United States v. Lonnie Whitaker ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1259
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
L ONNIE W HITAKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 123—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 3, 2008—D ECIDED O CTOBER 27, 2008
Before P OSNER, R IPPLE and E VANS, Circuit Judges.
R IPPLE, Circuit Judge. 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 viola-
tion 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
2 No. 08-1259
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;1
Mr. Whitaker filed a timely notice of appeal.2 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 3
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 gen-
ders. 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
1
The jurisdiction of the district court is based on 18 U.S.C.
§ 3231.
2
The jurisdiction of this court is based on 28 U.S.C. § 1291.
3
We base our rendition of the facts on the magistrate judge’s
report, which was adopted by the district court.
No. 08-1259 3
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 boy-
friend, 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”4 went off on the radio, 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.
4
According to Officer Joswiak’s testimony, an “alert tone” is
a loud two-tone frequency that indicates to officers that a
call came in involving weapons. R. 23 at 14.
4 No. 08-1259
Officer Bedford asked the man, soon identified as Lonnie
Whitaker, if he and the woman were having an argument.5
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 physi-
cally 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.
5
The record is unclear whether Mr. Whitaker responded.
No. 08-1259 5
Later, after Mr. Whitaker had been conveyed to a deten-
tion 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
“Smokey.” Detectives later were able to locate and inter-
view this second caller despite the fact that he had given
a false name and phone number.
II
DISCUSSION
We review a district court’s legal analysis on a motion
to suppress de novo. United States v. Riley, 493 F.3d 803,
808 (7th Cir. 2007). Pure findings of fact, however, are
reviewed for clear error. United States v. Faison, 195 F.3d
890, 893 (7th Cir. 1999).
A.
Mr. Whitaker submits that the police did not have
reasonable suspicion to believe that a crime had been
committed. He contends that the police lacked reasonable
suspicion to conduct a search of the car for weapons
because the 911 caller identified as “Travis” was anony-
mous. He notes that Travis intended to conceal his
6 No. 08-1259
identity and was successful in doing so, undermining
the reliability of the 911 call. Mr. Whitaker further
submits that the first anonymous phone call was too
vague to corroborate Travis’ later call.
Mr. Whitaker further contends that the police did not
observe any behavior that justified a Terry pat-down. See
Terry v. Ohio, 392 U.S. 1, 30 (1968). In his view, the anony-
mous tip could not be a valid basis for the search
because the information was not verified independently
by the police. See Florida v. J.L., 529 U.S. 266, 272 (2000);
Alabama v. White, 496 U.S. 325, 332 (1990). Mr. Whitaker
distinguishes this case from United States v. Drake, 456
F.3d 771 (7th Cir. 2006), in which the caller to 911
identified herself by her first and last name, stayed on
the scene until the police arrived and provided detailed
information to the operator. Id. at 772-74. He notes that,
in this case, Travis provided a false name and phone
number. He points out that Travis failed to provide a
contemporaneous description of an emergency or a
detailed account of the suspect car, and did not remain
at the scene.
Mr. Whitaker further submits that, even if the second
caller cannot be characterized as anonymous, the officers
still lacked collective knowledge of the details of Travis’
call at the time of the search. He acknowledges that, under
the collective knowledge doctrine, law enforcement
officers are considered to possess information known to
other officers but not known to them. United States v.
Lenoir, 318 F.3d 725, 728 (7th Cir. 2003) (holding that
when police officers are in communication regarding a
suspect, “the knowledge of one officer can be imputed to
No. 08-1259 7
the other officers under the collective knowledge doc-
trine”). Nevertheless, he submits that the doctrine does
not apply to knowledge that civilian 911 operators do not
share with the officers. See United States v. Colon, 250
F.3d 130, 137 (2d Cir. 2001) (holding that a 911 operator
was not capable of determining whether reasonable
suspicion existed for a stop and frisk). In Mr. Whitaker’s
view, at the time of the search, the officers were aware
only that a man and a woman were in a silver car and
that a weapon was involved. He concludes that this
information was not predictive and that it therefore
could not be used to establish reasonable suspicion under
J.L., 529 U.S. at 271-72.
