United States v. Raibley, Paul T. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3752
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL T. RAIBLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 40058--Joe B. McDade, Chief Judge.
Argued March 31, 2000--Decided March 21, 2001
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Police stopped Paul
Raibley for questioning after he was seen
surreptitiously videotaping a seventeen year-old
Wal-Mart employee. A consensual search of his
pickup truck produced a small quantity of
marijuana and two videotapes. The police later
took a look at the tapes, purportedly with
Raibley’s consent, and discovered pornographic
scenes on one of the tapes involving two young
girls. After unsuccessfully moving to suppress
the videotapes and other evidence obtained as a
result of the investigatory stop, Raibley pleaded
guilty to the production of child pornography, in
violation of 18 U.S.C. sec. 2251(a), (d). He
appeals, contending that the police lacked
grounds on which to stop and question him under
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968),
and that they also lacked his consent to view the
videotapes. We affirm.
I.
Aledo, Illinois is a town of about 4,000
people, situated approximately ten miles east of
the Mississippi River and some twenty miles south
of the Quad-Cities area. On October 10, 1998, the
manager of the Aledo Wal-Mart store saw a man,
later identified as Raibley, sitting in a small,
white pick-up truck in the store’s parking lot,
covertly videotaping a seventeen year-old store
worker as she walked across the lot. When Raibley
realized he had been noticed, he drove away in a
hurry. The police were summoned.
Local police officer Eric Lindburg arrived and
spoke with the store manager. In addition to the
facts just described, Lindburg ascertained that,
so far as the store manager knew, Raibley was a
stranger to the young woman he had been
videotaping. In fact, the subject of the taping
had not even realized what was happening. The
manager supplied Lindburg with a description of
Raibley as well as a license plate number, "FIN
98." A check on the plate number yielded no
information. Lindburg left the store and began to
drive around town hoping to locate the pickup
truck.
About 30 minutes later, Lindburg returned to
the Wal-Mart and spotted an unoccupied white
pickup truck in the parking lot bearing the
license plate number "FINS 98". Lindburg ran a
check on that plate number and learned that the
truck was registered to a man in Collinsville,
Illinois (near St. Louis). Leaving his marked
patrol vehicle parked in full view near the front
of the store, Lindburg walked inside to ask the
manager whether anyone had seen Raibley. While he
was speaking with the manager, Lindburg looked
outside and saw the white pickup leaving the lot
at some thirty to forty miles per hour. Lindburg
ran back to his car and radioed for help in
stopping the truck, exclaiming, "He’s taking off
from me. He’s westbound on Route 17."
Mercer County Sheriff’s Deputy Sean Hast heard
Lindburg’s broadcast and intercepted the truck at
a four-way stop in downtown Aledo, a mile or so
away from the Wal-Mart. Believing that Raibley
was wanted for fleeing and eluding a police
officer, Hast had Raibley out of the truck and
spread-eagled against the vehicle, and was about
to place him in handcuffs, when Lindburg arrived
a few moments later. Lindburg informed Hast that
he only wanted to question Raibley. An
embarrassed Hast apologized to Raibley and left
the scene. Lindburg advised Raibley that he was
not under arrest. When Lindburg asked him whether
he would mind pulling his truck into a parking
space around the corner so that the officer could
speak with him further, Raibley responded, "No
problem." Lindburg would later testify that he
wanted to question Raibley because he believed
that Raibley had committed the state offense of
stalking when he surreptitiously videotaped the
young Wal-Mart employee. See 720 ILCS 5/12-7.3.
Raibley moved his truck as requested, and
Lindburg parked next to him. Both men then got
out of their vehicles. Lindburg asked him why he
had been videotaping young women at the Wal-Mart.
Raibley answered that he had gone to the store to
purchase some goods for a birthday party he was
attending, had noticed a pretty young girl, and
decided to tape her. He did that sometimes,
Raibley told the officer, although he knew it was
wrong.
Lindburg’s attention turned to the truck. He
asked Raibley whether there was anything illegal
in the truck. Raibley said there was not, that
"all he had was some videotapes." Suppr. Tr. 22.
