United States v. Brown, Alvin

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2450

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALVIN BROWN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 257—Charles R. Norgle, Sr., Judge.

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ARGUED MARCH 2, 2004—DECIDED APRIL 26, 2004

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Before CUDAHY, RIPPLE and DIANE P. WOOD, Circuit

Judges.

RIPPLE, Circuit Judge. Alvin Brown challenges the denial

of his motion to suppress incriminating statements made

after he was apprehended as the getaway driver in a scheme

to rob two banks. Mr. Brown believes that his warrantless

apprehension violated the Fourth Amendment. For the

reasons set forth in the following opinion, we affirm the

judgment of the district court.

2 No. 03-2450

I

BACKGROUND

A.

Chicago police officers arrested Michael Dill just minutes

after he robbed a bank in a Jewel Foods store at 114th and

Halsted streets, and thirty-seven minutes after he first tried

to rob another bank approximately twenty blocks from

Jewel. Witnesses at both banks reported that Dill had a gun,

although no weapon was found when Dill was appre-

hended while running away from the Jewel store. Imme-

diately after his arrest, Dill confessed and admitted that he

had an accomplice who was waiting in a getaway car on a

side street west of the Jewel parking lot. Dill identified his

accomplice as Alvin Brown and described the getaway car

as a black Chevrolet Tahoe with a license plate number

beginning with the letter “F.” The information was then ra-

dioed to officers in the field, and several officers proceeded

to the area around 114th and Halsted to search for the

accomplice.

Sergeant Charles Long spotted a black Chevrolet Tahoe

idling at the curb at 113th and Morgan streets, west of the

Jewel lot. The male driver was the sole occupant. Long

requested assistance, and Officer George Brown arrived

shortly thereafter. Officer Brown, unable to see the driver’s

hands and concerned that he might be armed, drew his

firearm and approached the Tahoe. Officer Brown then told

the driver to shut off the ignition, exit the car and put his

hands in the air. After the driver complied, Officer Brown

holstered his weapon and patted down the driver. He then

asked the driver his name and what he was doing in the

area. The driver answered that his name was Alvin Brown

and, according to the officer, said either that he had “run

out of” or “was low on” gas. The officers thought that Mr.

No. 03-2450 3

Brown’s story was strange because there was a quarter of a

tank of gas left in the Tahoe, and there was a gas station a

block away. At some point, the officers also verified that the

license plate of the Tahoe began with the letter “F.” After

this brief period of questioning, Mr. Brown was handcuffed

and placed in a police car. Five hours after his arrest, Mr.

Brown confessed to his role in the bank robberies.

B.

After a two-day suppression hearing at which four

Chicago police officers, one FBI agent and codefendant

Michael Dill testified, the district court held that the officers

had probable cause to arrest Mr. Brown. The court reasoned

that Dill had implicated Mr. Brown in the robberies that had

just occurred, that the officers thought that a vehicle must

have been used in the robberies because of the considerable

distance, but short time, between them and that Dill’s

statements about Mr. Brown’s location, his vehicle and his

license plate number all proved to be true when the officers

went looking for the getaway driver. The court also deter-

mined that Officer Brown’s decision to approach the Tahoe

with his weapon drawn was justified by his belief that the

robbery and the attempted robbery had occurred at gun-

point.

After the court denied his motion to suppress, Mr. Brown

entered a conditional guilty plea and was sentenced to a

term of forty months’ imprisonment. In the plea agreement,

Mr. Brown reserved his right to contest the suppression

ruling on appeal.

4 No. 03-2450

II

DISCUSSION

In this appeal, the parties contest two issues: (1) whether

the initial stop and pat-down of Mr. Brown was a proper

investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), and

(2) if the initial stop instead constituted an arrest, whether

probable cause existed to support it. The parties spend most

of their briefs discussing the first issue, because an investi-

gatory stop requires only “reasonable suspicion” of criminal

activity, while an arrest requires the higher showing of

“probable cause.” See United States v. Wimbush, 337 F.3d 947,

949 (7th Cir. 2003). However, because we agree with the

district court that probable cause for arrest already existed

when the officers initially approached Mr. Brown, we turn

first to the question of probable cause.

Probable cause exists if, at the time of arrest, the officers

possess knowledge from reasonably trustworthy informa-

tion that is sufficient to warrant a prudent person in be-

lieving that a suspect has committed, or is committing, a

crime. See United States v. Schaafsma, 318 F.3d 718, 722 (7th

Cir. 2003). Probable cause is a fluid concept based on

common-sense interpretations of reasonable police officers

as to the totality of the circumstances at the time of arrest.

