United States v. Lenoir, Kenneth R.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-1492

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH R. LENOIR,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00-CR-44—Rudy Lozano, Judge.

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ARGUED NOVEMBER 7, 2002—DECIDED FEBRUARY 4, 2003

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Before BAUER, EASTERBROOK, and MANION, Circuit

Judges.

BAUER, Circuit Judge. The government indicted Defen-

dant Kenneth R. Lenoir for knowingly possessing fire-

arms after having been convicted of a felony. Lenoir filed

a motion to dismiss the charge and a motion to sup-

press evidence seized by the police during a warrantless

entry of his home, both of which the district court denied. A

jury then convicted him. Prior to sentencing, Lenoir ob-

jected to the Presentence Report’s recommendation that he

be sentenced as an armed career criminal under § 4B1.4(a)

of the United States Sentencing Guidelines Manual.

Following a hearing, the district court overruled Lenoir’s

objections and sentenced him to 270 months’ imprisonment.

2 No. 02-1492

Lenoir appeals the admission of evidence seized by po-

lice during the warrantless entry of his home as well as

the district court’s finding that he qualified as an armed

career criminal. We affirm.

BACKGROUND

On the afternoon of January 4, 2000, Detective Sergeant

Tom Branson of the Gary, Indiana, Police Department

overheard a police radio dispatch about a disturbance

involving an unidentified male with a gun in the St. John

Homes area, a known high crime neighborhood. The dis-

turbance took place near 2153 Carolina Street, and Branson

understood that the man with the gun had left that ad-

dress. Arriving on the scene shortly thereafter, Branson

observed a man later identified as Lenoir walking down

an alley only one-eighth of a block east of 2153 Carolina

Street. Lenoir appeared to be intoxicated and seemed to

be carrying something under his coat.

As Lenoir continued down the alley, Branson saw a

shotgun and a rifle protruding from inside Lenoir’s coat.

Branson also saw an ammunition magazine for the rifle

that appeared capable of holding over twenty rounds.

Branson knew that Indiana law did not prohibit Lenoir

from carrying the guns, but a city ordinance prohibited

possession of an ammunition magazine of this capacity.

In Indiana, however, police cannot make arrests for vio-

lations of city ordinances. Branson continued to monitor

Lenoir and radioed the information to backup. Lenoir

appeared to be trying to maintain a grip on the guns, and

Branson observed Lenoir stop, put the guns down on the

ground, and re-grip them.

Just as Lenoir picked up the guns again, police cars

approached from the opposite end of the alley. According

to Branson, Lenoir looked in the direction of the police

cars and then fled into a home located at 2125 Vermont,

No. 02-1492 3

only a short distance away. At the time, police did not

know that Lenoir lived at this address with his mother.

Officer Travis Jolly yelled, “Police, Stop!” and pursued

Lenoir. Jolly saw Lenoir have trouble entering the home,

and so Jolly followed closely behind Lenoir without knock-

ing or seeking permission to enter. Jolly apprehended

Lenoir at the bottom of a small basement staircase just

to the right of the front door. Upon being caught, Lenoir

struggled with Jolly, which resulted in a cut requiring

stitches above Lenoir’s eye. Branson had entered the

home a few seconds behind Jolly and observed Jolly bring-

ing Lenoir up the basement staircase. Branson also saw

a woman and children in the home. Branson went down

the basement staircase and removed the shotgun, rifle,

and Lenoir’s coat, which were lying on the floor approxi-

mately fifteen feet inside the house.

The rifle was an SKS assault rifle with a magazine

capacity greater than twenty rounds, although only two

bullets were in the magazine; the shotgun was a Mossberg

12-gauge. When Jolly brought Lenoir outside another offi-

cer recognized Lenoir as a convicted felon and police ar-

rested him for being a felon in possession of a firearm

as well as for battering a police officer and resisting law

enforcement.

Lenoir was indicted for possession of firearms by a

convicted felon based on his conviction for burglary in the

Superior Court of Lake County, Indiana, in May 1994.