The Government takes a different view. It contends that
the district court was correct in determining that J.L. is
not relevant because that case dealt with whether the
initial stop was justified. It emphasizes that there can be
two stages to a Terry stop: the actual stop itself and a
protective pat-down search. United States v. Brown, 232
F.3d 589, 592 (7th Cir. 2000). Because the holding in J.L. is
limited to an actual stop, submits the Government, the
reasoning in J.L. is not applicable to this case; this case
concerns only the legality of a search or protective sweep
after a consensual encounter of the police with the defen-
dant. J.L., 529 U.S. at 274. The Government submits that
the only issue is whether, under an objective test, the
police officers had a reasonable suspicion that Mr.
Whitaker had a gun in his possession. Brown, 232 F.3d at
594. In the Government’s view, the district court
identified “specific, articulable suspicions” that Mr.
Whitaker possessed a gun. Appellee Br. at 14. When Travis
called 911, he identified himself as Marsh’s cousin, and
8 No. 08-1259
described an encounter in which Mr. Whitaker had
waved him away with a handgun. This call alone,
contends the Government, was enough to establish
articulable suspicion. It further agrees with the district
court’s conclusion that the first caller provided some
minimal corroboration. See White, 496 U.S. at 331.
The Government further submits that, contrary to Mr.
Whitaker’s argument, this case does not involve truly
anonymous callers because the police were able to talk
to both 911 callers after the fact and because Travis identi-
fied himself as Marsh’s cousin. See Drake, 456 F.3d at
774. It also agrees with the district court that the 911
dispatcher should be considered an integral part of
the investigative process for purposes of the collective
knowledge doctrine.
Moreover, submits the Government, corroboration of
Travis’ statements occurred when the officers arrived at
the parking lot, and observed the make and color of the
car, its location in the parking lot, its proximity to the
blue van and that two people were in the car. Marsh
also confirmed that she and Mr. Whitaker had been
arguing. The Government contends that her reluctance
to move away from the car door gave Officer Joswiak a
reason to be suspicious.
B.
The Fourth Amendment to the Constitution of the
United States prevents the Government from conducting
unreasonable searches and seizures. United States v.
No. 08-1259 9
Arvizu, 534 U.S. 266, 273 (2002). The jurisprudence of
the Supreme Court makes clear that the primary bulwark
against such conduct is the procurement of a warrant from
a neutral and detached magistrate. Groh v. Ramirez,
540 U.S. 551, 575 (2004) (“The point of the Fourth Amend-
ment . . . is not that it denies law enforcement the
support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached
magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting
out crime.”) (quoting Johnson v. United States, 333 U.S. 10,
13-14 (1948) (alteration in original)). That same jurispru-
dence makes clear, however, that there are certain situa-
tions, defined in case law, when a warrantless search or
seizure is reasonable. See United States v. Allman, 336
F.3d 555, 556 (7th Cir. 2003) (discussing exceptions to the
warrant requirement recognized by the Supreme Court).
This case involves one of those exceptions.
1.
We begin our analysis of the factual circumstances by
examining the officers’ initial encounter with Mr.
Whitaker. The Government contends, and, after a hearing
the magistrate judge and the district court agreed, that this
initial encounter was consensual in nature and there-
fore did not constitute a seizure within the meaning of
the Fourth Amendment. See United States v. Scheets, 188
F.3d 829, 836-37 (7th Cir. 1999). Whether a police-citizen
encounter is consensual is a question of fact, and we
10 No. 08-1259
therefore review it for clear error.6
Upon examination of the record, we must conclude
that the district court did not clearly err in reaching its
decision. At the time of the encounter, Mr. Whitaker’s
car was parked in a food store parking lot. Officer
Bedford was the first to arrive at the scene. In his report,
he states that he pulled up behind the gray Chevrolet
Impala; he does not mention whether he had his emer-
gency lights on or whether his weapon was drawn. R. 20,
Ex. 1. Officer Bedford stepped out of the vehicle and
began to approach the driver’s side of the car. At this
point, Mr. Whitaker stepped out of the car and faced
Officer Bedford.
