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United States v. Kehoe

United States Court of Appeals, Fourth Circuit

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EDWARD JOSEPH KEHOE, Defendant-Appellant.

          Argued: May 10, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:16-cr-00073-RGD-LRL-1)

         ARGUED:

          Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Geremy C. Kamens, Federal Public Defender, Wilfredo Bonilla, Jr., Assistant Federal Public Defender, Alexandria, Virginia, for Appellant.

          Dana J. Boente, United States Attorney, Alexandria, Virginia, Megan M. Cowles, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

          Before WILKINSON, MOTZ and KING, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         Edward Joseph Kehoe entered a conditional plea to being a felon in possession of a firearm, reserving the right to appeal the district court's order denying his motion to suppress. Kehoe now appeals that order. For the reasons that follow, we affirm.

         I.

         A.

         On August 2, 2016, the Newport News Police Department received two phone calls reporting a potential issue at RJ's Sports Bar involving a man drinking while carrying a concealed firearm. Police officers went to RJ's and, after investigating, seized a gun from Kehoe's person and arrested Kehoe.

         A grand jury indicted Kehoe for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Kehoe moved to suppress the gun seized from his person and his statements to officers. He argued that the officers lacked reasonable suspicion for the seizure. At the suppression hearing, the district court admitted recordings of the two phone calls, a "call for service report, " body camera footage, and a photo of the firearm recovered from Kehoe's person. The court also heard testimony from two Newport News police officers, Gary Lipscomb and E.D. Barnes. Although Kehoe called Officer Lipscomb as a witness, Kehoe did not testify or offer any other witnesses on his behalf.

         According to recordings of the two phone calls, the first caller reported that he was at RJ's, and that a white male wearing "a blue-and-white striped shirt" had a gun "on his side" "under his shirt" and had "been drinking." The caller stated that he wished to be anonymous, but at the 911 operator's request, provided his first name and phone number. Almost simultaneously, a second caller, an off-duty police officer, informed the police that a "bartender at RJ's" had called to inform him that a white male at RJ's was "intoxicated" and "carrying a firearm."

         Based on these two phone calls, the Police Department dispatched multiple officers to RJ's, including Officers Lipscomb and Barnes. Both officers testified that RJ's was in a "known problem area." Newport News officers had previously responded to a "myriad of calls" at RJ's and in the surrounding area for incidents involving "gunshots, " "intoxicated individuals refusing to leave after being kicked out of the bar, " and "fights in the parking lot."

         The officers did not listen to the 911 calls before entering RJ's. Instead, they reviewed a written police "call for service report." That report includes some, but not all, of the information supplied by the two callers. Specifically, it notes that the first caller, who provided his first name and telephone number, described seeing at RJ's a white male in a blue-and-white striped shirt who had a "gun on his side covered by his shirt" and was "drinking." The call for service report states that a second caller said that the RJ's bartender was concerned about a white male in unknown clothing who was carrying a firearm. The report does not indicate that the second caller was a police officer or otherwise identify him, nor does it indicate that the second caller stated that the suspect was intoxicated.

         Upon arriving at RJ's, but before entering the bar, the police officers "went over some of the different code sections." Officer Lipscomb testified that, based on this review, the officers determined that under state law, persons "could be inside of a bar possessing a firearm concealed if they had a concealed permit, as ...


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