See United States v. Sholola, 124 F.3d 803, 814 (7th Cir. 1997)

(citing Ornelas v. United States, 517 U.S. 690, 695 (1996);

United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995)).

Because police officers are entitled to rely on their experi-

ence in assessing probable cause, their judgments deserve

deference. Ornelas, 517 U.S. at 699-700. However, although

we review the district court’s findings of fact only for clear

error, our review of the district court’s probable cause de-

termination is de novo. Id. at 699.

Mr. Brown’s primary argument is that the officers lacked

probable cause because they confronted him, not on the

No. 03-2450 5

basis of “reasonably trustworthy” information, but on the

basis of information obtained from an “informant,” Dill,

whose credibility was previously unknown to the police.

Mr. Brown rests this argument on cases holding that

information from anonymous sources might not be suffi-

ciently reliable to constitute probable cause for arrest. See,

e.g., Florida v. J.L., 529 U.S. 266, 274 (2000) (holding that

anonymous call that gave police no predictive information

to corroborate tip lacked sufficient indicia of reliability to

justify stop and frisk); United States v. Roberson, 90 F.3d 75,

80 (3d Cir. 1996) (determining that tip from anonymous

source containing information readily observable by any

member of the public does not constitute reasonable suspi-

cion).

This case is not controlled by those involving anonymous

tips. The information that led to Mr. Brown’s arrest did not

come from an anonymous source; it came from Dill, his

accomplice, who provided specific information naming Mr.

Brown and identifying his role in the robberies, his present

location and the make and model of the getaway car he was

driving. Unlike an anonymous source whose basis for

knowledge of the criminal activity cannot be discerned and

who cannot be held accountable if a tip turns out to be false,

see J.L., 529 U.S. at 270, Dill provided the police with a

reliable basis to conclude that he would have reason to

know specific details about the robberies, including who

else might be involved. This court and others that have dealt

with inculpating statements in the probable cause context

have held that such statements are weighty factors in

establishing probable cause to arrest an alleged accomplice

even if the statements have not been proven reliable. See

Schaafsma, 318 F.3d at 722 (noting that accomplice’s state-

ments during drug buy that he was purchasing the drugs

for a “guy” in the parking lot supported probable cause for

arrest of individual observed sitting in a car in the lot);

6 No. 03-2450

United States v. Rosario, 234 F.3d 347, 350-51 (7th Cir. 2000)

(noting that incriminating statements of an accomplice, an

untested informant, may contribute to a determination of

probable cause if the court assesses the amount and reliabil-

ity of the information and its corroboration— even if the

statements are partially intended to reduce his own culpa-

bility); Eain v. Wilkes, 641 F.2d 504, 510 (7th Cir. 1981)

(indicating that accomplice testimony may be used to

establish probable cause); see also United States v. Allen, 297

F.3d 790, 794 (8th Cir. 2002) (determining that corroborated

information provided by codefendant against his penal

interest was sufficiently credible even though he had no

prior record as informant). In fact, several circuits have held

that such statements are so presumptively reliable that they

may support a probable cause determination even if

uncorroborated. See United States v. Patterson, 150 F.3d 382,

386 (4th Cir. 1998) (“[I]t would be contradictory to allow a

defendant to be convicted based on the uncorroborated

testimony of his co-perpetrator while refusing to find that

the same statement would be sufficient to support probable

cause.”); Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir.

1997) (en banc) (same); United States v. Chin, 981 F.2d 1275,

1278 (D.C. Cir. 1992) (participant who possesses direct

personal knowledge of crime and has been “caught red-

handed” has more reliable information about his accomplice

than average informant); United States v. Gaviria, 805 F.2d

1108, 1115 (2d Cir. 1986) (if informant participated in crime,

authorities do not need to prove informant’s prior trustwor-

thiness when relying on his statements to establish probable

cause to arrest alleged accomplice).

Moreover, Dill’s statements are not uncorroborated. The

short time frame between his confession and the robbery of

the bank at Jewel gave police the opportunity to verify

details of Dill’s statements in order to ensure that he was

trustworthy. Dill gave the officers Mr. Brown’s location, the

No. 03-2450 7

color and make of the getaway car and the fact that he

would be alone in the car. When the police found the Tahoe

in the location that Dill specified and were thus able to

verify these important details, the entirety of Dill’s story,

including his statements about Mr. Brown’s role in the

robberies, assumed a high degree of reliability. See United

States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999) (considering

source’s information credible in part because authorities

were able to verify details of informant’s story); Rosario, 234

F.3d at 351 (same); see also Gaviria, 805 F.2d at 1115 (accom-

plice’s story was confirmed when defendant matched de-

scription given by accomplice and was found at address

given by accomplice). By contrast to the situation with an

anonymous tipster, the police knew Dill’s basis for knowl-

edge of Mr. Brown’s criminal act, and they were able to

verify aspects of his story.

