UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 28, 2006
Decided May 8, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-3434
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Western Division.
v.
No. 04 CR 50038
TERRY N. TAYLOR,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
Defendant-Appellant Terry Taylor was convicted of violating 18 U.S.C. §
922(g), for being a felon in possession of a firearm, and 28 U.S.C. § 5861(d), for
unlawfully possessing a firearm that was not registered to him in the National
Firearms Registration and Transfer Record. Taylor appeals the district court’s
denial of his pre-trial suppression motion and his sentencing as an “armed career
criminal,” pursuant to 18 U.S.C. § 924(e)(1). For the reasons discussed below, we
affirm the judgment of the district court.
No. 05-3434 Page 2
I. BACKGROUND
On March 8, 2004, at approximately 3:00 a.m., a 911 caller1 reported hearing
gun shots coming from a house at 415 N. Central Avenue in Rockford, Illinois.
Rockford police officers Ty Eagleson and Michael Schissel were dispatched to that
address, the home of Ressie Taylor, who is defendant-appellant Terry Taylor’s
mother. When the officers arrived, they saw Terry Taylor walking out of the front
door of the house. The officers patted him down, finding nothing, and then locked
him in the police squad car. During Taylor’s pat-down, Officer Eagleson observed a
spent shotgun casing on the ground near the front porch of the home. Officer
Eagleson spoke with Taylor’s mother in the living room of the home, and she told
him that she had been awakened by a loud boom that she thought was a gun shot.
She also told Officer Eagleson that after waking, she saw Taylor standing in her
living room. After speaking with Taylor’s mother, Officer Eagleson walked around
the exterior of the home, where he found a live shotgun casing and another spent
shotgun casing.
At that point, Terry Taylor’s brother, Otis Taylor, and his nephew, Stephen
Neely, arrived at the home. Otis Taylor told Officer Eagleson that Terry Taylor,
Neely, and he had been at a club that night and that he had just dropped his
brother off at his mother’s home. Shortly after leaving defendant Taylor at his
mother’s home, Otis Taylor said, his mother had called him and told him that
defendant Taylor had shot a gun in the house. Mr. Neely confirmed to Officer
Eagleson that Otis Taylor had received this call from Ressie Taylor and mentioned
that defendant Taylor had pointed a shotgun at him while he was sitting in the
kitchen of Ressie Taylor’s home the previous evening.
Officer Eagleson then reentered the Taylor home and asked Taylor’s mother for
permission to search the home. The district court credited the testimony of the
police officers that she consented to the search, finding her later testimony to the
contrary not credible. In the ensuing search, an officer found an empty box of
shotgun shells, but no gun. While the interior search was being conducted, Officer
Schissell, using his flashlight, discovered a sawed-off shotgun on the roof of the
Taylor home. Officer Schissel also found another live shotgun casing in the back of
the squad car where Taylor had been sitting.
Taylor was charged with unlawfully possessing a firearm as a convicted felon
and unlawfully possessing a sawed-off shotgun not registered with the National
Firearms Registration and Transfer Record. Taylor moved to suppress the physical
1
Appellant Taylor claims that the officers did not know the identity of the caller, who he claims was
actually his brother. The State claims that the caller identified herself as Ressie Taylor, Taylor’s mother.
For the purposes of this appeal, we assume that the identity of the caller was unknown.
No. 05-3434 Page 3
evidence against him but the district court denied this motion, finding that the
warrantless search of the premises was justified by exigent circumstances. The
district court also found that, even absent such exigent circumstances, the
warrantless search was valid because Taylor’s mother had consented to the search
of her home for a weapon.
At trial, a jury convicted Taylor of both charges. At the sentencing hearing,
the district court determined that Taylor was an armed career criminal as defined
by 18 U.S.C. § 924(e)(1). This provision mandates that a person convicted of
possessing a firearm as a convicted felon who has three previous violent felony
convictions shall be imprisoned for not less than fifteen years. Specifically, the
district court found that Taylor qualified for sentencing as an armed career criminal
because he had two armed robbery convictions and one conviction for theft from a
person. The district court sentenced Taylor to concurrent terms of 300 months’
imprisonment for possession of a firearm as a felon and 120 months’ imprisonment
for possession of an unregistered sawed-off shotgun. Taylor now appeals.
II. ANALYSIS
A. Motion to Suppress
Taylor argues that the district court erred in denying his suppression motion
because exigent circumstances did not justify the warrantless search of his mother’s
home and because there was no consent to the search. This court reviews findings of
historical fact and credibility determinations for clear error, United States v.
Johnson, 170 F.3d 708, 713 (7th Cir. 1999), and reviews mixed questions of law and
fact, including whether exigent circumstances existed, de novo. United States v.
Richardson, 208 F.3d 626, 629 (7th Cir. 2000).
