United States v. Devon Groves ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2227
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EVON G ROVES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06 CR 69—Robert L. Miller, Jr., Chief Judge.
A RGUED JANUARY 25, 2008—D ECIDED M ARCH 17, 2009
Before F LAUM, R OVNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. A man fired multiple shots into
an occupied South Bend, Indiana home, and eyewitnesses
told police that Devon Groves was the shooter. After
further investigation and consultation with a prosecutor,
the lead investigator issued a “crime information bulle-
tin” for Groves indicating he should be picked up if
found; the prosecutor had given the go-ahead for the
“pickup,” and the officer understood that the prosecutor
2 No. 07-2227
would be seeking an arrest warrant. About a month after
the shooting, an anonymous tipster called 911 and re-
ported that she had just seen Groves and he was “proba-
bly” carrying a gun. The caller described Groves’s clothing,
location, and the car he was in, and patrol units were
dispatched to the area to look for him. The dispatcher
passed along the information from the tip and also
advised responding officers that Groves was wanted on
a warrant.
Corporal Christopher Slager soon saw Groves riding in
a car that matched the description provided by the
tipster. Slager initiated a traffic stop, ordered Groves and
the other occupants out of the car, and saw a handgun
under the seat where Groves had been sitting. Groves was
charged under 18 U.S.C. § 922(g)(1) with being a felon
in possession of a firearm and ammunition. He moved to
suppress the gun. As it turned out, the dispatcher had
been mistaken about the warrant; in fact, there was no
warrant for Groves’s arrest, only the “crime information
bulletin.” The district court denied the suppression
motion, and a jury convicted Groves on both counts.
On appeal, Groves renews his challenge to the ad-
mission of the gun. We reject his arguments and affirm.
Although an anonymous tip is generally insufficient to
support an investigative stop, Florida v. J.L., 529 U.S. 266(2000), there was more supporting this stop than just
an anonymous tip. Under United States v. Hensley, 469
U.S. 221 (1985), police may conduct an investigative stop
of a suspect based on a “wanted flyer” or “bulletin” like
the one at issue in this case. The bulletin issued for Groves
No. 07-2227 3
was supported by ample reasonable suspicion that he
was involved in the earlier shooting, and this in turn was
sufficient to justify the stop. A complication is that the
dispatcher told responding officers there was a warrant
for Groves’s arrest, not just a pickup “bulletin.” But this
mistake did not undermine the preexisting reasonable
suspicion for the stop. Moreover, to the extent that the
error had any effect on the validity of the stop, sup-
pression was not required. The Supreme Court has just
held that a negligent mistake by police personnel re-
garding the existence of a warrant does not require ap-
plication of the exclusionary rule. Herring v. United States,
129 S. Ct. 695 (2009).
I. Background
In the middle of the night on April 30, 2006, residents
of a home on South Bendix Street in South Bend were
awakened by a man trying to break the lock on their
front door. They recognized the man as Devon Groves
and called out to him. Groves ran from their front porch,
and seconds later, a spray of gunshots tore through the
home from the direction in which Groves had run, nearly
hitting the home’s occupants.
Corporal David Johnson, a gang investigator in the
South Bend Police Department, was assigned to the case.
After interviewing the eyewitnesses and conducting
further investigation, Johnson and other officers met
with a deputy county prosecutor, who indicated he
would seek an arrest warrant for Groves. In the mean-
time, however, the prosecutor authorized Johnson to
4 No. 07-2227
issue a “pickup” order for Groves. Technically called a
“crime information bulletin,” these communications are
disseminated throughout the South Bend Police Depart-
ment and are available to all police personnel as well as
outside law-enforcement agencies. The bulletin summa-
rized Groves’s involvement in the shooting and provided
his identifying information so officers could be on the
lookout for him. The bulletin also indicated that the
prosecutor had given “verbal authorization” for the
pickup.
About a month later, on June 1, 2006, South Bend police
received an anonymous 911 call that provided infor-
mation sufficient to immediately locate Groves. The
caller indicated that “right now” Groves was standing
outside a particular set of addresses on Elmer Street
wearing a white shirt, black shorts, and a black hat, and
was next to a black car with specialty rims, and “probably”
had “a gun on him.” This information was immediately
dispatched to patrol units over the police radio. The
dispatch informed responding officers that there was a
warrant for Groves’s arrest. Similar information was
also transmitted to officers’ in-squad computers. Corporal
Slager was within a few blocks of Groves’s reported
location and was first to spot the vehicle matching the
tip’s description; he saw a man matching Groves’s de-
scription sitting in the back seat.
Slager stopped the car. Groves initially failed to
respond to several commands to show his hands, but
Slager eventually removed Groves from the car and
secured him in his cruiser without further incident. The
No. 07-2227 5
driver and another occupant were also ordered out of the
car. Once they were secured, Slager returned to the car to
conduct a protective sweep. Looking inside the open
doors, Slager saw a handgun partially concealed under
the driver’s seat directly in front of Groves’s position
where he had been sitting in the back seat. Groves was
arrested for possession of the handgun.
