United States v. Kirksey, Gregory ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2854
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY KIRKSEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 293—Rudolph T. Randa, Chief Judge.
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ARGUED FEBRUARY 22, 2007—DECIDED MAY 10, 2007
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Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Gregory Kirksey was charged
with possession of a firearm by a felon, see 18 U.S.C.
§ 922(g)(1), after police stopped the car in which he was
riding and discovered a handgun. Mr. Kirksey moved to
suppress the gun on the ground that its discovery was the
fruit of a prolonged detention that, given the basis for the
stop, was unreasonable. The district court denied the
motion, and Mr. Kirksey entered a conditional guilty plea
allowing him to challenge the ruling on appeal. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.
2 No. 06-2854
I
BACKGROUND
At the evidentiary hearing on Mr. Kirksey’s motion, the
Government proffered the testimony of the arresting
officer, Joseph Roy of the Wauwatosa Police Department,
and another officer, Timothy Kastner, who had provided
backup during the stop. The district court credited their
testimony in determining the following facts.
On October 7, 2003, at 2:00 a.m., Officer Roy was on
patrol when he spotted a car with a temporary license plate
in the back window. The writing on the plate appeared to
be smudged or altered; Officer Roy therefore suspected
that either the car or the plate had been stolen. He turned
on his emergency lights and stopped the car.
Officer Roy approached the car and asked the driver
and two passengers to identify themselves. The car’s
owner, who was seated in the back, produced identifica-
tion; the driver also complied. However, the man seated in
the front passenger seat did not produce identification; he
simply said his name was “Gary White.” While collecting
this information, Officer Roy checked the vehicle identifica-
tion number (“VIN”) on the dash of the car. He compared
it to the number on the temporary plate. The numbers
matched, but closer inspection confirmed his earlier
observation that the numbers on the temporary plate were
smudged.
Officer Roy returned to his police cruiser to check the
vehicle registration on his onboard computer and to verify
that the rear-seat passenger actually was the car’s owner.
As he checked the registration on the computer, Officer
Roy radioed the dispatcher to determine if any of the
occupants had a criminal history or an outstanding war-
rant. Officer Roy established that the car was not stolen,
No. 06-2854 3
but he discovered that an arrest warrant had been issued
for the owner. The dispatcher reported that there were no
state records for a “Gary White” with the date of birth
provided.
Officer Roy arrested the owner of the car. He then
attempted to gain more information to identify the front-
seat passenger. When none of the information provided
by “White” could be used to verify his identity, Officer
Roy detained him. As the officer led “White” back to the
cruiser, “White” admitted that his real name was Gregory
Kirksey, although he persisted in claiming a false date of
birth. Officer Roy placed Mr. Kirksey in the cruiser and
planned to detain him until his true identity could be
ascertained. Officer Roy then searched the car incident to
the owner’s arrest and discovered a semiautomatic hand-
gun and a magazine for that handgun stuck between the
front seats. He arrested the driver and Mr. Kirksey, and
took all three occupants to the police station. At the sta-
tion, Mr. Kirksey was identified positively on the basis of
fingerprints.
In denying Mr. Kirksey’s suppression motion, the dis-
trict court held that Officer Roy had reasonable suspicion
to stop the car, see Terry v. Ohio, 392 U.S. 1, 20-22 (1968),
and that his further investigation was reasonably related
in time and scope to the circumstances justifying the stop.
Mr. Kirksey then entered a conditional guilty plea. The
district court sentenced him to 58 months’ imprisonment.
II
DISCUSSION
On appeal, Mr. Kirksey renews his contention that what
started as a legitimate traffic stop evolved into an unlawful
4 No. 06-2854
detention when Officer Roy checked the occupants’
criminal histories. Mr. Kirksey submits that Officer Roy
should have ceased his investigation after he confirmed
that the VIN on the car matched the VIN on the temporary
license plate because the smudged lettering on the plate
was the sole justification for the stop. Thus, Mr. Kirksey
concludes, the investigation that led to the discovery of
the handgun was overly intrusive and unreasonable under
Terry.
