United States v. Hendricks, James ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2693
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES C. HENDRICKS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 CR 105—James T. Moody, Judge.
____________
ARGUED DECEMBER 6, 2002—DECIDED FEBRUARY 21, 2003
____________
Before EASTERBROOK, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. A jury convicted James C. Hendricks
of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The district court sentenced Mr.
Hendricks to 188 months’ imprisonment as an armed ca-
reer criminal. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4.
Mr. Hendricks challenges both his conviction and his
sentence. For the reasons set forth in the following opin-
ion, we affirm the judgment of the district court.
2 No. 02-2693
I
BACKGROUND
A. Factual Background
At 5:42 a.m. on May 10, 2001, Millie McDonald, a newspa-
per carrier, called the Lowell, Indiana Police Department
to report what she perceived to be suspicious activity.
After furnishing her name and occupation, McDonald
informed the police dispatcher that an occupied white
car was parked behind the Oil Exchange on Route 2. That
business was closed at that hour of the morning. Mc-
Donald stated that she initially had observed the car
parked behind the Oil Exchange facing east, that she had
continued on her paper route, and that she had returned
sometime later to find the same vehicle still parked be-
hind the Oil Exchange, but this time facing west. The
dispatcher immediately relayed McDonald’s information
to Officer John Swisher, who was present at the police
station when the call was received.
Because the police station and the Oil Exchange are
located within the same block on Route 2, Officer Swisher
was able to respond to the call immediately. As Officer
Swisher was leaving the police station, he observed a
white car drive from behind the Oil Exchange, turn right
onto Route 2, and then make a sharp right turn into
a Mobile gas station. Officer Swisher observed that the
white car failed to make a complete stop before pulling
onto Route 2 and did not use a turn signal when leaving
the Oil Exchange or entering the gas station. He also
observed two occupants in the car and noticed that the
passenger was moving about. The driver of the car was
Marlissa Barnes and the only passenger was her fiancé,
Mr. Hendricks.
No. 02-2693 3
Without activating his patrol car’s emergency lights,
Officer Swisher followed Barnes into the Mobile station
and stopped his patrol car approximately fifteen feet be-
hind where she had stopped her vehicle. There was nothing
in front of the white car to prevent its exit. By the time
Officer Swisher pulled into the Mobile station and stopped
his car, Barnes had stopped, was out of the car and was
rapidly approaching Officer Swisher’s patrol car. Officer
Swisher testified that it was unusual for a driver to ap-
proach him in such a manner. He further testified that
his suspicions were elevated because her car had been
parked behind a closed business establishment and
there had been quite a few burglaries in the area during
that time. For these reasons, Officer Swisher radioed for
back-up.
Before a back-up officer arrived, Barnes engaged Officer
Swisher in conversation. She told Officer Swisher that
she was lost and looking for the interstate. When Officer
Swisher asked her why she had been parked behind the
closed Oil Exchange, Barnes avoided the question; she
continued to state that she was lost and looking for the
interstate. According to Officer Swisher, Barnes ap-
peared nervous, her hands were shaking, and she kept
looking back at her car as if something were wrong. Offi-
cer Swisher also noticed that Mr. Hendricks continued
to move about the passenger side of the car and that
Barnes was attempting to obstruct his view of Mr.
Hendricks by repeatedly moving into his line of sight.
About a minute into Officer Swisher’s conversation with
Barnes, Officer Jeff Burk arrived at the Mobile station;
the emergency lights of his patrol car were activated.
Once Officer Burk arrived, Officer Swisher decided to
approach the white car. As he approached, Officer Swish-
er noticed that Mr. Hendricks was slumped down in the
4 No. 02-2693
passenger seat so that his head was barely visible from the
rear of the car. He further noticed that the lock on the
passenger door was completely missing; it had been “spun
off.” Suppression Hearing at 56. Officer Swisher testified
that this condition indicated a forced entry. Upon reach-
ing Mr. Hendricks, Officer Swisher asked him if he could
see some identification. At this point, Officer Swisher
noticed that the key in the ignition was turned upside
down and that the key was barely stuck into the ignition
lock; he also noticed that wires and broken plastic were
hanging from the steering column. Officer Swisher tes-
tified that these observations indicated to him that the
vehicle had been stolen.
Mr. Hendricks told Officer Swisher that he had iden-
tification, but he did not produce it; instead, he kept reach-
ing for something on the left side of his body in the
seat. Because it appeared to Officer Swisher that Mr.
Hendricks was having difficulty with something that the
officer could not see, he became concerned for his safety
and asked Mr. Hendricks to get out of the car. Officer
Swisher then conducted a protective pat-down search of
Mr. Hendricks’ outer clothing and felt a metal object in
the right pocket of his pants. From prior experience, the
officer recognized the object as the magazine for a hand-
gun. Having ascertained that the magazine was full, Offi-
cer Swisher asked Mr. Hendricks where the gun was
and whether he had a permit. Mr. Hendricks did not tell
Officer Swisher where the gun was, but he responded
that he did not have a permit. Officer Swisher then
handcuffed Mr. Hendricks for officer safety. While the
car door was still open, Officer Swisher observed a fully
loaded Lorcin nine-millimeter handgun on the floor-
board but partially hidden beneath the passenger seat.
The magazine in Mr. Hendricks’ pocket fit this weapon.
No. 02-2693 5
Mr. Hendricks was placed under arrest. At the police
station, Officer Swisher performed a more thorough pat-
down of Hendricks; during this search, in the same pock-
et in which he previously had found the loaded maga-
zine, the officer found a single loose bullet that matched
the bullets in the magazine found in Hendricks’ pocket
and the bullets in the magazine recovered from the hand-
gun. No fingerprints were recovered.
