United States v. Sawyer, Cordell G. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3687
United States of America,
Plaintiff-Appellant,
v.
Cordell G. Sawyer,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-30091-PER--Paul E. Riley, Judge.
Argued March 30, 2000--Decided August 18, 2000
Before Bauer, Diane P. Wood, and Williams, Circuit
Judges.
Williams, Circuit Judge. Cordell G. Sawyer, who
stands charged with being a felon in possession
of a firearm, successfully argued to the district
court that bullets found on his person when he
was arrested (which match the bullets in the gun
he is alleged to have possessed) should be
suppressed as the product of an illegal search.
The government takes the opposite view and has
filed this interlocutory appeal challenging the
district court’s ruling. Because we conclude that
the bullets found on Sawyer were not the product
of an illegal search, we reverse.
I
The only account of the events leading up to
the search that produced the bullets the district
court suppressed comes from Deputy United States
Marshal Thomas Woods, who was the only witness to
testify at Sawyer’s suppression hearing. From
Woods’s testimony the following facts emerge.
On the night of Sawyer’s arrest, Woods was
assigned to a joint federal-state fugitive task
force operating in East St. Louis, Illinois. At
approximately 10:30 p.m., Woods and the other
deputy marshals and local police officers with
whom he was working were patrolling the 1400
block of North 55th Street, a high crime area
where Woods and other officers had made prior
arrests for drug and weapons offenses. While
traveling north on 55th Street, Woods and the
other task force officers observed Sawyer
standing alone in front of a vacant building
dressed in all black clothing. Suspicious, the
officers stopped their vehicle. Woods, who was
wearing a bullet proof vest with the words
"Police, U.S. Marshal" on it, got out, identified
himself as a law enforcement officer, and told
Sawyer that he would like to speak with him.
Sawyer immediately turned and ran toward the rear
of the vacant building.
Woods gave chase, using his flashlight to keep
Sawyer in view. During the chase, Sawyer stumbled
and fell. As Sawyer was getting up, Woods saw
Sawyer pull an object from his midsection, from
underneath his clothing, and throw it to the
ground. Woods, who was only ten feet away at the
time, believed the object to be a gun, perhaps
stainless steel and semiautomatic, but he was not
absolutely sure. After dropping the object,
Sawyer continued his flight from Woods. Shortly
thereafter, Woods lost sight of Sawyer.
By this time, however, Woods was in verbal
contact with the other task force officers and
told them what had happened. About a minute
later, Sawyer was found hiding under a bush about
twenty yards from where Woods had lost sight of
him. As Woods approached, one of the task force
officers, Deputy United States Marshal Tony
Nelson, was handcuffing Sawyer. Woods placed
Sawyer under arrest for "unlawful use of a
weapon, carrying a gun," a state crime. See 720
Ill. Comp. Stat. 5/24-1(a)(4). Meanwhile, Nelson
frisked Sawyer and discovered a plastic bag
containing a number of .45 caliber bullets in
Sawyer’s left front pants pocket.
Once Sawyer was in custody, Woods returned to
the area where he had seen Sawyer toss the object
he believed to be a gun. After some searching, he
found a Colt semiautomatic handgun, light in
color, possibly stainless steel. The gun was
loaded with .45 caliber bullets, which were
subsequently determined to be identical to the
bullets found on Sawyer.
Later, it was discovered that Sawyer had
previous felony convictions. Based on this
information, the U.S. Attorney for the Southern
District of Illinois charged Sawyer with being a
felon in possession of a firearm, in violation of
18 U.S.C. sec. 922(g)(1). In pretrial
proceedings, Sawyer filed a motion to suppress
the bullets found on him when he was arrested on
the ground that the bullets were obtained
pursuant to an illegal search. The government
responded that the search that uncovered the
bullets was justified both as a search incident
to arrest and as a protective pat-down search
authorized by Terry v. Ohio, 392 U.S. 1 (1968).
The district court rejected both of the
justifications offered by the government. With
respect to the first, the court concluded that
the search was not a proper search incident to
arrest because Sawyer’s warrantless arrest was
not supported by probable cause. As for the
second, the court ruled that the search could not
be justified as a Terry pat-down search because
there was insufficient evidence regarding the
knowledge of the officer who conducted the
search. Accordingly, the district court ordered
the bullets suppressed.
Exercising its right to pursue an interlocutory
appeal of the suppression order, see 18 U.S.C.
sec. 3731, the government now appeals. It raises
three arguments: (1) that the suppressed bullets
were recovered pursuant to a search incident to
a lawful arrest; (2) that the suppressed bullets
were recovered pursuant to a lawful Terry pat-
down search; and (3) that the suppressed bullets
would have inevitably been discovered by lawful
means and therefore should not have been
suppressed. Because the first of these arguments
is adequate to resolve this appeal, however, our
analysis will be restricted to the issues raised
by that argument.