Lenoir filed a motion to suppress the evidence seized

from the warrantless entry of his home and a motion to

dismiss the charges. At the hearing on his motion to

suppress, Lenoir testified that he went to 2153 Caro-

lina Street to retrieve his guns so that he could store

them at his mother’s home; he was scheduled to enter a

halfway house that day as part of his parole for the bur-

glary conviction. Lenoir also admitted that he consumed

forty ounces of beer that morning. He claimed that he

4 No. 02-1492

dropped his keys when he stopped and placed the guns on

the ground and that he made a “slight fast walk” to his

house. Lenoir denied running to his house and denied

being aware that police were pursuing him. He also

claimed that he entered his house, put the guns in the

basement, covered them with his jacket, and proceeded

back up the stairs before seeing Branson and being

grabbed by Officer Jolly. Finally, Lenoir claimed that

Branson directed a third officer to proceed into the base-

ment and look for the guns.

Finding Lenoir’s testimony not credible, the district

court denied Lenoir’s motions. Lenoir renewed the motion

to suppress prior to trial, and it was again denied, leading

to a one-day jury trial. At the close of the government’s

case, Lenoir renewed the motion for a third time, and the

court denied it again. Lenoir presented no evidence at

trial and was convicted by the jury.

Prior to sentencing, Lenoir filed an objection to the

Presentence Report’s recommendation that he be sen-

tenced as an armed career criminal. Lenoir had been

convicted on separate occasions of Commission of a Fel-

ony While Armed in Indiana in 1975, Burglary in Indiana

in 1980 and 1994, Breaking and Entering at Night with

Intent to Commit a Felony in Massachusetts in 1990, and

of possession of cocaine with intent to sell in Florida. The

first sentencing hearing was continued in order to give

Lenoir, acting pro se at this point, time to file specific

objections to the Presentence Report, to which he filed

several. When the sentencing hearing was finally held, the

district court overruled Lenoir’s objections and held that

he qualified as an armed career criminal under § 4B1.4(a)

of the United States Sentencing Guidelines Manual as

a result of his 1980, 1990, and 1994 convictions. The dis-

trict court sentenced him to 270 months’ imprisonment.

This appeal ensued.

No. 02-1492 5

ANALYSIS

A. The Warrantless Entry and Seizure of Evidence

When examining the district court’s denial of a motion to

suppress, we undertake a de novo review of questions

of law, including whether reasonable suspicion exists to

justify a Terry stop, and we examine findings of fact for

clear error. United States v. Kincaid, 212 F.3d 1025, 1028

(7th Cir. 2000); United States v. Scheets, 188 F.3d 829, 836

(7th Cir. 1999).

As an initial matter, Lenoir asserts that the district

court should not have imputed what Branson knew of

Lenoir’s behavior to Officer Jolly at the moment Jolly

entered Lenoir’s home because Jolly did not testify at the

suppression hearing. When law enforcement officers are

in communication regarding a suspect, however, the knowl-

edge of one officer can be imputed to the other officers

under the collective knowledge doctrine. United States

v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000). Branson

testified that he radioed information about Lenoir to fel-

low officers, including Jolly, as he watched Lenoir in the

alley. Furthermore, Lenoir twice renewed his motion to

suppress after the district court denied it at the suppres-

sion hearing. The second renewal came after the close of

the government’s case, during which the court heard

Jolly’s testimony. The district court, therefore, was free

to consider either Branson’s or Jolly’s testimony and

knowledge of the situation when deciding whether Jolly’s

entrance into Lenoir’s home was constitutional.

Lenoir’s next argument is that police lacked probable

cause to justify the warrantless entry of his home, the

seizure of the weapons, and the arrest. This raises two

issues; first, we must decide whether police had constitu-

tional authority to detain Lenoir; and second, whether

the circumstances of the situation and Lenoir’s behavior

justified the warrantless entry of his home, the seizure

6 No. 02-1492

of the guns, and the subsequent arrest of Lenoir for being

a probable felon in possession of firearms.

Lenoir argues that police did not have the authority

to stop him because they lacked probable cause to be-

lieve that he had committed, or was about to commit, a

crime. He concedes, however, that police do not always

need probable cause to detain an individual when rea-

sonable suspicion exists. Reasonable suspicion amounts

to an “ ‘objective manifestation that the person stopped is,

or is about to be, engaged in criminal activity.’ ” United

States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000). Put

another way, it is something less than probable cause but

more than a hunch. Id.