Officer Joswiak and Officer Overland arrived soon
afterwards.7 Officer Bedford already was parked behind
Mr. Whitaker’s car on the driver’s side; Officer Joswiak
parked his squad car behind Mr. Whitaker’s car on the
6
See United States v. Nobles, 69 F.3d 172, 179-80 (7th Cir. 1995)
(holding that whether an encounter between the police and
the defendants was consensual is a question of fact); United
States v. Maldonado, 38 F.3d 936, 939 (7th Cir. 1994) (“The
question of whether a particular encounter is voluntary is a
factual one, dependant on the circumstances of each case.”)
(quoting United States v. Berke, 930 F.2d 1219, 1221 (7th
Cir. 1991) (internal quotations omitted)).
7
From reviewing the record, it appears that Officer Overland
remained in her squad car during the encounter. The record
is unclear regarding where Officer Overland parked her squad
car.
No. 08-1259 11
passenger side. The two squad cars were side-by-side
behind the Chevrolet Impala.
A van with Marsh’s children was parked next to the
Chevrolet Impala. The record does not indicate whether
any vehicle was parked in front of Mr. Whitaker’s car,
preventing him from driving away. As the officers ap-
proached the car, they did not assert their authority in a
manner that fairly could be characterized as restricting
the movements of Mr. Whitaker and his companion.8
The officers did not convey, by word or action, that the
occupants were to exit the vehicle. Indeed, as Officer
Bedford approached, Mr. Whitaker got out of his car of
his own accord to meet him.
Although neither the Supreme Court nor this court has
decided a case identical in all respects to our own, some
of our cases are instructive. We have held that, if a driver
stops a car on his own and no other coercive activity
occurs, a police encounter is consensual. United States v.
Hendricks, 319 F.3d 993, 999-1000 (7th Cir. 2003). In
Hendricks, a police car without its emergency lights fol-
lowed a car into a gas station. The officer parked his
car about fifteen feet from the car, and the occupant of
the car got out and began to approach the officer. The
officer radioed for backup, then got out of the car and
spoke with the driver. We held that the initial encounter
was consensual and that no stop had occurred until a
8
The record contains no evidence that the officers had their
emergency lights on or had their guns drawn.
12 No. 08-1259
second officer arrived with his emergency lights activated.
Id. at 999.
Similarly, in United States v. Clements, 522 F.3d 790, 792
(7th Cir. 2008), the police received an anonymous tip that
a car had been parked and running for four hours in
front of the caller’s house. Two police officers investi-
gated. They stopped their squad car fifteen to twenty feet
behind the parked car, shined a spotlight on the car and
activated their emergency lights. When they approached
the car, the occupant of the car raised a knife at the officers.
The officers ordered him to drop the weapon and step out
of the car, and when he did, a magazine containing ten
cartridges of long rifle ammunition fell out of the car. We
held that the district court did not plainly err in admitting
the evidence.9 Id. at 794. We furthermore held that the car
was not seized because the driver had stopped the car
voluntarily, not because of the flashing lights. Id. at 794-95.
We emphasized that, other than flashing lights for iden-
tification and safety purposes, the officers did not do
anything to make the driver feel that his freedom was
restrained, such as drawing their weapons, surrounding
the car with squad cars, touching the driver or using
forceful language prior to the knife being displayed. Id.By contrast, in United States v. Pavelski, 789 F.2d 485, 488-
89 (7th Cir. 1986), we determined that surrounding a car
on three sides constitutes a stop. In that case, a deputy
9
We also held that the defendant had waived his Fourth
Amendment argument. United States v. Clements, 522 F.3d 790,
794 (7th Cir. 2008). The discussion of whether the stop was
consensual was an alternative holding.