II
It has long been the rule that law enforcement
officers may conduct a full search of an arrestee
in order to discover weapons the arrestee might
be carrying and to preserve evidence that might
be destroyed. United States v. Robinson, 414 U.S.
218, 235 (1973); United States v. Rodriguez, 995
F.2d 776, 778 (7th Cir. 1993). Such a search is
permissible, however, only if the arrest was
legal. United States v. Kincaid, 212 F.3d 1025,
1028 (7th Cir. 2000); United States v. Levy, 990
F.2d 971, 974 (7th Cir. 1993). An officer may
legally arrest a suspect without obtaining an
arrest warrant beforehand only if the officer has
probable cause to believe the suspect has
committed a crime and the suspect is not inside
his or her home. Payton v. New York, 445 U.S.
573, 576 (1980); United States v. Watson, 423
U.S. 411, 423-24 (1976); United States v.
Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995). The
government claims that Sawyer’s arrest satisfies
the requirements for a warrantless arrest, but
Sawyer maintains that neither Deputy Marshal
Woods, nor any of the other task force officers,
had probable cause to believe he had committed a
crime.
A law enforcement officer has probable cause to
make an arrest when the facts and circumstances
within the officer’s knowledge and of which the
officer has reasonably trustworthy information
are sufficient to warrant a prudent person in
believing the suspect has committed or is
committing an offense. Gilbert, 45 F.3d at 1166;
United States v. Levy, 990 F.2d 971, 973 (7th
Cir. 1993) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). Probable cause, however, does not
require evidence sufficient to support a
conviction, nor even evidence demonstrating that
it is more likely than not that the suspect
committed a crime. United States v. Burrell, 963
F.2d 976, 986 (7th Cir. 1992). So long as the
totality of the circumstances, viewed in a common
sense manner, reveals a probability or
substantial chance of criminal activity on the
suspect’s part, probable cause exists. Levy, 990
F.2d at 973 (citing Illinois v. Gates, 462 U.S.
213, 244 (1983)).
As noted above, the district court agreed with
Sawyer that the task force officers lacked
probable cause to arrest Sawyer at the time he
was arrested. The district court appears to have
rested its ruling on three alternative grounds:
(1) that probable cause did not exist until the
task force officers later determined that Sawyer
had prior felony convictions; (2) that Deputy
Marshal Woods’s belief that Sawyer dropped a gun
was insufficient to create probable cause; and
(3) that without knowing what Deputy Marshal
Nelson knew when he initiated Sawyer’s arrest,
there was insufficient evidence to find that
probable cause existed. The government contends
that each of these determinations is flawed.
In considering a challenge to a suppression
order, we review de novo the ultimate conclusion
regarding whether the law enforcement officers
had probable cause. Ornelas v. United States, 517
U.S. 690, 699 (1996). At the same time, however,
we review all findings of historical fact and
credibility determinations deferentially, for
clear error. Id. Under these standards, we are
persuaded that none of the grounds the district
court offered for its suppression ruling supports
the conclusion that the task force officers
lacked probable cause to arrest Sawyer.
The first ground on which the district court
relied--that probable cause did not exist until
the task force officers later determined that
Sawyer had prior felony convictions--rests on the
mistaken assumption that Sawyer was initially
arrested for being a felon in possession of a
firearm (the federal crime with which he was
ultimately charged). However, as is clear from
the testimony of Deputy Marshal Woods at the
suppression hearing, Sawyer was arrested for
"unlawful use of a weapon, carrying a gun," a
violation of Illinois’s general prohibition on
carrying a concealed firearm, 720 Ill. Comp.
Stat. 5/24-1(a)(4)./1 Thus, the fact that the
task force officers had not yet identified Sawyer
as a convicted felon is irrelevant to whether
they had probable cause to arrest Sawyer for this
state law violation. The district court’s
conclusion to the contrary is erroneous.
The second ground the district court articulated
for its suppression ruling--that Deputy Marshal
Woods’s belief that Sawyer dropped a gun was
insufficient to create probable cause--suffers
from a similar problem. The district court
attributed a greater than warranted level of
uncertainty to Woods’s belief that Sawyer dropped
a gun based on what appears to be a
misunderstanding of Deputy Marshal Woods’s
testimony regarding what he saw Sawyer toss to
the ground while he pursued him. The district
court’s order suggests that Woods was certain
only that he saw Sawyer toss a stainless steel
object to the ground, but Woods actually
testified that he was "very certain" that Sawyer
dropped a firearm. There is nothing in the
district court’s suppression order to suggest, as
Sawyer argues on appeal, that the court’s
characterization of Woods’s testimony rests on a
credibility determination rather than a simple
misunderstanding of that testimony. As such, the
district court committed clear error in
attributing unwarranted uncertainty to Woods’s
belief that Sawyer dropped a gun.