When determining whether reasonable suspicion exists,

we examine the totality of the circumstances known to

the police at the time of the stop, including the experience

of the officers and the behavior and characteristics of

the suspect. United States v. Quinn, 83 F.3d 917, 921

(7th Cir. 1996). Police can sometimes consider otherwise

innocent behavior in determining whether reasonable

suspicion exists to detain a person. See Terry v. Ohio, 392

U.S. 1, 22-23 (1968). Specifically, police observation of an

individual, fitting a police dispatch description of a person

involved in a disturbance, near in time and geographic

location to the disturbance establishes a reasonable sus-

picion that the individual is the subject of the dispatch.

See United States v. Juvenile TK, 134 F.3d 899, 904 (8th

Cir. 1998) (affirming reasonable suspicion determina-

tion when police spotted defendant’s car, which matched

police dispatch description, no more than two blocks

away from the scene of the robbery and within five min-

utes of a second police dispatch concerning the robbery).

Additionally, a person’s flight upon seeing the police

approach in a high crime area establishes reasonable

suspicion to justify a Terry stop. Illinois v. Wardlow, 528

No. 02-1492 7

U.S. 119, 124 (2000); Quinn, 83 F.3d at 921. A suspect’s

failure to halt upon police command to do so, Quinn, 83

F.3d at 921, as well as the suspect’s apparent public

intoxication further support a finding of reasonable sus-

picion, see IND. CODE § 7.1-5-1-3 (2002) (making public

intoxication a Class B misdemeanor); see also Gallegos

v. City of Colorado Springs, 114 F.3d 1024, 1029 (10th

Cir. 1997) (supporting the existence of reasonable suspi-

cion on the basis of police finding the defendant intoxi-

cated and near the location of a police dispatch concern-

ing a drunk man arguing with a woman in public); United

States v. Rideau, 969 F.2d 1572, 1575 (5th Cir. 1992)

(relying in part on the fact that Texas law makes public

intoxication a criminal offense to support a Terry stop of

the defendant); United States v. Simmons, 918 F.2d 476,

481 (5th Cir. 1990) (relying in part on suspect’s intoxica-

tion to justify reasonable suspicion determination).

Here, Branson observed Lenoir walking down an alley

only one-eighth of a block from 2153 Carolina Street

shortly after he responded to a police radio dispatch

about a disturbance at that address involving an uniden-

tified male with a gun. Lenoir fit the physical description

broadcast to police, and as Branson watched Lenoir, he

noticed that Lenoir was carrying two high-powered weap-

ons. Carrying these weapons may not be a crime in Indi-

ana, but the police can still factor this otherwise inno-

cent behavior into the equation.

Branson further noticed that Lenoir appeared drunk, as

his gait was irregular walking down the alley. When Lenoir

saw police approach from the opposite end of the alley, he

fled with the two weapons into a nearby home. The po-

lice did not know that it was Lenoir’s home at the time,

and Officer Jolly saw Lenoir have trouble entering the

door. Jolly identified himself and called for Lenoir to

halt, but Lenoir ignored the directive. Finally, it is well-

known that the St. John Homes neighborhood is a high

8 No. 02-1492

crime area. Accordingly, we find that these factors all

combined to create more than enough reasonable suspi-

cion for the police to initiate a Terry stop of Lenoir.

We turn now to whether the police had the constitu-

tional authority to enter Lenoir’s home and seize both

him and the guns following his flight into the residence.

Generally, a warrantless entry of a person’s home and

any subsequent seizures are invalid unless supported by

exigent circumstances. Sheik-Abdi v. McClellan, 37 F.3d

1240, 1243-44 (7th Cir. 1994). The Supreme Court and

this Court have previously stated that warrantless searches

will be allowed when police have a reasonable belief

that exigent circumstances require immediate action and

there is no time to secure a warrant. Michigan v. Tyler,

436 U.S. 499, 509 (1993); United States v. Webb, 83 F.3d

913, 916 (7th Cir. 1996).

The Supreme Court has characterized the following

situations as exigent circumstances: hot pursuit of a flee-

ing felon; to prevent the imminent destruction of evi-

dence; to prevent a suspect’s escape; or to address the risk

of danger to the police or to other persons inside or out-

side the dwelling. Minnesota v. Olson, 495 U.S. 91, 100

(1990). We are concerned primarily with whether the po-

lice were justified in initiating a warrantless entry of

Lenoir’s home to address the risk of danger to them-

selves or any occupants of the home when Lenoir fled from

police armed with two high-powered weapons.

