United States v. Brown, Alvin ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2450
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALVIN BROWN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 257—Charles R. Norgle, Sr., Judge.
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ARGUED MARCH 2, 2004—DECIDED APRIL 26, 2004
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Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. Alvin Brown challenges the denial
of his motion to suppress incriminating statements made
after he was apprehended as the getaway driver in a scheme
to rob two banks. Mr. Brown believes that his warrantless
apprehension violated the Fourth Amendment. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.
2 No. 03-2450
I
BACKGROUND
A.
Chicago police officers arrested Michael Dill just minutes
after he robbed a bank in a Jewel Foods store at 114th and
Halsted streets, and thirty-seven minutes after he first tried
to rob another bank approximately twenty blocks from
Jewel. Witnesses at both banks reported that Dill had a gun,
although no weapon was found when Dill was appre-
hended while running away from the Jewel store. Imme-
diately after his arrest, Dill confessed and admitted that he
had an accomplice who was waiting in a getaway car on a
side street west of the Jewel parking lot. Dill identified his
accomplice as Alvin Brown and described the getaway car
as a black Chevrolet Tahoe with a license plate number
beginning with the letter “F.” The information was then ra-
dioed to officers in the field, and several officers proceeded
to the area around 114th and Halsted to search for the
accomplice.
Sergeant Charles Long spotted a black Chevrolet Tahoe
idling at the curb at 113th and Morgan streets, west of the
Jewel lot. The male driver was the sole occupant. Long
requested assistance, and Officer George Brown arrived
shortly thereafter. Officer Brown, unable to see the driver’s
hands and concerned that he might be armed, drew his
firearm and approached the Tahoe. Officer Brown then told
the driver to shut off the ignition, exit the car and put his
hands in the air. After the driver complied, Officer Brown
holstered his weapon and patted down the driver. He then
asked the driver his name and what he was doing in the
area. The driver answered that his name was Alvin Brown
and, according to the officer, said either that he had “run
out of” or “was low on” gas. The officers thought that Mr.
No. 03-2450 3
Brown’s story was strange because there was a quarter of a
tank of gas left in the Tahoe, and there was a gas station a
block away. At some point, the officers also verified that the
license plate of the Tahoe began with the letter “F.” After
this brief period of questioning, Mr. Brown was handcuffed
and placed in a police car. Five hours after his arrest, Mr.
Brown confessed to his role in the bank robberies.
B.
After a two-day suppression hearing at which four
Chicago police officers, one FBI agent and codefendant
Michael Dill testified, the district court held that the officers
had probable cause to arrest Mr. Brown. The court reasoned
that Dill had implicated Mr. Brown in the robberies that had
just occurred, that the officers thought that a vehicle must
have been used in the robberies because of the considerable
distance, but short time, between them and that Dill’s
statements about Mr. Brown’s location, his vehicle and his
license plate number all proved to be true when the officers
went looking for the getaway driver. The court also deter-
mined that Officer Brown’s decision to approach the Tahoe
with his weapon drawn was justified by his belief that the
robbery and the attempted robbery had occurred at gun-
point.
After the court denied his motion to suppress, Mr. Brown
entered a conditional guilty plea and was sentenced to a
term of forty months’ imprisonment. In the plea agreement,
Mr. Brown reserved his right to contest the suppression
ruling on appeal.
4 No. 03-2450
II
DISCUSSION
In this appeal, the parties contest two issues: (1) whether
the initial stop and pat-down of Mr. Brown was a proper
investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), and
(2) if the initial stop instead constituted an arrest, whether
probable cause existed to support it. The parties spend most
of their briefs discussing the first issue, because an investi-
gatory stop requires only “reasonable suspicion” of criminal
activity, while an arrest requires the higher showing of
“probable cause.” See United States v. Wimbush, 337 F.3d 947,
949 (7th Cir. 2003). However, because we agree with the
district court that probable cause for arrest already existed
when the officers initially approached Mr. Brown, we turn
first to the question of probable cause.
Probable cause exists if, at the time of arrest, the officers
possess knowledge from reasonably trustworthy informa-
tion that is sufficient to warrant a prudent person in be-
lieving that a suspect has committed, or is committing, a
crime. See United States v. Schaafsma, 318 F.3d 718, 722 (7th
Cir. 2003). Probable cause is a fluid concept based on
common-sense interpretations of reasonable police officers
as to the totality of the circumstances at the time of arrest.
See United States v. Sholola, 124 F.3d 803, 814 (7th Cir. 1997)
(citing Ornelas v. United States, 517 U.S. 690, 695 (1996);
United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995)).