In any event, and more importantly, probable
cause does not require certainties. Given the
surrounding circumstances, as long as Woods
reasonably believed there was a substantial
chance that the object Sawyer dropped was a
firearm, he had probable cause to arrest Sawyer.
See Kincaid, 212 F.3d at 1029 (probable cause
inquiry depends on officer’s reasonable beliefs).
In concluding that Woods’s belief that Sawyer
dropped a gun would not support a finding of
probable cause, the district court simply imposed
too technical and too stringent a probable cause
standard.
The third ground the district court gave for
its suppression ruling--that without knowing what
Deputy Marshal Nelson knew when he initiated
Sawyer’s arrest, there was insufficient evidence
to find that probable cause existed--also relies
on a too stringent probable cause standard. When
law enforcement officers are in communication
regarding a suspect, the knowledge of one officer
can be imputed to the other officers under the
collective knowledge doctrine. United States v.
Hensley, 469 U.S. 221, 232-33 (1985); Tangwall v.
Stuckey, 135 F.3d 510, 517 (7th Cir. 1998);
United States v. Nafzger, 974 F.2d 906, 910-11
(7th Cir. 1992). For instance, if officers from
an Illinois police department have probable cause
to arrest a suspect and they send a bulletin
regarding the suspect to police departments in
Wisconsin, a Wisconsin police officer may arrest
the suspect without personal knowledge of the
facts and circumstances supporting the probable
cause possessed by the Illinois officers who sent
the bulletin. See Hensley, 469 U.S. at 232-33.
The same is true when the officers are all at the
scene of an arrest. United States v. Edwards, 885
F.2d 377, 382-83 (7th Cir. 1989). Therefore,
because Woods was in communication with the other
task force officers at the scene, including
Nelson, Woods’s knowledge can be imputed to
Nelson. It does not matter that we do not know
what Nelson knew when he initiated Sawyer’s
arrest, because we do know what Woods knew.
This entire analysis, however, proceeds on the
assumption that it was necessary for Deputy
Marshal Nelson to have probable cause to arrest
Sawyer, but the correctness of that assumption is
far from clear. Although Nelson cuffed Sawyer, it
was Woods who placed Sawyer under arrest. Given
Woods’s participation in the arrest, there is no
basis for thinking it necessary that Nelson have
probable cause. For this reason too, the district
court erred in basing its suppression ruling on
the lack of evidence concerning Deputy Marshal
Nelson’s knowledge.
Once the district court’s legal and factual
errors are put to one side, it is plain that
Woods (and, to the extent relevant, the other
task force officers) had probable cause to arrest
Sawyer. To begin with, Sawyer was standing alone
in front of a vacant house in a high crime area.
In addition, when Deputy Marshal Woods
approached, Sawyer fled and continued to flee
after Woods gave chase. Finally, Woods observed
Sawyer toss what looked to be a firearm to the
ground during his flight./2 Viewed together and
from a common sense perspective, these facts
would allow a prudent person to believe that
Sawyer had committed the crime, under Illinois
law, of unlawful possession of a weapon. Compare
Tom v. Voida, 963 F.2d 952, 959-60 (7th Cir.
1992) (flight in a high crime area, coupled with
abandonment of what the officer believed to be a
stolen bicycle, provided probable cause for
arrest). Therefore, we conclude that probable
cause supported Sawyer’s arrest. Accordingly, the
search that uncovered the bullets found on Sawyer
was a lawful search incident to arrest and the
bullets recovered should not have been
suppressed.
III
Because Cordell Sawyer’s arrest was lawful and
the arresting officers therefore could lawfully
search Sawyer, we conclude that the district
court erred in suppressing the bullets the
officers found. Accordingly, we Reverse the
district court’s suppression ruling.
/1 At the time of Sawyer’s arrest, and before its
recent amendment, see 2000 Ill. Laws 91-690, 720
Ill. Comp. Stat. 5/24-1(a) read, in relevant
part,
A person commits the offense of unlawful use of
weapons when he knowingly:
* * *
(4) Carries or possesses in any vehicle or
concealed on or about his person except when on
his land or in his own abode or fixed place of
business any pistol, revolver, stun gun or taser
or other firearm.
/2 In passing, Sawyer suggests that Woods could not
have possibly seen what Sawyer tossed to the
ground since it was dark out and the only light
in the area came from Woods’s flashlight, but
there is no basis in the record to think that
Woods’s flashlight would not have allowed him to
form a reasonable belief about what Sawyer
dropped. Accordingly, this argument does not
provide a ground for doubting that Woods saw what
he says he saw.