No. 08-1259 13
was following a car when it turned into a parking lot. Id. at
486-87. The deputy stopped his patrol car behind the
parked car, and a second officer later parked beside it. At
this point, the officers had no suspicion that the driver
or the other occupants had violated any laws. A third
officer arrived, and parked twenty to thirty feet in front
of the car.
The driver exited the car, and the deputy began ques-
tioning him. The deputy then tapped the window of the
left rear passenger door, and, after the occupant lowered
the window, began questioning him. Id. Not having
reasonable suspicion but rather a “gut feeling,” the
officer searched the car and found weapons and various
items associated with a recent bank robbery. We noted
that, prior to the third squad car arriving, the car had not
been subject to a Terry stop. Id. at 488. When the third
patrol car parked in front of the defendant’s car, however,
a stop had occurred. Id. at 488-89. See also United States
v. Green, 111 F.3d 515, 520 (7th Cir. 1997) (holding that
where officers blocked a car’s exit, the stop was not
consensual); United States v. Packer, 15 F.3d 654, 657 (7th
Cir. 1994) (holding that a stop occurred where the offi-
cers’ cars were parked in front of and behind the defen-
dant’s car with the “take down” light shining through
defendant’s car’s windows).
The question of whether this encounter was consensual
in this case is a close one. However, assessing the record in
its totality, we must conclude that, on this fact-bound
question, the district court’s decision was not clearly
erroneous.
14 No. 08-1259
2.
Even if the officers’ initial encounter with Mr. Whitaker
cannot be characterized as consensual, we believe that the
officers had the authority to stop Mr. Whitaker long
enough to ascertain whether illegal activity was afoot.
Any discussion of this area must begin with the
Supreme Court’s seminal decision in Terry v. Ohio, 392
U.S. 1 (1968). In Terry, the Supreme Court held:
where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and
that the persons with whom he is dealing may be
armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as
a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or
others’ safety, he is entitled for the protection of
himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons
in an attempt to discover weapons which might be
used to assault him.
Id. at 30. The Court has made clear that this exception to
the warrant requirement does not give an investigating
officer carte blanche to detain an individual, even tempo-
rarily, simply because the officer believes that such
action will aid his investigation. Most notably, in J.L.,
529 U.S. at 271-72, the Court held that the stop of an
individual solely on the anonymous tip of an individual
No. 08-1259 15
usually falls beyond the bounds of reasonableness.1 0
Such a tip, noted the court, simply tends to identify a
particular person, but, unless it contains some prediction
of future behavior that can be identified by independent
investigation, there is nothing to corroborate its
assertion of illegality. Id. Otherwise, “any person
seeking to harass another [could] set in motion an intru-
sive, embarrassing police search of the targeted person
simply by placing an anonymous call,” id. at 272,
accusing the targeted individual of an illegality.
The situation before us today is very different from
the one presented in J.L. Here, the 911 center received
two calls in close succession that alerted the police to an
ongoing altercation in a food store parking lot. The
first call was anonymous; the second call was from an
individual who gave a name and telephone number,1 1
claimed to be related to one of the people involved in
the altercation and said that his own intervention
attempt had ended with Mr. Whitaker threatening him
with a gun. At the scene, the officers found the two vehi-
10
In Florida v. J.L., 529 U.S. 266 (2000), the police had received
an anonymous call reporting that a black man wearing a
plaid shirt and standing at a particular bus stop was carrying a
gun. With no other information, officers went to the location,
frisked the individual and found a firearm.
11
The record shows that the officers later discovered that the
caller had given the 911 operator a false name and telephone
number. However, we measure the strength of an officer’s
information at the time he acted. Gower v. Vercler, 377 F.3d 661,
668 (7th Cir. 2004). Moreover, Travis correctly identified
himself as Marsh’s cousin.
16 No. 08-1259
cles described in the calls and two individuals in one
of those vehicles. The weapon described by one of the
callers was not immediately visible.
