Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 05 CR 140-James T. Moody, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before WOOD, EVANS, and SYKES, Circuit Judges.
Earkle Tyler was charged with possessing crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Tyler moved to suppress the crack, arguing that it was discovered only after police officers detained and searched him without reasonable suspicion. The district court denied this motion, and Tyler entered a conditional guilty plea. He now challenges the denial of his motion to suppress. Because the officers detained Tyler without reasonable suspicion that criminal activity may be afoot, the suppression motion should have been granted. We vacate Tyler's conviction and remand with instructions.
Officers Adam Clark and James Onohan of the Hammond, Indiana police department testified at Tyler's suppression hearing and gave the following account of their encounter with him. At around 4:30 p.m. on Saturday, September 17, 2005, they were patrolling together in their squad car through a residential neighborhood in Hammond. They noticed a man, later identified as 29-year-old Earkle Tyler, walking near the intersection of Merrill and Rhode Streets with an open beer bottle in his hand. (Tyler lived at 830 Merrill Street, which is located about eight doors away from that intersection.) It looked to the officers as though there was "maybe one drink left" in the bottle. Onohan immediately told Clark, "[W]e need to stop this guy because he's got a beer bottle in his hand." Clark testified that he and Onohan were then under the mistaken impression that it is illegal to have an open alcoholic beverage on the streets of Hammond, so they pulled over "to confront Tyler about the beer bottle." Neither officer knew Tyler, and both conceded that other than seeing him carrying the open beer bottle, they had no reason to stop or question him.
The officers got out of the squad car and approached Tyler. Clark informed Tyler he was violating the law and asked "why he was being so nonchalant about walking on the street with a beer bottle." Tyler answered that he had just picked up the bottle and was going to go throw it in the trash. Clark testified that Tyler acknowledged he had been drinking earlier in the day and smelled of alcohol, but both officers concluded he was not intoxicated.
The officers then asked Tyler for identification in order to check for outstanding warrants. Tyler provided it, and the officers contacted their dispatcher to run a warrant check. As the officers waited for the warrant check, Tyler asked several times whether he could throw the beer bottle away in the nearest trash can, about 50 feet away. The officers told him to "hang tight" until the warrant check was done. It took about two minutes for the dispatcher to report back that Tyler had no active warrants. Up to this point, Clark testified, Tyler was "very cooperative." Once the warrant check was completed, Clark handed Tyler's identification back to him and told him he was free to go.
As Tyler was putting his identification back in his pocket, however, Clark noticed a "bulge" either under Tyler's waistband or in his front pocket. Clark testified he had "no clue" what might have been causing the bulge, but he asked Tyler what it was. The officer testified that the bulge "could have been a gun[ ] [or] a knife," and after he asked Tyler what it was, it became "obvious" that it was "something that he didn't want us to know about." Tyler's reaction made it appear to the officers that "something was wrong." Tyler took a step back and raised the beer bottle to shoulder height. Clark interpreted this action as "a possible threat." Clark and Onohan both grabbed the hand that was holding the beer bottle, and Tyler then dropped the bottle. Clark also grabbed at the bulge in Tyler's pants and a struggle ensued. A purple Crown Royal bag was dislodged "within the course of the struggle," although Clark conceded it was "possible" he put his hand inside Tyler's clothing to get at the bulge. The officers' written report, entered as an exhibit at the suppression hearing, contains this description of Clark's recovery of the bag: "Officer Clark observed a bulge in Mr. Tyler's left front pocket and questioned Mr. Tyler of what it was. Mr. Tyler immediately stepped back and Officer Clark was able to grab a purple Crown Royal sack out of his left front pocket." The report does not state that Tyler raised his arm with the beer bottle. Nor does it indicate that Tyler was told he could leave before Clark first inquired about the bulge.
During the struggle, Tyler tried to snatch the bag back but was tackled, handcuffed, and placed in a squad car. Another officer who had arrived at the scene in response to Onohan's call for backup picked up the Crown Royal bag and opened it. The bag contained about 30.3 grams of crack and 24 grams of powder cocaine.
Tyler initially was booked on a state drug charge. He also received a citation for having an "open alcoholic beverage," ostensibly in violation of Hammond City Code § 99.16 (the current version is found at Hammond City Code § 99.26). The police report, as well as an affidavit prepared by a Drug Enforcement Agency task force officer and filed with the federal criminal complaint, both memorialize that the officers stopped Tyler because they observed him with an open alcohol container and told him "that it was against the law to walk down the street with an open alcohol container." But a few days after Clark and Onohan issued the citation, their supervisor informed them that it was not illegal to have an open alcohol container on the streets of Hammond. The Hammond City Code (then § 99.16, currently § 99.26) prohibits possession of open alcoholic beverages only "in any park or park street," with exception made for certain community events and properly permitted organizations.
At the suppression hearing, Clark acknowledged he and Onohan made a mistake about the open intoxicant law but testified that the main purpose for stopping Tyler was to see if he was publicly intoxicated, which is a violation of Indiana law. See IND. CODE § 7.1-5-1-3. The only basis for this suspicion, according to the officers' testimony, was the open beer bottle. The district court found both officers credible and held that Tyler's presence on a public sidewalk at 4:30 p.m. carrying an almost-empty beer bottle gave the officers reasonable suspicion that he may be publicly intoxicated. Thus, the court concluded, the officers had adequate justification for an investigative detention under Terry v. Ohio,392 U.S. 1 (1968). After the district court denied the suppression motion, Tyler entered a conditional guilty plea and was sentenced to the statutory mandatory minimum sentence of 120 months' imprisonment. See 21 U.S.C. § 841(b)(1)(B).
We review the district court's denial of Tyler's suppression motion according to a split standard of review. Historical facts are reviewed for clear error, and "due weight" deference is given "to [the] inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States,517 U.S. 690, 699 (1996); United States v. Sholola,124 F.3d 803, 821 (7th Cir. 1997). Fourth Amendment determinations regarding the existence of a seizure and reasonable suspicion are ...