New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Fourth Amendment: Search and Seizure – Terry Stops and Probable Cause


United States v. Bullock

Seventh Circuit Court of Appeals Decided February 1, 2011

Issue : Whether the detention of the defendant was unlawful and subsequent arrest unlawful in violation of the Fourth Amendment where police had search warrant and held defendant in a vehicle outside the residence while search was executed and upon finding marijuana in residence police arrested defendant and after searching him at precinct found sixteen baggies of crack.

Holding : The Defendant’s detention was lawful under the principles of Terry v. Ohio 392 U.S. 1 (1968) and the subsequent arrest was supported by probable cause.

Facts :

Police Department received an anonymous tip that someone by the name of “Quick” was selling cocaine from a residence. Based on the information provided by the tipster, Greenlee began surveillance of the residence and corroborated the tip. Armed with this information, Greenlee obtained a warrant to search the Euclid Street address. Greenlee observed Bullock leaving the residence in a vehicle driven by Sabrina Wilhelm, the lessee of the residence. Greenlee was aware that Wilhelm did not have a valid driver’s license, so he instructed uniformed officers to stop the vehicle.

Officers made the stop, transported Bullock back to the residence, and detained him in the squad car while they executed the search warrant. Upon finding marijuana in plain view on the dining room table in the residence, along with sandwich baggies containing a small amount of crack and a scale in another part of the residence, officers arrested Bullock.

Bullock was taken to the police station where a search of his person revealed sixteen individually wrapped baggies of crack.

Legal Discussion and Analysis :

On a motion to suppress, we review questions of law de novo and questions of fact for clear error. United States v. Clinton, 591 F.3d 968, 971 (7th Cir. 2010), cert. denied, 131 S. Ct. 246 (Oct. 4, 2010). Where there are mixed questions of law and fact, our review is de novo. United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). Under clear error review, “we will not overturn the district court’s factual findings unless left with a definite and firm conviction that the district court was mistaken.” Clinton, 591 F.3d at 971.

Based on the information obtained from the anonymous tipster and Greenlee’s subsequent investigation, officers had an articulable basis for suspecting that Bullock was engaged in drug activity from that residence. Further, once Wilhelm informed officers that she had marijuana in her dining room, they had reasonable suspicion to believe that Bullock was visiting a common nuisance.

Officers, therefore, could detain Bullock during the search warrant even though he was not living at the Euclid Street address and had left the premises before the search was underway. Further, when officers stopped the vehicle, they reasonably informed Wilhelm of the search warrant so they could obtain keys to the residence. At that time, Bullock was made aware of the warrant and officers had an interest in preventing Bullock’s flight in the event incriminating evidence was found during the search.

The length of detention-thirty to forty minutes-was limited to the legitimate needs of the officers in conducting further investigation. The manner of detention-being handcuffed, placed in the back of a squad car, and transported to the residence-while undoubtedly intrusive, was not unreasonable under these circumstances. Even if the manner of detention was too intrusive, officers were reasonable in detaining Bullock during the search, and he would have inevitably been arrested (either at the scene of the traffic stop or at the residence) after officers located the contraband in the house.

Although an officer does not need probable cause to conduct an investigatory stop, the brief detention must be based on reasonable suspicion that the stopped individual has or is about to commit a crime.” United States v. Booker, 579 F.3d 835, 838 (7th Cir. 2009).

When determining if seizure exceeds the bounds of Terry, the court should ask: “(1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994).

An investigatory stop is proper “if the officer making the stop is “able to point to specific and articulable facts’ that give rise to a reasonable suspicion of criminal activity.” Id. at 1224 (quoting Terry, 392 U.S. at 21-22). The reasonableness of the stop is based on an objective standard: “would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Tilmon, 19 F.3d at 1224 (quoting Terry, 392 U.S. at 22). “When determining whether an officer had reasonable suspicion, courts examine the totality of the circumstances known to the officer at the time of the stop, including the experience of the officer and the behavior and characteristics of the suspect.” United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).

The officer’s subjective motivations for stopping and detaining a suspect are not relevant to the reasonableness inquiry. While it is true that during the stop and pat-down officers did not find evidence of ongoing criminal activity, Wilhelm told them that she had marijuana in her house in the dining room, providing further reasonable suspicion to detain Bullock during the search. Bullock had just left the residence and had been there on at least three prior occasions. The officers could reasonably suspect that he was aware of the marijuana.

A Terry investigative stop is “a brief detention which gives officers a chance to verify (or dispel) wellfounded suspicions that a person has been, is, or is about to be engaged in criminal activity.” Vega, 72 F.3d at 515 (quotation omitted). “For an investigative stop based on reasonable suspicion to pass constitutional muster, the investigation following it must be reasonably related in scope and duration to the circumstances that justified the stop in the first instance so that it is a minimal intrusion on the individual’s Fourth Amendment interests.” United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994) (citing United States v. Sharpe, 470 U.S. 657, 685-86 (1985)).

