USA v. Drake, 04-4240.  A jury found James Drake guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1).  Drake appeals arguing that the gun should have been suppressed. 

Drake’s case involves a 911 call which leads to a traffic stop and the finding of the gun in plain view by the police.  During the 911 call, the caller leaves her name and corroborative information as to the car that Drake is in. 

The district court denied Drake’s suppression motion distinguishing Drake’s situation from Florida v. J.L., 529 U.S. 266 (2000) (holding that uncorroborated anonymous tip was insufficient to justify an investigatory stop of individual suspected of possessing a gun) finding that the 911 call was anonymous but sufficiently corroborated for the traffic stop. 

The 7th Circuit  starts by stating that since the 911 caller left her name, the call was not anonymous and JL does not control. Nevertheless, the traffic stop was justified only if the  911 report of an emergency situation provided the police with reasonable suspicion. See United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005).

The 7th Circuit finds that the police had a reasonable suspicion for the traffic stop and search. The police may conduct an investigatory stop of a vehicle if articulable facts support a reasonable suspicion that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1 (1968). 

Here, the 7th Circuit recognizes the particular duty of police officers to speedily respond to emergency situations reported by individuals through the 911 system. "Police delay while attempting to verify an identity or seek corroboration of a reported emergency may prove costly to public safety and undermine the 911 system’s usefulness. . . . The Fourth Amendment does not require the police to conduct further pre-response verification of a 911 caller’s identity where the caller reports an emergency. Accordingly, an emergency 911 call is entitled to greater reliability than an anonymous tip concerning general criminality." United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004)

Interestingly, the 7th Circuit states that from now on they will presume the reliability of an eyewitness 911 call reporting an emergency situation for purposes of establishing reasonable suspicion. Requiring further indicia of reliability would only jeopardize the usefulness of the 911 system and the ability of officers to prevent further danger to the public. 

Conviction AFFIRMED and LIMITED REMAND under Paladino.

USA v. Thigpen, 05-1866.  Thigpen pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a).  Thigpen appeals the district court’s finding that he is a career offender.  Thigpen did not raise this issue in the district court.

The 7th Circuit discusses whether the career offender issue was waived or forfeited by Thigpen.  Waiver, of course, is the intentional relinquishment and abandonment of a known right, which precludes appellate review. See United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005). By contrast, forfeiture is simply the failure to make a timely assertion of a right and leads to plain error review. Id.

The 7th Circuit finds that Thigpen did not waive his argument, thus plain error analysis is appropriate. To establish plain error, Thigpen has to demonstrate a clear error that affects a substantial right and, moreover, impacts "the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 733-34, 736 (1993).

In short, Thigpen loses plain error for the career offender, but wins plain error on the district court’s calculation of a restitution schedule.  Here the district court improperly transferred calculation of Thigpen’s restitution schedule to the probation office which is against the terms of the statute.  Thus, the 7th Circuit AFFIRMS Thigpen’s sentence, but VACATES the restitution order and REMANDS for the imposition of a proper restitution schedule.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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