Judges: Per Curiam
Filed: Mar. 09, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 27, 2009 Decided March 9, 2009 Before RICHARD A. POSNER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 08-2456 UNITED STATES OF AMERICA, Appeal from the United States District Court Plaintiff-Appellee for the Northern District of Indiana, South Bend Division. v. No. 3:07-cr-000
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 27, 2009 Decided March 9, 2009 Before RICHARD A. POSNER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 08-2456 UNITED STATES OF AMERICA, Appeal from the United States District Court Plaintiff-Appellee for the Northern District of Indiana, South Bend Division. v. No. 3:07-cr-0007..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 27, 2009
Decided March 9, 2009
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2456
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee for the Northern District of Indiana, South
Bend Division.
v.
No. 3:07‐cr‐00077 RM
TERRY E. MACLIN,
Defendant‐Appellant. Robert L. Miller, Jr.,
Chief Judge
ORDER
Terry Maclin was charged with possession of a firearm by a felon. See 18 U.S.C.
§ 922(g). He unsuccessfully moved to suppress the gun on the ground that it was the fruit
of an illegal seizure. A jury found him guilty after a one‐day trial on March 17, 2008. Maclin
now appeals.
Just after midnight on December 9, 2006, Karl Miller, of the Elkhart, Indiana police
department, was dispatched to an apartment complex to investigate reports of vehicle
break‐ins. It was cold and, although it was not snowing, the ground was covered by about
two inches of snow. While patrolling the parking lot for suspects, Miller saw only one
person, Maclin, who was walking west on a sidewalk bordering the lot. When Miller pulled
No. 08-2456 Page 2
within 60 to 70 yards, Maclin turned and looked in Miller’s direction and then veered off the
sidewalk onto a grassy area behind a building that blocked him from Miller’s view.
Corporal Miller suspected that Maclin was involved in the break‐ins given that he
was out so late on a very cold night and appeared to be avoiding him. Miller parked his car
at the edge of the building behind which Maclin had disappeared and headed on foot to cut
off Maclin. As Miller rounded the corner, Maclin again changed his route. Miller closed the
gap to 30 or 40 yards and shouted for Maclin to stop and come toward him. According to
Miller, Maclin looked over his shoulder at the officer but continued walking, with Miller on
his tail. Miller testified that after he shouted several more times, Maclin halted and turned
to face him but not before dropping something in the snow. Reeking of alcohol (he later
registered a .20 percent on a breathalyser test–over twice the legal limit for driving), Maclin
finally approached Corporal Miller, who arrested him for public intoxication.
After backup officers arrived, Corporal Miller searched for the object that had fallen
into the snow, and he found a black handgun. Miller and his fellow officers testified that
there was some snow on the gun but it was not covered and that the only footprints near the
gun were made by Maclin and Miller.
Maclin conceded at the suppression hearing that he was drunk, but denied dropping
anything, much less a gun, in the snow. He also denied that he tried to evade Corporal
Miller, asserting instead that he stopped walking as soon as he heard Miller call. Maclin
maintained that he came to the apartment complex with a friend, intending to go to
another’s apartment, but they became separated. So the friend, who was already at the
destination apartment, attempted to provide directions to Maclin over his cell phone.
Because he was quite drunk and unfamiliar with the apartment complex, Maclin said, he
had difficulty finding his destination and changed directions several times. And because he
was talking on his cell phone, Maclin continued, he did not hear Miller’s initial summonses.
Corporal Miller testified, though, that Maclin was not carrying a phone at the time of his
arrest and that police did not find a cell phone in the snow. And though Maclin maintained
that he gave his friend’s name to the officers who arrested him, Miller testified that Maclin
was unable to tell the police the name of his purported friend, who never surfaced as a
witness at the suppression hearing.
In denying Maclin’s motion, the district court reasoned that the report of vehicle
break‐ins coupled with Maclin’s apparently evasive behavior gave Corporal Miller
reasonable suspicion to stop Maclin. The court found Miller’s interpretation of Maclin’s
behavior credible and concluded that Miller reasonably believed that Maclin was ignoring
No. 08-2456 Page 3
and evading him even if Maclin was, as he claimed, drunkenly but innocently searching for
his friend while talking on a cell phone.
At trial, Corporal Miller and his fellow Elkhart officers gave the same account of
events that night. The government also called a firearms expert who testified that the gun
was made in Maryland and, thus, had been transported in interstate commerce before
Maclin possessed it. Maclin stipulated that he had a previous felony conviction but did not
take the stand and called no witnesses of his own.
Analysis
Maclin challenges his conviction on two grounds. First, he renews his contention
that the police were not justified in ordering him to stop and so the gun, which the parties
agree was discovered pursuant to the stop, should have been excluded. Second, Maclin
submits that the evidence was insufficient for the jury to find him guilty of possessing a
firearm that had been transported in interstate commerce.
As an initial matter, it is unclear why the government never challenged Maclin’s
standing to move for suppression. The Fourth Amendment protects only places and items
in which a person has a legitimate expectation of privacy, see United States v. Yang, 478 F.3d
832, 835 (7th Cir. 2007), and there is no expectation of privacy in abandoned property,
United States v. Pitts, 322 F.3d 449, 455‐56 (7th Cir. 2003). Because a reasonable person in
Corporal Miller’s position would conclude that Maclin abandoned the gun by dropping it
before he complied with the command to stop walking and approach the officer, see United
States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000); United States v. Martin, 399 F.3d 750, 752
(6th Cir. 2005) (concluding defendant abandoned gun thrown away during police pursuit),
the district court might have denied Maclin’s motion to suppress on the ground that he
lacked standing. But the government, which must establish abandonment by a
preponderance of the evidence, Basinski, 226 F.3d at 83, never raised the issue in the district
court and does not do so now.
