United States v. Tucker, Jamarcus A. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2006
Decided June 7, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-3972
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 1:05CR011TLS
JAMARCUS A. TUCKER,
Defendant-Appellant. Theresa L. Springmann,
Judge.
ORDER
Jamarcus Tucker dropped a handgun to the ground while attempting to flee
from a law enforcement officer during an investigatory stop; he was subsequently
charged and convicted of possession of a firearm by a felon. Tucker moved to
suppress the handgun alleging that the stop and pat-down search violated Terry v.
Ohio, 392 U.S. 1 (1968), and the district court denied the motion. Tucker appeals,
and we affirm.
I. Background
Tucker was arrested in January 2005 after he fled from a police officer in
Fort Wayne, Indiana, who was frisking him during an investigatory stop. A search
incident to the arrest revealed that Tucker was in possession of a small amount of
No. 05-3972 Page 2
cocaine (crack). The police recovered the gun Tucker cast aside during his flight.
He was arrested and charged with possession of a gun by a felon, 18 U.S.C.
§ 922(g)(1), and crack cocaine, 21 U.S.C. § 844(a). Tucker moved to suppress only
the gun on the basis that the police detention and subsequent search of him was
without reasonable suspicion.
At the evidentiary hearing on Tucker’s motion, the government called Officer
Cory Thomas of the Fort Wayne Police Department, who had searched and arrested
Tucker, as well as Officer Benjamin Springer, Thomas’s back-up. Thomas testified
that at about 9:00 p.m. on January 2, 2005, he was dispatched to investigate an
anonymous phone call tip that suspicious persons were selling narcotics on the
porch of an abandoned house at 2614 Reed Street in Fort Wayne, Indiana. Upon
reaching the 2600 block of Reed Street in his squad car, Thomas observed three
people as they were descending down the steps from the porch of the vacant house
at 2614 Reed Street while a fourth person on the sidewalk approached them. The
neighborhood was what Thomas referred to as being located in a “relatively high-
crime area.” Although the area was poorly lighted, Thomas said, he could see that
the house “looked run down” and had neither curtains nor lights. The street lights
behind the house were even visible through the front windows. From his
experience, Thomas stated, he knew that questionable individuals gathered at
unoccupied houses such as this one to carry on the nefarious drug trade. He did not
state nor answer questions as to whether he was familiar with this particular house
or if he had previously arrested anyone at this house.
Officer Thomas went on to state that the three individuals joined the fourth
person on the sidewalk just as he stopped his squad car in front the house; he then
exited his car and asked “what was going on.” When no one responded, Thomas
asked each of them for identification. Only Tucker produced identification; his
companions—Brandon Tucker (Tucker’s brother), Terrell Hooker, and Tanisha
Royal—only gave their names and birth dates. At that moment, Officer Springer
arrived on the scene as back-up squad support. Once Springer exited his car,
Thomas returned to his squad car to run computer checks for criminal histories and
outstanding warrants. The background checks proved negative except for Tucker,
who had several convictions including felonies (firearms and narcotics).
At this time, Officer Thomas explained, with this knowledge he suspected
that Tucker might be armed. This suspicion was heightened, he added, because the
tip that prompted the stop was drug-related; in his experience, he stated, “Where
there’s drugs, there’s always firearms.” Thomas thus decided to rejoin Officer
Springer because he did not think it “wise” to leave Officer Springer alone with
Tucker without having conducted a pat-down search. After searching one of
Tucker’s companions and finding nothing illegal, Thomas asked Tucker if he “had
No. 05-3972 Page 3
anything on him that I needed to know about.” Tucker did not reply but, rather,
spread his arms and, upon Thomas’s request, placed his hands on top of his head.
Thomas patted Tucker down and felt what he thought was a magazine for a Glock
handgun in the left pocket of his jacket; Thomas testified that he recognized the
shape of the magazine because he carries a Glock and that he unloads and reloads
daily. Assuming the presence of a firearm after finding the magazine, Thomas
proceeded to handcuff Tucker for safety reasons before attempting to seize the clip
from the jacket pocket and informed Tucker that he would be handcuffed “for officer
safety” but was not under arrest.1
Tucker immediately pushed the officer aside and fled before he could be
handcuffed. Officer Thomas pursued him for several blocks, and during the chase he
saw a handgun magazine fall from Tucker’s left jacket pocket. Thomas testified
that, shortly after the magazine fell, he saw Tucker pull a handgun from the front
of his pants and throw it to the ground. Thomas eventually apprehended Tucker
with the assistance of Officer Springer and placed him under arrest for resisting a
police officer. Upon searching him Thomas discovered a small amount of crack
cocaine in Tucker’s jacket pocket and recovered the gun, a loaded 40-caliber Glock,
from the area where he had observed Tucker abandon it. He was unable to find the
magazine, however. Thomas’s testimony was largely corroborated by Officer
Springer, who also stated that, in his professional experience, the neighborhood in
which the stop took place had the reputation of being “a very high-crime area.”