Lindburg then solicited Raibley’s consent to
search the truck, and Raibley gave it. Hast
returned to the scene at Lindburg’s request and
stood by, watching Raibley, while Lindburg
searched the truck. Inside of an open black bag
on the passenger seat, Lindburg discovered a film
canister containing what appeared to be
marijuana. Lindburg proceeded to place Raibley
under arrest.
Once Raibley was in handcuffs and apprised of
his rights, Lindburg completed the search of his
truck. He found a "hitter pipe" (a device used to
smoke cannabis), some women’s underwear, a
pornographic magazine, a video camera, and two
mini-VHS videotapes, one of the cases for which
had been marked "Aledo girls."
Lindburg inquired as to the subject of the
tapes, and Raibley told him that they contained,
inter alia, scenes from a fishing trip. When
Lindburg asked whether the tapes contained any
pornography, including child pornography, a
nervous Raibley said that they might contain
footage of him having sex with adult females.
Suspecting that the tapes might contain child
pornography, Lindburg used his cellular telephone
to contact Mercer County State’s Attorney Baron
Heintz and ask whether he could view the tapes.
Heintz advised Lindburg that he could look at the
tapes so long as Raibley did not object. Lindburg
again asked Raibley whether the tapes contained
any adult or child pornography, and Raibley told
him that there was "nothing on there" except for
footage of himself with his girlfriend. Suppr.
Tr. 34. Lindburg said that he would like to take
a look at the tapes anyway. In response, Raibley
"just kind of looked away and shrugged his
shoulders." Id. Lindburg interpreted this as an
expression of consent. Id.At the Mercer County Sheriff’s office, where
Raibley was booked on charges of possessing
marijuana and drug paraphernalia, Lindburg began
to view the videotapes. He looked at the tape
labeled "Aledo girls" first. It contained footage
of the seventeen year-old Wal-Mart employee as
well as other young women Raibley had filmed at
the Wal-Mart. It did not contain any pornographic
material, however.
Before Lindburg looked at the second tape, a
jail employee informed him that Raibley wished to
speak with him. Lindburg recounted his ensuing
conversation with Raibley as follows:
Mr. Raibley told me that if I was wanting to view
those tapes he really didn’t want, you know, he
just wanted me to see them. He didn’t want a
whole audience to see them, because he said it
had pornography of him and his girlfriend on
there. So he was going to--he wanted me to bring
the camera back to him so he could show me how to
view the tape just inside the camera.
Suppr. Tr. 37. Lindburg declined Raibley’s offer,
assuring him that only he and another officer
would look at the tapes. According to Lindburg,
Raibley acknowledged that he had "a problem,"
id., but said that he only intended to view the
tapes while masturbating. During this discussion,
Raibley also indicated that he had sped away from
the Wal-Mart on the second occasion, when
Lindburg was present, because he had overheard
the officer make inquiries about "the guy that
was videotaping." Suppr. Tr. 38.
When Lindburg left Raibley and reviewed the
second videotape, he discovered that it contained
scenes of two girls, later determined to be ages
five and seven. These scenes included close-ups
of their buttocks and breasts; and an adult hand
could be seen in one of the scenes drawing back
the underwear of one of the girls to expose her
genitals. Lindburg observed that the wristwatch
on the adult hand looked like the watch that
Raibley was wearing. In subsequent interviews,
Raibley disclosed the identities of the two
girls, admitted that he had made the tape, and
admitted that he had transported the tape across
state lines.
After he was indicted for the production of
child pornography, Raibley moved to suppress the
videotapes and other physical evidence that
Lindburg had seized, as well as his post-arrest
statements. Raibley argued, inter alia, that the
initial stop effectuated by Hast and Lindburg was
not supported by a reasonable suspicion that he
had committed a crime. See Terry v. Ohio, supra,392 U.S. at 21-22, 88 S. Ct. at 1880. He further
argued that, because Lindburg had not obtained a
warrant authorizing him to view the tapes taken
from Raibley’s truck, see Walter v. United
States, 447 U.S. 649, 100 S. Ct. 2395 (1980)
(plurality), the review of those tapes was
unlawful--unless Raibley had given Lindburg
permission to look at the tapes. Raibley
contended that there was insufficient proof that
he did give his consent.