Both Mr. Hendricks and Barnes testified at trial. Barnes
testified that, although she had pleaded guilty to auto
theft in state court, she had not stolen the car, but rather
had taken the car from a friend after it had been stolen.
According to Barnes, she drove the stolen car from a
party to her home in Gary sometime after 2:00 a.m. on
the morning of May 10, 2001. She left the car running
outside her home while she went inside to find Mr.
Hendricks. At that point, Barnes and Mr. Hendricks be-
gan arguing, and Barnes went back to the stolen car.
Mr. Hendricks followed her and positioned himself in
the passenger seat. The two continued to argue, and
Barnes drove off. She drove aimlessly until they ended
up in Lowell.
Both Mr. Hendricks and Barnes testified that they did
not know the handgun was in the car until they were in
Lowell. However, ATF Special Agent David Coulson
testified that, on the morning of May 10, Barnes told him
that she and Mr. Hendricks were aware of the gun’s pres-
ence in the car while they were in Gary. Mr. Hendricks
and Barnes both admitted that, once Mr. Hendricks
found the gun, which they testified was under the passen-
ger seat, he held it in his hand. Mr. Hendricks testified
that he had reached under the seat, found the handgun,
picked it up and started screaming at Barnes for having
a firearm in the car. He further testified that Barnes
6 No. 02-2693
grabbed the gun, that he took the gun back from Barnes,
and that he placed it under the passenger seat. Mr.
Hendricks testified that, shortly after placing the gun un-
der the passenger seat, he got out of the car and used a
pay phone that was located next to the Mobile station.
According to Mr. Hendricks, he attempted to call his aunt
to see if she could pick him up, but the aunt did not an-
swer the phone. Mr. Hendricks testified that a few minutes
went by, that he observed a police vehicle, and that he
then decided to get back into the car.
B. District Court Proceedings
During trial, Mr. Hendricks objected to the district
court’s instruction on possession and submitted instruc-
tions on two theories of defense. The district court gave
its own instruction over Mr. Hendricks’ objection and
refused to give either of Mr. Hendricks’ instructions in
its charge to the jury. On March 26, 2002, the jury con-
victed Mr. Hendricks of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). On June 11,
2002, Mr. Hendricks was sentenced by the district court.
Mr. Hendricks objected to a 2 level enhancement of his
offense level for obstruction of justice and also a 2 level
enhancement for an obliterated or altered firearm serial
number. The district court denied Mr. Hendricks’ objections
and granted both of the enhancements. Mr. Hendricks
also objected to the court’s application of the Armed
Career Criminal Act, 18 U.S.C. § 924(e), without having
the issue presented to the jury. The district court denied
Mr. Hendricks’ objection and sentenced him as an armed
career criminal under U.S.S.G. § 4B1.4. The court also de-
nied Mr. Hendricks’ request for a 3 level reduction for
acceptance of responsibility. Mr. Hendricks was sentenced
to a term of 188 months in prison.
No. 02-2693 7
II
DISCUSSION
A. Fourth Amendment Challenge
Mr. Hendricks filed a motion to suppress the nine-milli-
meter handgun retrieved from the stolen car. Following
a hearing, the district court denied the motion. The court
determined that “there was no initial stop of the vehicle”
and that subsequent events certainly gave Officer Swish-
er reasonable suspicion to conduct an investigatory stop.
Continued Suppression Hearing at 48. Mr. Hendricks sub-
mits that the district court erred when it denied his mo-
tion to suppress. In reviewing a district court’s decision
on a motion to suppress, we review questions of fact for
clear error and questions of law de novo. See United States
v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002).
Mr. Hendricks submits that, although the car already was
parked at the Mobile station when Officer Swisher ar-
rived, the car was “stopped” when Officer Swisher pulled
in fifteen feet behind the parked car. Mr. Hendricks fur-
ther contends that this stop violated the Fourth Amend-
ment because it was not supported by reasonable suspi-
cion. We cannot accept either of these contentions. We
believe that the district court correctly determined that
the initial encounter between Officer Swisher and the
car’s occupants was consensual and that no stop occurred
until Officer Burk arrived at the Mobile station with his
emergency lights activated. We also believe that, in any
event, Officer Swisher had reasonable suspicion to make
an investigatory stop as soon as he observed the white
car pull out from behind the closed Oil Exchange. We
shall address each of these issues.
8 No. 02-2693
1.
We believe that the district court correctly determined
that no stop occurred within the meaning of the Fourth
Amendment until Officer Burk arrived at the scene be-
cause, until that time, the encounter between Officer
Swisher and the car’s occupants was consensual. See
Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).
It goes without saying that “ ‘not all personal intercourse
between policemen and citizens involves ‘seizures’ of
persons. Only when the officer, by means of physical
force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a ‘seizure’
has occurred.’ ” Florida v. Bostick, 501 U.S. 429, 434 (1991)
(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Accord-
ingly, “[l]aw enforcement officers do not violate the
Fourth Amendment’s prohibition of unreasonable sei-
zures merely by approaching individuals on the street or
in other public places and putting questions to them if
they are willing to listen.” United States v. Drayton, 122
S. Ct. 2105, 2110 (2002). “Even when law enforcement
officers have no basis for suspecting a particular individ-
ual, they may pose questions, ask for identification, and
request consent to search luggage—provided they do not
induce cooperation by coercive means.” Id. The test is
whether “a reasonable person would feel free to ter-
minate the encounter.” Id. In making this determination,
relevant factors include “ ‘the threatening presence of sev-
eral officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance
with the officer’s request might be compelled.’ ” United
States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (quoting
United States v. Mendenhall, 446 U.S. 544, 554-55 (1980)).