At the hearing Tucker presented but one witness, his brother Brandon, who
stated that he was the individual with no company that Officer Thomas saw
walking on the sidewalk to meet Tucker, Hooker, and Royal. In contrast to
Thomas’s testimony, Brandon stated that Tucker was not walking from the porch of
the house at 2614 Reed Street at the time that Thomas observed and stopped him;
Tucker instead was walking from his car parked down the street.
1
We have previously recognized police officers’ growing reliance on
using handcuffs during investigatory stops, see United States v. Askew, 403 F.3d
496, 507 (7th Cir. 2005); United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.
1994); and noted that the use of handcuffs does not automatically transform an
investigatory stop into an arrest, see United States v. Yang, 286 F.3d 940, 950 (7th
Cir. 2002) (“[T]he handcuffing and transportation of [appellant] back to the
international terminal did not convert the stop into an arrest.”), especially if the
handcuffs are used to ensure the officers’ safety, see United States v. Glenna, 878
F.2d 967, 972-73 (7th Cir. 1989) (ruling that the use of handcuffs did not transform
an investigatory stop to an arrest when the officer’s safety was at risk).
No. 05-3972 Page 4
The district court denied Tucker’s motion, finding that Brandon Tucker was
not credible. The court adopted the testimony of Officer Thomas instead, and
concluded that his testimony showed that he had reasonable suspicion to stop and
pat-down Tucker: “Thomas had a reasonable suspicion that [Tucker] may have been
involved in drug activity, given his location at an abandoned house in a high-crime
area . . . . [where his] experience also told him that where there are drugs, there are
firearms.” Judges in the federal system, whether they are trial or appellate, do not
operate in a vacuum shielded from knowledge of drug operations in the real world.
See United States v. Hatchett, 31 F.3d 1411, 1420 (7th Cir. 1994); United States v.
Tolson, 988 F.2d 1494, 1504 (7th Cir. 1993); United States v. Perry, 747 F.2d 1165,
1169 (7th Cir. 1984). The court thus also found that Tucker’s inability to explain
what he was doing on the porch of the house, along with his history of drug and
firearms offenses, supported Thomas’s investigatory stop and subsequent pat-down
search for weapons at this time. Tucker at this juncture entered a conditional guilty
plea to violating 18 U.S.C. § 922(g)(1), which states that it is illegal for an
individual to possess a firearm “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year.” Tucker preserved his
right to challenge the suppression ruling on appeal, however. He exercises that
right now and appeals, attacking the district court’s denial of his motion to suppress
by renewing his argument that Thomas lacked reasonable suspicion to stop and
search him.
II. Analysis
A. Standard of Review
In reviewing a denial of a motion to suppress, we review de novo the question
of the existence of reasonable suspicion. United States v. Hagenow, 423 F.3d 638,
641-42 (7th Cir. 2005).
B. Reasonable Suspicion
A police officer may conduct an investigatory stop if the officer has a
reasonable suspicion supported by articulable facts that criminal activity is afoot.
Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Baskin, 401 F.3d 788, 791
(2005). To determine whether an officer’s suspicion of criminal activity was
reasonable, we examine the totality of the circumstances as they appeared to the
officer at the time of the stop. United States v. Hendricks, 319 F.3d 993, 1001 (7th
Cir. 2003). Those circumstances include the officer’s experience and the suspect’s
behavior and characteristics. United States v. Lenior, 318 F.3d 725, 729 (7th Cir.
2003); see also Anderer v. Jones, 385 F.3d 1043, 1076 (7th Cir. 2004) (Coffey, J.,
dissenting) (defining a Terry stop as “an investigatory questioning supported by
reasonable suspicion” under the totality of the circumstances).
