United States Court of Appeals for the Tenth Circuit Holds that Possession of an Antelope Carcass Helped Create Reasonable Suspicion that the Felon Illegally Possessed a Firearm

Law enforcement officers received a tip that John Lloyd Whitley was a felon in possession of a firearm.  This tip, corroborated by a search of court records proving that Whitley was a convicted felon, and a sighting of Whitley with a dead antelope in his truck which implied he had been hunting, was sufficient to create reasonable suspicion to stop Whitley’s truck and investigate whether criminal activity was afoot. 

John Lloyd Whitley was a convicted felon for whom possession of a firearm would be a federal crime.  On September 2, 2010, Fremont County, Wyo., prosecutor Ed Newell contacted Special Agent John Powley of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to share a report that a former co-worker of Whitley’s had witnessed Whitley with a firearm in a company-owned vehicle.  Another former co-worker of Whitley’s reported finding a spent .38 caliber shell casing while cleaning Whitley’s company vehicle. 

Agent Powley began an investigation to ascertain whether Mr. Whitley was indeed a felon in possession of a firearm.  Agent Powley obtained a copy of Whitley’s driver’s license and court records indicating that Whitley was a convicted felon.  Agent Powley planned to conduct interviews and obtain appropriate search warrants to investigate further.  However, before Agent Powley could do so, he received another call from Newell explaining that Whitley had been seen loading a dead antelope into his truck. 

Agent Powley immediately contacted the Fremont County Sheriff’s Department and the Wyoming Fish and Gaming Department.  Agent Powley described Whitley’s truck and asked that law enforcement officers stop Mr. Whitley if there was a valid reason for doing so because he suspected that Whitley was a felon in possession of a firearm.  Agent Powley also set out to search for Whitley’s truck.

Shortly thereafter, Sergeant Daniel McOmie of the Fremont County Sheriff’s Department spotted Whitley and pulled him over.  Sergeant McOmie would later cite his authority under Wyoming’s state laws governing hunting, which permitted him to inspect antelope carcasses for proper tagging, as his authority for initiating a stop.  Sergeant McOmie also acknowledged that he was aware of Agent Powley’s suspicion that firearms were illegally present in Whitley’s vehicle, though he was not aware of the complete basis of Powley’s suspicion. 

During the stop, Sergeant McOmie spotted two rifles in plain view.  Sergeant McOmie inspected Whitley’s hunting license and determined that it was in compliance with Wyoming law.  Sergeant McOmie did not inspect the antelope carcass closely enough to determine the means by which it had been killed because it was not relevant to an inspection for proper tagging. 

Sergeant McOmie then contacted Agent Powley to report the rifles in Whitley’s truck.  Agent Powley responded to the stop, and then he and Sergeant McOmie searched Mr. Whitley’s truck, finding a 7-mm bolt-action rifle and a .223-caliber bolt action rifle in plain view in the front seat area, a .410-caliber shotgun and 7-mm ammunition in the backseat, and .38-caliber ammunition in the glove box.  Whitley was arrested and charged with being a felon in possession of a firearm. 

Having found .38 caliber ammunition without a .38 caliber firearm, Agent Powley then secured a search warrant for Whitley’s home in order to seek out a .38 caliber firearm.  A search of Whitley’s home produced more .223 caliber ammunition and two firearms owned by Whitley’s wife, but no .38 caliber firearm.  Whitley subsequently revealed that his father was in possession of the .38 caliber firearm. 

Mr. Whitley 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(a)(2).  Before the United States District Court for the District of Wyoming, Whitley moved to suppress the firearm evidence against him on the grounds that his Fourth Amendment rights were violated because officers had neither reasonable suspicion nor probable cause to conduct a stop.  The district court denied Whitley’s suppression motion and Whitley plead guilty pending an appeal of his denied suppression motion. 

On appeal to the United State Court of Appeals for the Tenth Circuit, the district court’s ruling was affirmed. 

Whitley argued that the traffic stop was invalid because Sergeant McOmie’s stop was not based on a traffic offense and lacked probable cause, but this was not accepted by the court of appeals.  While acknowledging that traffic stops were usually in relation to traffic offenses, and further acknowledging that generally, probable cause is required to conduct a search, the court of appeals held that a stop to further investigate is also justified if “the officer bears a reasonable suspicion that criminal activity may be afoot.”  United States v. Cortez-Galaviz, 495 F.3d 1203, 1205-06 (10th Cir. 2007) and that “in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court established that a law enforcement officer may, in appropriate circumstances and in an appropriate manner, approach a person to investigate possible criminal behavior even if he lacks probable cause to arrest.”  Accordingly, Sergeant McOmie required only reasonable suspicion, not the elevated standard of probable cause, to investigate as he did. 

Whitley also asserted that Sergeant McOmie lacked reasonable suspicion to conduct a stop.  The court of appeals rejected this argument as well, holding that “[u]nder the vertical collective knowledge doctrine, an arrest or stop is justified when an officer having probable cause or reasonable suspicion instructs another officer to act, even without communicating all of the information necessary to justify the action.”  United States v. Chavez, 534 F.3d 1338, 1345-46 (10th Cir. 2008).  The tips Agent Powley received from Newell, coupled with knowledge that Whitley was a convicted felon, and the fact that Whitley had been spotted with a dead antelope constituted reasonable suspicion to believe that Whitley was a felon in possession of a firearm.  Under the collective knowledge theory, Agent Powley’s reasonable suspicion could be imputed to Sergeant McOmie when Agent Powley requested that other law enforcement officers initiate a stop if possiblebecause it was suspected that Whitley unlawfully possessed a firearm.  Since Agent Powely had reasonable suspicion which was imputed to Sergeant McOmie, the court of appeals found it unnecessary to consider whether Sergeant McOmie’s other stated reason for initiating a stop – inspection of the antelope carcass for compliance with hunting laws – was also valid. 

As a final argument, Whitley proffered that even as a convicted felon, he could legally hunt with antique black powder firearms or with bows and arrows and thus the fact that he possessed an antelope carcass was irrelevant.  The court of appeals found that although it was indeed possible for Whitley to have obtained, transported, or even hunted the antelope without necessarily possessing a prohibited firearm, the ultimate absence of wrongdoing does not erase reasonable suspicion; law enforcement officers may have reasonable suspicion of criminal activity, conduct an investigation, and subsequently discover that behavior was innocent without necessarily violating the Constitution.  Thus, “[t]he possibility that Mr. Whitley could have killed the antelope with a weapon other than a prohibited firearm does not mean that Agent Powley or Sergeant McOmie did not have reasonable suspicion that [Whitley] possessed a firearm.”

This case, United States v. Whitley, is available here.