We use a sliding-scale approach when addressing the reasonableness of an investigatory stop. Tilmon, 19 F.3d at 1226. “[S]tops too intrusive to be justified by suspicion under Terry, but short of custodial arrest, are reasonable when the degree of suspicion is adequate in light of the degree and the duration of restraint.” Chaidez, 919 F.2d at 1198.

A Terry stop based on reasonable suspicion can ripen into a de facto arrest that must be based on probable cause if it continues too long or becomes unreasonably intrusive. Robinson, 30 F.3d at 784. The “detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). There is no rigid time limit placed on Terry stops; “common sense and ordinary human experience must govern over rigid criteria.” Sharpe, 470 U.S. at 685. When determining the reasonableness of the length of detention, the court should consider the law enforcement purposes to be served by the stop, the time reasonably needed to effectuate those purposes, and whether the police diligently pursued their investigation.

Whether Bullock’s seizure amounted to a de facto arrest when he was handcuffed, placed in the squad car, and transported to the residence is a closer question. Admittedly, the facts here approach the outer boundaries of a permissible Terry stop. “Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest and a de facto arrest.” Tilmon, 19 F.3d at 1224. Police restraint may become so intrusive that, while not technically an “arrest,” it becomes “tantamount” to an arrest requiring probable cause. Id. (citing Dunaway v. New York, 442 U.S. 200, 212-16 (1979)).

“Given the “endless variations in the facts and circumstances,’ there is no “litmus-paper test for determining when a seizure exceeds the bounds of an investigative stop’ and becomes an arrest.” Id. (quoting Royer, 460 U.S. at 506). The question is whether the officer’s actions were reasonable under the circumstances and whether the surrounding circumstances gave rise to a justifiable fear for personal safety on the part of the officer. Given that officers were conducting a search for drugs, it was reasonable to place Bullock in handcuffs and in the squad car for their safety while they pursued their investigation. Even though officers patted down Bullock and did not discover any weapons, the officers could take precautions against potentially violent behavior.

Drug crimes are associated with dangerous and violent behavior and warrant a higher degree of precaution. Even assuming the manner of seizure was overly intrusive, the length of Bullock’s detention was reasonable and the officers would have inevitably arrested him after the residence search. For many of the same reasons outlined above,

Bullock’s detention was also justified under Michigan v. Summers, 452 U.S. 692 (1981). The Court in Summers extended Terry beyond the “momentary, on-the-street

detention” to the detainment of a resident or occupant who is on the premises while a search pursuant to a warrant is conducted. Summers, 452 U.S. at 700-05. A detention under Summers is analogous in certain respects to a Terry stop. See United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1995) (“While detention during the execution of a search warrant is not a traditional Terry stop, it is sufficiently analogous for us to conclude that, in the usual case, Miranda warnings are not required.”).No. 10-2238 27

The Court in Summers held that officers executing a search warrant for contraband have “the limited authority to detain the occupants of the premises while a proper search is conducted.” Summers, 452 U.S. at 705.

The detention of an occupant is warranted “because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Muehler v. Mena, 544 U.S. 93, 98 (2005).

Probable Cause For The Arrest :

Probable cause is a “commonsense, nontechnical conception that deal[s] with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas v. United States, 517 U.S. 690, 695 (1996) (quotations omitted). In determining whether suspicious circumstances rise to the level of probable cause, officers are entitled to draw reasonable inferences based on their training and experience. Funches, 327 F.3d at 586.

“A police officer’s probable cause determination depends on the elements of the applicable criminal statute.” Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010). After being detained at the residence, officers arrested Bullock for violating Indiana’s common nuisance statute, which makes it a Class B misdemeanor for any person to “knowingly or intentionally visit[ ] a building, structure, vehicle, or other place that is used by any person to unlawfully use a controlled substance.” Ind. Code § 35-48-4-13(a). To convict a person of this offense, the state must prove that the defendant knew the residence was used for the unlawful use of con- trolled substances. Bass v. State, 517 N.E.2d 1238, 1239-40 (Ind. Ct. App. 1988) (per curiam). The state must also prove that the residence has been used for the unlawful use of controlled substances on more than one occasion.

Based on all the facts known to the officers at the time, we conclude that they had probable cause to arrest Bullock for visiting a common nuisance. On the day of

the search, officers found marijuana in a box in plain view on the dining room table and a lighter next to the marijuana, leading to the inference that it had been smoked inside.