United States v. Baskin, Dustin C. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2698
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUSTIN C. BASKIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 CR 03—Barbara B. Crabb, Chief Judge.
____________
ARGUED NOVEMBER 30, 2004—DECIDED MARCH 17, 2005
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Dustin C.
Baskin was indicted for possession of equipment, chemicals,
and materials with reasonable cause to believe they would
be used to manufacture methamphetamine, in violation of
21 U.S.C. § 843(a)(6), and for manufacturing methamphet-
amine, in violation of 21 U.S.C. § 841(a)(1). Baskin moved
to suppress his statements to police and evidence that was
seized as a result of an investigative stop of the car in which
he was a passenger, but his motion was denied. Baskin then
2 No. 04-2698
entered a conditional plea of guilty, pursuant to FED R.
CRIM. P. 11(a)(2), and was sentenced to fifteen months’
imprisonment and three years’ supervised release. Baskin
appealed the denial of his motion to suppress. We affirm.
I. Background
Glen Hills County Park is a hilly and heavily wooded area
in rural eastern St. Croix County, Wisconsin, pocketed with
caves. On September 22, 2003, hikers in the park contacted
the County Sheriff’s Department to report suspicious equip-
ment in one of the caves. Deputies who responded identified
the equipment as paraphernalia associated with metham-
phetamine production. Since such sites can be toxic and
volatile, the area was cordoned off and monitored until a
specialist could arrive to inspect and dismantle the equip-
ment. Deputies watched the site in two-hour shifts on the
evening of September 22 and the morning of September 23.
Deputy Sheriff Brandie Uhan, a five-year veteran of the
force with expertise in drug investigation, took the 2:00 a.m.
to 4:00 a.m. shift. Uhan parked her marked squad car along
a dark and isolated stretch of Rural Route 4 (“RR4"), a
narrow, dirt road that provides access to the park. She
waited there, within close proximity to the cave, with her
engine and car lights turned off.
At 3:17 a.m., vehicle lights approached. This was the first
car to come by in over five hours; none had passed since the
start of Uhan’s shift, and she had learned from the officer
on the prior shift that no vehicles had driven by since 10:00
p.m. The car approached at 10 to 15 miles per hour, a speed
which Uhan considered to be suspiciously slow. Because it
was so dark out and the road so narrow, Uhan feared the
approaching vehicle might run into her squad car. Uhan
turned on her lights, whereupon the approaching car
immediately accelerated and sped past Uhan and the cave.
No. 04-2698 3
This made Uhan even more suspicious, so she performed
a Y-turn and pursued the accelerating vehicle down the dirt
road. She had to travel at 40 to 50 miles per hour to catch
up. She followed the car for half a mile to where RR4
intersects with County Road W, a paved and wider road,
and signaled for the driver to pull over. The car came to a
stop, and Uhan approached. Justin Johnson was in the
driver’s seat of the car, and Baskin was riding in the pas-
senger’s seat. Johnson explained to Uhan that they had come
from “the Farm” in Emerald, Wisconsin, and were on their
way out to the 128 Restaurant. Being familiar with both
locations, Uhan recognized that the two had taken a very
indirect route between those points. Uhan noticed immedi-
ately that Johnson appeared intoxicated, as his eyes were
bloodshot and speech slurred. She also observed that Baskin
appeared nervous, at one point pulling out a cigarette, plac-
ing it behind his ear, forgetting it was there, and pulling out
a second one to smoke. Uhan shined a flashlight into the
backseat, where she noticed two hose clamps and a broken
light bulb, which she knew were evidence of methamphet-
amine production and use.
Uhan left both men in their car and returned with their
driver’s licenses to her vehicle to run past dispatch. As she
walked to her squad car, Uhan glanced back and observed
both men reaching beneath their seats and into the back
seat, and saw Baskin fumbling with the handle of his door.
Concerned, Uhan re-approached the driver’s side of the car
and saw a baseball bat next to Johnson that had not been
there before. When asked about the bat, Johnson replied
that it was “no big deal” and set it in the back seat. Uhan
also noticed that Baskin had his fists clenched near his
stomach. Uhan ordered Baskin to open his hands, which he
did, revealing eight small, plastic packets containing a white
residue. Uhan knew that such packets were commonly used
for storing methamphetamine.
4 No. 04-2698
At that point, several deputies arrived, and the two men
were removed from the car and detained for investigation.
Uhan then searched the car, finding more small, plastic
packets and a glass plate with a dusting of white residue.
Uhan also noticed that attached to the key ring in the car’s
ignition was a red cap similar to those used to cap tanks of
anhydrous ammonia, which she knew was used for meth-
amphetamine production. The two men were thereupon
arrested for possession of drug paraphernalia.
A federal grand jury returned an indictment charging
Baskin and Johnson with one count of possessing equipment,
chemicals, and materials with reasonable cause to believe
they would be used to manufacture methamphetamine, and
one count of manufacturing methamphetamine. Baskin
moved to suppress the evidence that was seized in connec-
tion with his arrest. Following an evidentiary hearing, the
magistrate judge recommended that the district court deny
the motion. In its recommendation, the magistrate judge
acknowledged that while “timing and location of a slow-mov-
ing car probably do not rise above the level of a hunch . . .
adding evidence of flight tips the balance in favor of the
stop.” The district court adopted the magistrate judge’s rec-
ommendation and denied Baskin’s motion, explaining that
its decision was based upon timing, location, and the fact
that “when Deputy Uhan turned on her headlights, the car
accelerated quickly.” Baskin appealed the court’s decision.
