United States v. Brandon Burgess

759 F.3d 708, 2014 WL 3519090, 2014 U.S. App. LEXIS 13774
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 17, 2014
Docket13-3571
StatusPublished
Cited by5 cases

This text of 759 F.3d 708 (United States v. Brandon Burgess) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brandon Burgess, 759 F.3d 708, 2014 WL 3519090, 2014 U.S. App. LEXIS 13774 (7th Cir. 2014).

Opinion

TINDER, Circuit Judge.

Brandon Burgess was indicted for possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). He moved to suppress the gun, which police officers found after stopping a car that he was riding in, arguing that the officers lacked reasonable suspicion to justify the stop. The district court denied his motion, and Burgess preserved his challenge — the only one he raises on appeal — with a conditional plea of guilty. See Fed.R.CRIm.P. 11(a)(2).

There was some confusion in the testimony given by the police officers at the suppression hearing, which we will discuss below, but the facts as determined by the district judge are not disputed on appeal. The court found that late on a Sunday night (around 10:45 p.m.) in October 2011, gunshots were fired in a neighborhood on Chicago’s northwest side. Numerous 911 callers reported gunshots in the area. The number of shots fired varied from 5 to 9, and one dispatch reported that they came from a large caliber gun. Based on these reports, a dispatcher told nearby police officers to check two locations (the intersections at Wabansia and Karlov Avenues and at Armitage and Kildare Avenues) that are roughly a half-mile apart. Less than two minutes later, based on additional calls, the dispatcher added that shots were fired from a black car traveling south on Karlov near Wabansia.

Immediately responding to the dispatches, two officers in a patrol car approached the area identified by the dispatcher as they drove south on Kostner Avenue, a street parallel to and just a few streets west of Karlov. Traffic was light'.' They passed a black car headed north, and making a U-turn, the officers stopped the car about a half-mile from Armitage and Kil-dare and a mile from Wabansia and Kar-lov. Burgess was a passenger in that car (even though he was merely a passenger in the vehicle, for simplicity hereafter, we will refer to it as his car), and the officers found a revolver on his seat, five of its six rounds spent. Just over four minutes had passed from the initial dispatch about gunshots to the officers’ report that Burgess was in custody.

Based on these facts and his 2001 conviction for second-degree murder, Burgess was indicted under § 922(g)(1) for possessing the gun as a convicted felon. He moved to suppress evidence about the revolver on the theory that the police officers lacked reasonable suspicion to justify stopping the car. The district court held an evidentiary hearing to resolve factual disputes about what the police officers knew before conducting the stop. The court received the recorded radio transmissions from the dispatcher and the testimony of the arresting officers. The officers testified that they recognized Burgess and the driver as gang members, that Burgess made furtive movements both before and after they initiated the stop, and that the dispatcher described the black car as big, with two doors and two occupants. As noted above, though, there was some inconsistency between this portion of the officers’ testimony and other evidence which caused the judge to reject the officers’ testimony regarding recognition of Burgess, the furtive movements and the description of the size of the car and the number of its doors and occupants. The court did not reach a conclusion as to whether the inconsistencies were the result of faulty memory, nervousness, lack of preparation or some other reason.. Nevertheless, the court denied the motion to suppress. It ruled that, based on what the officers observed regarding the lightness of traffic at that hour and what they knew *710 from hearing the dispatches alone&emdash;the car’s color, the “close proximity to the report of shots fired both in terms of timing and location,” and the seriousness of the reported crime&emdash;reasonable suspicion justified the stop.

On appeal, Burgess does not dispute the district court’s findings about what the officers actually knew prior to the stop, but he contests that their knowledge was enough for reasonable suspicion, a legal conclusion that we review de novo. See United States v. Henderson, 748 F.3d 788, 790 (7th Cir.2014); United States v. Riney, 742 F.3d 785, 787 (7th Cir.2014). His contentions boil down to two arguments.

First, he says that the police officers didn’t themselves witness the shooting or know if the “hearsay information” they received from the dispatcher was reliable. This argument is meritless. Over the course of a few minutes, numerous 911 callers independently reported gunshots in the same area. Corroboration from multiple sources describing the general area and nature of the same crime exceeds the single police tip that alone can supply reasonable suspicion for a stop. See Florida v. J.L., 529 U.S. 266, 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (holding that single tip from anonymous source may establish reasonable suspicion if exhibits “moderate indicia of reliability”).

Second, and more significantly, Burgess maintains that the officers acted on “nothing other than a hunch ... based solely upon the fact that the car was black in color” when they stopped his car a mile from a reported shooting. He emphasizes that many cars in Chicago are black; that the shooter’s car could have left the area on many streets; and that callers reported that the shooter’s car had been traveling south when shots were fired, yet Burgess’s car was traveling north when the officers stopped it. These facts, Burgess says, makes his case similar to United States v. Bohman, 683 F.3d 861 (7th Cir.2012), in which police officers stopped a car solely because it left an area where the officers suspected drug activity. We ruled that the stop was unreasonable in that case, explaining that “a mere suspicion of illegal activity about a place, without more, is not enough to justify stopping everyone emerging from that property.” Id. at 864; see also United States v. Johnson, 170 F.3d 708 (7th Cir.1999) (holding that mere generalized tips about drug activity are not enough to support stopping anyone leaving the area). The officers in Bohman had no particularized suspicion about the involvement of that vehicle or its occupants in criminal activity prior to the stop.

But the officers in this case had more to go on than merely observing Burgess’s car leave an area suspected of illegal activity. We evaluate reasonableness based on the “totality of the circumstances,” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); United States v. Bullock, 632 F.3d 1004

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Cite This Page — Counsel Stack

Bluebook (online)
759 F.3d 708, 2014 WL 3519090, 2014 U.S. App. LEXIS 13774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brandon-burgess-ca7-2014.