The test for whether exigent circumstances existed is objective. Richardson,
208 F.3d at 629. To justify a warrantless search, “the government must establish
that the circumstances as they appeared at the moment of entry would lead a
reasonable, experienced law enforcement officer to believe that someone inside the
house, apartment, or hotel room required immediate assistance.” United States v.
Arch, 7 F.3d 1300, 1304 (7th Cir. 1993). This court has held that “911 calls reporting
an emergency can be enough to support warrantless searches under the exigent
circumstances exception, particularly where . . . the caller identifie[s] himself.”
Richardson, 208 F.3d at 630. In Richardson, police received a 911 call reporting a
rape and murder. Although the caller stated that the crimes were already complete,
this court concluded that exigent circumstances still existed to justify a search of the
crime scene identified by the caller because the police had a reasonable basis for
believing there was a continuing danger. See id. at 631 (noting police testimony that
the caller might have mistaken as dead a person who was still alive). Likewise, in
No. 05-3434 Page 4
United States v. Jenkins, 329 F.3d 579, 582 (7th Cir. 2003), this court held that
exigent circumstances justified an officer’s search when the police received a 911 call
regarding an assault and the police officer heard suspicious noises from inside the
search premises. The circumstances in Richardson and Jenkins gave rise to the
police’s reasonable fear for the safety of someone inside the premises, and thus
justified warrantless searches.
In the instant case, the 911 dispatcher told police that gun shots had been
reported in the Taylor home. When the officers arrived they observed Taylor leaving
the home and found spent and live shotgun casings on the property. The police
spoke to Taylor’s brother and nephew, who provided additional information
regarding defendant’s possession of a firearm. Since no gun had been recovered,
police did not know if someone inside the home had access to the gun, or whether
there might be injured persons inside the home. A police officer confronting this
situation could reasonably believe that a threat of violence existed. Therefore, it was
reasonable for the officers to check the home to ensure that no one posed a threat to
them or anyone else.
Taylor objects that the 911 call could not create exigent circumstances because
the caller did not identify himself. While we have stated that a caller who identifies
himself is particularly credible, see Richardson, 208 F.3d at 630, unidentified 911
callers may also provide information contributing to the police’s reasonable belief
that exigent circumstances exist. Here, the information given to the 911 dispatcher
was confirmed by Taylor’s mother upon police’s arrival at the home. The initial
ambiguity of the caller’s identity does not undermine the police’s reasonable
conclusion that a threat of danger existed.
Taylor also objects that the circumstances police confronted at his home are
distinguishable from the exigent circumstances existing in Richardson and Jenkins
because the situation at his home was more stable than those the police encountered
in those cases. Specifically, Taylor claims that because he, the suspect, was
sequestered in a police squad car and police had not encountered any other violent
activity, any exigency that may have existed had dissipated before the search of the
home. Taylor’s argument, however, benefits from too much hindsight. When the
police detained Taylor in their car, they had not found the gun, and they did not
know if he was the person who had fired shots. Taylor did not admit his guilt to the
police, so the officers could have reasonably believed that the gunman was still
inside the home. As discussed above, the police also needed to ascertain whether
any victims were present inside the home. The threat of a remaining gunman and
the fear of remaining victims justified the police’s further searching of the Taylor
home even after Taylor was in custody. The district court therefore correctly denied
Richardson's suppression motion because the warrantless search fell within the
exigent circumstances exception to the warrant requirement.
No. 05-3434 Page 5
Moreover, we note that even if the search of the Taylor home was not justified
by exigent circumstances, it was justified by Ressie Taylor’s consent. Voluntary
consent to a search is an exception to the warrant requirement. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). It is undisputed that Taylor’s mother owned
the house at 415 N. Central Avenue and had authority to consent to the search of
her home. At the suppression hearing, Officers Eagleson and Schissel testified that
Taylor’s mother consented to a search of the home for the gun. She testified that she
did not consent. The district court, weighing her credibility against that of the
officers, concluded that she consented to the search. While Taylor maintains that no
consent was given, he does not point to any factors that would undermine the
district court’s finding. The district court’s credibility assessment is accorded
substantial deference and will only be disturbed if exceedingly improbable testimony
is credited. United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990);
see also United States v. Thornton, 197 F.3d 241, 247 (7th Cir. 1999) (“In a swearing
contest, the trial judge’s choice of whom to believe will not be rejected unless the
judge credited exceedingly improbable testimony.”). Such a showing of improbability
has not been made here, and thus the district court’s denial of the suppression
motion is affirmed.