In United States v. Drake, 456 F.3d 771 (7th Cir. 2006),
while acknowledging the strictures of J.L., we noted that
the reporting of an ongoing emergency presents special
problems and obligations on the police. Id. at 774-75.
Accordingly, we held that, when the police respond to
an emergency as a result of a 911 call, the exigencies of
the situation do not require further pre-response verifica-
tion of the caller’s identity before action is taken.
Indeed, we recently have encountered this situation
in another case. In United States v. Hicks, 531 F.3d 555(7th Cir. 2008), we held that the officer had reasonable
suspicion to stop the defendant based on a tip which
reported an ongoing emergency to 911. Id. at 558-59.
We held that J.L. does not govern because the caller
“gave the 911 operator enough information to identify
him and his location, and because he reported an on-
going emergency.” Id. We further noted that every circuit
to confront the issue had distinguished J.L. when the
tip was “not one of general criminality, but of an
ongoing emergency, or very recent criminal activity.” 1 2 Id.12
See, e.g., United States v. Brown, 496 F.3d 1070, 1077 (10th Cir.
2007) (“[W]e conclude it was reasonable for the police to
further credit the information provided in an emergency 911
call because the caller was apparently seeking protection and
aid for a friend.”); United States v. Elston, 479 F.3d 314, 319 (4th
(continued...)
No. 08-1259 17
12
(...continued)
Cir. 2007) (holding that a “911 report, even if anonymous, bore
strong indicia of reliability and alerted the police officers to a
serious and imminent danger” and that “[g]iven such cir-
cumstances, the district court did not err in concluding that
the officers possessed information sufficient to justify a Terry
stop” of the defendant); United States v. Drake, 456 F.3d 771, 775
(7th Cir. 2006) (holding that we “presume the reliability of an
eyewitness 911 call reporting an emergency situation for
purposes of establishing reasonable suspicion, particularly
when the caller identifies herself”); United States v.
Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004) (“Police delay
while attempting to verify an identity or seek corroboration
of a reported emergency may prove costly to public safety and
undermine the 911 system’s usefulness. . . . The Fourth Amend-
ment does not require the police to conduct further pre-response
verification of a 911 caller’s identity where the caller reports
an emergency. Accordingly, an emergency 911 call is entitled
to greater reliability than an anonymous tip concerning
general criminality.”); United States v. Holloway, 290 F.3d 1331,
1337-38 (11th Cir. 2002) (noting that in an emergency, “officers
are compelled to search by a desire to locate victims and the
need to ensure their own safety and that of the public,” and
holding that “in an emergency, the probable cause element
may be satisfied where officers reasonably believe a person is
in danger”).
One case in the Second Circuit expresses reservations concern-
ing whether the collective knowledge doctrine should be
extended to the 911 employee who takes the call and passes on
the emergency nature of the situation to police officers
operating in the field. See United States v. Colon, 250 F.3d 130 (2d
(continued...)
18 No. 08-1259
(citations omitted). We further stated:
A rule requiring a lower level of corroboration
before conducting a stop on the basis of an emergency
report is not simply an emergency exception to the
rule of J.L. It is better understood as rooted in the
special reliability inherent in reports of ongoing
emergencies. Based on that special reliability, the
Supreme Court has held that reports of ongoing
12
(...continued)
Cir. 2001). The panel’s misgivings in that case were based on
the training given to employees who are not police officers. Id.
at 135-37. Our case law, and indeed the case law of the other
circuits, has not dwelled on the same reservations. In Drake, we
held that 911 reports by identified callers can provide the
police with reasonable suspicion and that 911 employees are
part of the police collective. Drake, 456 F.3d at 775. Indeed, it
appears that the Second Circuit has modified its position and
would follow the path that we have chosen here in a case such
as this where the callers were describing events of an
emergency nature occurring as the individual reported them.
