Submitted September 11, 2014.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee: Marc Krickbaum, Assistant U.S. Attorney, Maureen McGuire, Assistant U.S. Attorney, Clifford D. Wendel, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.
For Michael E. Walker, Jr., Defendant - Appellant: Bernard John Burns III, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Iowa, Des Moines, IA.
Michael E. Walker Jr., Defendant - Appellant, Pro se, Leavenworth, KS.
Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
LOKEN, Circuit Judge.
Responding to a reported drive-by shooting, police stopped a car near the scene. A search uncovered a handgun in the pouch of the seat in front of passenger Michael Walker. Walker was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the firearm, challenging the initial stop but not the search. The motion was denied, and he entered a conditional guilty plea. On appeal, Walker argues the district court erred in denying his motion to suppress. He also appeals his forty-four month prison sentence, arguing the court erred in applying a four-level enhancement for possessing the firearm in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6)(B). We affirm.
I. The Suppression Issue
The facts relied on by the district court in denying Walker's motion to suppress are not disputed. Shortly before 1:00 a.m., a caller informed emergency dispatch of a drive-by shooting at 1405 Idaho Street in Des Moines, Iowa. The dispatcher reported to police that the caller saw two African-American males getting into a " Suburban," which then headed east on Cleveland Avenue. Officer Todd Wilshusen, on patrol nearby, responded. He knew that a witness in a recent murder investigation resided at the reported address, and that a suspect in the murder, Corey Rankins, lived two or three blocks east of 1405 Idaho Street. " Approximately a minute" after receiving the dispatch, Wilshusen spotted a Suburban backing out of the driveway to Rankins's house, the second vehicle Wilshusen encountered after the dispatch. Unable to see how many people were in the Suburban or their identities, Wilshusen turned his patrol car towards the vehicle and turned on his spotlight. Wilshusen exited his car and approached the Suburban, which had stopped. He saw Walker sitting in the driver's side backseat. The other occupants were three women. A search of the Suburban revealed the handgun that Walker seeks to suppress.
Walker argues that Wilshusen lacked reasonable suspicion to stop the Suburban. " For an officer to perform an investigatory stop of a vehicle, there must be reasonable suspicion. . . . that criminal activity is afoot," that is, " some minimal, objective justification for an investigatory stop."
United States v. Farnell, 701 F.3d 256, 261 (8th Cir. 2012) (quotations omitted). We determine whether an officer had reasonable suspicion de novo, evaluating " the totality of the circumstances . . . to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."
United States v. Humphrey, 753 F.3d 813, 816 (8th Cir. 2014), quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
We reviewed a case involving similar facts in United States v. Juvenile TK, 134 F.3d 899 (8th Cir. 1998). After receiving reports that a man with a gun broke a window and got into a " gray vehicle," and a short time later brandished a weapon at a gas station, a police officer stopped a gray car about two blocks away from the gas station. Id. at 900-01. We concluded that the officer had reasonable suspicion to stop the car based on " the temporal and geographic proximity of the car to the scene of the crime, the matching description of the vehicle, and the time of the stop." Id. at 903. Here, as in TK, police were responding to reports of " clearly criminal activity," id. at 904, a drive-by shooting at the residence of a witness in a murder investigation. A Suburban was reported leaving the scene of this early morning crime. Officer Wilshusen spotted a Suburban leaving the driveway of a suspect in the investigation, a short distance from the reported shooting. All this was more than enough reasonable suspicion to stop the Suburban and investigate its occupants. Walker argues there was no reasonable suspicion because the vehicle contained one male passenger and the dispatcher reported two males ...