The district court conducted an evidentiary
hearing, and at the conclusion of that hearing,
Judge McDade concluded that the stop of Raibley’s
vehicle and the review of the videotapes found
within were both lawful. He concluded, in the
first instance, that the initial detention of
Raibley "was a legitimate Terry stop." Suppr. Tr.
213. As for the videotapes, Judge McDade found
that Raibley had given his consent to view the
tape that contained the pornography. He made that
finding based on the shrug that Raibley had given
when Lindburg indicated his desire to view the
two tapes found in the truck, coupled with
Raibley’s subsequent request, made before
Lindburg looked at the second, pornographic tape,
that Lindburg view the tapes privately on the
camera monitor. Suppr. Tr. 213-14.
II.
A.
Our review of the district court’s decision to
deny Raibley’s motion to suppress is plenary.
Ornelas v. United States, 517 U.S. 690, 699, 116
S. Ct. 1657, 1663 (1996). Of course, in the
absence of clear error, we defer to the district
court’s findings of historical fact as well as
its credibility assessments. Ibid. But the
ultimate determination of whether the authorities
violated the defendant’s Fourth Amendment rights
is one that we review de novo. Ibid.The parties agree that the initial stop of
Raibley’s vehicle amounted to an investigatory
stop of the kind described in Terry v. Ohio,
supra. Terry held that a police officer may stop
and briefly detain a person for questioning if he
reasonably suspects "that criminal activity may
be afoot." 392 U.S. at 30, 88 S. Ct. at 1884-85;
see id. at 21-22, 88 S. Ct. at 1880; see also
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.
Ct. 673, 675 (2000); United States v. Sokolow,
490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). A
Terry stop does not demand the probable cause
that an arrest would require--that is, the
circumstances need not establish a "fair
probability" that the person detained for
questioning has committed a crime. See Sokolow,
490 U.S. at 7, 109 S. Ct. at 1585, quoting
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332 (1983). On the other hand, the police
may not stop an individual for questioning based
on nothing more than an "inchoate and
unparticularized suspicion or ’hunch.’" Terry,
392 U.S. at 27, 88 S. Ct. at 1883. "[T]he Fourth
Amendment requires at least a minimal level of
objective justification for making the stop."
Wardlow, 528 U.S. at 123, 120 S. Ct. at 676,
citing Sokolow, 490 U.S. at 7, 109 S. Ct. at
1585. Simply put, the officer must have
reasonable suspicion, supported by "specific and
articulable facts," that an individual has
committed, is committing, or is about to commit,
a crime. Terry, 392 U.S. at 21, 88 S. Ct. at
1880; see also, e.g., United States v. Brown, 188
F.3d 860, 864 (7th Cir. 1999).
As we have noted, Officer Lindburg testified
that he had Raibley stopped for questioning
because he suspected that Raibley had committed
the offense of stalking, in violation of Illinois
law. The Illinois legislature has defined the
offense of stalking as follows:
(a) A person commits stalking when he or she,
knowingly and without lawful justification, on at
least 2 separate occasions follows another person
or places the person under surveillance or any
combination thereof and:
(1) at any time transmits a threat to that person
of immediate or future bodily harm, sexual
assault, confinement or restraint; or
(2) places that person in reasonable apprehension
of immediate or future bodily harm, sexual
assault, confinement or restraint.
. . .
(d) For the purpose of this Section, a defendant
"places a person under surveillance" by remaining
present outside the person’s school, place of
employment, vehicle, other place occupied by the
person, or residence other than the residence of
the defendant.
(e) For the purpose of this Section, "follows
another person" means (i) to move in relative
proximity to a person as that person moves from
place to place or (ii) to remain in relative
proximity to a person who is stationary or whose
movements are confined to a small area. "Follows
another person" does not include a following
within the residence of the defendant.
. . . .
