Appeal from the United States District Court for the Central District of Illinois.
No. 95-CR-20039 Harold A. Baker, Judge.
Before POSNER, Chief Judge, and COFFEY and MANION, Circuit Judges.
David Green was convicted of possession of crack cocaine with intent to distribute, and possession of a firearm by a felon. Green appeals, asserting that the district court erred in denying his motion to suppress evidence of these crimes obtained during an automobile search, and that it erred in sentencing him. While we conclude that Green was illegally stopped, the taint from that illegal seizure dissipated prior to the automobile search because of intervening circumstances, namely the arrest of the car's other occupant, David's brother Avery Green, on an outstanding warrant. Because the taint had dissipated, the evidence obtained during the search of the auto was admissible as a search incident to the arrest. The district court also properly sentenced David Green. Accordingly, we affirm.
At about 9:00 p.m. on July 2, 1995, Sergeant Murphy and Officer Walker of the Champaign, Illinois Police Department were on patrol. The officers noticed a blue Chevrolet driving in front of them. Officer Walker told Sergeant Murphy that the same car had been parked on the road in front of Mark Williams' residence the night before. The officers knew that Mark Williams was wanted on a federal warrant for being a felon in possession of firearms. Thinking that the Chevrolet's occupants might include Williams, or know Williams' whereabouts, the officers followed the Chevrolet as it turned a corner. After turning, the Chevrolet made a U-turn, turned abruptly onto another street, and then turned immediately into a driveway. The officers followed, pulling their car across the driveway, blocking in the Chevrolet.
By the time the officers had stopped, the Chevrolet's driver was walking toward the house. Sergeant Murphy exited the police car and, while approaching the driver, yelled that he needed to speak with him for a second. The driver stopped; Sergeant Murphy then asked for some identification which the driver produced identifying himself as David Green. In the meantime, Officer Walker obtained the identification of the passenger who was still in the car and who, as it turned out, was David's brother Avery Green. The officers returned to the squad car and entered the information in their computer to determine the validity of the drivers' licenses, as well as to check for any outstanding warrants. Within five minutes the computer revealed an outstanding warrant for Avery Green. Supplied with this information, the officers arrested Avery. According to Sergeant Murphy, David Green then agreed to let Murphy search the vehicle; David Green denies that he gave Murphy permission to look in the car. During the search, Murphy discovered crack cocaine in a shopping bag on the floor in front of the driver's seat, and a gun in a gym bag on the floor on the passenger's side. The officers then arrested David Green.
A grand jury indicted David Green, charging him with one count of possession of crack cocaine with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1); one count of using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. sec. 924(c); and one count of possession of a firearm by a felon in violation of 18 U.S.C. sec. 922(g)(1). David pleaded not guilty and filed a motion to suppress the gun and the cocaine, arguing that they were obtained in violation of his fourth amendment rights. The district court denied David's motion to suppress, and the case proceeded to trial. The court entered a judgment of acquittal on count two, using and carrying a firearm in relation to a drug trafficking crime, based on Bailey v. United States, 116 S. Ct. 501 (1995). A jury convicted Green on the remaining two counts. Green was sentenced to 135 months on count one, and 120 months on count three, to be served concurrently. Green appeals.
On appeal Green asserts that the district court erred in denying his motion to suppress the gun and the crack cocaine seized during the police officers' July 2, 1995 search of the Chevrolet. Green also argues that the district court erred in sentencing him based on the Sentencing Guidelines which apply to crack cocaine, instead of cocaine hydrochloride, and in enhancing his sentence for the possession of a firearm in relation to a drug offense.
Green moved to suppress the evidence obtained during the search of the automobile he was driving. The district court denied Green's motion, concluding that the officers conducted a legitimate investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), and that "[s]ince less than five minutes elapsed while the police discovered the arrest warrant, the duration of the stop is reasonable for a Terry stop." The district court reasoned that because the police had probable cause to arrest Avery, they were entitled to search the passenger compartment of the car incident to the arrest and therefore it was irrelevant whether Green had consented to the search as the officers ...