United States v. Douglass, Veil V.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2608
UNITED STATES OF AMERICA.
Plaintiff-Appellee,
v.
VEIL V. DOUGLASS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-30064-001—Jeanne E. Scott, Judge.
____________
ARGUED AUGUST 9, 2006—DECIDED OCTOBER 30, 2006
____________
Before POSNER, COFFEY, and EASTERBROOK, Circuit
Judges.
COFFEY, Circuit Judge. A gun was found on the ground
along the path Veil Douglass had traveled while fleeing
from police officers who had approached him to investigate
information they had received from an anonymous caller.
The officers recovered the gun, and Douglass was charged
with possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1). He moved to suppress the weapon
he was believed to have possessed, arguing that its dis-
covery resulted from what he alleges was an investigatory
detention initiated without a reasonable suspicion. The
district court denied his motion to suppress, he went
to trial, and a jury found him guilty. He was sentenced to
2 No. 05-2608
210 months’ imprisonment to be followed by a five-year
term of supervised release. On appeal Douglass chal-
lenges the denial of his motion to suppress and renews his
contention that the officers had seized him without reason-
able suspicion before they found the gun. We affirm.
I. Background
On the night of August 20, 2004, at approximately 2:30
a.m., while police officers James Oliver and Don Mumaw
were on routine patrol duty in Springfield, Illinois, they
received a dispatch from the control center of a physical
assault. The information relayed referred to an anony-
mous caller who had reported observing several males
battering a female next to a dark-blue car with Illinois
license plate number 7447568, parked in a parking lot
at 2836 Stanton Street in Springfield, Illinois. The officers
responding to the call arrived at the parking lot four or five
minutes after receiving the dispatch. Although the lot was
poorly lit, the officers observed a man standing alone next
to a vehicle matching the description of the vehicle, includ-
ing the license plate number, referred to in the call. At this
point the officers noticed that the car’s engine was running
and the lights were on.
Oliver and Mumaw recognized the man, Douglass, and
the vehicle because they had seen him operating it in the
neighborhood on prior occasions. Mumaw also knew of
his criminal history and was well aware that it included
a homicide conviction. Mumaw, a member of the police
department’s Emergency Response Team, had a month
earlier participated in the execution of a search warrant
at a residence believed to have been occupied by Douglass.
The record is barren of any information concerning the
results of that search.
By the time Officer Mumaw drove the squad car into the
parking lot, Douglass had moved from his position standing
No. 05-2608 3
near the car to sitting in the driver’s seat. Mumaw parked
fifteen to twenty feet from Douglass, with the cars facing
each other “nose-to-nose.” The officers exited their squad
car and proceeded towards Douglass’s car. Oliver ap-
proached the driver’s side while Mumaw approached the
passenger side. Oliver asked Douglass for identification and
whether he knew anything about a fight in the parking lot.
Douglass refused to answer and remained silent as he
repeatedly moved his hand from the steering wheel to the
gear shift lever. While Mumaw was shining his flashlight
into Douglass’s car, he spotted a live round of .380 caliber
ammunition on the floorboard under Douglass’s feet.
Mumaw yelled to Oliver “10-32,” the police code for a gun.
After drawing his own gun for his own protection, Oliver
ordered Douglass out of the car. Douglass seemed to be
looking around possibly for an escape route and kept
repeating, “no, I can’t, no, I can’t.” When Oliver realized
Douglass was not getting out of the car, he attempted to
open the door and pull Douglass out, but found it locked.
Oliver immediately reached through the partially opened
window and sprayed Douglass in the face with pepper spray
to momentarily blind him in order that he might reach
inside and unlock the door. Before Oliver could unlock the
door, Douglass put his vehicle in gear. According to Oliver,
Douglass drove around the squad car “in a split second” and
exited the parking lot. The officers jumped in their squad
car and gave chase.
Douglass was about a block away when he drove his
car off the road. He leaped out of the car and started
running away. The officers had arrived at this point
and pursued him on foot and ordered him to stop. Shortly
thereafter, Douglass decided to give up, reversed his course,
and started walking back toward the officers. Oliver and
Mumaw forced him to the ground and handcuffed him. They
searched Douglass but discovered no weapons on his person.
As he lay on the ground, Douglass complained of having a
4 No. 05-2608
seizure and asked the officers to get his medication from his
car. The officers called for an ambulance, and Mumaw
agreed to look for the medication. He went back to the area
where Douglass had abandoned his car, and at this time he
discovered a round of live ammunition on the driver’s seat
in addition to the round he had previously observed on the
floor of the vehicle. Retracing the path of Douglass’s car,
Mumaw also discovered a Jennings Bryco .380 caliber pistol
lying near the curb about thirty feet from where Douglass’s
car had stopped, though neither officer remembered seeing
Douglass throw anything out of the window. It had been
drizzling that night, but in spite of the rain the pistol was
dry, as if it had just been placed there.
Douglass moved to suppress the introduction of any
evidence concerning the gun and argued that the officers
discovered the weapon only after seizing him without
reasonable suspicion. The trial court denied Douglass’s
motion. The court reasoned that, if there had been a
detention before the sight of a bullet prompted the officers
to order Douglass out of his car, that detention had been
“very, very brief” and was “supported by an objectively
reasonable, articulable suspicion on the part of the
officers that criminal activity was afoot in that parking lot.”
