In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2227

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEVON GROVES,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06 CR 69—Robert L. Miller, Jr., Chief Judge.

ARGUED JANUARY 25, 2008—DECIDED MARCH 17, 2009

Before FLAUM, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. A man fired multiple shots into

an occupied South Bend, Indiana home, and eyewitnesses

told police that Devon Groves was the shooter. After

further investigation and consultation with a prosecutor,

the lead investigator issued a “crime information bulletin” for Groves indicating he should be picked up if

found; the prosecutor had given the go-ahead for the

“pickup,” and the officer understood that the prosecutor
2 No. 07-2227

would be seeking an arrest warrant. About a month after

the shooting, an anonymous tipster called 911 and reported that she had just seen Groves and he was “probably” carrying a gun. The caller described Groves’s clothing,

location, and the car he was in, and patrol units were

dispatched to the area to look for him. The dispatcher

passed along the information from the tip and also

advised responding officers that Groves was wanted on

a warrant.

Corporal Christopher Slager soon saw Groves riding in

a car that matched the description provided by the

tipster. Slager initiated a traffic stop, ordered Groves and

the other occupants out of the car, and saw a handgun

under the seat where Groves had been sitting. Groves was

charged under 18 U.S.C. § 922(g)(1) with being a felon

in possession of a firearm and ammunition. He moved to

suppress the gun. As it turned out, the dispatcher had

been mistaken about the warrant; in fact, there was no

warrant for Groves’s arrest, only the “crime information

bulletin.” The district court denied the suppression

motion, and a jury convicted Groves on both counts.

On appeal, Groves renews his challenge to the admission of the gun. We reject his arguments and affirm.

Although an anonymous tip is generally insufficient to

support an investigative stop, Florida v. J.L., 529 U.S. 266

(2000), there was more supporting this stop than just

an anonymous tip. Under United States v. Hensley, 469

U.S. 221 (1985), police may conduct an investigative stop

of a suspect based on a “wanted flyer” or “bulletin” like

the one at issue in this case. The bulletin issued for Groves
No. 07-2227 3

was supported by ample reasonable suspicion that he

was involved in the earlier shooting, and this in turn was

sufficient to justify the stop. A complication is that the

dispatcher told responding officers there was a warrant

for Groves’s arrest, not just a pickup “bulletin.” But this

mistake did not undermine the preexisting reasonable

suspicion for the stop. Moreover, to the extent that the

error had any effect on the validity of the stop, suppression was not required. The Supreme Court has just

held that a negligent mistake by police personnel regarding the existence of a warrant does not require application of the exclusionary rule. Herring v. United States,

129 S. Ct. 695 (2009).

I. Background

In the middle of the night on April 30, 2006, residents

of a home on South Bendix Street in South Bend were

awakened by a man trying to break the lock on their

front door. They recognized the man as Devon Groves

and called out to him. Groves ran from their front porch,

and seconds later, a spray of gunshots tore through the

home from the direction in which Groves had run, nearly

hitting the home’s occupants.

Corporal David Johnson, a gang investigator in the

South Bend Police Department, was assigned to the case.

After interviewing the eyewitnesses and conducting

further investigation, Johnson and other officers met

with a deputy county prosecutor, who indicated he

would seek an arrest warrant for Groves. In the meantime, however, the prosecutor authorized Johnson to
4 No. 07-2227

issue a “pickup” order for Groves. Technically called a

“crime information bulletin,” these communications are

disseminated throughout the South Bend Police Department and are available to all police personnel as well as

outside law-enforcement agencies. The bulletin summarized Groves’s involvement in the shooting and provided

his identifying information so officers could be on the

lookout for him. The bulletin also indicated that the

prosecutor had given “verbal authorization” for the

pickup.

About a month later, on June 1, 2006, South Bend police

received an anonymous 911 call that provided information sufficient to immediately locate Groves. The

caller indicated that “right now” Groves was standing

outside a particular set of addresses on Elmer Street

wearing a white shirt, black shorts, and a black hat, and

was next to a black car with specialty rims, and “probably”

had “a gun on him.” This information was immediately

dispatched to patrol units over the police radio. The

dispatch informed responding officers that there was a

warrant for Groves’s arrest. Similar information was

also transmitted to officers’ in-squad computers. Corporal

Slager was within a few blocks of Groves’s reported

location and was first to spot the vehicle matching the

tip’s description; he saw a man matching Groves’s description sitting in the back seat.

Slager stopped the car. Groves initially failed to

respond to several commands to show his hands, but

Slager eventually removed Groves from the car and

secured him in his cruiser without further incident. The
No. 07-2227 5

driver and another occupant were also ordered out of the

car. Once they were secured, Slager returned to the car to

conduct a protective sweep. Looking inside the open

doors, Slager saw a handgun partially concealed under

the driver’s seat directly in front of Groves’s position

where he had been sitting in the back seat. Groves was

arrested for possession of the handgun.