Because police officers are entitled to rely on their experi-
ence in assessing probable cause, their judgments deserve
deference. Ornelas, 517 U.S. at 699-700. However, although
we review the district court’s findings of fact only for clear
error, our review of the district court’s probable cause de-
termination is de novo. Id. at 699.
Mr. Brown’s primary argument is that the officers lacked
probable cause because they confronted him, not on the
No. 03-2450 5
basis of “reasonably trustworthy” information, but on the
basis of information obtained from an “informant,” Dill,
whose credibility was previously unknown to the police.
Mr. Brown rests this argument on cases holding that
information from anonymous sources might not be suffi-
ciently reliable to constitute probable cause for arrest. See,
e.g., Florida v. J.L., 529 U.S. 266, 274 (2000) (holding that
anonymous call that gave police no predictive information
to corroborate tip lacked sufficient indicia of reliability to
justify stop and frisk); United States v. Roberson, 90 F.3d 75,
80 (3d Cir. 1996) (determining that tip from anonymous
source containing information readily observable by any
member of the public does not constitute reasonable suspi-
cion).
This case is not controlled by those involving anonymous
tips. The information that led to Mr. Brown’s arrest did not
come from an anonymous source; it came from Dill, his
accomplice, who provided specific information naming Mr.
Brown and identifying his role in the robberies, his present
location and the make and model of the getaway car he was
driving. Unlike an anonymous source whose basis for
knowledge of the criminal activity cannot be discerned and
who cannot be held accountable if a tip turns out to be false,
see J.L., 529 U.S. at 270, Dill provided the police with a
reliable basis to conclude that he would have reason to
know specific details about the robberies, including who
else might be involved. This court and others that have dealt
with inculpating statements in the probable cause context
have held that such statements are weighty factors in
establishing probable cause to arrest an alleged accomplice
even if the statements have not been proven reliable. See
Schaafsma, 318 F.3d at 722 (noting that accomplice’s state-
ments during drug buy that he was purchasing the drugs
for a “guy” in the parking lot supported probable cause for
arrest of individual observed sitting in a car in the lot);
6 No. 03-2450
United States v. Rosario, 234 F.3d 347, 350-51 (7th Cir. 2000)
(noting that incriminating statements of an accomplice, an
untested informant, may contribute to a determination of
probable cause if the court assesses the amount and reliabil-
ity of the information and its corroboration— even if the
statements are partially intended to reduce his own culpa-
bility); Eain v. Wilkes, 641 F.2d 504, 510 (7th Cir. 1981)
(indicating that accomplice testimony may be used to
establish probable cause); see also United States v. Allen, 297
F.3d 790, 794 (8th Cir. 2002) (determining that corroborated
information provided by codefendant against his penal
interest was sufficiently credible even though he had no
prior record as informant). In fact, several circuits have held
that such statements are so presumptively reliable that they
may support a probable cause determination even if
uncorroborated. See United States v. Patterson, 150 F.3d 382,
386 (4th Cir. 1998) (“[I]t would be contradictory to allow a
defendant to be convicted based on the uncorroborated
testimony of his co-perpetrator while refusing to find that
the same statement would be sufficient to support probable
cause.”); Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir.
1997) (en banc) (same); United States v. Chin, 981 F.2d 1275,
1278 (D.C. Cir. 1992) (participant who possesses direct
personal knowledge of crime and has been “caught red-
handed” has more reliable information about his accomplice
than average informant); United States v. Gaviria, 805 F.2d
1108, 1115 (2d Cir. 1986) (if informant participated in crime,
authorities do not need to prove informant’s prior trustwor-
thiness when relying on his statements to establish probable
cause to arrest alleged accomplice).
Moreover, Dill’s statements are not uncorroborated. The
short time frame between his confession and the robbery of
the bank at Jewel gave police the opportunity to verify
details of Dill’s statements in order to ensure that he was
trustworthy. Dill gave the officers Mr. Brown’s location, the
No. 03-2450 7
color and make of the getaway car and the fact that he
would be alone in the car. When the police found the Tahoe
in the location that Dill specified and were thus able to
verify these important details, the entirety of Dill’s story,
including his statements about Mr. Brown’s role in the
robberies, assumed a high degree of reliability. See United
States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999) (considering
source’s information credible in part because authorities
were able to verify details of informant’s story); Rosario, 234
F.3d at 351 (same); see also Gaviria, 805 F.2d at 1115 (accom-
plice’s story was confirmed when defendant matched de-
scription given by accomplice and was found at address
given by accomplice). By contrast to the situation with an
anonymous tipster, the police knew Dill’s basis for knowl-
edge of Mr. Brown’s criminal act, and they were able to
verify aspects of his story.