We have stated before that police need not wait for

screams from within in order to fear for the safety of

occupants or themselves. United States v. Brown, 64 F.3d

1083, 1086 (7th Cir. 1995). Lenoir’s situation is similar

to that in United States v. Brown, where the defendant

gave no indication that the residence in question was his

own. Id. This Court justified the warrantless entry of

the home in Brown because the police reasonably feared

No. 02-1492 9

for the safety of someone inside. Id. The defendant pos-

sessed keys to the apartment, yet claimed that he lived

elsewhere. Id. As Brown recognized, had the officers

known that the defendant actually lived there, they would

have needed a warrant to enter. Id.

Similarly, police were not aware that Lenoir was enter-

ing his own home. They saw Lenoir take flight upon see-

ing them approach and have difficulty entering the

home while armed with a shotgun and an assault rifle.

We find that the police reasonably feared for the safety

of occupants in the home and for their own safety, espe-

cially given Lenoir’s intoxicated state. By delaying entry

into the home, in order to find out if Lenoir lived there,

police would have risked giving Lenoir the opportunity

to harm police or whomever was inside. See United

States v. Hardy, 52 F.3d 147, 149-50 (7th Cir. 1995). In

fact, Branson testified that he saw a woman and children

in the home when he entered. We will not force police to

risk the safety of others or themselves when the circum-

stances and a suspect’s behavior create a reasonable be-

lief that they or someone inside may be in danger.1 We

find that Lenoir’s actions aroused a reasonable suspicion

in police, justifying a Terry stop, and further created

exigent circumstances to justify the warrantless entry.

The police were also not required to knock and announce

their presence because they knew Lenoir was heavily

armed and because Lenoir already knew he was being

pursued. See United States v. Stowe, 100 F.3d 494, 499

1

We also note that Lenoir struggled with Officer Jolly upon being

apprehended, which resulted in a cut above Lenoir’s eye that

required stitches. While Lenoir’s behavior after being detained

does not directly support the determination that exigent cir-

cumstances justified a warrantless entry of the home, it does

corroborate that determination after the fact. Clearly, Lenoir

was willing to put up some fight before being apprehended.

10 No. 02-1492

(7th Cir. 1996) (relying on police knowledge that defendant

was armed and dangerous to justify no-knock execution

of warrant); United States v. Buckley, 4 F.3d 552, 558

(7th Cir. 1993) (excusing police from “any requirement of

arousing armed defendants, or [their pit bull]”). Once

Officer Jolly entered Lenoir’s home, the subsequent sei-

zures of Lenoir and the guns by police were reasonable.

Officers neutralized the possible threat Lenoir posed

and removed only the guns and jacket Lenoir had been

wearing. See Brown, 64 F.3d at 1086-87 (noting that

police entry was limited to the circumstances of the sit-

uation). No other search or seizure occurred, and what

did occur extended only fifteen feet into the nearby base-

ment of the home where Lenoir had fled with the guns.

The district court properly denied Lenoir’s motion to

suppress the evidence seized from his home because

police had reasonable suspicion to detain Lenoir and

exigent circumstances necessitated the warrantless entry

of his home.

B. Lenoir’s Armed Career Criminal Status

Lenoir next argues that the district court improp-

erly sentenced him as an armed career criminal under

§ 4B1.4(a) of the United States Sentencing Guidelines

Manual. Under § 4B1.4(a), anyone subject to a sentence

enhancement under 18 U.S.C. § 924(e) qualifies as an

armed career criminal. U.S. SENTENCING GUIDELINES

MANUAL § 4B1.4(a) (2002). Section 924(e) provides for a

sentence enhancement for persons who violate § 922(g), as

Lenoir did, and have had three previous convictions for

a “violent felony or a serious drug offense, or both, commit-

ted on occasions different from one another.” 18 U.S.C.

§ 924(e)(1) (2002).

Lenoir concedes that two Indiana convictions for Bur-

glary in 1980 and 1994 both qualify as predicate felonies

No. 02-1492 11

under § 924(e). He argues, however, that a 1990 Massa-

chusetts conviction for Breaking and Entering at Night

with Intent to Commit a Felony, a 1975 Indiana convic-

tion for Commission of a Felony While Armed, and a Flor-

ida conviction for possession of cocaine with intent to

sell cannot serve as the final predicate felony under

§ 924(e). On appeal, the government concedes that the

1990 Massachusetts conviction cannot stand as a predi-

cate felony for the § 924(e) enhancement but asserts that

either of the other two convictions can.

