at the Beacon Heights apartment complex, a group
2 No. 08-3257
of some 30-odd buildings renowned for criminality—shots
are fired there three or four times a week. As Tutino,
parked near the complex because of its being a frequent
site of crime, prepared to respond to the dispatch, he
heard a popping sound that he believed was gunfire
coming from the complex. Within minutes he was told
by the dispatcher that indeed shots had been fired.
Driving toward the complex on the only street by which
one can enter or leave it, Tutino was passed by a white
SUV coming from the opposite direction. It was—
unsurprisingly given the hour—the only vehicle on
the road. He radioed to other officers to watch for the
white SUV.
When Tutino reached the complex, bystanders told
him about the shots and that they had been fired from a
white SUV. He radioed the information to his dispatcher,
but by the time the information was received and trans-
mitted another police officer had stopped the SUV,
which was driven by the defendant. The officer asked
the defendant whether he had a gun, and he admitted
that he had two, one in the car and one on his person.
Still other firearms were found in the car, though there
is no evidence that the shots heard by Tutino and others
came from any of the defendant’s weapons.
Since the stop was made before the officer who made
the stop learned that someone in the Beacon Heights
apartment complex had said that the shots had been
fired from a car that matched the defendant’s, that report
cannot be used to justify the stop. “The reasonableness
of official suspicion must be measured by what the
No. 08-3257 3
officers knew before they conducted their search.” Florida
v. J.L., 529 U.S. 266, 271 (2000); Terry v. Ohio, 392 U.S. 1, 21-
22 (1968). Without that report, the case is on the line
between reasonable suspicion and pure hunch, but we
think that in the unusual circumstances presented it
meets the test for reasonable suspicion.
It was a natural surmise that whoever fired the shots
had left the complex, and the street that the defendant’s
vehicle was driving on was as we said the only street
leading from it, and he was driving away from rather
than towards it. The hour reinforced the suspicion, since
few people are on the road at 2:30 a.m. and, sure enough,
there was no other traffic. Tutino and other officers
were about to enter the complex, and if the gunman
was not the driver of the white SUV he was still in
the complex—armed and dangerous. It behooved each
member of the police team to obtain for his own
safety and that of the other officers as much information
about the situation in the complex as he could before
they entered it in the dark. The only vehicle leaving it
might have been driven by an entirely innocent person
who nevertheless had valuable information.
It is unexceptionable for a police officer to approach a
bystander on the street and ask him whether he
knows anything about some matter that the officer is
investigating. The bystander doesn’t have to answer the
officer’s questions—he can turn on his heels and walk
away—but accosting an unsuspected bystander to ask
him a question does not violate the Fourth Amendment.
United States v. Drayton, 536 U.S. 194, 200 (2002). This is
4 No. 08-3257
true even though as a practical matter the approach of
the police officer will usually cause the person accosted
by him to stop walking. United States v. Broomfield, 417
F.3d 654, 656 (7th Cir. 2005).
The issue is more complicated when the officer wants
to stop a car to ask the driver or passengers something.
Such a stop is a greater intrusion on freedom of move-
ment and peace of mind than when a pedestrian is ac-
costed by a police officer on the sidewalk. Still, such
stops are permitted when the circumstances justifying
the creation of a roadblock are present. See, e.g., City of
Indianapolis v. Edmond, 531 U.S. 32, 41, 44 (2000); United
States v. O’Mara, 963 F.2d 1288, 1291-92 (9th Cir. 1992)
overruled on other grounds by United States v. Gergen, 172
F.3d 719, 722 (9th Cir. 1999); State v. Gascon, 812 P.2d 239,
241 (Idaho 1991); State v. Claussen, 522 N.W.2d 196, 199
(S. Dak. 1994). And the Supreme Court in Illinois v.
Lidster, 540 U.S. 419, 424 (2004), upheld a roadblock
designed not to intercept the criminal (a driver who had
been involved in a hit and run accident a week earlier)
but to question persons who traveled on the same road
and may therefore have observed the crime. See also
State v. Gorneault, 918 A.2d 1207, 1209 (Maine 2007); Burns
v. Commonwealth, 541 S.E.2d 872, 883-84 (Va. 2001). The
Court said in Lidster that “it would seem anomalous
were the law (1) ordinarily to allow police freely to seek
the voluntary cooperation of pedestrians but (2) ordinarily
to forbid police to seek similar voluntary cooperation
from motorists.” 540 U.S. at 426; see also United States v.
Goodwin, 449 F.3d 766, 769-70 (7th Cir. 2006); United
States v. Burton, 441 F.3d 509, 511 (7th Cir. 2006).
No. 08-3257 5
The government in this case does not seek to justify the
stop of the car on the rationale of the roadblock cases.
Neither party mentions those cases, and we take note of
the Supreme Court’s observation in Delaware v. Prouse,
440 U.S. 648, 657 (1979), that in encountering a road-
block “the motorist can see that other vehicles are being
stopped, he can see visible signs of the officers’ authority,
and he is much less likely to be frightened or annoyed
by the intrusion.” That was not true here. But it is
pertinent to note that, as in Lidster, the police in this case
had a compelling reason to ask questions of the driver
or passenger of the sole vehicle departing from a building
complex in which shots had been fired (and not for the
first time), in order to protect the police officers who
were about to enter the complex. And the natural first
question to ask the driver was whether he had a gun,
since he might be the gunman rather than a witness.
This case is thus remote from the “standardless and
unconstrained” police conduct at issue in Delaware v.
Prouse, supra, where the Supreme Court forbade the
practice of randomly stopping drivers to check their
driving license and automobile registration when there
was no reason to suspect the driver of having violated any
traffic ordinance or other law. 440 U.S. at 661. Officer
Tutino was not acting randomly in deciding that the
only car emerging from the apartment complex moments
after he heard shots from within it should be intercepted.
He could not count on being able to do that himself,
because he was alone, so he radioed another officer to
ensure that the drivers of any vehicles leaving the apart-
ment complex immediately after the shooting would be
6 No. 08-3257
stopped and questioned, and this was easily effectuated
because there was only one exit from the scene of the
crime.
Tutino had three years’ experience with criminal
activity in the particular housing complex, was parked in
a position in which he had an unobstructed view of the
only exit from the complex, heard gunfire, received
confirmation of a report of shots fired, and saw a vehicle
emerge seconds later from the complex. That vehicle—the
white SUV—was the only vehicle on the road at that late
hour in this high crime area, and it was pulled over and
stopped for only moments before the officers making the
stop learned that the SUV had been seen at the
site of the shooting and that the occupants may have
been involved in the shooting. Less than a minute later
the defendant admitted that he had guns in the car.
When we consider the dangerousness of the crime,
the brevity of the interval between the firing of the
shots and the spotting of the sole vehicle quickly exiting,
the minimal intrusion on the occupants of the vehicle,
the need of the police to inform themselves of the condi-
tions in the complex before endangering themselves by
entering it in the dark, and the further need to stop poten-
tially fleeing suspects until more information about the
crime could be obtained, we conclude that the police
acted reasonably, and therefore that the judgment must be
A FFIRMED.
4-2-09