B. Taylor’s Sentencing as an Armed Career Criminal
The second issue presented in this appeal is whether the district court
properly determined that Taylor was an armed career criminal under 18 U.S.C. §
924(e)(1). The armed career criminal provision of Section 924 requires a fifteen-year
minimum prison sentence for anyone convicted under Section 922(g) of unlawfully
possessing a firearm as a convicted felon who has three prior “violent felony” or
“serious drug offense” convictions. See 18 U.S.C. § 924(e)(1). According to Section
924(e)(2)(B), “violent felony” means any crime punishable by imprisonment for a
term exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
It is undisputed that Taylor has three prior convictions: two for armed robbery
and one for theft from a person. The two armed robberies are unquestionably
“violent felonies” under Section 924(e)(1), but Taylor argues that his Illinois
conviction for “theft from a person” does not fall within the statutory definition of a
violent felony. Taylor’s argument rests primarily on a document filed by the State’s
Attorney regarding that conviction which indicated that no violence was used in
No. 05-3434 Page 6
Taylor’s theft. The government argues that this document is irrelevant because it
was filed six days after the defendant’s guilty plea and thus was not part of the trial
judge’s factual findings. The relevant portion of this document recounted the facts of
the case and stated: “The defendant handed [the cashier] some money and when she
opened the cash drawer the defendant took the cash drawer and he and the other
man left the business. [The cashier] was not threatened or hurt in any way.”
In determining that the theft charge was a “violent felony” as defined by 18
U.S.C. § 924(e)(1), the district court looked to the charging document, the statutory
elements of the offense, and a transcript of the plea colloquy. The district court did
not consider the statement made by the State’s Attorney after the defendant pled
guilty to the theft charge.
This court has previously concluded that theft from a person constitutes a
violent felony under Section 924. See United States v. Howze, 343 F.3d 919 (7th Cir.
2003). In Howze, the defendant had three prior convictions, one of which was for
“theft from a person” under Minnesota law.2 In Howze, we described the manner in
which a court should determine whether a crime is classified as a violent felony for
the purposes of the armed career criminal determination. Citing Taylor v. United
States, 495 U.S. 575 (1990), we stated:
first, that classification depends on the nature of the offense as defined in the
criminal code rather than either the label the state applies or the specific acts
the defendant committed, and second, that the best way to determine which
offenses count as “burglary” for the purposes of federal law is to determine
which offenses pose risks that force will be used.
Howze, 343 F.3d at 921. Following this framework, we first examined the theft from
a person statute in question. We then noted that “[w]hat theft from a person has in
common with generic burglary is that both entail a risk that violence will erupt
between the thief and the victim.” Id. at 923. We also noted that thefts from
persons create “the potential not only for violence but also for injury caused by the
act of taking.” Id. at 924. On the basis of this reasoning, we concluded that theft
from a person is a violent felony under 18 U.S.C. § 924. Id. at 924 (overruling
United States v. Lee, 22 F.3d 736 (7th Cir. 1994)).
Taylor argues only that the situation in this case can be distinguished from
that in Howze because the document filed by the State’s Attorney describes the acts
underlying Taylor’s theft conviction as nonviolent. However, the Supreme Court
recently cautioned that any inquiry beyond the statute and charging document in
determining what constitutes a “violent felony” must be narrowly restricted to
2
There is no relevant distinction between the Minnesota statute under which the defendant in Howze
was convicted and the Illinois statute at issue here. See Minn. Stat. § 609.52(3)(3)(d)(1); 720 Ill. Comp.
Stat. 5/16-1(b)(4)) (2005). Taylor has not argued that there is a distinction.
No. 05-3434 Page 7
implement the objective of the statute and avoid evidentiary disputes. Shepard v.
United States, 544 U.S. 13, 125 S. Ct. 1254, 1261 n. 4 (2005). This court recently
discussed the Supreme Court’s ruling in Shepard and observed that sentencing
courts should not look to police reports or complaint applications in assessing
whether particular crimes implicate the Armed Career Criminal Act. See United
States v. McGee, 408 F.3d 966, 988 (7th Cir. 2005). We held that later courts
considering whether crimes constitute violent felonies are “generally limited to
examining the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Id. (quoting Shepard, 125 S. Ct. at 1257). The
document that Taylor claims the district court should have considered is not within
the scope of documents that may be considered, and was never considered by the
state trial judge or the defendant when he pled guilty to theft from a person. Thus,
the district court was correct not to consider it in the assessment of whether Taylor
had committed three prior “violent felonies.”
Taylor finally argues that the Sixth Amendment required the district court to
submit the question of whether Taylor was an armed career criminal to the jury,
citing United States v. Booker, 543 U.S. 220 (2005). However, Booker stated that
“[a]ny fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt.” Booker, 543 U.S. at 244 (emphasis added). Furthermore,
Taylor’s argument has been specifically rejected by this court. In United States v.
Sperberg, 432 F.3d 706, 707 (7th Cir. 2005), we held that prior convictions are an
exception to the rule that juries determine all facts that affect maximum available
punishments, and specifically concluded that a defendant’s status as an armed
career criminal need not be submitted to a jury. The district court appropriately
determined Taylor’s armed career criminal status, and we reject Taylor’s Sixth
Amendment argument.
III. CONCLUSION
The judgment of the district court is AFFIRMED.