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United States v. Jennings

September 15, 2008


Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 06 CR 71-Robert L. Miller, Jr., Chief Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.


Before COFFEY, EVANS, and SYKES, Circuit Judges.

Moments before heavily armed police began to execute a nighttime search warrant at an apartment in South Bend, Indiana, Keith Jennings drove his car into a parking spot next to the targeted apartment. This area was inside the security perimeter that police had established for the search, so two officers boxed him in with their cars and approached with guns drawn. In plain view through Jennings's window, the officers saw a plastic bag containing what turned out to be 13 grams of crack cocaine.

Jennings was charged with possessing the crack with intent to distribute, see 21 U.S.C. § 841(a)(1), and he moved to suppress the drugs on the ground that he was detained without reasonable suspicion. The district court denied that motion, and a jury found him guilty. The court sentenced him to 360 months after concluding that two of his prior convictions-one for a drug-trafficking crime and the other for resisting a law enforcement officer-qualified him as a career offender. See U.S.S.G. § 4B1.1(a). On appeal Jennings challenges the suppression ruling and his sentence. We affirm.

I. Background

Several South Bend police officers testified at the suppression hearing and described the events leading up to Jennings's arrest. Sergeant Tim Medich testified that on May 3, 2006, he applied for a warrant to search an apartment located at 428 South 27th Street in South Bend. In his supporting affidavit, Medich related that within the previous 48 hours an informant bought cocaine at the apartment. A state judge issued a warrant for the premises, a one-story duplex at the end of a cul-de-sac.

Lieutenant David Ryans described the area around the targeted apartment. He testified that 27th Street runs south about 200 to 300 feet from its intersection with Jefferson Street and dead-ends in the cul-de-sac, which serves as a parking area because the surrounding apartments have no driveways or off-street parking. The apartment to be searched has ground-level entrances in the front and back, and the front door is on the north side, closest to the cul-de-sac.

Lieutenant David Ryans testified that before the search officers had set up a security perimeter around the targeted apartment to secure the front, rear, and sides of the building. The purpose of a security perimeter is to protect the safety of the officers and innocent bystanders while a warrant is being executed. Ryans testified that the scope of a security perimeter at a search scene varies, but he said that it typically covers the outer 25- to 50-foot radius of the building to be searched.

Officer Charles Flanagan testified that on the night of the search, he was assigned to "eyeball" the 27th Street apartment while a SWAT team was briefed at the station. The SWAT team planned to enter the apartment through the back door. Because they would be armed with high-powered rifles that could penetrate walls or windows, it was Flanagan's responsibility to inform them if there were any bystanders around the front of the building before the search began. Around 8:30 or 8:45 p.m., Flanagan went to 27th Street in an unmarked car and positioned himself on the street just short of the cul-de-sac where he could watch the front of the apartment. Although there were quite a few cars parked in the cul-de-sac, there was no traffic on 27th Street. At about 9:30 p.m., just before the search began, Sergeant John Mortakis arrived with several other officers in an unmarked van. Mortakis parked his van directly behind Flanagan's car.

Officer Flanagan and Sergeant Mortakis described what happened next. About 30 seconds before the search began, the SWAT-team commander radioed Flanagan, who confirmed that all was clear. To Flanagan's surprise, just after he gave the all clear, Jennings drove up from Jefferson Street in a white Cadillac, passed Mortakis's van and Flanagan's car, and parked within the security perimeter, about 35 to 50 feet away from the targeted apartment. Another car was parked in the space closest to the apartment, but Jennings parked the Cadillac in the next-closest space. Mortakis immediately pulled his van directly behind the Cadillac, blocking it from leaving. Flanagan saw the Cadillac's reverse lights come on, so he drove his car between Mortakis's van and the Cadillac, right against the Cadillac's bumper, to make sure it could not leave.

Several officers then approached the Cadillac with their guns drawn, yelling for its occupants to show their hands. The passenger complied immediately, but the officers saw Jennings making furtive movements with his hands. As they approached with flashlights, the officers saw Jennings put a plastic bag containing crack under the center armrest before putting his hands in the air. Sergeant Mortakis explained at the suppression hearing that he blocked the Cadillac because it had entered the security perimeter surrounding the scene of the search. Other officers confirmed that it was police policy to stop anyone who enters the security perimeter during an ongoing narcotics search because the execution of a drug-related search warrant creates special dangers for the public and for the officers conducting the search.

The district court denied Jennings's motion to suppress. The court concluded that even in the absence of reasonable suspicion, the police "may detain-briefly, and with no more than reasonable force-those whose presence adjacent to the scene of a search poses a potential significant risk to the officers." The court held that the ...

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