The trial judge remarked that the officers certainly, as a
result of the information received in the anonymous call,
had an obligation to investigate whether a woman was
being beaten in the parking lot and credited them with
having performed “good police work.” Based on the facts
presented, the court denied Douglass’s motion.
II. Discussion
In this appeal Douglass challenges the suppression ruling
by arguing that he was already seized within the meaning
of Terry v. Ohio, 392 U.S. 1 (1968), before the officers even
requested identification. According to Douglass, the officers
No. 05-2608 5
seized him when they parked their car in front of his,
approaching him on foot from two sides, and shining their
flashlights in his car. The government’s response is that the
initial encounter was consensual (because Douglass re-
mained in his car while the officers approached) and the
alleged detention was too brief for it to have been a seizure
before Officer Mumaw saw the ammunition that, combined
with the information from the anonymous call, amounted to
reasonable suspicion resulting in probable cause. Since the
facts underlying the encounter are undisputed, we review
the legal question de novo. Ornelas v. United States, 517
U.S. 690, 691 (1996).
The Fourth Amendment is not triggered when law
enforcement officers merely approach an individual in a
public place and ask a few questions. See United States v.
Drayton, 536 U.S. 194, 200 (2002). That is exactly what
happened here, considering the brevity and unintrusive
nature of the encounter. Only a few moments had passed
between the officers’ approach and Mumaw’s discovery of
the ammunition in Douglass’s vehicle. See United States v.
Goodwin, 449 F.3d 766, 768 (7th Cir. 2006) (holding
an encounter too brief in time to amount to seizure of
defendant); United States v. Broomfield, 417 F.3d 654, 656-
57 (7th Cir. 2005) (concluding that the record reflected that
the encounter lasted only seconds before the police officer
developed probable cause, thus not a seizure). At this point
the officers had not drawn their weapons, and the fact that
the officers used their flashlights is insignificant and
certainly is not a reason that would have caused a reason-
able person to feel compelled to remain for it was 2:30 a.m.
in a dark parking lot. See United States v. Wade, 400 F.3d
1019, 1022 (7th Cir. 2005) (noting that officer’s decision to
move to better-lit area of train station would not affect
whether a reasonable person felt free to leave). Nor did the
officers’ stance on either side of Douglass’s car convert the
encounter into a seizure because he still could have declined
6 No. 05-2608
to answer their questions and driven away (as he ultimately
did); he was thus free to leave. See id. at 1023. While it is
possible for the officers to have blocked a suspect’s car so
that he does not feel free to leave, see United States v.
Burton, 441 F.3d 509, 510-11 (7th Cir. 2006), Douglass was
not so restricted with the squad car parked some twenty
feet away. He was not blocked in on three sides, or even
two, see id. (holding that suspect was seized when sur-
rounded by bicycle cops on three sides of car); United States
v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (deciding that
officers effected seizure when they parked in front of
and behind suspect’s car); United States v. Pavelski, 789
F.2d 485, 488-89 (7th Cir. 1986) (holding that suspect was
not seized when police parked behind and on one side of his
car but was seized when police parked third car in front of
suspect’s car); rather, a single squad car was parked fifteen
to twenty feet away from the front of Douglass’s car, see
United States v. Hendricks, 319 F.3d 993, 1001 (7th Cir.
2003) (holding that officer’s parking of car fifteen feet
behind suspect’s did not block suspect’s exit and did not
make encounter a seizure). We hold that a reasonable
person would have felt free to leave, as is evidenced by the
fact that Douglass did in fact flee from the scene and lead
the officers on a chase. In substance, the brief encounter
that occurred between Officer Oliver’s questioning and
Officer Mumaw’s development of probable cause did not
amount to a seizure.
Douglass falls back on his argument that, even if he
was not seized before Officer Mumaw saw the ammuni-
tion inside the car, that discovery alone did not give the
officers probable cause to arrest him. To have developed
probable cause, he continues, the officers first had to
ascertain whether he fell within an exception to the fed-
eral or Illinois statutes barring felons from possessing
ammunition, see 18 U.S.C. § 921(a)(20); 720 Ill. Comp. Stat.
5/24-1.1(a). But establishing probable cause does
No. 05-2608 7
not require police officers to anticipate all possible defenses
to seemingly criminal activity. See Michigan v. DeFillippo,
443 U.S. 31, 36 (1979) (“The validity of the arrest does not
depend on whether the suspect actually committed a crime;
the mere fact that the suspect is later acquitted of the
offense for which he is arrested is irrelevant to the validity
of the arrest.”); United States v. Osborn, 120 F.3d 59, 62-63
(7th Cir. 1997). They had personal knowledge that Douglass
was a felon, that he was driving a car identified by license
plate in an anonymous call concerning an assault, and
observed ammunition on the floor of his vehicle; that was
sufficient. See Broomfield, 417 F.3d at 656-57. Moreover,
Douglass fled immediately after the officers ordered him out
of the car, so his arrest—the first point at which he submit-
ted to a show of authority—did not come until later when he
finally abandoned his flight. See Cal. v. Hodari D., 499 U.S.
621, 628-29 (1991); McCoy v. Harrison, 341 F.3d 600, 605
(7th Cir. 2003). And by then the officers could take his flight
into account, the information relayed in the anonymous call,
as well as traffic offenses that independently justified his
arrest. See Whren v. United States, 517 U.S. 806, 812-13
(1996); United States v. Hernandez-Rivas, 348 F.3d 595, 599
(7th Cir. 2003).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-06