Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:09-cr-10-TLS-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
ARGUED SEPTEMBER 28, 2010
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.
Derrick Bullock pleaded guilty to possession with intent to distribute at least five grams but less than fifty grams of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1). His plea was conditioned on his ability to appeal the district court's denial of his motion to suppress evidence of the crack that led to his conviction. The events giving rise to Bullock's arrest began when Detective John Greenlee of the Fort Wayne Police Department received an anonymous tip that someone by the name of "Quick" was selling cocaine from a residence on Euclid Street. Based on the information provided by the tipster, Greenlee was able to determine the address of the residence and that "Quick" was Bullock. Greenlee began surveillance of the residence and corroborated the tip by observing Bullock leaving the residence on several occasions and engaging in activity indicative of drug dealing. Armed with this information, Greenlee obtained a warrant to search the Euclid Street address.
Prior to execution of the warrant, during pre-raid surveillance, Greenlee observed Bullock leaving the residence in a vehicle driven by Sabrina Wilhelm, the lessee of the residence. Greenlee was aware that Wilhelm did not have a valid driver's license, so he instructed uniformed officers to stop the vehicle. Officers made the stop, transported Bullock back to the residence, and detained him in the squad car while they executed the search warrant. Upon finding marijuana in plain view on the dining room table in the residence, along with sandwich baggies containing a small amount of crack and a scale in another part of the residence, officers arrested Bullock for visiting a common nuisance under Indiana Code § 35-48-4-13(a). Bullock was taken to the police station where a search of his person revealed sixteen individually wrapped baggies of crack.
On appeal, Bullock claims that the crack was obtained as the result of an unlawful detention without reasonable suspicion and subsequent unlawful arrest without probable cause in violation of the Fourth Amendment. The district court disagreed and found that there was reasonable suspicion to detain Bullock during the search, relying on Michigan v. Summers, 452 U.S. 692 (1981), where the Court held that police lawfully detained the defendant (who was leaving his residence as officers approached) while they executed a valid search warrant of the residence. The district court further found that probable cause existed to arrest Bullock for visiting a common nuisance under Indiana law after officers found marijuana in plain view and other evidence of more widespread, continuous, and recurrent drug activity within the residence. We affirm. Bullock's detention was lawful under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968), and for similar reasons was justified under Summers. We also find that his subsequent arrest was supported by probable cause.
Detective Greenlee, who has been in the Vice and Narcotics Division for eleven years, testified that on November 3, 2008, he received an anonymous tip that an individual using the name "Quick" was selling narcotics out of a house on Euclid Street. The anonymous caller had purportedly been to the house, had spoken with "Quick" on several occasions, and was aware that "Quick" was selling cocaine from that location. The caller did not know the address of the house, but he described it to Greenlee, informed him what side of the street it was on, and that red and blue chairs were out front.
Because neither Greenlee nor other officers had worked with the caller before, Greenlee took efforts to corroborate the caller's information. Through the police department's computer system, Greenlee discovered that "Quick" was Derrick Bullock; Greenlee also testified that he had prior knowledge that a subject by the name of Derrick Bullock used the nickname "Quick." Greenlee was also able to determine that the address of the house described by the caller was 2815 Euclid Street in Fort Wayne, Indiana.
Greenlee began surveilling the residence. Officers later learned that the residence was leased by Sabrina Wilhelm, but Bullock was the main target of their investigation. Although disputed evidence was introduced during the motion to suppress hearing, the district court did not find that Bullock lived there with Wilhelm. Rather, the two were dating and Bullock visited the residence. Between November 21, 2008, and December 2, 2008, Greenlee observed Bullock leave the residence on four occasions.
On November 21, 2008, Greenlee followed Bullock and a female (who officers later learned was Wilhelm) after they left the residence in a vehicle. Bullock was driving. Officers stopped the vehicle and arrested Bullock (the basis for the stop and arrest is not evident from the record). During the stop, officers discovered that Wilhelm's driver's license was suspended. Pursuant to a search incident to arrest, officers found $500 on Bullock, mostly in $20 denominations. Greenlee testified that Bullock lied about his employment and that his investigation indicated that Bullock was unemployed. Because Bullock was unemployed and had a significant amount of cash in small denominations, Greenlee, based on his training and experience, believed that the money was obtained from drug sales. No drugs were found during the search.
Greenlee next observed Bullock leave the residence sometime between November 21 and December 1. Because he was helping with another investigation, Greenlee was unable to follow Bullock on that occasion. On December 1, Greenlee again followed Bullock after observing him leave the residence. Both times that Greenlee followed Bullock-on November 21 and December 1- Greenlee described Bullock's activity as follows:
[T]he vehicle makes several short stops, some-times meeting people as they were waiting on the porch. The person would come off the porch, they would turn into an alley. The person would get in the back seat of the car, the person would be in the car two to five minutes, and then get out of the vehicle on foot, stop in the house and the vehicle would leave.
The vehicle would pull up along a side street, the person would approach it, be at the window for a up to a minute, a very short period of time and then walk away. The vehicle would leave again.
Greenlee did not see anything pass between Bullock and the other individuals during these short stops. Based on his experience and training, Greenlee testified that such activity is indicative of drug dealing.