The context in which Dill implicated Mr. Brown in the
robberies also reveals the trustworthiness of his statements.
Dill confessed shortly after his arrest and within minutes of
robbing the second bank. Dill did not simply accuse Mr.
Brown of participating in a crime after the fact and point the
officers to Mr. Brown’s home address. Cf. Thompson v.
Wagner, 319 F.3d 931, 935-36 (7th Cir. 2003) (explaining that
probable cause to arrest was lacking when source identified
defendant five months after the crime took place); Roberson,
90 F.3d at 80 (“The tip in the case at bar contained no details
of future actions of third parties ordinarily not easily
predicted.” (internal quotation marks and citation omitted)).
Rather, just minutes after robbing a bank, Dill gave the
officers Mr. Brown’s location within blocks of the second
bank. Indeed, Mr. Brown’s participation in the crime was
still ongoing. Cf. United States v. Scheets, 188 F.3d 829, 839
(7th Cir. 1999) (suspect’s proximity to bank supported
finding of probable cause); United States v. Robertson, 305
F.3d 164, 168 (3d Cir. 2002) (suspect’s close temporal and
8 No. 03-2450
physical proximity to crime supported finding of reasonable
suspicion). Combined with the officers’ reasonable belief
that Dill must have had a getaway driver due to the short
time frame (approximately half an hour) and the large
distance (approximately twenty blocks) between the first
and second banks, the police had every reason to believe
that Dill’s statement inculpating Mr. Brown was credible.
Accordingly, Dill’s confession constituted probable cause to
arrest Mr. Brown.
Mr. Brown attempts to cast doubt on the reliability of
Dill’s statements by arguing that, when the police officers
arrested Dill, they knew he was running in the opposite
direction from where he said Mr. Brown was waiting in the
Chevrolet Tahoe. Thus, submits Mr. Brown, the officers
should have doubted rather than embraced Dill’s informa-
tion. But the fact that Dill was running away from Mr.
Brown’s location could not have detracted from the re-
liability of his statements because his path actually lessened
the possibility that Dill had simply spotted Mr. Brown while
fleeing from the bank and then falsely implicated him in the
bank robbery. Moreover, the officers quite reasonably could
have ascribed little significance to the direction Dill was
running by the time they converged on him; indeed, Dill
later explained that he was running away from the getaway
car because he saw a police car in that direction.
In any event, even if Dill’s statements are viewed as
giving rise only to reasonable suspicion but not probable
cause, the outcome would not change. Mr. Brown argues
that he was arrested immediately—and not just detained in
an investigatory stop—because Officer Brown approached
the Tahoe with his weapon drawn and then removed Mr.
Brown’s wallet during the pat-down search. However, an
officer may check an individual’s identification in his wallet
during a Terry stop. See United States v. Hernandez-Rivas, 348
F.3d 595, 599 (7th Cir. 2003). We also have recognized that,
No. 03-2450 9
because investigative detentions often pose a great risk of
harm to the police, the “mere use or display of force in
making a stop does not necessarily transform a stop into an
arrest if the surrounding circumstances give rise to a
justifiable fear for personal safety.” United States v. Tilmon,
19 F.3d 1221, 1226 (7th Cir. 1994). Certainly a bank robbery
is the type of violent criminal activity from which officers
reasonably could infer that a suspect might be armed, see id.
at 1227, and the officers here knew that Mr. Brown’s
accomplice, Dill, had robbed one bank and attempted to rob
another with threats of force. Thus, Officer Brown’s display
of force, which ended as soon as he determined that Mr.
Brown was unarmed, would not have turned the initial stop
into an arrest.
Once Mr. Brown was detained, the officers were able to
confirm more aspects of Dill’s statement, including the fact
that the man they had stopped was Alvin Brown and that
the license plate of his Tahoe began with the letter “F.” In
addition, Mr. Brown’s explanation for being in the area—
that he had “run out of” or “was low on” gas—made no
sense. Sitting in a car with the engine running would be an
unusual way to solve that problem, particularly with a gas
station only a block away. This implausible story, combined
with the other aspects of Dill’s statement that had been
verified, added to the information possessed by authorities
about Mr. Brown’s role in the robberies and most certainly
provided more than probable cause to arrest him. See United
States v. Edwards, 242 F.3d 928, 935 (10th Cir. 2001) (implau-
sible, inconsistent explanations support probable cause for
arrest).
Conclusion
Accordingly, the judgment of the district court is affirmed.
AFFIRMED
10 No. 03-2450
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-04