See Anthony v. City of New York, 339 F.3d 129, 136 (2d Cir. 2003)
(“In the instant case, the call came from the same location to
which the police responded, and more importantly, the caller
described an immediate and deadly threat of harm to which
she herself was being exposed at that location. The concern
we expressed in Kerman regarding the reliability of anonymous
and uncorroborated calls—that is, calls reporting an emergency
at a different location and involving someone other than the
caller—is not implicated here, where the caller expressed an
immediate risk of harm to herself, and where the address
from which the call was placed was verified.”).
No. 08-1259 19
emergencies made in 911 calls are subject to less
testing in court than other out-of-court statements.
Similarly, when an officer relies on an emergency
report in making a stop, a lower level of corroboration
is required.
Id. at 559-60 (internal citations omitted).
The First Circuit also has mentioned the importance
of the police being able to take quick action during an
ongoing emergency. In United States v. Ruidiaz, 529 F.3d
25, 27 (1st Cir. 2008), a 911 caller reported a shooting at
or near a particular address. He noted that the
individuals involved were wearing red shirts and that
the shooter or shooters were in a green Mercedes-Benz
parked at the address he provided. The caller confirmed
the number from which he was calling, but did not
provide his name and warned that he would not be on the
street when the police arrived. The officers who arrived
found the green car as described and noticed that it was
parked in violation of two municipal ordinances. They
found the defendant slumped over in the passenger seat.
When they touched the man’s shoulder, he screamed a
profanity. The officers searched the man and found a
handgun. One of the officers called the phone number
provided to 911 and spoke with someone, but the
person would not identify himself; nor is it clear that it
was the same person. The First Circuit held that, based
on a totality of the circumstances, there was reasonable
suspicion for the search. Id. at 33. It noted that the
caller confirmed his phone number and that the police
knew the caller could be tracked down if he provided
20 No. 08-1259
false information. Id. at 31. In holding that the facts taken
together were more than sufficient for the police to give
some credence to the 911 call, the court emphasized that
the call referenced an ongoing emergency. Id. at 31 n.2.
“[R]eports about ongoing emergencies, by virtue of their
very nature, necessitate quick action.” Id.Accordingly, the police had the right to detain the
occupants of the car long enough to ascertain whether the
situation described by the callers was still an
ongoing threat to either of the individuals involved in
the altercation or to the public.
C.
The information obtained by the police after their
arrival at the scene, when combined with the informa-
tion already known to them prior to their arrival,
certainly gave the officers the requisite authority to
search the cabin of Mr. Whitaker’s car to ascertain
whether it contained a weapon. The officers’ conversation
with Mr. Whitaker and his companion, together with
their independent observations, made it clear that the
two occupants of the car were engaged in an altercation.
Marsh admitted that she had been arguing with
Mr. Whitaker; the officer observed that her shirt was
stained with her tears and she was crying. Although
Marsh denied that Mr. Whitaker had a weapon, she
would not voluntarily move away from the car door
when Officer Joswiak announced that he was going to
search the car. All of these factors, when assessed in
their totality, certainly constituted a sufficient basis to
No. 08-1259 21
justify the officers’ inspection of the cabin for a weapon. See
United States v. Arnold, 388 F.3d 237, 239 (7th Cir. 2004). To
leave the scene at that point without having performed
such an inspection could have jeopardized their own
safety, as well as that of those in the surrounding area,
including Marsh’s children in the van parked immediately
next to Mr. Whitaker’s car.1 3 The Fourth Amendment does
not require such an unrealistic response to the situation
before us.
Conclusion
The officers had the requisite reasonable suspicion to
justify their search of the passenger compartment of Mr.
Whitaker’s car. Therefore, the firearm found there was
admissible, and the district court correctly denied the
motion to suppress. Accordingly, the judgment of the
district court is affirmed.
A FFIRMED
13
In Officer Joswiak’s testimony, he describes what drew his
attention as he was entering the parking lot. He states: “As
I recall, the one vehicle parked next to the silver vehicle with
a van had the door open with some kids in and I mean there’s
the van with the kids, the silver car.” R. 23 at 39. It is
unclear when Officer Bedford noticed the children.
10-27-08