On December 2, 2008, officers obtained a search war-rant for the Euclid Street address to search for evidence of narcotics, which they proceeded to execute that same day. Greenlee was responsible for the pre-raid surveillance before execution of the warrant. The search warrant was based on the anonymous tip and Greenlee's corroboration of that information. During pre-raid surveillance, Greenlee observed Wilhelm, her children, and Bullock leave the residence in a vehicle; Wilhelm was driving. Greenlee was aware from the November 21 stop that Wilhelm's driver's license was suspended. Greenlee began following the vehicle. Because he was not in uniform and had an undercover vehicle with no lights or sirens, he radioed other uniformed officers, who were positioned near the residence as part of the search warrant team, to make the stop. Uniformed officers Jean Gigli, Mark Deshaies, and Angie Reed followed the vehicle and executed a stop about ten to fifteen blocks from the residence (within about three minutes of the car leaving the premises). Greenlee waited for Wilhelm and Bullock to get out of the car; he then returned to the residence to prepare for execution of the warrant.
Greenlee instructed Gigli to place Bullock in custody once he made the stop. Greenlee testified that his intention was to bring Bullock back to the residence during execution of the search warrant. Gigli approached Bullock on the passenger's side of the vehicle and Reed approached Wilhelm on the driver's side. Bullock testified that an officer pulled Wilhelm aside and said, "I have a search warrant to search your house. Where [are] your keys at?" Wilhelm reached in her purse and gave the officer a key to the house. Greenlee was informed that a key was obtained during the traffic stop, but was not sure if it came from Bullock or Wilhelm. Officers used the key to gain entry into the residence.
Either Reed or Deshaies asked if there were any drugs in the house, and Wilhelm responded that there was marijuana in the dining room. Greenlee testified that "from things that Ms. Wilhelm had told us at the traffic stop, [we] . . . wanted to keep a hold of [Bullock] to talk to him further about drugs that were in the house that she had told us about." Bullock was handcuffed, patted down, and placed in the back of Gigli's squad car. Bullock was advised that he was being detained for further investigation. The officers did not find drugs in the car or on Bullock (at that time). About ten or twenty minutes after the stop (the officers could not testify to exact times, but gave approximations), Gigli transported Bullock back to the residence, where he stayed in the squad car. The search was underway. Wilhelm remained at the scene of the traffic stop with her children until their father could come get them.
During the search, officers found a lighter next to a box that contained marijuana on a table located in a central part of the house, a large ball of plastic baggies that contained small amounts of crack cocaine, a gun in the upstairs bedroom, and a digital scale. (Bullock does not challenge the justification for the residence search.) Greenlee did not testify where the baggies and scale were found, but it appears, from the photographs introduced at the hearing, that they were in a kitchen cabinet. With respect to the marijuana, Greenlee testified that "you could not have walked through the house without seeing the drugs there in plain view, as the photos depicted on the kitchen table." (Some of the witnesses described the table as a "kitchen" table and others as a "dining room" table but they were all talking about the same table in a central and open part of the house.) Photographs taken during the search confirm that the marijuana was in an open box on the table. Greenlee opined, based on his experience and training, that the items seized during the search were consistent with both drug use and distribution. Bullock remained at the residence for about twenty minutes before he was transported to the station and charged with visiting a common nuisance under Indiana Code § 35-48-4-13(a). Wilhelm was charged with maintaining a common nuisance under Indiana Code § 35-48-4-13(b).
After transporting Bullock to the police station, officers conducted a strip search of Bullock and discovered sixteen individually wrapped baggies of crack cocaine concealed "in" his buttocks. (The record is not clear how probing a search was required to locate the crack cocaine. Obviously, the earlier pat-down did not reveal the drugs. Bullock, however, does not complain about the conduct of the station house search.) These drugs provided the basis for the government's indictment and Bullock's plea of guilty for knowingly possessing crack with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Bullock moved to suppress the crack found on him, arguing that officers unlawfully detained him during the search and lacked probable cause to arrest him. After holding an evidentiary hearing, the district court found Bullock's detention lawful under Michigan v. Summers, 452 U.S. 692 (1981), even though he was a visitor of the residence and was detained after leaving the premises. The district court reasoned that Bullock was pulled over a short distance from the residence and was the subject of the officers' investigation; thus, his detention was based on the officers' articulable and individualized suspicion that Bullock was engaged in criminal activity in connection with the residence. The court also reasoned that upon discovering that a warrant had been issued, Bullock became a flight risk. Further, the court found that there was probable cause to arrest Bullock for visiting a common nuisance after officers found marijuana in the residence in plain view, along with baggies (containing a small amount of crack) and a scale in another location. The court explained that a common-sense view of the everyday realities of life would suggest to police that Bullock was aware that Wilhelm used drugs inside her home. Bullock appeals these findings.
On a motion to suppress, we review questions of law de novo and questions of fact for clear error. United States v. Clinton, 591 F.3d 968, 971 (7th Cir. 2010), cert. denied, 131 S. Ct. 246 (Oct. 4, 2010). Where there are mixed questions of law and fact, our review is de novo. United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). Under clear error review, "we will not overturn the district court's factual findings unless left with a definite and firm conviction that the district court was mistaken." Clinton, 591 ...