Mr. Kirksey relies on United States v. McSwain, 29 F.3d
558, 561-62 (10th Cir. 1994). In McSwain, an officer stopped
a car on suspicion that its temporary license plate was
expired. 29 F.3d at 561. Upon approaching the car, the
officer was able to discern immediately that the plate was
valid. Id. The Tenth Circuit reasoned that a Terry investiga-
tive detention must remain reasonably related in scope to
the circumstances that justified the stop unless a new
cause for reasonable suspicion arises. Id. The court con-
cluded that, once it was known to the officer that the
temporary plate was valid, the officer’s additional ques-
tioning of the driver and investigation into his license
and registration were beyond the scope of the Terry stop.
Id. Mr. Kirksey contends that the facts of McSwain are
analogous to his own situation.
We first note that the holding of McSwain is narrow. The
Tenth Circuit has clarified that McSwain involved a situa-
tion where the suspicion justifying the stop was immedi-
ately dispelled and so there was no need for any additional
investigation. See United States v. Ledesma, 447 F.3d 1307,
1313-14 (10th Cir. 2006); United States v. Edgerton, 438 F.3d
1043, 1051 (10th Cir. 2006); United States v. DeGasso, 369
F.3d 1139, 1149 (10th Cir. 2004). Indeed, after McSwain the
Tenth Circuit has held that, when an officer discovers a
traffic violation or when an occupant of the car remains
No. 06-2854 5
under suspicion for committing a crime, the officer can
take a reasonable amount of time to check for outstanding
warrants or criminal history, even if the initial justifica-
tion for the stop had nothing to do with criminal history.
United States v. Villagrana-Flores, 467 F.3d 1269, 1275-77
(10th Cir. 2006), cert. denied, 75 U.S.L.W. 3353 (U.S. Jan.
8, 2007) (No. 06-8106) (holding that the need to protect
an investigating officer outweighs the intrusion for a brief
check for criminal history); United States v. Holt, 264 F.3d
1215, 1221-22 (10th Cir. 2001).
We have not held that criminal history checks always are
permissible during a Terry stop of a vehicle. However, like
our colleagues in the Tenth Circuit, we have distinguished
McSwain from situations in which the officer’s reasonable
suspicion is not immediately dispelled. In United States v.
Dumas, 94 F.3d 286, 288 (7th Cir. 1996), an officer con-
ducted a Terry stop of a car that did not have a plainly
visible temporary license plate. The officer conducted a
criminal history check after closer inspection revealed
only that a piece of cardboard that may have been a
temporary plate was obscured by the car’s tinted rear
window and was unreadable. Id. at 290-91. We concluded
that the officer in Dumas was justified in checking the
license, registration and criminal history of the driver and
of the passenger because he did so as part of a further
investigation that was necessary to ascertain the validity
of the plate. Id. We determined that this circumstance
was different from McSwain because the reasonable
suspicion of a violation remained. Id.As in Dumas, Officer Roy’s stop and ensuing detention of
the car and its occupants were supported at each point by
reasonable suspicion. As Mr. Kirksey concedes, Officer
Roy lawfully stopped the car based on a reasonable
suspicion that the smudged temporary plate might have
6 No. 06-2854
been altered to disguise a stolen car. That suspicion applied
equally to every occupant. See United States v. Hendricks,
319 F.3d 993, 1002-04 (7th Cir. 2003); United States v. Davis,
200 F.3d 1053, 1054-55 (7th Cir. 2000); see also United States
v. Morrison, 254 F.3d 679, 682 (7th Cir. 2001) (finding
reasonable suspicion to stop all occupants of car when
anyone in car might have been involved in robbery); United
States v. Tirrell, 120 F.3d 670, 674-75 (7th Cir. 1997) (same).
When Officer Roy examined the car and found that the VIN
on the car matched the VIN on the temporary plate, his
investigation was not yet complete. The smudged plate
still suggested that it may have been altered, and there-
fore the matching VINs did not dispel the suspicion that
the car was stolen. Officer Roy still needed to check the
car’s registration and gain an understanding of who was in
the car to determine whether it was stolen. Officer Roy
conducted the background checks as part of an investi-
gation necessary to dispel his lingering suspicion for
stopping the car, and thus this activity was within the
scope of the stop.
Conclusion
For the reasons stated above, the decision of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-07