United States v. Shepherd, Shane ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 6, 2005
Decided December 19, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1631
UNITED STATES of AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana
Indianapolis Division
v.
No. 1:04CR00122-001
SHANE SHEPHERD,
Defendant-Appellant. Larry J. McKinney,
Chief Judge.
ORDER
Shane Shepherd was charged with possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), after police discovered a gun in his car. The district court denied
Shepherd’s motion to suppress the gun, reasoning that the weapon was discovered
during a search incident to a valid, warrantless arrest. Shepherd then entered a
conditional guilty plea, reserving the right to challenge the suppression ruling on
appeal. The propriety of that ruling is the only issue before us.
Shepherd was a suspect in a double homicide in Indianapolis, Indiana. When
the local police developed what they believed to be probable cause to make an arrest,
the detective in charge, Todd Lappin, opted not to get an arrest warrant, but instead
No. 05-1631 Page 2
asked a task force that hunts fugitives to make a warrantless collar. Shepherd was
captured after a car chase, and a gun was found in the car at his feet. He was never
charged with the murders, but federal authorities charged him with violating
§ 922(g)(1). Shepherd moved to suppress the gun, arguing that it was seized
unlawfully because the police did not have probable cause to make a warrantless
arrest on suspicion of murder.
At the evidentiary hearing on the motion, Detective Lappin and three of the
law enforcement officers who captured Shepherd all testified. Lappin testified that
he authorized Shepherd’s arrest for the double murder. One of the other officers,
Mark Hess, testified that he was watching Shepherd and saw him leave a house and
drive off. Hess gave chase after alerting a deputy United States marshal to follow
Shepherd. Hess and officers in four other cars, three of them marked, caught up
with Shepherd when traffic was stopped for a school bus in a residential area. The
marked cars, with flashing lights and sirens activated, pulled up on either side of
Shepherd’s car, but when he saw them Shepherd drove into the yard bordering the
road near where children were exiting the bus. Shepherd spun his car around and
regained the road, but then struck Hess’s car before colliding with the truck driven
by the deputy marshal. The impact sent Shepherd off the road again, but Hess saw
that he was still trying to drive away and rammed his own car into Shepherd’s. The
two cars came to a stop. Hess, who had seen Shepherd reaching toward his feet
when their cars first collided, exited and approached Shepherd. Hess testified that
he saw the butt of a gun between Shepherd’s knees.
Shepherd argued that the gun should be suppressed because, he said, the
police did not have probable cause to arrest him for the murders. To counter that
contention, the government elicited from Detective Lappin the evidence he had
gathered against Shepherd. Lappin testified that one of the victims had identified
“Shocky” as the shooter, and Lappin knew from previous investigations that
Shepherd used the nickname “Shocky.” Lappin also interviewed two people (though
he would not identify either) who claimed to have witnessed the shooting. One of
those witnesses had fled the scene after the murders and, as far as the record shows,
never clearly identified Shepherd. The other did not come forward to identify
Shepherd as the shooter until several days after the murders. In denying
Shepherd’s motion, the district court concluded that the victim’s dying declaration
that he was shot by “Shocky,” combined with Lappin’s knowledge that Shepherd
used that nickname and the statements from the two witnesses “who positively
identified Shepherd as the culprit,” provided probable cause to arrest him for the
murders.
On appeal Shepherd contends that the district court made several erroneous
findings of fact that led it to wrongly conclude that the officers had probable cause to
arrest him for murder. The government responds that the district court correctly
No. 05-1631 Page 3
held that there was probable cause to arrest for murder, but that, even if probable
cause was lacking, Shepherd’s “intervening act” of fleeing under circumstances
amounting to resisting law enforcement in violation of Indiana law created an
independent reason for the arrest. Our review of the probable cause determination
is de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v.
Parra, 402 F.3d 752, 764 (7th Cir. 2005).
Shepherd, we believe, fails to appreciate that it makes no difference whether
the officers had probable cause to arrest him for murder when they stopped him; all
that matters is whether they had probable cause to arrest for any offense. See
Whren v. United States, 517 U.S. 806, 813 (1996); United States v. Van Dreel,155
F.3d 902, 905 (7th Cir. 1998). Shepherd, we also observe, misunderstands at what
point he was stopped. The Fourth Amendment is not implicated until a person is
actually seized. See California v. Hodari D., 499 U.S. 621, 626 (1991); McCoy v.
Harrison, 341 F.3d 600, 605 (7th Cir. 2003). And a person is not seized unless he
yields to a show of authority or use of force. McCoy, 341 F.3d at 605; United States
v. Bradley, 196 F.3d 762, 768 (7th Cir. 1999). In this case the police surely engaged
in a show of authority when they drove up with sirens and emergency lights
activated and surrounded Shepherd’s car, but he did not yield at this point; indeed,
he did not finally yield until he careened off the road after trying to evade the
officers and causing several collisions. Therefore, the relevant question is whether
the police had probable cause to arrest Shepherd for some offense when they
removed him from his car, not, as Shepherd assumes, when the officers first tried to
pin Shepherd’s car behind the school bus. See, e.g., Bradley, 196 F.3d at 768(explaining that seizure occurred only when defendant stopped his car in response to
police gunfire, not when police activated emergency lights and gave chase); United
States v. $32,400.00, in United States Currency, 82 F.3d 135, 139 (7th Cir. 1996)
(explaining that no seizure occurred when police unsuccessfully tried to block
defendant’s car or when defendant backed into police cars); Adams v. City of Auburn
Hills, 336 F.3d 515, 520 (6th Cir. 2003) (holding that shooting at defendant’s car was
not seizure because defendant’s movements were not impeded).
We have no difficulty concluding that the officers had probable cause to make
the arrest. By the time the police finally seized Shepherd, he had already fled their
show of authority, left the road and driven through a residential property,
endangered children exiting a stopped school bus, and deliberately hit at least one of
the pursuing police cars. If the officers did not have probable cause to arrest for the
murders, then certainly they had probable cause to believe that Shepherd, at
minimum, had resisted law enforcement, see Tom v. Voida, 963 F.2d 952, 960 (7th
Cir. 1992), and committed several other violations of state law including criminal
recklessness, see, e.g., Ind. Code § 35-42-2-2(b)(1) (criminal recklessness); Ind. Code
§ 35-43-1-2(a)(1) (criminal mischief); Ind. Code § 35-44-3-3(a)(3) (resisting law
enforcement). In fact, at oral argument Shepherd’s counsel conceded that, even
No. 05-1631 Page 4
assuming the police lacked probable cause when they first approached Shepherd, he
was not authorized to forcefully resist. See Indiana v. Moriarty, 832 N.E.2d 555, 558
(Ind. Ct. App. 2005) (explaining that citizen may not forcefully resist peaceful arrest
by person known to be police officer even if arrest is unlawful); Robinson v. Indiana,
814 N.E.2d 704, 708 (Ind. Ct. App. 2004) (same). Accordingly, the warrantless arrest
was valid, and the district court properly denied Shepherd’s motion to suppress.
AFFIRMED.