United States v. Steven McKinney ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3994
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Steven McKinney, also known as *
Steven Patrick McKinney, *
*
Appellant. *
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Submitted: April 14, 2003
Filed: May 16, 2003
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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Steven McKinney appeals the district court's1 denial of his motion to suppress
evidence seized and statements made during his arrest and from the district court's
decision to sentence him as an armed career criminal pursuant to 18 U.S.C.
§ 924(e)(1). We affirm.
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
I.
Police officers Jeremy Blanton and Tim Borstell were driving to the site of an
automobile accident when Officer Blanton observed a black pickup truck several
blocks north, driving at a high rate of speed and passing traffic in the parking lane.
At the same time, Officer Borstell noticed a man at a nearby intersection, waving his
arms to get the officers' attention. The officers drove up to the man, who then told
the officers "that truck up there just hit me," pointing up the street toward the truck
that Officer Blanton had observed. The officers then followed the truck (without their
lights or siren on), observing it for all but approximately ten seconds, eventually
finding it parked on a curb.
When the officers pulled up, the driver, Mr. McKinney, had already exited his
vehicle and was looking around as if he were trying to find an avenue of escape.
Officer Blanton ordered Mr. McKinney to put his hands on the truck--an order that
Mr. McKinney did not follow. Officer Blanton then handcuffed Mr. McKinney and
placed him under arrest for leaving the scene of an accident. As Officer Blanton was
reading Mr. McKinney his Miranda rights, Mr. McKinney pulled a gun from his right
rear pants pocket. Officer Blanton wrested the gun from Mr. McKinney, who was
then placed under arrest for carrying a concealed weapon. After being read his
Miranda rights, and indicating that he understood them, Mr. McKinney made oral and
written statements.
Mr. McKinney maintains that the gun and the statements should be suppressed
because the officers did not have a reasonable basis for stopping him, arguing in
particular that there was insufficient information for the officers to identify
Mr. McKinney's truck as being involved in the accident. We disagree. "[L]aw
enforcement officers are entitled to rely on information supplied by the victim of a
crime, absent some indication that the information is not reasonably trustworthy or
reliable." Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987). In the circumstances
present here, we agree with the district court that the accident victim's statement (as
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well as his pointing) sufficiently identified Mr. McKinney's truck as involved in the
accident and that the totality of the circumstances – including, the officers' own
observations, the accident victim's identification of Mr. McKinney's truck, and
Mr. McKinney's apparent pursuit of an escape route upon exiting his truck – clearly
established probable cause to arrest Mr. McKinney for leaving the scene of the
accident (and thus obviously reasonable suspicion to stop him as well). We also
conclude that the seizure of the gun was lawful incident to his arrest, see United
States v. Riedesel, 987 F.2d 1383, 1388 (8th Cir. 1993), and that Mr. McKinney
knowingly and intelligently waived his Miranda rights. We thus hold that the district
court did not err in denying Mr. McKinney's suppression motion.
II.
Mr. McKinney next challenges his sentence as an armed career criminal. The
Armed Career Criminal Act (ACCA) provides a sentence enhancement for
individuals who have had at least three prior convictions for a "violent felony."
18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony" as "any crime
punishable by imprisonment for a term exceeding one year ... that – (i) has as an
element the use, attempted use, or threatened use of physical force against the person
of another; or (ii) is burglary, ... or otherwise involves conduct that presents a serious
potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The district
court sentenced Mr. McKinney as an armed career criminal because he has two prior
convictions for second-degree burglary and one prior conviction for attempted
second-degree burglary under Missouri law.
Mr. McKinney concedes that the two burglary convictions constitute violent
felonies under § 924(e)(2)(B), but he maintains that the prior conviction for attempted
second-degree burglary does not. Directing our attention to comments to the
Missouri attempt statute, Mo. Rev. Stat. § 564.011, Mr. McKinney argues that
individuals may be convicted of attempted second-degree burglary based merely upon
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preparation to commit a burglary, and thus his conviction for attempted second-
degree burglary was not necessarily a violent felony for enhancement purposes.
We reject Mr. McKinney's contention. Under Missouri law, "[a] person is
guilty of attempt to commit an offense when, with the purpose of committing the
offense, he does any act which is a substantial step towards the commission of the
offense." Mo. Rev. Stat. § 564.011.1. As we have previously observed, "[i]f an
attempted burglary conviction is based on a statute which requires a substantial step
towards the completion of the crime, then it qualifies as a predicate violent felony
under the 'otherwise clause' of § 924(e). United States v. Moore, 108 F.3d 878, 880
(8th Cir. 1997) (citing United States v. Solomon, 998 F.2d 587, 589-90 (8th Cir.
1993), cert. denied, 510 U.S. 1026 (1993)). Because the Missouri attempt statute
requires a "substantial step," and we do not believe that Missouri defines "substantial
step" idiosyncratically, see, e.g., State v. Molasky,765 S.W.2d 597, 600-02 (Mo.
1989); State v. Sellars, 98 S.W.3d 124, 128 (Mo. Ct. App. 2003), we believe that
attempted second-degree burglary under Missouri law qualifies as a predicate violent
felony under the ACCA. We thus conclude that the district court properly sentenced
Mr. McKinney as an armed career criminal in the instant case.
III.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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