United States v. Washburn, Shawn R. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3325
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN R. WASHBURN,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 03:03CR0017RM—Robert L. Miller, Jr., Chief Judge.
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ARGUED MARCH 29, 2004—DECIDED SEPTEMBER 9, 2004
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Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. Shawn R. Washburn pleaded
guilty to one count of possessing with intent to distribute
more than 50 grams of methamphetamine, 21 U.S.C.
§ 841(a)(1), pursuant to a conditional plea agreement.
Under the plea agreement, Washburn reserved his right to
challenge on appeal the district court’s denial of his motion
to suppress evidence found during a search of his vehicle on
November 6, 2002. We uphold the district court’s denial of
his motion.
2 No. 03-3325
The search of Washburn’s vehicle occurred after police
officers from Indiana and Ohio gathered information about
a methamphetamine distribution ring from two different
individuals who had agreed to assist the officers. One of the
cooperating informants arranged a drug transaction for that
day involving the delivery of ten pounds of methamphet-
amine from Elkhart, Indiana, to Defiance, Ohio. Officers knew
from the informant that a Thomas Wright and several others
planned to drive the methamphetamine to Defiance in a
caravan of either two or three automobiles and procured a
search warrant in anticipation of stopping the vehicles.
After stopping Wright and the others before they reached
Defiance, the officers found in the trunk of one of the cars
a suitcase with ten, one-pound vacuum-sealed bags contain-
ing a substance that field-tested positive for methamphet-
amine. The police then took the individuals into custody.
Washburn’s name surfaced for the first time during two
separate interviews that the officers conducted with Wright
and David Morgan, another member of the caravan. Both
Wright and Morgan identified Washburn as the supplier of
the methamphetamine. Morgan also admitted during his
interview to his role in the drug transaction. He explained
to the officers that he received the ten pounds of metham-
phetamine from Washburn, who, according to Morgan, had
carried the drugs in a black bag that he kept between the
seats of his car. Morgan described Washburn’s car as a very
nice, white Chevrolet “conversion” van with wood trim on
the interior and graphics on the exterior.
Morgan then agreed to cooperate with the officers, and set
up a drug transaction directly with Washburn later that
evening. While being tape-recorded by the officers, Morgan
called Washburn. During the conversation Morgan con-
firmed the success of that morning’s ten-pound delivery to
Ohio and arranged to pick up twelve more pounds of meth-
amphetamine, ten for another delivery and two pounds, it
seems, for himself. During a second tape-recorded conversa-
No. 03-3325 3
tion, Morgan and Washburn decided to meet at 7:00 p.m.
that night in the parking lot of the Weston Plaza hotel in
Elkhart.
That night at 7:00 p.m., officers observed a white con-
version van with graphics on its exterior enter the parking
lot of the Weston Plaza hotel, circle the building once, and
stop in front of the entrance. The driver emerged from the
van and went into the hotel. As he returned to the van
several minutes later, two or three officers surrounded him
with weapons drawn and ordered him to the ground.
Washburn identified himself to the officers, and the officers
obtained his car keys. Aided by flashlights and the bright
lights of the parking lot, the officers were able to see, when
peering into the van, both the wood trim in the interior and
a black bag between two seats. The officers then asked
Washburn if they could search the van, but he politely
declined. He then agreed to wait in a police car.
Either just before the stop of Washburn or shortly there-
after, the police officers at the scene placed two calls. The
first call confirmed that the license plate of the van was
registered to Washburn. The second call requested the as-
sistance of a canine unit to conduct a drug sniff of the van.
The canine unit arrived by 8:25 p.m. at the latest. The dog
alerted its handler to the presence of drugs near the seam
where the passenger double doors and front passenger door
open.
In response to the police dog’s positive signal, one of the
officers called a prosecutor and requested a search warrant
for the van. A state judge in Elkhart signed the warrant at
approximately 8:45 p.m. During the subsequent search, the
officers found between two seats a black bag with twenty-
four, vacuum-sealed packets each weighing one pound, like
those seized earlier that day. The contents field-tested pos-
itive for methamphetamine. After this discovery, the police
formally placed Washburn under arrest two hours after the
initial stop.