Groves was eventually charged with two § 922(g)(1)

offenses: possession of a firearm by a felon stemming from

his possession of the gun on June 1 and possession of

ammunition by a felon from the April 30 shooting incident. Groves moved to suppress the gun. At some

point after Groves’s arrest, it was determined that the

dispatcher had been mistaken about the existence of a

warrant; for some unknown reason, the prosecutor never

obtained one. Groves argued that Slager had neither

probable cause nor reasonable suspicion to stop the car

because there was no warrant and the anonymous tip

wasn’t enough by itself. The district court denied the

motion, concluding that the anonymous tip provided

enough information to supply reasonable suspicion and

that Slager had relied in good faith on the dispatcher’s

representation about the warrant.

The case was then tried to a jury, which convicted

Groves on both counts. He was sentenced to 240 months

in prison (120 months on each count to run consecutively), above the applicable sentencing guidelines range

of 151 to 188 months.
6 No. 07-2227

II. Discussion

Groves appeals his conviction on the firearm count only,

specifically challenging the district court’s denial of his

motion to suppress the gun. He also challenges his sentence on both counts, which at 240 months total was

considerably higher than the sentence recommended by

the guidelines. We review the district court’s findings of

fact on the suppression motion for clear error and its

legal conclusions de novo. Ornelas v. United States, 517

U.S. 690, 699 (1996); see also United States v. McIntire, 516

F.3d 576 (7th Cir. 2008) (distinguishing between warrant

and no-warrant cases). We review the sentence for reasonableness. Gall v. United States, 128 S. Ct. 586, 747

(2007); United States v. Wachowiak, 496 F.3d 744, 747 (7th

Cir. 2007).

Groves claims that Corporal Slager lacked the reasonable suspicion necessary for a lawful stop; there is no

question that if the stop was lawful, the protective sweep

of the car and the seizure of the gun were also lawful.

Michigan v. Long, 463 U.S. 1032, 1049 (1983); United States

v. Wimbush, 337 F.3d 947, 950 (7th Cir. 2003); United States

v. Evans, 994 F.2d 317, 320-21 (7th Cir. 1993); United States

v. Longmire, 761 F.2d 411, 419 (7th Cir. 1985). Groves’s

argument rests on the mistake about the existence of a

warrant and the general rule that anonymous tips, without

more, are usually too lacking in indicia of reliability to

provide reasonable suspicion to conduct a stop. J.L.,

529 U.S. at 271.

The district court held that the stop was lawful under

J.L. because it provided “ample predictive information
No. 07-2227 7

with which Officer Slager could test the anonymous

informant’s knowledge and credibility.” This was true on

the question of Groves’s identity (the caller’s information

about Groves’s location, description, and car were confirmed by the officer before he initiated the stop) but not

necessarily true on the question of Groves’s criminal

activity. 

J.L. involved a tip similar to the one before us: An

anonymous caller told police that a young black male in

a plaid shirt standing at a particular bus stop would

have a gun. Id. at 268. The Supreme Court held that an

anonymous tip of this sort did not justify a stop, id. at

274, because a tip must have “ ‘sufficient indicia of reliability’ ” to create reasonable suspicion, id. at 270 (quoting

Alabama v. White, 496 U.S. 325, 327 (1990)). Reliability is

present, for example, when the informant supplies sufficient predictive information about the suspect so that

police can test an informant’s knowledge and credibility.

Id. at 271-72; White, 496 U.S. at 332. But the tip in J.L. had

none of this; it was purely descriptive in nature, lacking

any basis from which to discern how the informant

knew that the suspect was engaged in illegal activity.

The Court held:

An accurate description of a subject’s readily observable location and appearance is of course reliable in

this limited sense: It will help the police correctly

identify the person whom the tipster means to accuse. Such a tip, however, does not show that the

tipster has knowledge of concealed criminal activity.

The reasonable suspicion here at issue requires that a
8 No. 07-2227

tip be reliable in its assertion of illegality, not just in

its tendency to identify a determinate person.

J.L., 529 U.S. at 271.

The same is true here. Any passerby spotting Groves

standing next to the car could have reported his location

(and other readily observable details) to the police. But

standing beside a car is not illegal; what the police needed

to know, and what they could not know based on this

tip, was how the caller knew that Groves was carrying

a gun. Without more, the anonymous tip in this case

could not justify the stop. Davis v. Novy, 433 F.3d 926, 929

(7th Cir. 2006); United States v. Johnson, 427 F.3d 1053, 1057

(7th Cir. 2005).

But there was more to justify reasonable suspicion here

than just the anonymous tip that Groves was probably

carrying a gun. The South Bend police bulletin stemming

from the April 30 shooting was supported by ample

reasonable suspicion and supplied a basis for the stop

under the rationale of Hensley, 469 U.S. at 232-33. Hensley is

a variation on the common-knowledge doctrine that allows

an officer to rely on an adequately supported “wanted

flyer” to justify a stop of a suspect even if the officer does

not himself have reasonable suspicion to conduct the stop.

