Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 94 CR 38--William C. Lee, Judge.
Before POSNER, Chief Judge, and BAUER and EVANS, Circuit Judges.
Nikolaos Baker's conviction, on charges of possessing crack cocaine with intent to distribute and using or carrying a firearm in relation to a drug trafficking crime under 18 U.S.C. sec. 924(c)(1), and this appeal straddle the decision last December by the United States Supreme Court in Bailey v. United States, 116 S. Ct. 501 (1995).
Because firearm charges under sec. 924(c) are a staple of federal court jurisprudence, and Bailey significantly curtailed the scope of the law, many cases, and Baker's is a good example, present interesting issues.
Baker was sentenced to 7 years on the crack cocaine charge and an additional 5 years, consecutive, on the sec. 924(c) count. Before we arrive at Baker's significant issue regarding Bailey, we need to address an easier issue--his claim that the evidence against him should have been suppressed.
Baker was arrested after Indiana State Trooper Robert Brophy found 27 grams of crack and a handgun in Baker's car following a routine traffic stop. Baker raises four related Fourth Amendment claims regarding the discovery and seizure of the drugs and gun. First, he contends they were seized after he was arrested without probable cause. Next, he says he never consented to Brophy's search of his car. Third, he claims he was coerced into giving whatever consent he gave, and last, he says the search exceeded the scope of his consent even if it was given. For these reasons, he argues that the district court erroneously denied his motion to suppress evidence. We review the district court's denial of a motion to suppress evidence for clear error and defer to its factual determinations. United States v. Willis, 61 F.3d 526, 529 (7th Cir. 1995), petition for cert. filed Oct. 23, 1995.
Baker's Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker's version was not credible. Instead, the court chose to credit Brophy's view of what happened. That determination--to credit Brophy's version rather than Baker's--cannot be clearly erroneous. United States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir. 1988), cert. denied, 116 S. Ct. 429 (1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). Accordingly, in our analysis of Baker's claims, we consider only Brophy's account of the facts.
According to Brophy, his radar clocked Baker's Chevy going 77 miles per hour in a 65 mile per hour zone on Interstate Highway 69 north of Fort Wayne, Indiana. After the car was pulled over for speeding, Brophy approached it with his hand on his gun. Brophy saw Baker reach below the driver's seat. Brophy asked Baker to get out of his car and sit in the squad car. Baker did as requested.
Because Brophy had both probable cause for the stop and the authority to act, the stop was valid. Willis, 61 F.3d at 530. Once Brophy stopped Baker, the trooper could legitimately ask him to step out of his car, even without any particularized suspicion that Baker possessed a weapon. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977). Finally, the fact that Brophy asked Baker to sit in his patrol car "does not by itself distinguish [Baker's] circumstances from that of any other motorist who has been pulled over for a minor traffic violation." United States v. Quinones-Sandoval, 943 F.2d 771, 775 (7th Cir. 1991). Baker at this point was not under arrest.
Once in his patrol car, Brophy asked Baker a few questions, to which Baker gave inconsistent or suspicious answers: Baker claimed to be going to visit a friend whose name he did not know at a lake of whose location he was uncertain. Brophy then asked if he could search Baker's car. Baker replied, "I don't care--you can if you want to." Brophy asked if there were any drugs or weapons in the car; Baker denied that there were. Brophy again asked for and received permission to search Baker's car. Before leaving his patrol car to conduct the search, Brophy handcuffed Baker. Brophy explained that he did this for his own protection.
Baker's claim that he did not consent or that his consent was ambiguous is meritless. His response to the trooper's request to search his car was clear and unequivocal. Moreover, even after Brophy questioned him about the presence of drugs or weapons in his car, Baker again consented to the search. Thus, the district court was not clearly erroneous in concluding that Baker consented to the search.
Baker nonetheless maintains that his consent was involuntary. His argument on this score, however, is doomed because it rests on facts discredited by the court at the suppression hearing. As we said earlier, we defer to a district court's factual determinations, particularly on ...