4 No. 03-3325
Washburn was charged in federal court and moved to
suppress the evidence found that night, arguing first that
the search warrant was defective because (1) there was no
probable cause to support it, (2) the warrant did not contain
an “oath or affirmation,” and (3) the state judge who autho-
rized it was not neutral and detached. He also contended
that the time that he was held before the search exceeded
the length of time permissible for a brief investigatory stop.
After holding a hearing on Washburn’s motion to suppress,
the district court concluded that the police officers had
probable cause to search the van, and so, under the “automo-
bile exception,” the search was valid whether the officers
had a warrant or not. The court reasoned that Morgan was
sufficiently reliable because he claimed first-hand knowl-
edge of the illegal activity, and his statements were against
his penal interest and corroborated by subsequent events.
Because the officers had probable cause, the court con-
cluded, they could detain Washburn beyond the length of
time permitted for an investigatory stop. Having based its
decision on the automobile exception, the court did not
decide whether the warrant was deficient. After filing a
self-described “Amended Motion to Correct Error,” which
the district court denied, Washburn pleaded guilty.
On appeal, Washburn first argues that the district court
erred in applying the automobile exception to validate the
search of his van because his van had lost its mobility at
the time of the stop. Washburn points out that he was not
inside the vehicle when the officers approached him and
that after the initial stop he did not even have access to his
car keys. Washburn thus reasons that the officers had
enough time to procure a warrant, and did in fact obtain
one, so the automobile exception is not available as a basis
for upholding the search.
The Supreme Court in Caroll v. United States, 267 U.S.
132, 153-56 (1925), recognized an automobile exception, al-
lowing a warrantless search of a vehicle to be conducted so
No. 03-3325 5
long as there is probable cause to believe it contains
contraband or evidence of illegal activity. Maryland v.
Dyson, 527 U.S. 465, 466-67 (1999) (per curiam); Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996) (per curiam); California v.
Carney, 471 U.S. 386, 390 (1985); United States v. Huebner,
356 F.3d 807, 813 n.2 (7th Cir. 2004); United States v.
Ledford, 218 F.3d 684, 688 (7th Cir. 2000). The original
premise for the automobile exception was that a vehicle’s
“ready mobility” made an “immediate intrusion” necessary
to prevent the destruction of evidence. Carney, 471 U.S. at
390-92 (internal citations and quotations omitted); see Labron,
518 U.S. at 940. In Carney, however, the Supreme Court
clarified that a second reason justified the exception even
where an automobile is “not immediately mobile”—the
lesser expectation of privacy in a vehicle. Carney, 471 U.S.
at 392; see Labron, 518 U.S. at 940; United States v.
Matthews, 32 F.3d 294, 299 (7th Cir. 1994).
With these two justifications in mind, Washburn’s argu-
ment that his lack of accessibility to the van made inappli-
cable the automobile exception is misconceived. So long as
Washburn’s van was inherently, even if not immediately,
mobile, the application of the automobile exception was still
valid based on the diminished expectation of privacy in one’s
vehicle. See Matthews, 32 F.3d at 299; United States v.
Gallman, 907 F.2d 639, 641 (7th Cir. 1990); United States v.
Brookins, 345 F.3d 231, 237 n.7 (4th Cir. 2003); United
States v. Mercado, 307 F.3d 1226, 1228-30 (10th Cir. 2002).
And the van qualified as readily mobile; Washburn’s lack of
access to the vehicle did not defeat its inherently mobile
status. See Gallman, 907 F.2d at 641.
To the extent that Washburn challenges the second justi-
fication for applying the automobile exception—asserting
that he legitimately harbored a heightened expectation of
privacy because his van was parked in a lot used by tem-
porary residents of the hotel—his argument fails. We have
always rejected the notion that a hotel occupant enjoys the
6 No. 03-3325
same expectation of privacy in his car in the parking lot of
the hotel as he does in the room itself; the hotel parking lot
is “readily accessible to the public and not generally
thought of as a place normally used as a residence.” United
States v. Foxworth, 8 F.3d 540, 545 (7th Cir. 1993); United
States v. Markling, 7 F.3d 1309, 1319 (7th Cir. 1993); see
also United States v. Diaz, 25 F.3d 392, 396-97 (6th Cir.