The theory is that police may communicate “wanted fliers”

and other orders to stop a suspect to the department at

large, to officers in the field, and to other law-enforcement

agencies provided the issuance of the order is itself supported by reasonable suspicion sufficient to justify the stop.

The analysis asks whether the officer issuing the flyer or

bulletin had objectively reasonable suspicion to stop the
No. 07-2227 9

suspect. Id.; United States v. Nafzger, 974 F.2d 906, 911 (7th

Cir. 1992); United States v. Wheeler, 800 F.2d 100, 103 (7th

Cir. 1986); Longmire, 761 F.2d at 416. If he did, then a stop

carried out on the basis of the flyer or bulletin is lawful.

Groves does not really dispute that Corporal Johnson

had reasonable suspicion when he created the bulletin

after investigating the April 30 shooting. Indeed, Johnson

had probable cause to arrest Groves; eyewitnesses to the

shooting identified him as the shooter, which provided

probable cause to arrest him. See Lopez v. City of Chicago,

464 F.3d 711, 714 (7th Cir. 2006) (Lopez “was arrested

without a warrant, although with probable cause—an

eyewitness identified him as the shooter.”). A problem

arises because Corporal Slager was mistakenly told by

the dispatcher that there was a warrant out for Groves’s

arrest, not just a wanted bulletin. Slager testified that he

did not recall if he had seen the bulletin about Groves

when it was issued a month before; he thought, based on

the radio dispatch and the readout on his in-squad computer, that there was a warrant for Groves’s arrest.

The police dispatcher’s mistake in this regard does

not invalidate the stop; that error did nothing to undermine the preexisting reasonable suspicion that supported the issuance of the bulletin. The bulletin bears a

distribution list that includes the radio room, the squad

room, the detective bureau, and other subdivisions and

personnel within the South Bend Police Department, and

Corporal Johnson testified that once issued, bulletins are

routinely transmitted to the distribution list. It is unclear

whether the bulletin was mistakenly entered into the
10 No. 07-2227

department’s system as a warrant or whether the dispatcher mistook it for a warrant when communicating

with officers in the field after the 911 call. But either way,

there is no evidence that it was anything other than a

mistake.

Even assuming this error affected the validity of the

stop, the gun need not have been suppressed. The

Supreme Court has recently held that a negligent

mistake by police personnel about the existence of a

warrant does not require application of the exclusionary

rule. Herring, 129 S. Ct. at 703. In Herring, a deputy sheriff

initiated a stop-and-arrest of the defendant based on

information communicated by the sheriff’s department’s warrant clerk that there was an outstanding warrant in a neighboring county for the defendant’s arrest.

This turned out to be wrong; the warrant had actually

been withdrawn some months earlier, but the recall of the

warrant had not been entered into the county’s database.

The defendant sought suppression of the drugs and gun

that were found in the search incident to his arrest. The

Supreme Court held that suppression was not required; in

this situation, the Court said, the deterrence rationale

of the exclusionary rule was so attenuated that exclusion

of the evidence was unjustified. Id. at 702-03. Noting

the absence of any evidence that the county had been

reckless in maintaining its warrant system or that knowingly false entries had been made, the Court reasoned

that application of the exclusionary rule would produce

no real deterrent effect on police misconduct and would

be too costly to the truth-seeking and law-enforcement
No. 07-2227 11

objectives of the criminal justice system. Id. “In light of

our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to

the justice system, we conclude that when police

mistakes are the result of negligence such as that described

here, rather than systemic error or reckless disregard

of constitutional requirements, any marginal deterrence

does not ‘pay its way.’ ” Id. at 704 (internal citation omitted).

The police mistake at issue here is substantially similar

to the one at issue in Herring. Accordingly, although we

reject Groves’s claim that the dispatcher’s error

invalidated the grounds for the stop, even if we were to

assume the stop was invalid, suppression was not required. There is nothing in the record to suggest that the

South Bend Police Department recklessly disregarded

constitutional requirements or that any police personnel

knowingly falsified a warrant record. The suppression

motion was properly denied.

Groves also attacks his above-guidelines sentence

as unreasonable. We disagree. The district court painstakingly considered both the guidelines range and the sentencing factors that properly inform the court’s exercise

of post-Booker sentencing discretion under 18 U.S.C.

§ 3553(a). The court took note of the fact that although

Groves stood convicted of gun- and ammunitionpossession offenses, he had demonstrated a propensity to

actually use firearms—firing multiple shots into an occupied home in the incident underlying the ammunition

count, as well as other instances of brandishing and
12 No. 07-2227

threats to shoot that were reflected in his criminal background. The court was also strongly influenced by the

fact that these convictions were Groves’s third and fourth

felony convictions in 12 years, and that although he

was only 29 years old, he had accumulated a total of

52 arrests, many firearm related. The court concluded

that these factors, and the absence of any in mitigation,

justified an above-guidelines sentence of 240 months.

Groves has not persuaded us that this sentence is unreasonable. See Wachowiak, 496 F.3d at 749 (nonguidelines

sentence will be affirmed if adequately reasoned and

objectively reasonable).

AFFIRMED.

3-17-09