Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: November 19, 2009
Before MURPHY, SMITH, and BENTON, Circuit Judges.
Derrick Johnson pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Johnson filed a motion to suppress evidence obtained during the search of his vehicle, alleging that police did not have reasonable suspicion to stop his vehicle. Alternatively, Johnson argued that if the initial stop was legal, then the police wrongly expanded the stop and illegally searched his vehicle. After a hearing on the motion, the magistrate judge recommended that Johnson's suppression motion be denied. The district court adopted the magistrate judge's report and recommendation.
At sentencing, Johnson argued that § 924(e) of the Armed Career Offender Act (ACCA) did not apply to him because one of his prior convictions-fleeing a police officer in a motor vehicle-should not be considered a violent felony after Begay v. United States, 553 U.S. 137 (2008). The district court disagreed and ruled that § 924(e) applied. The district court then granted the government's downward departure motion for substantial assistance and sentenced Johnson to 66 months' imprisonment. On appeal, Johnson argues that the district court erred in denying his suppression motion and in ruling that his conviction for fleeing a police officer in a motor vehicle qualified as a violent felony. We affirm the district court's suppression motion ruling and reverse its § 924(e) ruling.
At approximately 1:00 a.m. on December 17, 2006, a central dispatcher with the Minneapolis police received an anonymous call about two vehicles parked in an alley with their engines running. Based on this call, Officers Roering and Suchta were dispatched to the 2600 block of Upton Avenue North in Minneapolis to investigate. Upon arrival, the officers turned into the alley and observed only one vehicle. This vehicle, a silver-colored van, was parked partially in a driveway and partially in the alley. As the officers approached the van, Roering shined the squad car's spotlight into the van. He observed a woman putting on clothing and a man move from the middle seat into the driver's seat. The driver drove toward the officers. Suchta then activated the squad car's emergency lights to initiate a stop. The van stopped and Roering approached the driver's window. When the driver rolled the window down, Roering smelled what he suspected was smoke from burning crack cocaine and saw what he believed was a "crack wrapper." Roering placed both Johnson and the passenger in the back of the squad car. The officers searched the vehicle and found a crack wrapper, marijuana residue, stems on the van's seat, and a loaded handgun in the center console.
Johnson was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Johnson moved to suppress all evidence seized from his vehicle, including the handgun. After a hearing on the motion to suppress, the magistrate judge recommended that Johnson's suppression motion be denied. The district court adopted the magistrate judge's report and recommendation. Johnson then conditionally pleaded guilty, reserving the right to appeal the denial of his motion to suppress.
After entering his plea, Johnson provided substantial assistance to the government. As a result, at sentencing the government moved for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K. Also at sentencing, Johnson challenged the applicability of § 924(e), arguing that one of his prior convictions, fleeing a police officer in a motor vehicle, should not be considered a violent felony in light of the Supreme Court's decision in Begay. The district court disagreed and determined that this prior offense qualified as a violent felony. The district court applied the 15-year mandatory minimum sentence under § 924(e), departed downward, and ultimately sentenced Johnson to 66 months' imprisonment.
On appeal, Johnson argues that the district court erred in denying his motion to suppress the evidence obtained during the search of his vehicle because the anonymous tip and other observations did not provide reasonable suspicion to justify the stop. Johnson maintains that the late hour of the incident, and the furtive movements inside the vehicle, without more, were insufficient to establish reasonable suspicion to justify stopping his vehicle.
Next, Johnson argues that even if the stop was legal, the expansion of the scope of the stop was not based on reasonable, articulable suspicion. Johnson maintains that Roering's credibility suffered on cross-examination by the defense and his stated basis for expanding the stop was rendered incredible. Johnson emphasizes that despite initially testifying that he saw a large amount of smoke in the van, Roering admitted that during his search of the vehicle no crack-smoking apparatus was found. Johnson also emphasizes that Roering acknowledged that he could not remember where he saw the crack wrapper, he did not photograph the crack wrapper, and he did not seize the crack wrapper to place it into evidence.
Johnson also contends that the automobile exception is inapplicable because the officers had no reasonable suspicion to believe that his ...