USA v. Michael Lepage, 06-1881.  The appellant entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 120 months’ imprisonment. On appeal he challenges the district court’s denial of his motion to suppress the firearm and he challenges his sentence. The 7th Circiot affirms.

On August 23, 2005, police in Superior, Wisconsin, received a phone call from a girl who reported a group of people acting suspiciously outside the building that she was in, apparently prowling around a car and a nearby building that she thought was supposed to be empty. Relaying information from others in the house, she continued to update the police about the activities of the group of people, she named one of the suspicious people as Michael LePage, and she whispered that he had a gun. She identified herself by name to the dispatch operator.

When officers arrived, they found a group of three people at the location. By this time the police officers at the scene had been informed by dispatch that Michael LePage was one of the group and was reported to be armed. An officer, who knew LePage by sight and also knew him to be a prior felon, saw him on the porch of a house carrying a duffel bag. He ordered LePage to drop the bag and move to the sidewalk, and then frisked him.

When LePage dropped the bag, the officer had heard a "thump" as it hit the porch. Finding nothing on LePage’s person, the officer walked to the porch and looked at the bag. The officer’s report states that the bag was half-opened and he could see part of a sawed-off shotgun. LePage was then arrested.

LePage moved to suppress the admission of the shotgun as the fruit of an improper search and seizure.

When the 7th Circuit reviews a decision on a motion to suppress, the district court’s determinations of reasonableness are reviewed de novo. United States v. Scheets, 188 F.3d 829, 836 (7th Cir. 1999). LePage first argues that the police did not have reasonable suspicion to stop him when they arrived on the scene on August 23.

Police officers may briefly stop and detain somebody for investigation if they have a reasonable suspicion that the suspect has committed a crime or is about to do so. Terry v. Ohio, 392 U.S. 1 (1968). This reasonable suspicion need not rise to the level of probable cause, but it must be more than a mere hunch. United States v. Ganser, 315 F.3d 839, 843 (7th Cir. 2003). A Terry stop must not only be valid at its inception, but the officers must not exceed the scope or nature of the stop. United States v. Askew, 403 F.3d 496, 508 (7th Cir. 2005).

Although a single anonymous tip seldom has the indicia of reliability to support a finding of reasonable suspicion for a Terry stop, a tip from a named informant that can be corroborated might support such a stop. Florida v. J.L., 529 U.S. 266, 271 (2000).When a single informant provides the tip that brought police to a Terry stop, the district court must look to the amount of information given, the degree of reliability, and the extent that the officers can corroborate some of the informant’s information. Ganser, 315 F.3d at 843.

In this case, the informant gave her name and location to the police. She also described a group of people repeatedly walking in circles around a building that she thought was empty-behavior that was very similar to the behavior that gave the police officer reasonable suspicion in the original Terry case. Terry, 392 U.S. at 5-6. She described what she thought was an attempt to break into a car next to that building. Most significantly, she said that although she had not seen a gun, she believed that LePage was armed because he was carrying something in front of himself.

When the police arrived, they were able to corroborate some of this information. At its inception the decisions to stop LePage, to ask him to step from the porch to the sidewalk, and to briefly detain him were supported by a reasonable, particularized suspicion that one or more crimes were being committed and that LePage was armed.

LePage then argues that, even if the initial stop was valid, the subsequent actions of the police by looking into the duffel bag on the porch were unreasonable in scope. The 7th Circuit disagrees.

The officers had arrived to find LePage exactly where the caller had said he would be. When ordered to drop the bag, the officers heard a sound, described as a thump, that was consistent with a weapon being in the bag. See United States v. Quinn, 83 F.3d 917, 921-22 (7th Cir. 1993) (finding reasonable suspicion to pat down a jacket when it made a thudding sound, consistent with a weapon, upon bumping into a car). Officers may walk up to that part of private property that is open to visitors or delivery people. United States v. French, 291 F.3d 945, 953 (7th Cir. 2002). The officers did that, and saw a sawed-off shotgun in LePage’s partially-opened duffel bag. At that point they had probable cause to arrest LePage and did so.

The decision by the district court not to suppress the shotgun as evidence was correct.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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

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