When reviewing a motion to suppress, we examine the district court’s factual
findings for clear error and, if the evidence was obtained without a warrant, its legal
conclusions de novo. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). Faced with
conflicting explanations of Maclin’s conduct, the district court credited Corporal Miller over
Maclin. Miller’s testimony was not at all improbable, see United States v. Thornton, 197 F.3d
241, 247 (7th Cir. 1999), so we turn to the legal conclusions.
The parties agree that Maclin’s encounter with Corporal Miller should be reviewed
under Terry v. Ohio, 392 U.S. 1 (1968), which holds that a police officer may conduct “a brief,
No. 08-2456 Page 4
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30).
“[R]easonable suspicion is less than probable cause but more than a hunch,” United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006), and whether a police officer had reasonable
suspicion to detain a subject is an objective inquiry based on the totality of the
circumstances known to the officer at the time of the encounter, United States v. Hicks, 531
F.3d 555, 558 (7th Cir. 2008). Thus, even behavior that is innocent in isolation may in a
particular context give rise to a reasonable suspicion. Lawshea, 461 F.3d at 859. Ultimately,
the reasonable suspicion determination is based on “commonsense judgments and
inferences about human behavior.” Wardlow, 528 U.S. at 125.
Maclin contends that his presence in an area of reported criminal activity did not
create a reasonable suspicion, particularly because there is no evidence that Corporal Miller
knew the origin of the report he was dispatched to investigate. But Maclin’s presence at the
apartment complex in the middle of a very cold night, just after reports of vehicle break‐ins,
although maybe not conclusive, was certainly relevant to the reasonable suspicion
calculation. See United States v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (explaining that
driver’s rapid acceleration after seeing marked police car during the early hours of morning,
in remote park where methamphetamine lab had recently been discovered, contributed to
reasonable suspicion); United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006)
(concluding that time, 1:20 a.m., and location, a high‐crime area, were relevant to
determination of reasonable suspicion). Maclin contends that the reports that brought
Miller to the complex could not factor into his response unless he knew who made the calls.
This argument is frivolous.
Maclin also argues that his attempts to avoid Corporal Miller did not create a
reasonable suspicion. Although a citizen is not obligated to pause and cooperate with
police when approached without reasonable suspicion or probable cause, fleeing in the face
of police officers is a pertinent factor in assessing reasonable suspicion. Wardlow, 528 U.S. at
125 (citing Florida v. Bostick, 501 U.S. 429, 437 (1991); Florida v. Royer, 460 U.S. 491, 498
(1983)). Maclin contends, though, that he did not run from Miller; he simply walked away.
In fact, there is no constitutional distinction between running away from the police and
walking away evasively. See Lawshea, 461 F.3d at 860; United States v. Humphries, 372 F.3d
653, 660 (4th Cir. 2004); United States v. Valentine, 232 F.3d 350, 357 (3rd Cir. 2000); cf.
Caruthers, 458 F.3d at 466 (“[T]he speed of the suspect’s movements may be relevant in the
totality of the circumstances.”). Maclin’s failure to heed police commands to stop may also
suggest reasonable suspicion. See United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003);
Lawshea 461 F.3d at 860.
Furthermore, any type of objectively “furtive movements made in response to a
police presence” may be considered by police in the totality of the circumstances. Caruthers,
No. 08-2456 Page 5
458 F.3d at 466. Maclin changed directions as soon as he saw Corporal Miller, leaving the
sidewalk for a snow‐covered area that placed a building between the two of them and again
when Miller came around the building. Then, before finally nearing Corporal Miller, he
dropped something, further contributing to Miller’s reasonable suspicion, see United States
v. Carter, 360 F.3d 1235, 1240 (10th Cir. 2004). Considering these factors together with
Maclin’s lone presence, on a cold winter night in a parking lot where vehicle break‐ins had
just been reported, the district court was correct to conclude that Corporal Miller had
reasonable suspicion to stop Maclin.
Maclin’s remaining contention about the sufficiency of the evidence is frivolous.
When reviewing the evidence underlying a conviction, we consider the evidence in the light
most favorable to the verdict and draw all inferences in the government’s favor. United
States v. Craft, 484 F.3d 922, 925 (7th Cir. 2007). Consequently, we will not reverse Maclin’s
conviction unless the record contains no evidence from which a rational jury could have
found him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Farris, 532 F.3d 615, 618 (7th Cir. 2008). Maclin does not dispute that he had
a felony conviction before this case, and the government’s evidence that the gun was made
in Maryland satisfies the commerce element of § 922(g). See United States v. Rice, 520 F.3d
811, 815 (7th Cir. 2008). Possession, then, is the only element in dispute.
Maclin contends that the evidence establishing his possession of the gun—Corporal
Miller seeing him drop something and then finding the gun in that spot—is insufficient. He
observes that his fingerprints were not found on the gun and suggests that it just as easily
could have belonged to someone who lived in one of the apartments surrounding the area
where it was found. The government, though, does not have to rule out every conceivable
innocent explanation for its evidence, see United States v. Humphreys, 468 F.3d 1051, 1054 (7th
Cir. 2006), and, anyway, Maclin’s theory approaches the absurd. Miller saw Maclin drop
something, immediately went to investigate, and found only the gun where Maclin had just
been standing. The ground, but not the gun, was covered by snow, and only Maclin’s
footprints led to it. A rational jury could infer from those circumstances that Maclin was
holding the gun and dropped it in the hope of avoiding detection.
Accordingly, we AFFIRM Maclin’s conviction.