Appeal from the United States District Court for the Central District of Illinois. No. 06 CR 10010-Joe Billy McDade, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge
Before BAUER, EVANS, and SYKES, Circuit Judges.
Defendant-Appellant Terrill Thomas was under investigation by the Peoria police in late 2005 for dealing heroin; on December 28, 2005, they pulled over a van in which Thomas was a passenger. After a struggle, Thomas was placed under arrest. A search of Thomas produced an aluminum foil packet, currency, and a handgun. A golf ball-sized ball of crack cocaine and heroin was found between Thomas's buttocks.
Thomas was charged in a four-count indictment for (1) possession with intent to deliver more than five grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 1); (2) possession with intent to deliver more than five grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 2); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 3); and (4) felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count 4).
Thomas filed a motion to suppress the evidence of the search and the statements he made to the officers after his arrest. The district court held an evidentiary hearing, and on September 13, 2006, denied the motion in a written opinion. Thomas then entered a conditional plea of guilty to Counts 1 and 3, reserving the right to appeal the denial of the motion to suppress. On January 26, 2007, the district court sentenced him to a total of 180 months' imprisonment. Thomas timely filed a notice of appeal on February 1, 2007.
Thomas challenges the denial of his motion to suppress on three grounds: (1) the officer did not have reasonable suspicion to perform a pat-down search during the traffic stop; (2) the officer subjected him to an unreasonable "body cavity" search; and (3) his statements after his arrest were not sufficiently attenuated from the taint of the illegal search.
We review a district court's legal conclusions on a motion to suppress de novo and factual findings for clear error. United States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007). We generally defer to the district court's determination of credibility because, unlike our review of transcripts, the district court had the opportunity to listen to the testimony and observe the demeanor of witnesses. United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007). Because we find that the officers were justified in performing the pat-down search, which was reasonable and proper, we do not address Thomas's third argument about the statements he made to officers after his arrest.
The suppression hearing brought out the following facts: Between October and December of 2005, Thomas was the subject of an ongoing police investigation in which Thomas was suspected of being a heroin dealer, based in part on information from a confidential informant. As part of the investigation, Peoria police made two controlled buys of heroin that involved Thomas. Officer Loren Marion, a member of the Special Investigations Division Vice Narcotics Unit in the Peoria police department, was present for one of those buys. The police also learned that Thomas had been dealing drugs out of a blue and tan conversion van with a certain license plate number, and that there was a possibility that Thomas carried a handgun when he made drug deliveries.
Officer Marion was on duty in an unmarked car on the evening of December 28, 2005. Around 8:30 p.m., he observed a van matching the description and license plate of the van associated with Thomas's drug trafficking. Officer Marion requested over the police radio that a marked police car stop the van. He followed the van until Officer Aaron Watkins, who was on patrol in the area, initiated the stop on the basis that the van's rear registration light was out. The van pulled over in front of a high school.
Officer Watkins approached the van from the driver's side and began questioning the driver, Danita Murray, who happened to be Thomas's wife. Officer Marion approached from the passenger side and used his flashlight to look inside the van through the front passenger window. He observed Thomas, who was looking in the direction of his wife, reach briefly into his left jacket pocket with his right hand, without removing anything. Officer Marion tapped on the window and asked Thomas to exit the van. Officer Marion testified that he was concerned, based on prior information, that Thomas was armed and wanted to conduct a pat-down search for weapons. Thomas initially refused, asking "why he had to get out." Officer Marion observed that Thomas was shaking and sweating. He asked Thomas to get out of the vehicle two more times before Thomas complied. When Thomas got out, he began to walk between Officer Marion and the van door, in a seeming attempt to get away from the officer. Officer Marion grabbed Thomas's right arm.*fn1 Officer Marion, along with Officer Thomas Rusk, who had arrived moments before to assist, testified that a struggle ensued while they attempted to handcuff Thomas. Thomas continued to resist, and Officer Marion told Thomas that he would be tasered if he did not stop struggling. Thomas stopped struggling, and Officer Marion arrested him for resisting arrest.
Pursuant to the arrest, Officer Marion conducted an initial pat-down search of Thomas, and found an aluminum foil packet (similar to heroin packaging), currency, and a handgun in his waistband. When he discovered the handgun, Officer Marion walked with Thomas to his unmarked car, where the officer secured the gun. Officer Marion then walked Thomas over to Officer Rusk's car to resume the pat-down search. As Officer Marion continued to pat-down Thomas's outer clothes, he felt a bulge between Thomas's buttocks. Officer Marion testified that, based on his experience as a narcotics officer, it was common for individuals to hide drugs between their buttocks. Officer Marion put on a pair of rubber gloves, inserted his hand inside Thomas's pants and underwear, and retrieved a golf ball-sized ball of crack cocaine and heroin from between Thomas's buttocks. Officer Marion testified that he may have "loosened" Thomas's belt but he did not remove Thomas's belt or his pants, nor did he insert his finger into Thomas's body cavity to remove the drugs. Thomas was then taken to the police station, where he made incriminating statements to the officers.
Thomas and Murray also testified at the suppression hearing. According to Murray, she was driving the van with Thomas in the passenger seat, when she was pulled over and told by the officer that her rear registration light was out. She heard the other officers order Thomas out, and saw the officers pull him from the van. Murray testified that she did not hear or see any struggle between Thomas and the officers. Some time later, she saw a handcuffed Thomas standing at a squad car behind the car in which she was sitting, and according to Murray, Thomas's pants were down between his buttocks and his knees.
Thomas testified that Officer Marion told him to get out of the car twice, and when Thomas asked for a reason, the officer opened the door, grabbed Thomas, and pulled him out of the car. According to Thomas, although he may have "tensed up" when the officers grabbed him, he did not struggle. Thomas testified that during the pat-down search, Officer Marion felt his genital area, then stood behind Thomas and pulled his pants down to his knees. Thomas said Officer Marion then ...