NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2012
Decided December 19, 2012
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2851
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Western District of Wisconsin.
v. No. 3:11‐cr‐00105‐wmc‐1
GERALD HOPEWELL, William M. Conley,
Defendant–Appellant. Chief Judge.
O R D E R
Gerald Hopewell appeals the denial of his motion to suppress a gun that officers found
inside his backpack when they stopped him on suspicion that he was carrying a concealed
weapon. The district judge concluded that the officers executed a lawful Terry stop and that
exigent circumstances justified the subsequent search of Hopewell’s backpack. We agree and
affirm the judgment.
At an evidentiary hearing on Hopewell’s motion, the following testimony was elicited:
According to an arresting officer, dispatch notified him of a 911 caller reporting
that a loaded gun had been pointed at him by a male bus passenger, who then
placed the gun into a red backpack. The caller described the man as a large,
No. 12‐2851 Page 2
black male wearing a black shirt, jeans, and a baseball hat bearing the words
“Windy City.” The caller also identified the bus’s route and number, and said
that the man had fallen asleep. Officers located the bus, emptied it, and found
near the rear a sleeping man who matched the caller’s description. The officers
drew their guns and ordered the man, later identified as Hopewell, to put up his
hands. As directed, Hopewell put his backpack on the ground, stood up, kept
his hands up, walked down the center aisle of the bus, and lay face‐down on the
bus floor, where he was handcuffed.
As Hopewell was being taken into custody, another officer boarded the bus, spotted the
red backpack, and searched it. This officer testified that he searched the backpack out of
a safety concern: the 911 caller had reported seeing a revolver, and the officer (a 28‐year veteran
with experience in firearm instruction) feared that a cocked revolver equipped with a light
trigger could easily fire. In the backpack he found the Ruger .357 magnum revolver. Hopewell
was indicted for unlawfully possessing a firearm as a felon in violation of
18 U.S.C. § 922(g)(1).
The district judge, adopting a magistrate judge’s recommendation, denied Hopewell’s
motion. According to the district judge, the information provided by the 911 caller was
sufficiently detailed and corroborated by the officers who found Hopewell on the bus, and this
information alone supplied reasonable suspicion to justify an investigative stop under Terry v.
Ohio,
392 U.S. 1 (1968). The judge also ruled that the officers lawfully used force as part of the
stop, and that the search was justified by exigent circumstances: The report of a loaded weapon
on a city bus made it reasonable for the officer to believe that the revolver posed a genuine
safety risk.
Hopewell pleaded guilty to being a felon in possession of a firearm, § 922(g)(1), but
reserved his right to appeal the denial of his motion.
On appeal Hopewell first argues that the district judge wrongly characterized the seizure
as a Terry stop. He contends that the stop became a full arrest when the officers awoke him
with guns drawn, ordered him to the bus floor, handcuffed him, and took him to a police car.
This arrest was unlawful, he continues, because neither the uncorroborated 911 call nor any
other information furnished probable cause. He points to a comment in the magistrate judge’s
report that this circuit never has concluded that an uncorroborated report alone from an
identified 911 caller establishes probable cause that a crime has occurred.
Although the government agrees that the seizure was an arrest, we believe that the district
judge correctly concluded that the officers performed only a Terry stop. Whether officers
perform an arrest or only a Terry stop is judged objectively, based on the totality of the
No. 12‐2851 Page 3
circumstances. United States v. McCauley,
659 F.3d 645, 649 (7th Cir. 2011). Although the officers
forcibly detained Hopewell and placed him in handcuffs, their safety concerns—that Hopewell
was concealing a gun—justified their use of force and restraints as part of a Terry stop without
it becoming a full arrest. See United States v. Bullock,
632 F.3d 1004, 1016 (7th Cir. 2011); Jewett
v. Anders,
521 F.3d 818, 823 (7th Cir. 2008). Because this was not an arrest, the officers needed
only a reasonable suspicion that Hopewell was committing a crime for the stop to be lawful.
See United States v. Bohman,
683 F.3d 861, 864 (7th Cir. 2012); Jewett,
521 F.3d at 823–24.
Hopewell does not argue whether, as a Terry stop, the officers had a reasonable suspicion;
he argues only that the district judge wrongly characterized the nature of the stop, and that the
officers lacked probable cause (the standard of proof required for an arrest) because the officers
never corroborated the 911 call, rendering it unreliable. Because Hopewell fails to challenge
the district court’s conclusion that the officers had a reasonable suspicion for the stop, he has
waived this contention. See LaBella Winnetka, Inc. v. Village of Winnetka,
628 F.3d 937, 943 (7th
Cir. 2010).
But even if he had argued this point, the district court correctly concluded that the 911 call
provided reasonable suspicion that Hopewell was carrying a concealed gun. We presume the
reliability of an emergency 911 call, see United States v. Drake,
456 F.3d 771, 774–75 (7th Cir.
2006); United States v. Hampton,
585 F.3d 1033, 1038–39 (7th Cir. 2009), and here the caller
identified himself and gave extra details (his phone number, work location, and knowledge that
Hopewell was concealing a gun), thus supplying the officers with all the information they
needed to reasonably suspect that Hopewell had a gun, see United States v. Booker,
579 F.3d 835,
839 (7th Cir. 2009). Moreover, the officers had no reason to doubt the truthfulness of the caller,
see Drake,
456 F.3d at 775 (noting that presumed reliability of call may be overcome if officers
learn reason to doubt its accuracy); rather, they confirmed the information when they boarded
the bus identified by the caller and found Hopewell, who was asleep (as the caller said he
would be) and matched the caller’s description.
Hopewell next contests the district judge’s conclusion that exigent circumstances
justified the officers’ warrantless search of his backpack. He contends that the officers’ evidence
was too speculative and vague to support their safety concerns. He insists that the chance the
gun in his backpack was a revolver, cocked, and equipped with a light trigger, and the risk that
it would fire if moved, was too hypothetical and remote to support a finding of exigency.
The district court properly concluded that exigent circumstances justified the search of
Hopewell’s backpack. To justify the search based on exigent circumstances, the government
had to show that the officers reasonably believed that the search was necessary to prevent
serious injury to themselves or to the public, and that there was no time to obtain a warrant.
No. 12‐2851 Page 4
See United States v. Bell,
500 F.3d 609, 612–13 (7th Cir. 2007); United States v. Webb,
83 F.3d 913,
916–17 (7th Cir. 1996). Because the officer who searched the bag was experienced in firearms
safety and knew that Hopewell had displayed, loaded, and hidden in his backpack the
revolver, he could reasonably conclude that the gun posed a safety risk and was justified in
searching the backpack. See United States v. Huddleston,
593 F.3d 596, 600 (7th Cir. 2010)
(concluding that presence of armed, sleeping trespasser provided exigent circumstances for
search of house); United States v. Kempf,
400 F.3d 501, 503 (7th Cir. 2005) (finding reasonable
officers’ safety justification for warrantless entry of house when they believed defendant
could access potentially loaded gun inside); Webb,
83 F.3d at 917 (upholding warrantless
search of car based on exigent circumstances when defendant tossed gun in trunk of car
because gun could easily fire and was accessible to passers by).
AFFIRMED.