No. 02-2693 9
Consistent with the foregoing standard, this court has
recognized that “in some circumstances a driver may
stop his automobile on his own resulting in a consensual
encounter.” United States v. Green, 111 F.3d 515, 520 n.1
(7th Cir. 1997) (citing United States v. Langston, 970 F.2d
692, 697-98 n.3 (10th Cir. 1992) (finding a consensual en-
counter where a driver pulled over after an officer drove
up alongside him and made eye contact, and the offi-
cer turned on his emergency lights for the first time after
he parked on the shoulder)). However, this court con-
sistently has held that an encounter is not consensual when
a reasonable person would not feel free to leave. For
this reason, the court in Packer held that police interven-
tion amounted to a stop when the officers parked their
vehicles both in front and behind the defendant’s car with
the “take down” light shining through the defendant’s
windows and an officer asked the occupants to put their
hands in the air as she approached the car with a flash-
light. See Packer, 15 F.3d at 657. Similarly, in Green, the
court held that a stop had occurred when the officers
pulled their car across the driveway and blocked the de-
fendant’s exit because a reasonable person would not
have felt free to leave. See Green, 11 F.3d at 520 n.1.
This court’s discussion in United States v. Pavelski, 789
F.2d 485 (7th Cir. 1986), upon which both Mr. Hendricks
and the Government rely in support of their respective
positions, further illustrates the distinction between a
consensual encounter and a stop. In Pavelski, a police offi-
cer was following the defendants’ car looking for a reason
to stop the car when the defendants voluntarily pulled
into a small parking lot slightly removed from the public
road. The officer, without any suspicion that the defen-
dants had violated any laws, parked his patrol car be-
hind the defendants’ car, and a second officer parked his
patrol car along the side of the defendants’ car. The driver
10 No. 02-2693
exited the car and walked to the front bumper. The offi-
cer then approached the driver and began asking him
questions. During this conversation, a third officer drove
up and parked his patrol car twenty to thirty feet in front
of the defendants’ car. At this point, the officer stepped
back to the rear passenger door, tapped on the window
and began questioning the car’s passengers.
Based on these facts, this court determined that a sei-
zure did not occur until the third patrol vehicle parked
in front of the defendants’ car because until that time,
“the circumstances could not have caused a reasonable
person to feel restrained.” Id. at 488. The court ex-
plained that prior to the third officer’s arrival, the driver
“could have declined to answer the questions and driven
away the car and its passengers.” Id. Once the third offi-
cer parked his vehicle in front of the defendants’ car,
however, the consensual encounter became an investiga-
tory stop because “[a] reasonable person in this situation,
bounded on three sides by police patrol cars, would
1
not have believed that he was free to leave.” Id.The district court’s determination in this case certainly
was consistent with this case law. The district court’s
conclusion that the initial stop was consensual is firmly
grounded in the record and reflects an accurate under-
standing of the applicable standard. The court was on
solid ground in determining that Officer Swisher did not
effectuate a stop when he parked his patrol car fifteen feet
behind the stolen car. Barnes drove to the Mobile station
and parked the car out of her own free will. Officer Swisher
1
Notably, the court questioned “whether [the defendants]
could have maneuvered their car out of the parking lot in this
situation.” United States v. Pavelski, 789 F.2d 485, 488 (7th Cir.
1986).
No. 02-2693 11
did not signal the car to pull over. When Barnes pulled
into the gas station, Officer Swisher was approximately
fifty feet behind the car. Although Officer Swisher fol-
lowed the car into the Mobile station and stopped ap-
proximately fifteen feet behind it, there was nothing in
front of the car to block its exit from the gas station. Offi-
cer Swisher did not activate his emergency lights when
Barnes pulled into the gas station, nor did he shine a light
on the car. By the time that Officer Swisher had pulled
into the Mobile station and stopped his patrol car, Barnes
had parked, was out of the car and was rapidly approach-
ing Officer Swisher. Based on these facts, the district
court properly determined that Officer Swisher’s initial
encounter with the occupants of the stolen car was not a
seizure within the meaning of the Fourth Amendment; a
reasonable person in these circumstances would not
have felt restrained.
2.
In Terry v. Ohio, 392 U.S. 1, 30 (1968), the Supreme
Court held that an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop if the offi-
cer has a reasonable suspicion supported by articulable
facts that “criminal activity may be afoot.” “Although
an officer’s reliance on a mere ‘hunch’ is insufficient to
justify a stop, the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the
evidence standard.” United States v. Arvizu, 534 U.S. 266,
274 (2002) (citations omitted). “To determine whether an
officer’s suspicion of criminal activity was reasonable,
a court must evaluate the totality of the circumstances
as they appeared to the officer at the time of the stop.”
United States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir. 1989)
12 No. 02-2693
(citing United States v. Cortez, 449 U.S. 411, 418 (1981)). In
making this determination, “the relevant inquiry is not
whether particular conduct is ‘innocent’ or ‘guilty,’ but the
degree of suspicion that attaches to particular types of
noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10
(1989) (internal quotations omitted).
In this case, Officer Swisher was present when the po-
lice dispatcher received a call from Millie McDonald, a
newspaper carrier, reporting what she perceived to be
suspicious activity. McDonald informed the dispatcher
that a white car was parked behind a closed Oil Exchange.