1994); United States v. Ludwig, 10 F.3d 1523, 1526 (10th
Cir. 1993). Neither Washburn’s inaccessibility to his van nor
its location in the hotel parking lot invalidates the district
court’s application of the automobile exception.
Washburn also argues that the district court should have
concluded that Morgan’s statements alone did not provide
the officers with probable cause to search his van. Pointing
out that Morgan cooperated with police in hopes of receiving
some type of consideration for his help, Washburn insists
that Morgan’s confession was not really against his penal
interest, and so, in his view, the indicia of reliability that
normally accompanies such statements did not attach. He
also questions the officers’ reliance on Morgan because
Morgan was a first-time informant whose information had
never been tested for veracity.
We review a district court’s determination of probable
cause de novo and its findings of fact for clear error.
Ornelas v. United States, 517 U.S. 690, 699 (1996). Probable
cause to search exists where there is a fair probability that
an officer will find contraband or evidence of illegal activity
at a specified location based on the totality of the circum-
stances. Illinois v. Gates, 462 U.S. 213, 238 (1983); United
States v. McClinton, 135 F.3d 1178, 1183 (7th Cir. 1998).
Probable cause is a “fluid concept,” Ornelas, 517 U.S. at
696, and when an informant is involved, it may turn upon
the informant’s reliability, basis for knowledge, and degree
of detail, as well as the ability of the police to corroborate
the information, United States v. Johnson, 289 F.3d 1034,
1038-39 (7th Cir. 2002).
No. 03-3325 7
In this case, the officers had probable cause to search the
van, at the latest, within moments of placing Washburn in
the back of patrol car. Morgan’s inculpatory statements
along with both Wright’s corroboration of Washburn’s iden-
tity and the officers’ later corroboration of Morgan’s infor-
mation established probable cause despite Morgan’s possible
motive to seek a deal with prosecutors and his status as a
first-time informant. Regardless whether Morgan ultimately
provided officers with information about Washburn to bene-
fit himself, he still implicated himself in a drug-trafficking
crime with his confession, so his possible motive for confess-
ing would not significantly lessen his statements’ indicia of
reliability. See Molina ex. rel. Molina v. Cooper, 325 F.3d
963, 970-71 (7th Cir. 2003). And officers were then able to
test the reliability of Morgan’s information as they watched
the events that he predicted unfold. See McClinton, 135
F.3d at 1184. In keeping with Morgan’s arrangements on
the telephone, a white Chevrolet conversion van with
graphics on its exterior arrived at the Weston Plaza hotel at
7:00 p.m., driven by a man who identified himself as
Washburn. By peering into the van, police were able to see
interior wood trim and a black bag between two seats, as
Morgan had described. This proof of Morgan’s “inside
information” confirmed his reliability. See Alabama v.
White, 496 U.S. 325, 332 (1990); McClinton, 135 F.3d at
1184. Furthermore, Morgan was not the sole source of the
officers’ information about Washburn; Wright had also told
the officers in a separate interview that Washburn supplied
the ten pounds of methamphetamine seized in Ohio. Taken
together, Morgan’s and Wright’s statements and the offi-
cers’ ability to independently corroborate the information
provided them with probable cause to search Washburn’s
van. And if all this were not enough, we have held that a
positive alert by a trained drug dog gives rise to probable
cause to search a vehicle. United States v. Limares, 269
F.3d 794, 798 (7th Cir. 2001); United States v. Thomas, 87
F.3d 909, 912 (7th Cir. 1996).
