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United States v. Rivers

July 28, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

REGGIE L. RIVERS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois. No. 96 CR 10033 Joe Billy McDade, Judge.

Before BAUER, FLAUM and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

ARGUED JULY 9, 1997

DECIDED JULY 28, 1997

Reggie Rivers challenges the district court's determination that a pat-down search which resulted in his arrest for possession of cocaine with intent to distribute did not violate his Fourth Amendment rights. We affirm.

I.

Reggie Rivers was the passenger in a car driven by Felton Bush, who was wanted on an outstanding arrest warrant for domestic battery. Peoria police officers Timothy Moore and John Couve were surveilling Bush's home in an attempt to secure a search warrant for evidence that Bush was dealing crack cocaine (actually, they had already gotten one warrant, but it had expired), and when they saw Bush and Rivers leaving in the car they decided to arrest Bush on the outstanding warrant. The officers, driving an unmarked vehicle, followed Bush's car into a shopping center parking lot, pulled in front of it, and approached the car with their guns drawn. Bush was removed from the car and arrested. When Moore searched Bush, he found plastic bags containing cocaine base and powder cocaine in his pockets.

During the arrest and search Couve had been covering Rivers. After Moore placed Bush into the police car, he asked Rivers to exit the car. Moore then performed a pat-down search, during which he felt a lump in Rivers's pocket. Believing it was a lump of crack cocaine, he asked Rivers what it was, and Rivers told him it was money. Moore repeatedly asked Rivers what the lump was, and each time Rivers answered money. Finally, Moore arrested Rivers, then pulled from Rivers's pocket a plastic bag containing nearly an ounce of crack cocaine. Rivers also had $42 in cash and a small amount of powder cocaine in his pocket.

Rivers moved the district court to suppress evidence of the crack; the district court granted the motion on the grounds that the record did not show that there was something unique about crack cocaine that would have allowed Moore to identify it immediately, and thus Moore's search exceeded the boundaries of the "plain feel" doctrine established by Minnesota v. Dickerson, 508 U.S. 366 (1993). The government moved for reconsideration, identifying Moore's testimony that crack cocaine has a distinctive feel (asymmetrical, with different size lumps and different angled edges) and that he had felt crack cocaine in pants pockets approximately twenty times. In light of this evidence the district court vacated its earlier ruling and denied Rivers's motion to suppress.

Rivers entered into a plea agreement and pleaded guilty to possession of crack cocaine with the intent to distribute, 21 U.S.C. sec. 841(a)(1), after reserving his right to appeal the district court's refusal to suppress the evidence of the crack cocaine. He now appeals that decision. We review legal determinations of reasonable suspicion or probable cause de novo, but questions of fact for clear error. United States v. Stribling, 94 F.3d 321, 323 (7th Cir. 1996) (citing Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996)).

II.

On appeal, Rivers makes two arguments: (1) that the officers did not have sufficient reasonable suspicion to engage him in a Terry stop; and (2) that the extent of the pat-down search was invalid in light of Dickerson.

A.

Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may temporarily stop a person to investigate whether the person has recently committed or is about to commit a crime. To justify the stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant that intrusion." Id. at 21. During a Terry stop, an officer with "reason to believe he is dealing with an armed and dangerous individual" may conduct a non-invasive pat-down search of a detainee to ensure for his own safety and that of others nearby that the detainee does not possess a weapon. Id. at 27. "A search for ...


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