United States v. Mark Booker ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3094
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARK A. B OOKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 CR 50054—Philip G. Reinhard, Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED A UGUST 28, 2009
Before B AUER, C UDAHY, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Mark Booker was indicted on
one count of being a felon in possession of a firearm
pursuant to 18 U.S.C. § 922(g)(1). Booker’s indictment
arose out of events that transpired in 2006 when an
officer acting on a witness’s tip stopped Booker’s van
and saw a gun inside. Booker challenges the district
court’s denial of his motion to suppress. Booker wishes
to exclude the gun and his statements to police because
2 No. 07-3094
he believes the police lacked reasonable suspicion to
stop his vehicle. Booker also challenges his sentence,
arguing that his involuntary manslaughter conviction
does not qualify as a “crime of violence” under Begay v.
United States, 128 S. Ct. 1581 (2008). Because the officers
did have reasonable suspicion to stop Booker’s van,
we affirm the district court’s denial of the motion to
suppress. However, we remand for resentencing
because Booker’s prior involuntary manslaughter con-
viction does not qualify as a “crime of violence.”
I. BACKGROUND
On July 27, 2006, at about 11:30 p.m., officers from the
Rockford Police Department received a 911 call that shots
may have been fired near Furman Street and Arthur
Avenue in Rockford, Illinois. Officer James Presley
arrived on the scene, and Tywon Tennin flagged him
down. Tennin told Officer Presley that his daughter
had been pushed earlier in the evening and that in re-
sponse he went to 818 Furman Street, where the
alleged battery had occurred. Tennin stated that when
he arrived at the house, the occupants refused to speak
to him. A short time later, he returned to the house on
Furman with relatives of his daughter. As they
approached the house, they spotted several African-
American men standing outside, but upon seeing Tennin,
the men went inside. Tennin said as he and the rela-
tives stood on the front porch, they heard someone run
out of the back of the house. Tennin and the relatives
gave chase. At that time, Tennin said he heard a loud bang
No. 07-3094 3
that sounded like a gunshot. Tennin did not report seeing
a gun or a muzzle flash. Tennin reported to the officer
that the men he believed were involved in the battery
were no longer at the house. At that moment, he spotted
a van in the driveway at 818 Furman. Tennin told Officer
Presley, “I think that’s the van that they were in.” Tennin
also described one suspect as being a bald, black male
wearing black pants and no shirt. Officer Presley spoke
to Tennin’s daughter, but did not see any visible signs
of injury.
After taking Tennin’s statement, Officer Presley put out
a radio call that a witness reported a maroon van at
818 Furman Street that may have been involved in a
battery. Officer Timothy Campbell, who arrived next on
the scene, saw a van matching the description, which
contained one Black male who was wearing a hat and a
shirt. The van was leaving the driveway at 818 Furman
as Officer Campbell and his partner approached. Officer
Campbell yelled at the man, who was later identified as
Mark Booker, to stop, which he did. Officer Campbell
ordered Booker out of the van and patted him down.
Another officer peered in the van window and saw the
handle of a .22 caliber revolver on the van’s floor. The
officers then arrested Booker. Once under arrest, Booker
admitted the gun belonged to him and said, “I always
carry my piece.”
Booker filed a motion to suppress the gun and his
post-arrest statements, arguing that the police did not
have reasonable suspicion to stop his van. The district
court denied Booker’s suppression motion, concluding
4 No. 07-3094
that the officers had reasonable suspicion to stop
Booker’s van based on Tennin’s statement and that the
gun was in plain view.
Booker pled guilty, and he reserved his right to
appeal the denial of his suppression motion. In the
plea agreement, the parties agreed that Booker’s base
offense level was 24 pursuant to U.S.S.G. § 2K2.1(a)(2)
because of a 1997 involuntary manslaughter conviction
and a 2001 drug conviction. The plea agreement stated
Booker would receive a two-level enhancement because
the gun was stolen and a three-level reduction for ac-
ceptance of responsibility. The parties agreed his criminal
history category was VI and that his Sentencing Guide-
lines range would be 92 to 115 months in prison. The
court sentenced Booker to 102 months’ imprisonment,
followed by three years of supervised release. Booker
appeals.
II. ANALYSIS
Booker raises two issues on appeal. First, he claims the
district court erred in denying his motion to suppress
because the officers did not have reasonable suspicion
when they stopped his van. Second, he argues the
district court committed plain error when it used his
involuntary manslaughter conviction to enhance his
offense level. We discuss each in turn.
No. 07-3094 5
A. The district court properly determined the officers
had reasonable suspicion to justify Booker’s stop.