McDonald further informed the police dispatcher that
she initially observed the car parked behind the Oil Ex-
change facing one direction, that she continued on her
paper route, and that she returned sometime later to
find the same vehicle still parked behind the Oil Ex-
change facing the opposite direction. McDonald’s call was
not an anonymous tip. She clearly identified her name
and occupation, and it was evident from her statement
how she came to observe the white vehicle parked be-
2
hind the closed business establishment.
2
In Edwards v. Cabrera, 58 F.3d 290 (7th Cir. 1995), a police
dispatcher received a call from a dispatcher for PACE, a subur-
ban Chicago public bus transit agency. The dispatcher reported
that a PACE bus driver thought he had seen a drug transaction
involving five black men. The dispatcher did not provide the po-
lice with the bus driver’s name. In considering the reliability
of the informant, the court determined that “[t]he bus driver
was not anonymous.” Id. at 294. The court reasoned that “while
the police did not know his name, we can presume his identity
was (and is) easily ascertainable by the officers” and “[t]he offi-
cers also knew his occupation.” Id. Given these characteristics,
the court determined that certain inferences could be drawn
regarding the informant’s reliability and that the bus driver “must
(continued...)
No. 02-2693 13
Immediately after receiving McDonald’s information,
Officer Swisher was able to respond because of the police
station’s close proximity to the Oil Exchange. As Officer
Swisher was leaving the police station, he observed a
white car drive from behind the closed Oil Exchange. At
this point, Officer Swisher was able to verify the accuracy
of McDonald’s tip. Officer Swisher then observed the car
turn right onto Route 2, without stopping before enter-
ing the road, and make a sharp right turn, without signal-
ing, into the Mobile station. At this point, Officer Swisher
also turned into the Mobile station and parked his patrol
car fifteen feet behind the car that he was dispatched to
investigate. Officer Swisher believed it was unusual for a
car to be parked at that hour of the morning behind a
closed business. He also knew that several businesses
had been burglarized in the area.
We believe that these facts, viewed in their totality,
provided Officer Swisher with reasonable suspicion to
detain briefly the car’s occupants in order to verify or
dispel his well-founded suspicions that the occupants
had been, or were about to be, engaged in criminal activity.
See Ocampo, 890 F.2d at 1368 (“A Terry investigatory stop
is a brief detention which gives officers a chance to verify
(or dispel) well-founded suspicions that a person has
been, is, or is about to be engaged in criminal activity.”).
We do not think that this court’s decision in United
States v. Packer, 15 F.3d 654 (7th Cir. 1994), requires a
2
(...continued)
have appeared to the police as a citizen legitimately report-
ing what he believed to be criminal activity.” Id. Like the bus
driver in Edwards, McDonald must have appeared to Officer
Swisher as a citizen legitimately reporting what she believed to
be suspicious activity.
14 No. 02-2693
contrary result. In Packer, police responded to a citizen’s
telephone call reporting a “suspicious vehicle,” described
by the citizen as a yellow Cadillac with four black male
occupants, parked alongside a residential street at 1:00
a.m. Id. at 655. Three police officers, in two vehicles, ar-
rived on the residential street moments later, and found
what they described as a “greenish” Cadillac with fogged
over windows. Id. Two officers in a police van “pulled
directly behind the Cadillac and activated the white ‘take
down lights’ on top of the van to illuminate the Cadillac.”
Id. At the same time, a third officer pulled his patrol car
in front of the Cadillac to prevent it from leaving. As
one of the officers approached the Cadillac, she pointed
a flashlight and asked the occupants to put their hands in
the air where she could see them. During the course of
this encounter, the police recovered a shotgun, and the
defendant subsequently was charged with being a felon
in possession of a firearm.
The court in Packer held that the shotgun should have
been suppressed because the officers lacked reason-
able suspicion to justify the investigatory stop. See id.The court reasoned that “[a]lthough the early morning
hour undoubtedly adds to the reasonableness of the
officers’ suspicion that perhaps something unusual may
have been afoot, the record does not suggest any specific
irregularities in the car, other than the windows being
all fogged up with the four individuals sitting inside.” Id.
at 658. The court further reasoned that “[w]hile the car
had in fact been parked there for more than an hour,
other than the opaque mist on the windows, no evidence
shows that the officers were aware of how long the car
had been parked.” Id.Although the court in Packer held that the officers
lacked reasonable suspicion on the facts of that case, the
No. 02-2693 15
court also stated that “the minimum threshold of ‘specific
and articulable facts’ sufficient to give rise to reasonable
suspicion” is only “marginally” higher than those pre-
sented. Id. at 659. We believe that the facts before the
district court in this case satisfy that higher threshold. The
caller in Packer was anonymous. In contrast, McDonald
identified both her name and occupation, an occupation
that not only made her identity readily subject to verifica-
tion, but that also made clear the reason why she had
observed so closely the presence of the white car. Second,
the caller in Packer did not indicate how long the car
had been parked. In Mr. Hendricks’ case, although Mc-
Donald did not provide the dispatcher with a precise
length of time, she stated that she observed the car parked
behind the Oil Exchange, continued on her paper route,
and then observed the car again, still parked behind the
closed business establishment. This account necessarily
involved some lapse of time. In addition, McDonald
reported that the car changed directions during the time
that it was parked behind the Oil Exchange. Third, the car
in Packer was parked along a residential street. In con-
trast, the car occupied by Mr. Hendricks and Barnes was
parked behind a closed business establishment. Finally,
the officers in Packer were not aware of any specific and
recent criminal activity in the area, nor did the officers
rely on the general level of the neighborhood’s crime rate.