Lenoir did not specifically object at any point before

this appeal to the inclusion of the 1975 conviction and

raised nothing more than a general objection to his

status as an armed career criminal. He argues that his

status as a pro se litigant and his general objection to the

sentence enhancement subject him to a lower burden,

thereby excusing his failure to make a specific objection

to the inclusion of his 1975 conviction. We are not in-

clined to agree and note that the sentencing hearing

was continued to give Lenoir time to file specific objec-

tions to the Presentence Report. Of the ones he filed, none

addressed this issue. See United States v. McClellan, 165

F.3d 535, 551 (7th Cir. 1999) (“a party must make a prop-

er, timely objection at trial or sentencing on the same

specific ground he or she is appealing”) (emphasis in

original). Accordingly, we will examine whether the dis-

trict court committed plain error in considering Lenoir’s

1975 Indiana conviction for Commission of a Felony

While Armed as a predicate felony for the § 924(e) enhance-

ment. United States v. Hardamon, 188 F.3d 843, 848-49

(7th Cir. 1999).

Under § 924(e)(2)(B), a “violent felony” includes any

felony conviction 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, arson, or extor-

tion, involves use of explosives, or otherwise involves

12 No. 02-1492

conduct that presents a serious potential risk of physical

injury to another.” § 924(e)(2)(B). At the time of his 1975

conviction, Indiana law established a separate felony

for anyone who committed or attempted to commit any

felony while armed with a dangerous weapon. Ind. Code

§ 35-12-1-1 (1975), repealed by Acts 1976, P.L. 148, Sec. 24.

Because none of the elements of section 35-12-1-1 in-

cluded the use, attempted or otherwise, of physical force

against another, and because Lenoir’s conviction was not

for burglary, arson, extortion, or involve the use of ex-

plosives, we are concerned only with the “otherwise” prong

of § 924(e)(2)(B). In United States v. Fife, we stated that

the possibility of violent confrontation governs whether

an offense falls under the “otherwise” prong. United States

v. Fife, 81 F.3d 62, 64 (7th Cir. 1996). We look, therefore,

to the underlying felony the defendant committed while

armed to determine if it is the sort of crime that presents

a serious potential risk of injury to another. Id.

While we generally examine the charging document

to discern the nature of the underlying felony, Lenoir’s

Presentence Report contained only proof that he had

been convicted of Commission of a Felony While Armed; it

did not disclose the nature of the underlying felony. The

government presents the Indiana Supreme Court’s opin-

ion in Lenoir v. State, 368 N.E.2d 1356, 1357 (1977),

which reveals that the underlying felony was armed rob-

bery. Clearly, armed robbery always presents the poten-

tial for serious injury to another person. Lenoir’s only

argument is that the lack of information in the Presen-

tence Report prevents us from considering the nature of

the underlying felony as revealed by the Indiana Su-

preme Court’s opinion. Had Lenoir specifically objected

to the inclusion of this conviction, however, the district

court could have taken notice of the Indiana Supreme

Court’s opinion. We find that this information is suffi-

No. 02-1492 13

cient to qualify Lenoir’s 1975 conviction as the final, pred-

icate “violent felony” under § 924(e).

The government also points, albeit for the first time, to

Lenoir’s conviction in Florida for possession of cocaine

with intent to sell, which qualifies as a “serious drug

offense” under § 924(e)(2)(A)(ii). As it is relevant here, a

“serious drug offense” is defined as “an offense under

State law, involving manufacturing, distributing, or pos-

sessing with intent to manufacture or distribute, a con-

trolled substance.” § 924(e)(2)(A)(ii). Even were we to con-

sider it plain error for the district court to consider the

1975 conviction, Lenoir’s conviction in Florida would still

qualify him for the § 924(e) enhancement. It was, how-

ever, not plain error but appropriate for the district court

to apply the § 924(e) sentence enhancement and sen-

tence Lenoir as an armed career criminal under § 4B1.4(a)

of the United States Sentencing Guidelines Manual.

Accordingly, the decision of the district court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-4-03