Booker argues Officer Campbell did not have reasonable
suspicion to stop his van because the officers had no
corroborating evidence that a battery actually occurred or
that someone fired a gun. Further, Booker claims the
group of men Tennin reported were involved in the
battery had already left on foot and that Tennin did not
mention a van until he spotted Booker’s. Finally, Booker
argues he was the only one in the van, which did not
match Tennin’s description that several men were in-
volved in the incident. Booker contends that if the
officers had not stopped his van, they would not have
seen the gun inside. Under the fruit of the poisonous
tree doctrine of Wong Sun v. United States, 371 U.S. 471(1963), Booker argues the gun and his statements should
be suppressed. When reviewing a district court’s decision
on a motion to suppress, we review legal conclusions
de novo and factual determinations for clear error.
United States v. Burks, 490 F.3d 563, 565 (7th Cir. 2007).
The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. C ONST.
amend. IV. The requirement that officers obtain a warrant
from a neutral, detached magistrate ensures individuals
receive Fourth Amendment protection. United States v.
Whitaker, 546 F.3d 902, 906 (7th Cir. 2008). However,
police may initiate an investigatory stop—a Terry stop—
when the officer has reasonable suspicion that a crime
occurred. Terry v. Ohio, 392 U.S. 1, 21-22 (1968); United
States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008). Although
6 No. 07-3094
an officer does not need probable cause to conduct an in-
vestigatory stop, the brief detention must be based on
reasonable suspicion that the stopped individual has or
is about to commit a crime. United States v. LePage, 477
F.3d 485, 487-88 (7th Cir. 2007). When an officer initiates
a Terry stop, he must be able to point to “specific and
articulable facts” that suggest criminality so that he
is not basing his actions on a mere hunch. Jewett v. Anders,
521 F.3d 818, 823 (7th Cir. 2008); United States v. Lawshea,
461 F.3d 857, 859 (7th Cir. 2006). Reasonable suspicion
must be evaluated in the totality of the circumstances.
United States v. Hicks, 531 F.3d 555, 558 (7th Cir. 2008).
In denying Booker’s motion to suppress, the district
court determined that Officer Campbell learned from
Officer Presley’s radio call that the maroon van may
have been involved in the battery. The district court
also found it was inconsequential that Booker did not
match the description of the suspect Tennin gave
because that description was not relayed to Officer Camp-
bell, who made the stop. The trial court also pointed to
our decision in United States v. Drake, for the proposition
that Tennin’s statement to police was entitled to
greater weight because he was not an anonymous or
confidential informant. 456 F.3d 771 (7th Cir. 2006) (con-
cluding reasonable suspicion existed when an identified
eyewitness made a 911 call to report an ongoing emer-
gency).
Tennin’s statements to police provided the officers
with enough information for officers to believe a crime
occurred and that Booker may have been involved. First,
No. 07-3094 7
police received a 911 call reporting gunshot fire. When
Officer Presley arrived, Tennin flagged him down, identi-
fied himself, and reported a battery that occurred earlier
in the evening. Tennin gave the address of where the
battery occurred and the area in which he believed he
heard the gunshot. He also gave a specific description
of a suspect and pointed out Booker’s van as the one
that he thought carried the men involved in the battery.
“When a single informant provides the tip that brought
police to a Terry stop, this court looks to the amount of
information given, the degree of reliability, and the
extent that the officers can corroborate some of the infor-
mant’s information.” LePage, 477 F.3d at 488 (citation
omitted). Like the caller in Drake, Tennin was not an
anonymous informant, and he gave specific details,
including describing two crimes that occurred, an
address where the crimes occurred and a suspect descrip-
tion. Drake differs from this case because the witness in
that case reported an ongoing emergency; however, Drake
nonetheless supports the government’s position that
reports made by identified witnesses should be given
more weight than anonymous callers. See Drake, 456
F.3d at 775. Tennin was willing to identify himself to
police and have officers speak with his daughter, which
differentiates him from other anonymous tipsters whose
reports may not give rise to reasonable suspicion. See
United States v. Robinson, 537 F.3d 798, 802 (7th Cir. 2008)
(anonymous sources are less reliable because officers
“have no way to hold the source responsible if the infor-
mation turns out to be fabricated”); see also Florida v.
J.L., 529 U.S. 266, 269 (2000) (anonymous tips are less
8 No. 07-3094
reliable and “can form basis of reasonable suspicion
only if accompanied by specific indicia of reliability”).
