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United States v. Jenkins

United States Court of Appeals, Seventh Circuit

March 13, 2017

United States of America, Plaintiff-Appellee,
Antwon D. Jenkins, Defendant-Appellant.

          Argued September 27, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:13-cr-30125-DRH-ll - David R. Herndon, Judge.

          Before Bauer, Rovner, and Hamilton, Circuit Judges.

          Bauer, Circuit Judge.

         A two-year investigation into a drug-trafficking operation commenced in Spring 2011, when the Drug Enforcement Administration received a tip that Tyrone Carraway was distributing narcotics in East St. Louis, Illinois. Agents enlisted a confidential source to make controlled purchases of crack cocaine from Cortez Yarbrough, one of Carraway's distributors. In December 2011, DEA agents received authorization to wiretap Carraway's phone. They learned from the wiretapped conversations that Carraway was obtaining cocaine from a barbershop in St. Louis, Missouri, operated by one Ernest Lyons; Richard Graham, Carraway's cousin, acted as an intermediary between Carraway and Lyons. Carraway distributed cocaine from his father's tire shop in East St. Louis, Illinois, referred to as "the Gate."

         On January 14, 2012, intercepted calls from Carraway's phone revealed that he and Graham were going to retrieve narcotics from Lyons' barbershop; surveillance teams near the barbershop observed Carraway and Graham enter the barbershop and exit a short time later. Next, Carraway's vehicle headed toward the Gate in East St. Louis. During this trip, a surveillance team intercepted three calls between Carraway and Jenkins, using the phone number (618) XXX-4062.

         During the first call, using coded language, Carraway told Jenkins that cocaine had arrived and that he would save some for him. In the second call, Carraway told Jenkins that he was in East St. Louis; Jenkins responded that he would meet Carraway in fifteen minutes. The last call was made as surveillance teams were monitoring the Gate. Jenkins told Carraway that he was "finna pull up." A short time later, a black GMC Yukon with an Illinois temporary license plate number 244N250 pulled onto the lot. The car was registered to a Devontae Jenkins. Agents were unable to confirm who was driving the Yukon or observe what transpired inside the Gate because it was dark outside. The Yukon left after approximately five minutes.

         On January 28, 2012, agents intercepted phone calls between Carraway and Graham indicating that they planned to make another trip to the barbershop for cocaine. Surveillance teams at the barbershop observed Carraway and Graham arrive. The two went inside and stayed for about twenty minutes. Afterward, they ate at a nearby diner. While they were at the diner, agents intercepted a call between Jenkins and Carraway. Carraway told Jenkins that he would be heading to East St. Louis soon, and that he would call Jenkins when he was on his way so that they could meet.

         Surveillance teams followed Carraway and Graham to the Gate. Suspecting that Carraway would be distributing narcotics from the Gate, Special Agent Matthew McKnight contacted Jarrod Leckrone, an Illinois State Trooper, and instructed him to make a traffic stop near the Gate at the agent's direction. While monitoring the Gate, agents intercepted another call between Carraway and Jenkins; Carraway told Jenkins that he could "come on this way." A short time thereafter, agents observed the same Yukon from their January 14, 2012, surveillance arrive at the Gate. The Yukon left about five minutes later. Agents provided Leckrone with a description of the Yukon and its direction of travel. Leckrone noted that the vehicle had illegally tinted windows, the temporary registration was obscured, and the driver was not wearing a seat belt. He pulled the Yukon over eight blocks from the Gate.

         Leckrone advised Jenkins, the driver of the vehicle, why he had been stopped. Jenkins admitted that he had not been wearing a seat belt. Leckrone observed that Jenkins acted nervous and excited; he also noticed an odor of burnt cannabis emanating from the vehicle. Leckrone asked Jenkins if he had any cannabis or other contraband in the car; Jenkins said no. At this point, an assisting officer arrived and Leckrone asked Jenkins to exit his vehicle so that it could be searched. Jenkins stood at the front of Leckrone's squad car during the search.[1]Leckrone searched the area of the dashboard and center console and found a plastic panel, behind which was a cellophane bag containing cocaine. He also found three cell phones which were "ringing one after another." The phones were seized as part of the search.

         Leckrone transported Jenkins to the Illinois State Police headquarters in Collinsville, Illinois. McKnight also went to the headquarters, at which time Leckrone gave him the cocaine and cellular phones. McKnight searched the settings on one of the phones; he determined that its number was (618) XXX-4062, the same number from which agents had intercepted calls on January 14 and 28, 2012. Moreover, the call log showed recent calls to Carraway and Yarbrough. Leckrone read Jenkins his Miranda rights. Jenkins stated that the truck belonged to his cousin, and that he did not know anything about the cocaine recovered during the search. He refused to provide any further information.

         On June 18, 2013, a grand jury charged Jenkins with conspiracy to distribute, and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846, and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Jenkins filed a motion to suppress evidence to exclude: the cocaine found in his car, evidence from the search of his phone, and any statements that he made.

         On June 30, 2014, the district court denied in part and granted in part the motion to suppress. The court denied the motion as to the search of Jenkins' vehicle and subsequent statements made by Jenkins. The court found that the vehicle search was invalid under the search incident to arrest exception, but permissible under the collective knowledge doctrine. The court found that the evidence was admissible because Leckrone had established independent probable cause, and normal police investigation would have inevitably led to the discovery of the evidence. The court granted the motion to suppress the results of the cell phone search, relying on Riley v. California, 134 S.Ct. 2473, 2493 (2014), which held that a warrant must generally be obtained prior to searching an arrestee's cell phone data.

         The Government filed a motion to reconsider the motion to suppress. It argued that the evidence obtained from the cell phone search should be admitted, based on United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012), which held that searching a cell phone found on an arrestee's person to identify its telephone number was a valid warrantless search incident to arrest. 670 F.3d at 809-10. The court granted the Government's motion and permitted use of the cell phone evidence.

         A three-day jury trial concluded on March 18, 2015, and Jenkins was found guilty of possession with intent to distribute cocaine. The court declared a mistrial on the conspiracy count and dismissed it.

         The United States Probation Office prepared Jenkins' Presentence Investigation Report, which concluded that Jenkins' Sentencing Guidelines range was 27-33 months' imprisonment. The PSR noted that Jenkins' sentence could run concurrently, partially concurrently, or consecutively to his 308-month term of imprisonment on an unrelated conviction for kidnaping and using or carrying a firearm to commit a federal crime of violence. At sentencing, the court adopted the PSR as its own factual findings. The court sentenced Jenkins to 27 months' imprisonment, and a term of 3 years' supervised ...

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