8 No. 03-3325
Washburn additionally asserts that the district court
should have determined that his two-hour detention before
his formal arrest exceeded the reasonable length of time for
an investigatory stop. But he fails to develop the argument,
so it is waived. See Martin v. Shawano-Gresham Sch. Dist.,
295 F.3d 701, 706 n.4 (7th Cir. 2002). In any event, even if
Washburn is correct that his detention was unreasonably
long for an investigatory stop, we do not see how this point
helps his case. Washburn identifies no evidence that was
gathered as a result of his detention as opposed to that
seized from the valid search of his van. And the officers
were permitted to hold Washburn beyond the reasonable
length of time for an investigatory search because they had
more than reasonable suspicion that Washburn was
engaged in criminal activity; they had probable cause to
believe he was involved in the earlier drug transaction based
on Morgan’s confession and both Wright’s and the officers’
corroborations of those statements. See United States v.
Brown, 366 F.3d 456, 458 (7th Cir. 2004).
Washburn next turns to the search warrant for the cara-
van of cars heading to Defiance, arguing that it was too
vague and overbroad and that, consequently, evidence from
the subsequent search of his van should have been sup-
pressed as “fruit of the poisonous tree.” But Washburn
never established that the challenged search infringed any
interest of his that “the Fourth Amendment was designed
to protect.” Rakas v. Illinois, 439 U.S. 128, 140 (1978). In
trying to establish that the search did directly violate his
Fourth Amendment rights, Washburn argues that he ex-
hibited a subjective privacy interest in the suitcase con-
taining the methamphetamine found in the trunk of one of
the cars and that the officers knew the suitcase belonged to
him. But Washburn’s assertion about the officers’ know-
ledge mischaracterizes their testimony at the suppression
hearing. The officers stated that, to their knowledge,
Washburn had “provided” Wright, Morgan, and the others
No. 03-3325 9
with the suitcase—a fact the officers could have learned
only during the post-search interview with Morgan when
Washburn’s name first surfaced. See United States v. Rem,
984 F.2d 806, 811 (7th Cir. 1993) (when deciding whether
defendant abandoned luggage, “the flow of information con-
sidered stops at the moment the police officer opened the
suitcase”). It is frivolous to argue that under these circum-
stances Washburn had exhibited a subjective interest of
privacy in the suitcase. See United States v. Pitts, 322 F.3d
449, 456 (7th Cir. 2002). And Washburn’s tendering of the
suitcase to the others for delivery to another city in a different
state does not even hint that he retained any control over
it or had taken any precautions to maintain his supposed
privacy interest in it. See United States v. Elmore, 304 F.3d
557, 562 (6th Cir. 2002) (whether defendant took precautions
to maintain privacy is relevant in determining existence of
reasonable expectation of privacy); see also California v.
Greenwood, 486 U.S. 35, 39-41 (1988) (no expectation of
privacy in trash left for third-party garbage collector).
Finally, as counsel for Washburn clarified at oral argu-
ment, he proposes affirming Washburn’s conviction but
granting a downward departure to no prison time as a rem-
edy for what he sees as police misconduct. The alleged
police misconduct consisted of the officers’ possibly faulty
estimation of the time at which they confirmed that the
license plate of the van was registered to Washburn and at
which the canine unit arrived at the Weston Plaza hotel.
But even assuming that Washburn could establish that the
officers’ testimony was intentionally false, which would re-
quire overcoming the high amount of deference accorded to
a district court’s credibility determination, United States v.
Merritt, 361 F.3d 1005, 1009-10 (7th Cir. 2004), we have
serious doubts about whether police misconduct that did not
have any effect on the nature of the offense or the individ-
ual offender would ever be a permissible ground for depar-
ture. See Koon v. United States, 518 U.S. 81, 96 (1996) (district
10 No. 03-3325
court should consider the objectives of the Guidelines when
deciding to depart downward on an unlisted ground); United
States v. Guzman, 236 F.3d 830, 834 (7th Cir. 2001). And, in
any event, we have never found error in the failure of a
district court to depart downward sua sponte. See United
States v. Olano, 507 U.S. 725, 733-34 (1993); United States
v. Cruz-Velasco, 224 F.3d 654, 663-64 (7th Cir. 2000).
Washburn has not presented a sufficient argument for over-
turning the district court’s denial of his motion to suppress,
so we AFFIRM its judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-9-04