United States v. Lawchea, Charles ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4098
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES LAWSHEA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05-20001—Michael P. McCuskey, Chief Judge.
____________
ARGUED FEBRUARY 24, 2006—DECIDED AUGUST 24, 2006
____________
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Lawshea was charged with be-
ing felon in possession of a firearm. He filed a motion to
suppress the firearm, which was denied, and then entered
a conditional guilty plea. The denial of his motion to
suppress is the subject of this appeal.
At the motion to suppress hearing, Danville Police Officer
Terry McCord testified that at 11:45 p.m. on October 24,
2004, he was on patrol in his marked squad car in the
Danville Housing Authority’s Fair Oaks housing complex
with his police dog. His sergeant had requested that he
patrol the area because several fights had taken place there
recently, including one that involved a stabbing. As Officer
2 No. 05-4098
McCord drove through Fair Oaks, he saw two men standing
very close to each other in a lit courtyard. In his estimation,
they were standing closer than he believed two persons
would normally stand. When Officer McCord turned toward
the courtyard in his squad car, he saw the two men look
directly at him. One of the men turned and ran into a
nearby apartment. The other man, later identified as
defendant Charles Lawshea, turned around and began
walking away from Officer McCord’s squad car.
When Officer McCord drove his car into the courtyard,
Lawshea looked back and began running. Lawshea sprinted
around an apartment building three times and McCord
followed him in the squad car. After the third lap, Officer
McCord stopped his car and twice warned Lawshea that if
he did not stop, Officer McCord would release his police dog.
Lawshea kept running and Officer McCord released and
commanded his dog to apprehend the defendant. The police
dog quickly caught up with Lawshea and knocked him to
the ground while biting his back. As the police dog contin-
ued to bite, Lawshea fought with the dog and attempted to
push the dog off. Officer McCord ran up and told Lawshea
to stop fighting with the dog and to put his hands out to his
sides. Once Lawshea stopped struggling, Officer McCord
ordered the police dog to release Lawshea. At that point,
Lawshea, who was lying flat on his stomach, began moving
again by reaching underneath his stomach. McCord told
Lawshea three times to keep his hands out in front or he
would release the police dog again. When Lawshea kept
reaching underneath his stomach, Officer McCord again
instructed the police dog to apprehend the defendant. After
a few seconds of struggling, Lawshea placed his hands away
from his body. The dog then released him and Officer
McCord restrained Lawshea for about 20 to 30 seconds until
backup officers arrived.
Once the backup officers arrived, Officer McCord and the
police dog stepped away as the other officers handcuffed
No. 05-4098 3
Lawshea with his hands behind his back and rolled him
over on his side. Officer McCord then saw a small caliber
handgun, later found to be loaded with a bullet in the
chamber, on the ground where Lawshea’s stomach had been
and in the exact area where Lawshea had been reaching.
After seizing the handgun, the officers determined that
Lawshea was a convicted felon; he was then placed under
arrest and taken to Provena United Samaritans Medical
Center, where he received a tetanus shot and was treated
for bites to his back and shoulder.
At the Medical Center, Officer McCord met with Lawshea
and read him his Miranda rights. Lawshea agreed to waive
his rights and speak with McCord. He admitted to McCord
that he ran away from the squad car because he had a
handgun in his sweatshirt pocket. Lawshea said that he
had just bought the gun from a 15-year-old in Fair Oaks
because his life had been threatened earlier in the day in
connection with the fights that had been taking place in the
complex.
On February 24, 2005, Lawshea filed a motion to sup-
press the seizure of the gun, claiming that his actions were
not the type of unprovoked flight that would create a
reasonable suspicion for a stop. The district court held an
evidentiary hearing on June 9, 2005. Officer McCord
testified for the United States regarding Lawshea’s flight on
October 24, 2004. Lawshea did not present testimony
in support of the factual account argued in his motion to
suppress. Lawshea argued that when the officer released
his police dog to apprehend Lawshea the Terry stop was
transformed into a custodial arrest that lacked probable
cause. Lacking probable cause to arrest the defendant,
Lawshea urged, the evidence should to be suppressed.
The district court denied Lawshea’s motion to suppress in
its entirety. Lawshea then entered a conditional guilty plea
pursuant to an agreement with the government. The
4 No. 05-4098
district court sentenced Lawshea to 27 months’ imprison-
ment. This timely appeal followed.
Analysis
Lawshea first argues that the officer did not have reason-
able suspicion to conduct a Terry stop. Next, he contends
that the use of a police dog to conduct the Terry stop
rendered it an unconstitutional arrest. We review a district
court’s legal conclusions on a motion to suppress de novo.
United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005).
Questions of fact are reviewed for clear error. United States
v. Breland, 356 F.3d 787, 791 (7th Cir. 2004).
We have consistently held that officers may conduct an
investigatory stop of a person when they have a reasonable,
articulable suspicion that criminal activity is afoot.
Breland, 356 F.3d at 791 n.1 (2004) (citing Terry v. Ohio,
392 U.S. 1, 30 (1968)). While “reasonable suspicion” is a
hard term to define precisely, the Supreme Court has held
that it is a commonsense, nontechnical concept that deals
with the factual and practical considerations of “everyday
life on which reasonable and prudent [people], not legal
technicians, act.” Ornelas v. United States, 517 U.S. 690,
695 (1996) (citations omitted). But, even though “ ‘reason-
able suspicion’ is a less demanding standard than probable
cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment
requires at least a minimal level of objective justification for
making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123
(2000). In other words, reasonable suspicion is less than
probable cause but more than a hunch. United States v.