Groves was eventually charged with two § 922(g)(1)
offenses: possession of a firearm by a felon stemming from
his possession of the gun on June 1 and possession of
ammunition by a felon from the April 30 shooting inci-
dent. Groves moved to suppress the gun. At some
point after Groves’s arrest, it was determined that the
dispatcher had been mistaken about the existence of a
warrant; for some unknown reason, the prosecutor never
obtained one. Groves argued that Slager had neither
probable cause nor reasonable suspicion to stop the car
because there was no warrant and the anonymous tip
wasn’t enough by itself. The district court denied the
motion, concluding that the anonymous tip provided
enough information to supply reasonable suspicion and
that Slager had relied in good faith on the dispatcher’s
representation about the warrant.
The case was then tried to a jury, which convicted
Groves on both counts. He was sentenced to 240 months
in prison (120 months on each count to run consecu-
tively), above the applicable sentencing guidelines range
of 151 to 188 months.
6 No. 07-2227
II. Discussion
Groves appeals his conviction on the firearm count only,
specifically challenging the district court’s denial of his
motion to suppress the gun. He also challenges his sen-
tence on both counts, which at 240 months total was
considerably higher than the sentence recommended by
the guidelines. We review the district court’s findings of
fact on the suppression motion for clear error and its
legal conclusions de novo. Ornelas v. United States, 517
U.S. 690, 699 (1996); see also United States v. McIntire, 516
F.3d 576 (7th Cir. 2008) (distinguishing between warrant
and no-warrant cases). We review the sentence for rea-
sonableness. Gall v. United States, 128 S. Ct. 586, 747
(2007); United States v. Wachowiak, 496 F.3d 744, 747 (7th
Cir. 2007).
Groves claims that Corporal Slager lacked the reason-
able suspicion necessary for a lawful stop; there is no
question that if the stop was lawful, the protective sweep
of the car and the seizure of the gun were also lawful.
Michigan v. Long, 463 U.S. 1032, 1049 (1983); United States
v. Wimbush, 337 F.3d 947, 950 (7th Cir. 2003); United States
v. Evans, 994 F.2d 317, 320-21 (7th Cir. 1993); United States
v. Longmire, 761 F.2d 411, 419 (7th Cir. 1985). Groves’s
argument rests on the mistake about the existence of a
warrant and the general rule that anonymous tips, without
more, are usually too lacking in indicia of reliability to
provide reasonable suspicion to conduct a stop. J.L.,
529 U.S. at 271.
The district court held that the stop was lawful under
J.L. because it provided “ample predictive information
No. 07-2227 7
with which Officer Slager could test the anonymous
informant’s knowledge and credibility.” This was true on
the question of Groves’s identity (the caller’s information
about Groves’s location, description, and car were con-
firmed by the officer before he initiated the stop) but not
necessarily true on the question of Groves’s criminal
activity.
J.L. involved a tip similar to the one before us: An
anonymous caller told police that a young black male in
a plaid shirt standing at a particular bus stop would
have a gun. Id. at 268. The Supreme Court held that an
anonymous tip of this sort did not justify a stop, id. at
274, because a tip must have “ ‘sufficient indicia of relia-
bility’ ” to create reasonable suspicion, id. at 270 (quoting
Alabama v. White, 496 U.S. 325, 327 (1990)). Reliability is
present, for example, when the informant supplies suffi-
cient predictive information about the suspect so that
police can test an informant’s knowledge and credibility.
Id. at 271-72; White, 496 U.S. at 332. But the tip in J.L. had
none of this; it was purely descriptive in nature, lacking
any basis from which to discern how the informant
knew that the suspect was engaged in illegal activity.
The Court held:
An accurate description of a subject’s readily observ-
able location and appearance is of course reliable in
this limited sense: It will help the police correctly
identify the person whom the tipster means to ac-
cuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.
The reasonable suspicion here at issue requires that a
8 No. 07-2227
tip be reliable in its assertion of illegality, not just in
its tendency to identify a determinate person.
J.L., 529 U.S. at 271.
The same is true here. Any passerby spotting Groves
standing next to the car could have reported his location
(and other readily observable details) to the police. But
standing beside a car is not illegal; what the police needed
to know, and what they could not know based on this
tip, was how the caller knew that Groves was carrying
a gun. Without more, the anonymous tip in this case
could not justify the stop. Davis v. Novy, 433 F.3d 926, 929
(7th Cir. 2006); United States v. Johnson, 427 F.3d 1053, 1057
(7th Cir. 2005).
But there was more to justify reasonable suspicion here
than just the anonymous tip that Groves was probably
carrying a gun. The South Bend police bulletin stemming
from the April 30 shooting was supported by ample
reasonable suspicion and supplied a basis for the stop
under the rationale of Hensley, 469 U.S. at 232-33. Hensley is
a variation on the common-knowledge doctrine that allows
an officer to rely on an adequately supported “wanted
flyer” to justify a stop of a suspect even if the officer does
not himself have reasonable suspicion to conduct the stop.
The theory is that police may communicate “wanted fliers”
and other orders to stop a suspect to the department at
large, to officers in the field, and to other law-enforcement
agencies provided the issuance of the order is itself sup-
ported by reasonable suspicion sufficient to justify the stop.