In the present case, Officer Swisher testified that he knew
there had been several businesses recently burglarized
in the area. For these reasons, we believe that Packer
does not control our determination in this case.
Indeed, given the distinctions between Packer and Mr.
Hendricks’ case, we believe that the Eleventh Circuit’s
decision in United States v. Briggman, 931 F.2d 705 (11th
Cir. 1991), is more instructive. In Briggman, an experi-
enced police officer was on routine patrol at approxi-
16 No. 02-2693
mately 4:00 a.m. when he noticed an occupied vehicle
parked in a commercial lot shared by several business
establishments. The officer was aware that numerous
larcenies and robberies recently had occurred in the sur-
rounding business establishments. For these reasons, the
officer began cruising the parking lot. As the officer ap-
proached the defendant’s vehicle for the second time,
the defendant exited the parking lot, turned in front of
the officer’s vehicle and onto a major thoroughfare. The
officer then stopped the defendant for further investiga-
tion. The court held that the stop was justified and rea-
soned that the officer’s “suspicion reasonably was aroused
when he noticed [the defendant] parked in a parking lot
at 4:00 a.m. in a high crime area, when commercial estab-
lishments served by the lot were closed for the night.” Id.
at 709.
Subsequent to the initial encounter, which we have
determined was consensual, a series of events unfolded
that provided Officer Swisher with additional justification
to make a stop. The officer testified that he observed
Barnes’ suspicious behavior, including her rapid ap-
proach, her nervous demeanor, her evasive responses to
his question of why she was parked behind the Oil Ex-
change, and her efforts to block his view of the stolen
vehicle and its passenger. When Officer Swisher ap-
proached the vehicle to ask Mr. Hendricks for identifica-
tion, he noticed that Mr. Hendricks was slumped over so
that his head was barely visible; that the lock on the pas-
senger door was completely missing; that the key in the
ignition was turned upside down and barely stuck into
the ignition; and that wires and broken plastic were hang-
ing from the lower section of the steering column. These
facts certainly gave Officer Swisher additional reasonable
suspicion that the car had been stolen.
No. 02-2693 17
Although Mr. Hendricks does not seriously contend
that the encounter exceeded the permissible scope of a
Terry stop, we note briefly that it did not. An officer is
entitled to “ ‘ask the detainee a moderate number of ques-
tions to determine his identity and to try to obtain infor-
mation confirming or dispelling the officer’s suspicions.’ ”
United States v. Felix-Felix, 275 F.3d 627, 633 (7th Cir.
2001) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).
An officer also is entitled “to take reasonable steps to
insure [his] own safety.” United States v. Jackson, 300 F.3d
740, 746 (7th Cir. 2002). An officer therefore may order the
detainee to exit the vehicle, see United States v. Davis, 200
F.3d 1053, 1054 (7th Cir. 2000), and he may conduct a pat-
down search of the detainee’s outer clothing, see Jackson,
300 F.3d at 746.
Officer Swisher followed this course of conduct in his
encounter with Mr. Hendricks. When Mr. Hendricks took
an abnormally long time to comply with Officer Swish-
er’s request for identification and appeared to be having
difficulty with something that the officer could not see,
Officer Swisher asked him to step outside of the car. Officer
Swisher then conducted a protective pat-down of Mr.
Hendricks’ outer clothing and discovered a metal object
in his pocket, which the officer knew from prior experi-
ence to be a magazine for a handgun. After Mr. Hendricks
admitted that he did not have a gun permit, Officer Swisher
handcuffed him for officer safety and saw a loaded hand-
gun on the floorboard partially hidden beneath the pas-
senger seat. At this point, Officer Swisher had probable
cause to arrest Mr. Hendricks. Given the foregoing se-
quence of events, the district court properly denied Mr.
Hendricks’ motion to suppress.
18 No. 02-2693
B. Jury Instructions
Mr. Hendricks next submits that the district court’s
instruction to the jury regarding possession was erroneous.
In particular, he argues that it was error for the district
court to instruct the jury that momentary possession of
the firearm was sufficient to convict. Mr. Hendricks
also submits that the district court erred by refusing to
give the theory of defense instructions that he tendered.
We review a district court’s decision regarding jury
instructions for an abuse of discretion. See United States v.
Kosth, 257 F.3d 712, 717 (7th Cir. 2001); United States v.
Swanquist, 161 F.3d 1064, 1075 (7th Cir. 1998). A jury instruc-
tion will not be disturbed on appeal if the instruction “fairly
and accurately” summarizes the law and has “support in
the record.” Kosth, 257 F.3d at 717. However, we review
a district court’s decision not to instruct the jury on a
theory of defense de novo. See United States v. Irorere,
228 F.3d 816, 825 (7th Cir. 2000).
In this case, the district court instructed the jury that:
Possession of an object is the ability to control it. Posses-
sion exists when an individual holds an object, in this
case a firearm, even if the handling is only momentary,
as long as the individual does so knowingly and in-
tends to handle the object. Possession may also exist
even when a person is not in physical contact with the
object, but knowingly has the power and intention to
exercise direction or control over it, either directly or
through others. A person can possess an object with-
out owning the object, provided that the person has
the power and intention to control the object.
R.55, Instruction 17. The district court further instructed
the jury that “knowingly” meant “that the defendant real-
No. 02-2693 19
ized what he was doing and was aware of the nature of his
conduct, and did not act through ignorance, mistake or
accident.” R.55, Instruction 18.