720 ILCS 5/12-7.3. Raibley contends that at the
time he was detained, the facts known to Lindburg
did not establish any of the elements of stalking
as Illinois has defined that offense: there was,
for example, no indication that Raibley had
followed or surveilled the seventeen year-old
Wal-Mart employee he was seen video-taping on
more than one occasion.
We readily agree with Raibley that the facts
known to Lindburg did not, standing alone,
establish a violation of the stalking statute.
But Terry does not require proof that a crime has
occurred; it demands only such facts as are
necessary to support a reasonable suspicion that
a crime may have occurred. See Wardlow, 528 U.S.
at 123, 120 S. Ct. at 675-76; Sokolow, 490 U.S.
at 7, 109 S. Ct. at 1585. After all, the purpose
of a Terry stop is not to accuse, but to
investigate. Even facts susceptible of an
innocent construction will support the decision
to detain an individual momentarily for
questioning, so long as one may rationally infer
from "the totality of the circumstances--the
whole picture," United States v. Cortez, 449 U.S.
411, 417, 101 S. Ct. 690, 695 (1981), that the
person may be involved in criminal activity, see
Sokolow, 490 U.S. at 9-10, 109 S. Ct. at 1586-87.
Based on what Lindburg learned when he first
interviewed the Wal-Mart manager and other store
employees, and when he returned to the store
after searching the town of Aledo for Raibley’s
vehicle, we believe that Lindburg had a
reasonable basis to suspect that Raibley may have
been engaged in stalking. Lindburg knew that
Raibley had covertly videotaped a young Wal-Mart
employee. He also knew that the employee was not
acquainted with Raibley and had not realized that
Raibley was taping her. Having been oblivious to
the videotaping, the employee experienced no
apprehension of harm. Yet, she obviously had not
consented to the videotaping. It was entirely
possible, of course, that Raibley meant the
subject of his videotaping no harm, nor even to
put her in fear of such harm. On the other hand,
Raibley’s behavior was of a kind that could put
a person in fear of harm, and the fact that he
fled the Wal-Mart lot upon being noticed tended
to belie an innocent motive. Moreover, a short
while later, Raibley returned to the Wal-Mart
store, a fact that was consistent with the
possibility he might be following the subject of
his videotaping. Finally, moments after Lindburg
parked his cruiser in plain view near the store
entrance, Raibley sped out of the lot for a
second time. Unprovoked flight from a police
officer is suggestive of wrongdoing, Wardlow, 528
U.S. at 124; 120 S. Ct. at 676, and coupled with
the other facts we have noted supplied grounds on
which to stop Raibley for questioning.
As Raibley points out, Lindburg did not
actually know that Raibley was speeding away from
the lot in response to the officer’s presence.
Lindburg had neither seen nor spoken to Raibley,
and at that point in time the officer had no
information confirming that Raibley was even
aware of his presence at the store. It was
possible, therefore, that Raibley was simply in
a hurry. And because the Wal-Mart lot was private
property, Raibley’s high rate of speed while
leaving the lot broke no traffic laws.
Even so, one could reasonably have inferred
that Raibley was fleeing in response to
Lindburg’s presence--as Raibley would later admit
that he was. Lindburg had parked his cruiser near
the store entrance, where it would have been
visible to anyone entering or leaving the store.
He had proceeded into the store to ask the
manager whether she had seen "the guy who was
videotaping" earlier. It was therefore quite
likely that Raibley was aware of a police
officer’s presence. Raibley had already beat a
speedy retreat from the parking lot once before,
of course, when spotted by the store manager, and
the fact that Raibley did so again at a fairly
high rate of speed (30 to 40 miles per hour) upon
Lindburg’s return to the store was reasonably
suggestive of flight rather than simple haste.
For these reasons, we conclude that the initial
stop of Raibley’s vehicle was justified under
Terry. The district court’s decision not to
suppress the evidence gathered during Lindburg’s
subsequent questioning of Raibley and from the
consensual search of his truck was therefore
correct.
B.
The remaining question is whether Raibley gave
Lindburg his consent to view the videotape that
contained the evidence underlying the pornography
charge. The parties agree that Raibley’s consent
was required under the circumstances of this
case, and so we need not explore whether, in the
absence of his consent, the police would have
been entitled to view the tapes. See Walter v.