The context in which Dill implicated Mr. Brown in the

robberies also reveals the trustworthiness of his statements.

Dill confessed shortly after his arrest and within minutes of

robbing the second bank. Dill did not simply accuse Mr.

Brown of participating in a crime after the fact and point the

officers to Mr. Brown’s home address. Cf. Thompson v.

Wagner, 319 F.3d 931, 935-36 (7th Cir. 2003) (explaining that

probable cause to arrest was lacking when source identified

defendant five months after the crime took place); Roberson,

90 F.3d at 80 (“The tip in the case at bar contained no details

of future actions of third parties ordinarily not easily

predicted.” (internal quotation marks and citation omitted)).

Rather, just minutes after robbing a bank, Dill gave the

officers Mr. Brown’s location within blocks of the second

bank. Indeed, Mr. Brown’s participation in the crime was

still ongoing. Cf. United States v. Scheets, 188 F.3d 829, 839

(7th Cir. 1999) (suspect’s proximity to bank supported

finding of probable cause); United States v. Robertson, 305

F.3d 164, 168 (3d Cir. 2002) (suspect’s close temporal and

8 No. 03-2450

physical proximity to crime supported finding of reasonable

suspicion). Combined with the officers’ reasonable belief

that Dill must have had a getaway driver due to the short

time frame (approximately half an hour) and the large

distance (approximately twenty blocks) between the first

and second banks, the police had every reason to believe

that Dill’s statement inculpating Mr. Brown was credible.

Accordingly, Dill’s confession constituted probable cause to

arrest Mr. Brown.

Mr. Brown attempts to cast doubt on the reliability of

Dill’s statements by arguing that, when the police officers

arrested Dill, they knew he was running in the opposite

direction from where he said Mr. Brown was waiting in the

Chevrolet Tahoe. Thus, submits Mr. Brown, the officers

should have doubted rather than embraced Dill’s informa-

tion. But the fact that Dill was running away from Mr.

Brown’s location could not have detracted from the re-

liability of his statements because his path actually lessened

the possibility that Dill had simply spotted Mr. Brown while

fleeing from the bank and then falsely implicated him in the

bank robbery. Moreover, the officers quite reasonably could

have ascribed little significance to the direction Dill was

running by the time they converged on him; indeed, Dill

later explained that he was running away from the getaway

car because he saw a police car in that direction.

In any event, even if Dill’s statements are viewed as

giving rise only to reasonable suspicion but not probable

cause, the outcome would not change. Mr. Brown argues

that he was arrested immediately—and not just detained in

an investigatory stop—because Officer Brown approached

the Tahoe with his weapon drawn and then removed Mr.

Brown’s wallet during the pat-down search. However, an

officer may check an individual’s identification in his wallet

during a Terry stop. See United States v. Hernandez-Rivas, 348

F.3d 595, 599 (7th Cir. 2003). We also have recognized that,

No. 03-2450 9

because investigative detentions often pose a great risk of

harm to the police, the “mere use or display of force in

making a stop does not necessarily transform a stop into an

arrest if the surrounding circumstances give rise to a

justifiable fear for personal safety.” United States v. Tilmon,

19 F.3d 1221, 1226 (7th Cir. 1994). Certainly a bank robbery

is the type of violent criminal activity from which officers

reasonably could infer that a suspect might be armed, see id.

at 1227, and the officers here knew that Mr. Brown’s

accomplice, Dill, had robbed one bank and attempted to rob

another with threats of force. Thus, Officer Brown’s display

of force, which ended as soon as he determined that Mr.

Brown was unarmed, would not have turned the initial stop

into an arrest.

Once Mr. Brown was detained, the officers were able to

confirm more aspects of Dill’s statement, including the fact

that the man they had stopped was Alvin Brown and that

the license plate of his Tahoe began with the letter “F.” In

addition, Mr. Brown’s explanation for being in the area—

that he had “run out of” or “was low on” gas—made no

sense. Sitting in a car with the engine running would be an

unusual way to solve that problem, particularly with a gas

station only a block away. This implausible story, combined

with the other aspects of Dill’s statement that had been

verified, added to the information possessed by authorities

about Mr. Brown’s role in the robberies and most certainly

provided more than probable cause to arrest him. See United

States v. Edwards, 242 F.3d 928, 935 (10th Cir. 2001) (implau-

sible, inconsistent explanations support probable cause for

arrest).

Conclusion

Accordingly, the judgment of the district court is affirmed.

AFFIRMED

10 No. 03-2450

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-26-04