Before the district court, Mr. Hendricks objected to the
possession instruction on the ground that “by indicating
that momentary possession of an object is sufficient . . . it
does not focus adequately upon the other component . . . ,
that [the] object be held knowing that [the] object was
a firearm, as it applies to this case.” Trial Tr. Vol. II at 148.
On appeal, Mr. Hendricks makes a similar argument, but
he couches it in different terms; he argues that, although
he held the firearm momentarily, he did so only for an
“academic” period of time, which is insufficient to estab-
lish guilt under § 922(g)(1). Appellant’s Br. at 20.
Mr. Hendricks relies primarily on United States v. Con-
ley, 291 F.3d 464 (7th Cir. 2002) to support his argument.
In Conley, we stated in dicta that “[o]ur case law makes
clear that an individual convicted of a felony violates
§ 922(g)(1) whenever he is in possession and physical
control of a weapon for more than an ‘academic’ period
of time, even if he lacks the specific intent to use the weap-
on for criminal purposes.” Id. at 473 (quoting United
States v. Lane, 267 F.3d 715, 718 (7th Cir. 2001)). Mr.
Hendricks’ reliance on this statement is misplaced. Al-
though we gave no precise definition to the term “aca-
demic” in Conley, a fair reading of the reference in the
context of the court’s discussion leaves no doubt that the
court was of the view that even a very brief possession of
a firearm is sufficient to convict under § 922(g)(1). Fur-
thermore, the court used the term “academic” based on a
passage from United States v. Lane, 267 F.3d 715 (7th Cir.
2001), which undermines, rather than supports, Mr.
Hendricks’ position.
20 No. 02-2693
In Lane, this court stated: “Because a defendant can
shoot a gun so quickly and easily once he holds it in his
hands, we conclude that evidence showing that a felon
held a gun is by itself ‘a factor indicating that the defen-
dant had the ability to exercise direct control over the
[firearm].’ ” Id. at 718 (alteration in original). The court
then stated that “[t]he distinction between holding a gun
and obtaining control over a gun as required to prove
possession is academic.” Id. Fairly read, this passage
suggests that, when a felon holds a firearm, he is in pos-
session of the firearm, and any distinction between the
two would be purely academic, in the sense of theoretical
(existing only in concept and not in reality).
The possession instruction clearly informed the jury that
it was required to find that Mr. Hendricks knowingly
and intentionally possessed the firearm in order to con-
vict. Because the instruction fairly and accurately sum-
marized the law, we must conclude that the district court
did not abuse its discretion when it instructed the jury that
momentary possession of the firearm was sufficient to
convict.
Mr. Hendricks also challenges the district court’s refusal
to give either of the instructions that he tendered on his
theory of defense. A criminal defendant is entitled to a jury
instruction on his particular theory of defense provided
that four circumstances exist: “(1) the instruction repre-
sents an accurate statement of the law; (2) the instruction
reflects a theory that is supported by the evidence; (3) the
instruction reflects a theory which is not already part of
the charge; and (4) the failure to include the instruction
would deny the [defendant] a fair trial.” Swanquist, 161 F.3d
at 1075 (internal quotations omitted); see also Irorere, 228
F.3d at 825.
No. 02-2693 21
Mr. Hendricks’ first proposed instruction stated:
On the other hand, mere presence in the vicinity of a
firearm, or mere knowledge of its physical location,
does not constitute possession under the statute. It
is even possible for a defendant to touch a firearm,
and not have possession of it.
R.50, Supp. Instruction 1. The district court refused to give
this instruction on two grounds. First, the district court
indicated that the instruction was not supported by the
relevant case law in this circuit. See Trial Tr. Vol. II at 156.
Second, the district court stated that the court’s posses-
sion instruction, coupled with the definition of “knowing,”
adequately conveyed Mr. Hendricks’ theory of defense
to the jury. The district court also stated that Mr. Hendricks
was “at liberty to argue this theory in front of the jury.” Id.We believe that the district court correctly analyzed
the situation. Moreover, with respect to the last sentence of
Mr. Hendricks’ proposed instruction, the district court
certainly did not err in refusing to give Mr. Hendricks’
instruction on mere touching of the weapon. Mr. Hendricks
correctly notes that, in United States v. Wilson, 922 F.2d
1336, 1338-39 (7th Cir. 1991), we suggested, albeit in dicta,
that the mere touching of a firearm, bereft of any knowledge
that one was actually touching a firearm, would not sup-
port a conviction. Such a theory is simply not raised by the
evidence in the case before us. Although a defendant’s
theory of defense need only have “some foundation in
the evidence, however tenuous,” United States v. Given,
164 F.3d 389, 394 (7th Cir. 1999), there is no evidence in
this record to support Mr. Hendricks’ proposed instruc-
tion. By Mr. Hendricks’ own admission, he did not “merely
touch” inadvertently the firearm; he testified that he held
it in his hands and kept it well within his reach.
22 No. 02-2693
Finally, we agree with the district court that Mr.
Hendricks’ theory was reflected adequately in the court’s
instruction. In United States v. Rice, 995 F.2d 719, 725 (7th
Cir. 1993), we affirmed the district court’s decision to refuse
an identical theory of defense instruction. We “rejected
the contention that possession instructions must include
a qualifier that ‘mere proximity’ is not possession” and
determined that the district court’s instruction coupled
with the defendant’s ability to argue his theory to the
jury adequately presented his theory of defense. Id. As
in Rice, the district court properly determined that its
possession instruction, which clearly required Mr. Hen-
dricks to knowingly and intentionally possess the firearm
in order to convict, coupled with Mr. Hendricks’ ability
to argue his theory in front of the jury, fully presented
his defense theory.