Lenoir, 318 F.3d 725, 729 (7th Cir. 2003). When determin-
ing whether an officer had reasonable suspicion, courts
examine the totality of the circumstances known to the
officer at the time of the stop, including the experience
of the officer and the behavior and characteristics of the
No. 05-4098 5
suspect. Id. Further, we recognize that certain behavior in
isolation may have an innocent explanation yet that same
behavior may give rise to reasonable suspicion when viewed
in the context of other factors at play. Baskin, 401 F.3d at
793.
Here, Lawshea’s flight from Officer McCord in a high-
crime area just before midnight gave the officer a reason-
able suspicion to stop Lawshea. Recent fights, including a
stabbing, triggered Officer McCord’s patrol that evening.
When he saw two men standing suspiciously close to each
other, he approached them in his patrol car. Once Lawshea
began sprinting from Officer McCord, the officer had
reasonable suspicion to stop Lawshea and investigate
further. Flight from a law enforcement officer gives that
officer reasonable suspicion to pursue a suspect and conduct
a Terry stop. Wardlow, 528 U.S. at 123-26. As the Supreme
Court explained in Wardlow:
[U]nprovoked flight is simply not a mere refusal to
cooperate. Flight, by its very nature, is not “going about
one’s business”; in fact, it is just the opposite. Allowing
officers confronted with such flight to stop the fugitive
and investigate further is quite consistent with the
individual’s right to go about his business or to stay put
and remain silent in the face of police questioning.
Wardlow, 528 U.S. at 125.
In this case, Lawshea not only ran away from the officer,
but he sprinted around the same building three times
and refused to stop when Officer McCord twice ordered him
to stop. Such flight gave Officer McCord reasonable suspi-
cion to conduct a Terry search when Lawshea failed to stop
after Officer McCord twice directed him to do so, Officer
McCord’s suspicions were further increased. See Lenoir, 318
F.3d at 729. Officer McCord’s eight years of experience with
the Danville Police Department, combined with the fact
that Lawshea’s flight took place in a high-crime area with
6 No. 05-4098
several recent fights and a stabbing are also considerations.
The Supreme Court recognized these circumstances,
explaining that the characteristics of a location and the
factors at play surrounding it, including whether the stop
occurred in a “high crime area,” are among the relevant
contextual considerations in a Terry analysis. Wardlow, 528
U.S. at 124. Since Wardlow, we have made it clear that
when a suspect attempts to flee from the police, the officers
have reasonable suspicion to pursue the suspect in order to
conduct a Terry stop. Breland, 356 F.3d at 791.
While Lawshea claims that his case is vastly different
from Wardlow, the differences are minor and lack constitu-
tional significance. If anything, the factual situation in
Wardlow, with several officers and four squad cars (thus, a
more significant showing of force) is a more intimidat-
ing scene than this case, with a lone officer in a squad car.
Lawshea attempts to distinguish his case from Wardlow
since he walked away for a few seconds before running
away from the officer, while the suspect in Wardlow ran
immediately upon seeing the police officers. But again, our
cases have held that this difference is without a constitu-
tional distinction. See, e.g., Baskin, 401 F.3d at 793 (finding
reasonable suspicion where suspect’s car first slowly
approached police, then accelerated away); Breland, 356
F.3d at 790 (finding reasonable suspicion although
the suspect did not flee until the officer said “Police,
I want to talk to you”). Finally, while mere presence in
a high-crime area does not in and of itself justify an investi-
gatory stop, suspicious flight, no matter the area, does.
Notably, “[h]eadlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative
of wrongdoing, but it is certainly suggestive of such.”
Wardlow, 528 U.S. at 124.
Lawshea next argues that the use of the police dog
transformed the Terry stop into an unconstitutional custo-
No. 05-4098 7
dial arrest that required probable cause. We have long held
that “[o]nce police have the reasonable suspicion required
to justify an investigatory stop, they may use reasonable
means to effectuate that stop.” United States v. Felix-Felix,
275 F.3d 627, 636 (7th Cir. 2001); see also United States v.
Weaver, 8F.3d 1240, 1244 (7th Cir. 1993) (“It is well-
established that ‘[a] measured use of force . . . appropriate
to accomplish the purposes of [the] investigatory stop’ does
not convert a Terry stop into an arrest.”) Furthermore, the
defendant’s own actions in resisting an officer’s efforts may
be considered when a reviewing court analyzes whether an
investigatory stop has transformed into an arrest. Felix-
Felix, 275 F.3d at 636.
In Lawshea’s case, had he stopped his flight the first
or second time Officer McCord ordered him to stop, the
use of the police dog would have been unnecessary.
Lawshea’s own actions prompted McCord to release the
police dog to apprehend Lawshea and conduct a Terry stop.
We agree with the district court that the use of a police dog
may have been the best alternative use of force to appre-
hend the fleeing suspect and conduct the Terry stop. The
use of the police dog, released only after Lawshea ignored
two orders to stop his flight, did not transform the Terry
stop into an arrest requiring probable cause.
Conclusion
Accordingly, the judgment of the district court is
AFFIRMED.
8 No. 05-4098
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-06