Tennin also described hearing a gunshot when the men
involved in the battery ran from the house. Although this
may not have been an ongoing emergency by the time
officers arrived on the scene, it certainly was a dangerous
situation that officers needed to investigate immedi-
ately. “[W]hen the police believe that a crime is in
progress (or imminent), action on a lesser degree of
probability, or with fewer procedural checks in advance,
can be reasonable.” United States v. Wooden, 551 F.3d 647,
650 (7th Cir. 2008). Tennin’s statements provided police
with enough articulable facts to believe a crime had just
occurred.
Whether the officers had reason to believe Booker was
the person who committed the crime is a closer call.
Tennin originally stated that the men involved in the
battery left on foot, but then pointed out Booker’s van as
it entered the driveway. Although it is true Tennin said
he “thinks” Booker’s maroon van was the van the
suspects were in, that conjecture does not necessarily
make the statement unreliable. Reasonable suspicion is
a lower threshold than probable cause and “ ‘does not
deal with hard certainties, but with probabilities.’ ” United
States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997) (quoting
United States v. Cortez, 449 U.S. 411, 418 (1981)). Tennin
said the suspects left on foot and that a group of men,
not just one man, was involved, but that does not
change the fact that Tennin told police that he thought
the people involved in the incident were in the van
Booker was driving. That Booker’s appearance did not
No. 07-3094 9
exactly match the description offered by Tennin does not
help Booker because Officer Campbell was about 200 feet
away from Booker when he stopped the van and could not
have seen whether Booker was bald under his cap.
Moreover, the fact that Officer Campbell may have
been told to answer a call reporting a battery incident,
and not a gunshot, is of no significance. The knowledge
of one officer can be imputed to another where police
officers are communicating with one another. United
States v. Lenoir, 318 F.3d 725, 728 (7th Cir. 2003). Addition-
ally, both a battery and firing a gun indicate a crime
was likely afoot, and the officers had enough informa-
tion to begin to investigate.
Under the totality of the circumstances, the officers had
reasonable suspicion to stop Booker’s van. See Hicks, 531
F.3d at 558 (determining “reasonable suspicion is an
objective inquiry based on the totality of the circum-
stances known to the officer at the time of the encoun-
ter”). So, the gun, which was seen in plain view inside
Booker’s van, should not be suppressed. See United States
v. Raney, 342 F.3d 551, 558-59 (7th Cir. 2003) (finding
that when an officer who is lawfully present sees an
object in plain view, and the incriminating nature of the
object is readily apparent, the object can be seized under
the plain view doctrine); see also United States v. Willis, 37
F.3d 313, 316 (7th Cir. 1994) (officer properly seized gun
in plain view following legitimate investigatory stop).
The district court also correctly declined to suppress
Booker’s post-arrest admissions because he made those
10 No. 07-3094
statements voluntarily without any questioning by police.1
See Miranda v. Arizona, 384 U.S. 436, 478 (1966) (“Any state-
ment given freely and voluntarily without any com-
pelling influences is, of course, admissible in evidence.”).
B. The district court plainly erred in using Booker’s
prior involuntary manslaughter conviction to
enhance his sentence.
Booker contends the district court should not have
used his prior conviction for involuntary manslaughter
to increase his offense level because it is not a “crime of
violence” under the interpretation of the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B) (“ACCA”) mandated
by the Supreme Court in Begay v. United States, 128 S. Ct.
1581 (2008). At the time of Booker’s sentencing, case law
made clear that involuntary manslaughter in Illinois was
a “crime of violence.” However, eight months after the
district court sentenced Booker, the Supreme Court
decided Begay, which altered the landscape of recidivist
enhancements. Following Begay, we recently held that a
conviction for involuntary manslaughter in Illinois does
not qualify as a “crime of violence.” United States v.
Woods, No. 07-3851, 2009 WL 2382700 at *10-11 (7th Cir.
Aug. 5, 2009). Because that decision controls, Booker
is entitled to resentencing. We note that Booker did not
object to the enhancement in his plea agreement, but in
1
Booker does not argue that his statements were involuntary,
but only that if the van had not been unlawfully stopped
he would not have made such an admission.
No. 07-3094 11
light of Begay and our recent post-Begay precedent, the
district court’s sentencing enhancement was plain error.
See United States v. High, No. 08-1970, 2009 WL 2382747,
at *2 (7th Cir. Aug. 5, 2009) (under Begay and Woods
the district court’s classification of defendant’s prior
conviction as a “violent felony” was plain error); see also
United States v. Olano, 507 U.S. 725, 732 (1993).
III. CONCLUSION
Therefore, we A FFIRM the district court’s denial of
Booker’s motion to suppress, but V ACATE his sentence and
R EMAND for further proceedings consistent with this
opinion.
8-28-09