Mr. Hendricks also requested that the district court
give an “innocent possession” instruction, which provided:
If you find from the evidence that Mr. Hendricks
discovered the firearm in question, under his passen-
ger seat, in a stolen car and held the firearm to at-
tempt to discover[] the identity of the object and upon
realizing it was a firearm abandoned it, you may return
a verdict of not guilty.
R.50, Supp. Instruction 2. The district court refused to
give this instruction on the ground that it was not sup-
ported by the evidence. See Trial Tr. Vol. II at 157.
We find no error in the district court’s refusal to give
this instruction for two reasons. First, we previously have
limited an “innocent possession” defense to a § 922(g)(1)
charge to situations in which the elements of a justification
defense (i.e., necessity, duress or self-defense) are present.
See United States v. Perez, 86 F.3d 735 (7th Cir. 1996);
No. 02-2693 23
United States v. Toney, 27 F.3d 1245 (7th Cir. 1994); United
States v. Elder, 16 F.3d 733 (7th Cir. 1994). A justification
defense clearly is not at issue in this case “because there
was no evidence of an imminent threat of death or bodily
injury to [Mr. Hendricks] or others.” United States v. Mason,
233 F.3d 619, 623 (D.C. Cir. 2000), (amended Jan. 10, 2001).
Mr. Hendricks does not contend otherwise.
Second, even if we were to adopt a distinct “innocent
possession” defense (apart from any justification de-
fense), the evidence in this case would not justify the giv-
ing of such an instruction. In Mason, the District of Colum-
bia Circuit recognized a narrow defense for “innocent
possession” under § 922(g)(1). Id. at 624. However, the court
stated that, in order for this defense to be triggered, two
requirements must be satisfied:
The record must reveal that (1) the firearm was at-
tained innocently and held with no illicit purpose and
(2) possession of the firearm was transitory—i.e., in light
of the circumstances presented, there is a good basis
to find that the defendant took adequate measures to
rid himself of possession of the firearm as promptly as
reasonably possible. In particular, a defendant’s ac-
tions must demonstrate both that he had the intent to
turn the weapon over to the police and that he was
pursuing such an intent with immediacy and through
a reasonable course of conduct.
Id. (internal quotations omitted). In this case, the evidence
was sufficient to create a triable issue of fact on the first
requirement. Both Mr. Hendricks and Barnes testified
that Mr. Hendricks was unaware of the handgun until
they were in Lowell and he reached under the passenger
24 No. 02-2693
3
seat. However, Mr. Hendricks was not entitled to the
instruction because there was no evidence to support the
second requirement. Nothing in the record indicates that
Mr. Hendricks “had the intent to turn the weapon over to
the police,” let alone “that he was pursuing such an in-
tent with immediacy and through a reasonable course of
conduct.” Id. Mr. Hendricks did not testify that he planned
to turn the gun over to the police. Moreover, the evi-
dence shows that Mr. Hendricks had ample opportunity
to turn the weapon over to the police but that he failed
to do so. First, the police station was located on the same
block as the Oil Exchange and Mobile station. Second,
there was a pay phone outside of the Mobile station. Mr.
Hendricks testified that he used this pay phone to call
his aunt to see if she could pick him up; however, Mr.
Hendricks did not attempt to call the police. Finally, when
Officer Swisher pulled in behind the parked car at the
Mobile station, Mr. Hendricks immediately should have
notified the officer of the gun’s whereabouts. But he did
not do so. In fact, Mr. Hendricks did not tell Officer Swish-
er about the gun even after the officer found the loaded
magazine in his pocket and specifically asked him where
the gun was located. Without any evidentiary support
that Mr. Hendricks took appropriate action to turn the
weapon over to the police, the district court properly
refused Mr. Hendricks’ request to give the “innocent
possession” instruction.
3
The jury, of course, was entitled to disbelieve this testimony.
ATF Special Agent Coulson testified that, on the morning of
May 10, Barnes told him that Mr. Hendricks knew the gun was
in the car while they were still in Gary.
No. 02-2693 25
C. Sentencing Issues
Because Mr. Hendricks previously had been convicted
of three unrelated violent felonies, the district court sen-
tenced him pursuant to 18 U.S.C. § 924(e), the Armed Career
4
Criminal Act, to a term of 188 months in prison. Mr.
Hendricks argues that Apprendi v. New Jersey, 530 U.S. 466(2000), requires a jury, not the district court, to determine
whether the maximum statutory penalty for 18 U.S.C.
§ 922(g)(1) should be increased from 10 years to life im-
prisonment pursuant to 18 U.S.C. § 924(e) based on his
5
criminal history.
Mr. Hendricks’ argument is foreclosed by this court’s
holdings in United States v. Morris, 293 F.3d 1010 (7th Cir.
2002), United States v. Thomas, 280 F.3d 1149 (7th Cir.
2002), and United States v. Skidmore, 254 F.3d 635 (7th Cir.
2001). In those cases, this court considered whether prior
4
The Armed Career Criminal Act provides in relevant part
that a person who is found to have violated § 922(g) “and has
three previous convictions by any court referred to in section
922(g)(1) . . . for a violent felony . . . committed on occasions
different from one another . . . shall be . . . imprisoned not less
than fifteen years.” 18 U.S.C. § 924(e)(1).