No. 05-3972 Page 5
In arguing that Thomas lacked reasonable suspicion to stop him, Tucker
relies on Florida v. J.L., 529 U.S. 266 (2000), to assert that the anonymous
telephone call reporting suspicious individuals on the porch of the house at 2614
Reed Street did not rise to the level of specificity and reliability required to provide
a reasonable suspicion that illegal activity was occurring. However, J.L. does not
control this case because Officer Thomas was not acting solely on the basis of the
anonymous telephone call. Indeed, the caller conveyed nothing that Thomas could
not observe for himself when he arrived on the scene: (1) Tucker was loitering with
two other individuals on the porch of an abandoned house; (2) it was after dark on a
January night; (3) the house was in what Thomas considered to be a “relatively
high-crime area”; and (4) Thomas knew that vacant houses in that area were used
to conduct drug deals. These facts were personally known to Thomas and, in our
opinion, were sufficient for the officer to reasonably conclude that criminal activity
was afoot.
Tucker attempts to discount Officer Thomas’s observations by attacking the
reasonableness of his belief that the stop occurred in a “relatively high-crime area.”
Tucker argues that the officer could not reasonably have believed he was in a
“relatively high-crime area” because at the suppression hearing he was unable to
provide a specific crime-rate for the neighborhood. It is difficult to ascertain from
Tucker’s argument what statistical information he would have required Thomas to
possess at the time of the stop, how detailed that information would have had to be,
and from what qualified source was he to gather this information. But, in any
event, Thomas was not required to know the crime-rate for the neighborhood before
he could reasonably conclude that the house was, in fact, located in a “relatively
high-crime area.” See Baskin, 401 F.3d at 793 (rejecting petitioner’s argument that
“the government must produce ‘specific data’ establishing that a location is a
‘high-crime area’” to support reasonable suspicion). Tucker’s feeble attempt to
undermine the officer’s knowledge, experience, and observations is thus without
merit.
Tucker further claims that, even if the initial stop was justified, Officer
Thomas nonetheless lacked reasonable suspicion to conduct a pat-down for weapons
because he did not observe anything that would lead him to believe that Tucker was
armed. An officer is justified in conducting a pat-down search for weapons for his
own protection or the protection of others if he can point to articulable facts
supporting a suspicion that an individual is armed, Terry, 392 U.S. at 27, including
a suspect’s history of carrying a weapon, see Jackson, 300 F.3d at 746; United States
v. Mitchell, 256 F.3d 734, 737 (7th Cir. 2001).
Tucker asserts that the fact that Officer Thomas did not frisk him first
demonstrates that Thomas was not acting based on his knowledge of Tucker’s
criminal history, but rather shows that he was still acting on information provided
No. 05-3972 Page 6
solely by the anonymous telephone call. According to Tucker, Thomas thus lacked
reasonable suspicion that he was armed because the telephone call did not state
that any of the suspicious individuals were armed. We are of the opinion that this
argument is without merit. Not only is it common knowledge that drug-dealers are
frequently armed, see, e.g., Muscarello v. United States, 524 U.S. 125, 132 (1998)
(noting the “dangerous combination” of “drugs and guns”); Bailey v. United States,
516 U.S. 137, 139 (1995) (recounting prosecution expert witness “testified at trial
that drug dealers frequently carry a firearm to protect their drugs and money as
well as themselves”); United States v. Koerth, 312 F.3d 862, 870 (7th Cir. 2002) (“It
is ‘beyond dispute that drug traffickers are often armed and dangerous’ . . . .”)
(quoting United States v. Ocampo, 890 F.2d 1363, 1369 (7th Cir. 1989)), Thomas
stated at the evidentiary hearing that he decided to search everyone for weapons
because of his knowledge of Tucker’s criminal history involving firearms, and not
because of the anonymous telephone call. Thomas was thus appropriately
concerned for his and Officer Springer’s safety, see Jackson, 300 F.3d at 746, and, in
any event, “the requirement that an anonymous tip bear the standard indicia of
reliability in order to justify a stop no way diminishes a police officer’s prerogative,
in accord with Terry, to conduct a protective search of a person who has already
been legitimately stopped,” J.L., 529 U.S. at 274. The district court therefore did
not err in finding that Thomas was justified in patting-down Tucker. See Jackson,
300 F.3d at 746.
III. Conclusion
The district court properly denied the Tucker’s motion to suppress. We
AFFIRM the judgment of the district court.