United States, supra, 447 U.S. 649, 100 S. Ct.
2395 (plurality); United States v. Eschweiler,
745 F.2d 435, 440-41 (7th Cir. 1984), cert.
denied, 469 U.S. 1214, 105 S. Ct. 1188 (1985).
Whether an individual voluntarily consented to a
search is a factual assessment that turns on the
totality of the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041,
2047-48 (1973). Relevant factors include (1) the
person’s age, intelligence, and education, (2)
whether he was advised of his constitutional
rights, (3) how long he was detained before he
gave his consent, (4) whether his consent was
immediate, or was prompted by repeated requests
by the authorities, (5) whether any physical
coercion was used, and (6) whether the individual
was in police custody when he gave his consent.
United States v. Strache, 202 F.3d 980, 985 (7th
Cir. 2000); Valance v. Wisel, 110 F.3d 1269, 1278
(7th Cir. 1997). The government bears the burden
of proving, by a preponderance of the evidence,
that consent was freely and voluntarily given.
Id. In this case, there is no claim that Raibley
was somehow coerced into giving his consent to
view the videotape. The question, rather, is
whether he actually consented to the viewing or,
at most, simply acquiesced to a show of
authority. The latter is insufficient to
demonstrate consent. Florida v. Royer, 460 U.S.
491, 497, 103 S. Ct. 1319, 1324 (1983).
In view of the factual nature of the consent
determination, we review the district court’s
resolution of that question for clear error.
E.g., United States v. Shelby, 121 F.3d 1118,
1120 (7th Cir. 1997), cert. denied, 524 U.S. 928,
118 S. Ct. 2325 (1998).
"A finding is ’clearly erroneous’ when although
there is evidence to support it, the reviewing
court on the entire evidence is left with a
definite and firm conviction that a mistake has
been committed." United States v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92
L.Ed. 746 (1948). "Where there are two
permissible views of the evidence, the
factfinder’s choice between them cannot be
clearly erroneous." Anderson v. Bessemer City,
470 U.S. 564, 574, 105 S. Ct. 1504, 84 L.Ed.2d
518 (1985). If the district court’s account of
the facts is plausible in light of the record
viewed in its entirety, we may not reverse that
decision even if we may have decided the case
differently. See id. at 573-74, 105 S. Ct. 1504(noting that if there are two possible
understandings of the evidence, the factfinder’s
conclusion cannot be clearly erroneous);
[citation omitted]. Furthermore, any reasonable
doubts we may harbor should be resolved in favor
of the district court’s ruling "in light of its
greater immersion in the case." Cook v. City of
Chicago, 192 F.3d 693, 697 (7th Cir. 1999).
Central States, S.E. & S.W. Areas Pension Fund v.
Kroger Co., 226 F.3d 903, 910 (7th Cir. 2000),
amended in other respects, 2001 WL 204762 (7th
Cir. Feb. 2, 2001), petition for cert. filed, No.
00-1304 (U.S. Feb. 14, 2001); see also, e.g.,
United States v. Denberg, 212 F.3d 987, 991 (7th
Cir. 2000); United States v. Scheets, 188 F.3d
829, 836 (7th Cir. 1999), cert. denied, 528 U.S.
1096, 120 S. Ct. 837 (2000).
Although he believed that the question was
close, see Suppr. Tr. at 211, Judge McDade
concluded that Raibley did consent to Lindburg’s
review of the videotape. He based that finding on
Raibley’s shrug of the shoulders when Lindburg
solicited his consent, coupled with Raibley’s
subsequent request, at the jailhouse, that
Lindburg view the tape on the camera monitor. Id.
at 213-14. The judge did not believe that the
shrug, without additional evidence, was
sufficient to demonstrate Raibley’s consent. Id.
The judge found it significant, however, that
Raibley later asked Lindburg to use the video
camera to view the tape privately. Id. at 214.
Judge McDade saw that request as evidence of
Raibley’s awareness that Lindburg was going to
view the tape. Id. at 214. That awareness, in
turn, suggested that Raibley had indeed meant to
signal his consent to Lindburg by shrugging his
shoulders. Id.