The analysis asks whether the officer issuing the flyer or
bulletin had objectively reasonable suspicion to stop the
No. 07-2227 9
suspect. Id.; United States v. Nafzger, 974 F.2d 906, 911 (7th
Cir. 1992); United States v. Wheeler, 800 F.2d 100, 103 (7th
Cir. 1986); Longmire, 761 F.2d at 416. If he did, then a stop
carried out on the basis of the flyer or bulletin is lawful.
Groves does not really dispute that Corporal Johnson
had reasonable suspicion when he created the bulletin
after investigating the April 30 shooting. Indeed, Johnson
had probable cause to arrest Groves; eyewitnesses to the
shooting identified him as the shooter, which provided
probable cause to arrest him. See Lopez v. City of Chicago,
464 F.3d 711, 714 (7th Cir. 2006) (Lopez “was arrested
without a warrant, although with probable cause—an
eyewitness identified him as the shooter.”). A problem
arises because Corporal Slager was mistakenly told by
the dispatcher that there was a warrant out for Groves’s
arrest, not just a wanted bulletin. Slager testified that he
did not recall if he had seen the bulletin about Groves
when it was issued a month before; he thought, based on
the radio dispatch and the readout on his in-squad com-
puter, that there was a warrant for Groves’s arrest.
The police dispatcher’s mistake in this regard does
not invalidate the stop; that error did nothing to under-
mine the preexisting reasonable suspicion that sup-
ported the issuance of the bulletin. The bulletin bears a
distribution list that includes the radio room, the squad
room, the detective bureau, and other subdivisions and
personnel within the South Bend Police Department, and
Corporal Johnson testified that once issued, bulletins are
routinely transmitted to the distribution list. It is unclear
whether the bulletin was mistakenly entered into the
10 No. 07-2227
department’s system as a warrant or whether the dis-
patcher mistook it for a warrant when communicating
with officers in the field after the 911 call. But either way,
there is no evidence that it was anything other than a
mistake.
Even assuming this error affected the validity of the
stop, the gun need not have been suppressed. The
Supreme Court has recently held that a negligent
mistake by police personnel about the existence of a
warrant does not require application of the exclusionary
rule. Herring, 129 S. Ct. at 703. In Herring, a deputy sheriff
initiated a stop-and-arrest of the defendant based on
information communicated by the sheriff’s depart-
ment’s warrant clerk that there was an outstanding war-
rant in a neighboring county for the defendant’s arrest.
This turned out to be wrong; the warrant had actually
been withdrawn some months earlier, but the recall of the
warrant had not been entered into the county’s database.
The defendant sought suppression of the drugs and gun
that were found in the search incident to his arrest. The
Supreme Court held that suppression was not required; in
this situation, the Court said, the deterrence rationale
of the exclusionary rule was so attenuated that exclusion
of the evidence was unjustified. Id. at 702-03. Noting
the absence of any evidence that the county had been
reckless in maintaining its warrant system or that know-
ingly false entries had been made, the Court reasoned
that application of the exclusionary rule would produce
no real deterrent effect on police misconduct and would
be too costly to the truth-seeking and law-enforcement
No. 07-2227 11
objectives of the criminal justice system. Id. “In light of
our repeated holdings that the deterrent effect of sup-
pression must be substantial and outweigh any harm to
the justice system, we conclude that when police
mistakes are the result of negligence such as that described
here, rather than systemic error or reckless disregard
of constitutional requirements, any marginal deterrence
does not ‘pay its way.’ ” Id. at 704 (internal citation omit-
ted).
The police mistake at issue here is substantially similar
to the one at issue in Herring. Accordingly, although we
reject Groves’s claim that the dispatcher’s error
invalidated the grounds for the stop, even if we were to
assume the stop was invalid, suppression was not re-
quired. There is nothing in the record to suggest that the
South Bend Police Department recklessly disregarded
constitutional requirements or that any police personnel
knowingly falsified a warrant record. The suppression
motion was properly denied.
Groves also attacks his above-guidelines sentence
as unreasonable. We disagree. The district court painstak-
ingly considered both the guidelines range and the sen-
tencing factors that properly inform the court’s exercise
of post-Booker sentencing discretion under 18 U.S.C.
§ 3553(a). The court took note of the fact that although
Groves stood convicted of gun- and ammunition-
possession offenses, he had demonstrated a propensity to
actually use firearms—firing multiple shots into an occu-
pied home in the incident underlying the ammunition
count, as well as other instances of brandishing and
12 No. 07-2227
threats to shoot that were reflected in his criminal back-
ground. The court was also strongly influenced by the
fact that these convictions were Groves’s third and fourth
felony convictions in 12 years, and that although he
was only 29 years old, he had accumulated a total of
52 arrests, many firearm related. The court concluded
that these factors, and the absence of any in mitigation,
justified an above-guidelines sentence of 240 months.
Groves has not persuaded us that this sentence is unrea-
sonable. See Wachowiak, 496 F.3d at 749 (nonguidelines
sentence will be affirmed if adequately reasoned and
objectively reasonable).
A FFIRMED.
3-17-09