USA v. Brandon Burge
Filing
Filed opinion of the court by Judge Tinder. AFFIRMED. William J. Bauer, Circuit Judge; Michael S. Kanne, Circuit Judge and John Daniel Tinder, Circuit Judge. [6591065-1] [6591065] [13-3571]
Case: 13-3571
Document: 23
Filed: 07/17/2014
Pages: 7
In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3571
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRANDON BURGESS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 890-1 — Edmond E. Chang, Judge.
ARGUED JUNE 10, 2014 — DECIDED JULY 17, 2014
Before BAUER, KANNE, and TINDER, Circuit Judges.
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 ap-
Case: 13-3571
2
Document: 23
Filed: 07/17/2014
Pages: 7
No. 13-3571
peal—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 Kildare
and a mile from Wabansia and Karlov. 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.
Case: 13-3571
No. 13-3571
Document: 23
Filed: 07/17/2014
Pages: 7
3
Based on these facts and his 2001 conviction for seconddegree 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 from hearing the dispatches alone—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—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
Case: 13-3571
4
Document: 23
Filed: 07/17/2014
Pages: 7
No. 13-3571
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 (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
Case: 13-3571
No. 13-3571
Document: 23
Filed: 07/17/2014
Pages: 7
5
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
(2002) (quoting United States v. Cortez, 449 U.S. 411, 417–18
(1981)); United States v. Bullock, 632 F.3d 1004, 1012 (7th Cir.
2011), and a number of circumstances, beyond mere proximity
to a suspected crime, separate Burgess’s case from Bohman and
Johnson.
At the outset we observe the dangerousness of the situation
facing the officers and the public. See United States v. Goodwin,
449 F.3d 766, 769, 771 (2006) (applying sliding scale approach
under which greater danger requires less suspicion for reasonable search). We emphasized in Bohman, 683 F.3d at 866, that
the apparent lack of immediate danger in that case set it apart
from United States v. Brewer, 561 F.3d 676, 677–79 (7th Cir.
2009), in which we ruled that an officer reasonably stopped the
first vehicle to drive out of an apartment complex given the
short amount of time between a reported shooting and the
vehicle’s departure. But the imminent danger in this case
makes it like Brewer, not Bohman. Multiple callers reported
shots fired in the same general area, creating heightened
Case: 13-3571
6
Document: 23
Filed: 07/17/2014
Pages: 7
No. 13-3571
suspicion of a serious crime, and for all the officers knew as
they approached the area just minutes later, more than one
shooting location was involved. The threat to public safety was
serious, and the officers had to assume that it was continuing
in process.
Against the background of this ongoing threat, a number of
considerations supported stopping Burgess’s car in particular.
Some of the callers reported that the shots were fired from a
black car on Karlov near Wabansia, so the officers had both a
specific car color and a street location to zero in on. Two or
three minutes later the officers saw a black car pass them
(going the other way and out of the area) on a street parallel to
and just a few streets over from Karlov—about a mile from
Karlov and Wabansia, a distance and on a street one might
reasonably expect the shooter’s vehicle to have traveled during
the time that had elapsed. And because of the light traffic late
on that Sunday night, there was a good chance that seeing
Burgess’s car at that time and place was more than a coincidence. That probability wasn’t lessened by the fact that the car
was headed in the opposite direction as the vehicle identified
in the dispatch, for it is hardly surprising that a car involved in
a drive-by shooting might change directions afterwards,
perhaps to return to where it originated prior to the shooting.
All told, the circumstances here—the dangerousness of the
crime, the short lapse of time between the dispatches and the
stop, the stop’s proximity to the reported shots, the car’s color,
and the light traffic late at night—provided ample justification
for stopping Burgess’s car. In such a situation, it is reasonable
for police to act quickly lest they lose the only opportunity they
may have to solve a recent violent crime or to interrupt an
Case: 13-3571
No. 13-3571
Document: 23
Filed: 07/17/2014
Pages: 7
7
advancing one. After all, reasonable, articulable, particularized
suspicion is not a matter of certainty, and recent reports of
large caliber gunshots fired from a black car in a densely
populated urban area added up to enough to permit a stop of
this car to allow for further investigation.
AFFIRMED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?