We find no clear error in the district judge’s
finding that Raibley consented to Lindburg’s
review of the tape. Like Judge McDade, we think
that the question is a close one. Gestures are
often ambiguous, and at least one court has
concluded that a shrug without more is
insufficient to show one’s consent to search.
State v. Harris, 642 A.2d 1242, 1246-47 (Del.
Super. Ct. 1993). Other courts, however, have
accepted shrugs and similar gestures as
sufficient evidence of consent. E.g., United
States v. Wilson, 895 F.2d 168, 172 (4th Cir.
1990) (defendant shrugged his shoulders and
raised his arms when asked for consent to pat-
down search); see United States v. Griffin, 530
F.2d 739, 742 (7th Cir. 1976) ("[t]he consent [to
search] may be in the form of words, gesture, or
conduct"), citing Robbins v. MacKenzie, 364 F.2d
45, 48-49 (1st Cir.), cert. denied, 385 U.S. 913,
87 S. Ct. 215 (1966). We need not decide whether
a shrug alone would suffice as proof of consent,
because, as Judge McDade pointed out, Raibley
later called Lindburg to his cell and asked him
to view the videotape privately. We believe that
the shrug, coupled with the later request,
permitted the inference that Raibley consented to
the viewing.
As Raibley points out, he was incarcerated when
he asked Lindburg to watch the tape on the video
camera; moreover, Lindburg had told him that "we
were going to be viewing the tape." Suppr. Tr.
89./1 But these circumstances did not compel a
finding that Raibley acquiesced to a show of
authority. Although Raibley was under arrest when
Lindburg solicited his consent and incarcerated
when he later spoke with Lindburg about viewing
the videotape privately, these facts by no means
preclude the notion that he consented
voluntarily. See, e.g., Strache, 202 F.3d at 986.
On neither occasion had Raibley been in custody
for a lengthy period of time, and there is no
evidence that Raibley was ever pressured or
badgered for his consent. So far as the record
reveals, after its dramatic beginning, Lindburg’s
encounter with Raibley took place in a calm,
professional manner. Lindburg had apprised
Raibley of his constitutional rights when he took
him into custody. Moreover, it was Raibley who
summoned Lindburg to his cell to suggest that the
officer look at the tape on the camera monitor.
Although arguably susceptible to multiple
interpretations, it is not unreasonable to
construe that suggestion as confirmation that
Raibley affirmatively consented to Lindburg’s
review of the tapes, and was concerned only that
Lindburg not play the tapes before "a whole
audience." Suppr. Tr. 37; see United States v.
Price, 54 F.3d 342, 346 (7th Cir. 1995); United
States v. Benitez, 899 F.2d 995, 998-99 (10th Cir.
1990). There is no evidence suggesting that
Raibley knew that Lindburg had already watched
the first of the two tapes by this time and was
about to view the second--that the viewing was
about to become a fait accompli, in other words.
Raibley, whom the record reveals to have been an
aquatic biologist who had published a number of
scientific papers, obviously was a bright, mature
individual. And there is no evidence that Raibley
at any time voiced any objection to Lindburg’s
review of the tapes. See Forman v. Richmond
Police Dep’t, 104 F.3d 950, 960 (7th Cir.), cert.
denied, 522 U.S. 997, 118 S. Ct. 563 (1997);
Price, 54 F.3d at 346 (7th Cir. 1995).
Under these circumstances, we believe that Judge
McDade was free to infer from Raibley’s actions
and words that he gave Lindburg his consent to
watch the videotapes. The judge’s decision to
draw that inference is therefore not clearly
erroneous.
III.
Having concluded that Officer Lindburg had an
objectively reasonable basis on which to stop and
question Raibley, and finding no clear error in
the district court’s finding that Raibley
consented to the officer’s review of the
videotapes found in his truck, we AFFIRM Raibley’s
conviction.
/1 It is not clear from the record, however, whether
Lindburg so informed Raibley before or after
Raibley summoned Lindburg to ask the officer to
view the tapes in private. See Suppr. Tr. 89.