5
The Supreme Court has held that Apprendi v. New Jersey, 530
U.S. 466 (2000), does not apply where the mandatory mini-
mum penalty for a crime is increased but the statutory maxi-
mum is not exceeded. See Harris v. United States, 122 S. Ct. 2406,
2414 & 2421 (2002) (Kennedy, J., plurality and Breyer, J., con-
curring respectively). However, that is not the situation we are
confronted with in this case. Had Mr. Hendricks not qualified
as an armed career criminal, the maximum sentence he could
have received for a violation of § 922(g)(1) is ten years, but,
because he qualified as an armed career criminal, the district
court was required to sentence Mr. Hendricks to a minimum
of fifteen years in prison for violating § 922(g)(1).
26 No. 02-2693
offenses used to enhance the applicable penalty constituted
an element of the offense. We determined that, under the
Supreme Court’s decisions in Apprendi v. New Jersey, 530
U.S. 466 (2000), and Almendarez-Torres v. United States,
523 U.S. 224 (1998), recidivism to enhance a sentence is a
traditional sentencing factor and therefore determined
6
by the court and not by the jury.
Finally, Mr. Hendricks submits that the district court
erred by denying him a 3 level reduction in his offense
7
level for acceptance of responsibility. The Government
6
Because Apprendi does not require that Mr. Hendricks’ sen-
tence be reversed, we need not and do not reach the merits of
his objections to the obstruction of justice or the altered/obliter-
ated serial number enhancement. These enhancements do not
affect his sentence. Under U.S.S.G. § 2K2.1, Mr. Hendricks’ base
offense level would have been 20; with a 2 level enhancement
for both obstruction of justice and an altered/obliterated serial
number, his total offense level would have been 24. However, the
district court properly sentenced Mr. Hendricks as an armed
career criminal pursuant to 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.4. Section 4B1.4 provides that an armed career criminal’s
offense level is at least 33, absent a reduction for acceptance
of responsibility. See U.S.S.G. § 4B1.4(b). Pursuant to this sec-
tion, the district court determined Mr. Hendricks’ offense level
to be 33. Consequently, the enhancements did not affect his sen-
tence in any way. Because any error relating to the obstruction
of justice and altered/obliterated serial number enhance-
ments would be harmless, we decline to reach the merits of Mr.
Hendricks’ objections to those enhancements. See United States
v. Smith, 223 F.3d 554, 578-79 (7th Cir. 2000) (holding that
any error in assessing defendant’s criminal history was harm-
less, as defendant’s base offense level would carry sentence of life
in prison regardless of defendant’s criminal history).
7
Unlike the enhancements for obstruction of justice and al-
tered/obliterated serial number, it is necessary to reach the mer-
(continued...)
No. 02-2693 27
maintains that the district court properly denied Mr.
Hendricks the reduction because he denied an essential
factual element of guilt and gave materially false testi-
mony. We agree with the Government. A district court’s
determination that a defendant is not entitled to a sen-
tence reduction for acceptance of responsibility is a factual
one that we review for clear error. See United States
v. Cunningham, 103 F.3d 596, 597-98 (7th Cir. 1996). The
defendant bears the burden to “clearly demonstrate ac-
ceptance of responsibility by a preponderance of the
evidence.” Id. at 598.
While a challenge to the legal basis for a charge (such as
a constitutional challenge to a statute or a challenge
to the applicability of a statute to the defendant’s
conduct) does not preclude the possibility of an accep-
tance of responsibility reduction, the Guidelines ex-
plain that the § 3E1.1 ‘adjustment is not intended to
apply to a defendant who puts the government to its
burden of proof at trial by denying the essential fac-
tual elements of guilt, is convicted, and only then ad-
mits guilt and expresses remorse.’
United States v. Hamzat, 217 F.3d 494, 500 (7th Cir. 2000)
(quoting U.S.S.G. § 3E1.1 Application Note 2); see also
Cunningham, 103 F.3d at 598 (stating that a reduction for
acceptance of responsibility generally is not available
for defendants who go to trial to contest “the essential
7
(...continued)
its of this argument. Under § 4B1.4(b), 33 is the minimum of-
fense level for an armed career criminal unless a reduction for
acceptance of responsibility applies. See U.S.S.G. § 4B1.4(b)(3)
(“If an adjustment from § 3E1.1 (Acceptance of Responsibility)
applies, decrease the offense level by the number of levels cor-
responding to that adjustment.”).
28 No. 02-2693
factual elements of guilt” (quoting U.S.S.G. § 3E1.1 Applica-
tion Note 2)).
Mr. Hendricks contends that he should have received a
reduction for acceptance of responsibility because at trial
he admitted possessing the gun even though he denied
that he had the requisite mens rea to sustain a conviction. Mr.
Hendricks is correct that a legal challenge to the applica-
bility of a statute to a defendant’s actions does not neces-
sarily exempt the defendant from an acceptance of respon-
sibility reduction. However, the facts of this case do not
support such a characterization. An essential factual ele-
ment of guilt under § 922(g)(1) is that the defendant
“knowingly possessed the firearm . . . described in the
indictment.” United States v. Bradley, 145 F.3d 889, 893 (7th
Cir. 1998). By denying that he knowingly possessed the
gun, Mr. Hendricks challenged an essential factual ele-
ment of the charged offense. For this reason, the district
court did not err by refusing to grant him a reduction
for acceptance of responsibility. See United States v. Williams,
202 F.3d 959, 962 (7th Cir. 2000) (“If a defendant chal-
lenges factual evidence of guilt as well as legal principles,
however, he typically will be ineligible to receive the ac-
ceptance of responsibility reduction.”).
Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
No. 02-2693 29
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-21-03