II. Discussion
In considering a district court’s denial of a motion to
suppress, we review its legal conclusions de novo and its
findings of fact for clear error. United States v. McGee, 280
F.3d 803, 805 (7th Cir. 2002).
The Fourth Amendment protects people from unreason-
able searches and seizures. See U.S. CONST. amend. IV.
However, a brief, investigatory stop that demands only a
No. 04-2698 5
limited intrusion into an individual’s privacy is permitted
under the Constitution when it is based upon “specific and
articulable facts which, taken together with rational infer-
ences from those facts, reasonably warrant that intrusion.”
Terry v. Ohio, 392 U.S. 1, 21 (1968). So, police can conduct
a so-called Terry stop if they have reasonable suspicion,
supported by articulable facts, that criminal activity is afoot.
United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000).
Reasonable suspicion amounts to something less than prob-
able cause but more than a hunch. Id. The officer’s decision
to make the Terry stop must have been justified at its
inception, and the stop must have been reasonably related
in scope to the circumstances known to the officer at the
time of the stop. United States v. Quinn, 83 F.3d 917, 921
(7th Cir. 1996). These circumstances might include the be-
havior and characteristics of the person detained, as well as
the experience of the officer. United States v. Odum, 72 F.3d
1279, 1284 (7th Cir. 1995). Ultimately, a court’s determin-
ation of reasonable suspicion “must be based on common-
sensical judgments and inferences about human behavior.”
Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
Both parties agree that a defendant’s mere presence in an
area of expected criminal activity does not in and of itself
justify an investigatory stop. Wardlow, 528 U.S. at 124. How-
ever, location remains relevant to our analysis, especially
when combined with unprovoked flight from the police. Id.In Wardlow, the defendant was standing against a building
in an area known for drug trafficking when a police squad
car pulled up as it patrolled the area. The defendant fled
upon spotting the police, but they caught up with him. The
police conducted a brief pat-down of the defendant, which
revealed a handgun. The defendant claimed that the
investigatory stop violated his Fourth Amendment rights;
the Supreme Court disagreed, finding instead that the
defendant’s evasive behavior in a high-crime area had
aroused a reasonable suspicion that criminal activity was
6 No. 04-2698
afoot. Id. at 125. The Court observed, “[N]ervous, evasive
behavior is a pertinent factor in determining reasonable
suspicion. Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative
of wrongdoing, but it is certainly suggestive of such.” Id. at
124 (citations omitted).
Baskin seeks to undermine the district court’s reasonable
suspicion analysis by challenging the notion that he fled from
Deputy Uhan. First, Baskin argues that the issue of flight
is not properly before this court because the district court
did not rely upon a finding of flight in its denial of Baskin’s
motion to suppress. In so arguing, Baskin acknowledges
that the magistrate judge’s finding of reasonable suspicion
was predicated upon evidence of flight, in combination with
the timing and location of the stop. He contends, however,
that the district court excised flight from its analysis in
response to Baskin’s objection before the magistrate judge.
This argument is contradicted by the clear language of the
district court’s decision. The district judge stated, “I am con-
vinced that the magistrate judge’s recommendation is
correct.” The judge then explained why she chose to adopt
the magistrate judge’s recommendation: “Not only was the
car proceeding slowly, it was in the vicinity of the meth lab,
it was out at a time when few people are awake, let alone
driving on scenic roads through country parks, and, when
Uhan turned on her headlights, the car accelerated quickly.”
The district judge’s statements concerning the approaching
vehicle’s sudden acceleration upon spotting Uhan’s squad
car, when read in conjunction with the court’s unqualified
adoption of the magistrate judge’s recommendation, demon-
strate that the district court relied upon flight as a basis for
her decision. Therefore, the issue is properly before this
court.
Baskin then argues that Deputy Uhan never used flight
as a justification for conducting her Terry stop. An officer
who performs an investigatory stop “must be able to point
No. 04-2698 7
to specific and articulable facts, which taken together with
rational inferences from those facts, reasonably warrant
that intrusion.” Terry, 392 U.S. at 21. Uhan testified that
her suspicions were aroused by “the fact that there hadn’t
been a car on the road since I started the night shift . . . .
[And] I thought it was strange that the car approached
slowly and then accelerated.” She further added that the
approaching car’s dramatic acceleration coincided with her
turning on the lights of her squad car. A more reasonable
driver, Officer Uhan opined, might have proceeded more
carefully to avoid collision with her squad car. Uhan’s ex-
planation clearly contains facts—notably the approaching
vehicle’s suspicious acceleration upon noticing the squad
car—from which Uhan could infer that the car’s occupants
sought to evade her. Therefore, we conclude that Uhan suf-
ficiently articulated flight as a reason for conducting the
Terry stop.
Finally, Baskin argues that even if Deputy Uhan articu-
lated flight as a justification for her investigatory stop, her
suspicion that he attempted to flee—and the resultant in-
ference that criminal activity was afoot—was unreasonable.
Baskin contends that Uhan’s suspicion that he fled was un-
reasonable because the county park is not a high-crime area,
and he and the driver did not avoid Uhan but proceeded
directly toward her squad car, accelerating only moderately.
In assessing whether an investigatory stop was reasonable,
we must consider “the totality of the circumstances known
to the officer at the time of the stop.” Quinn, 83 F.3d at 921.
Deputy Uhan’s suspicions were reasonable in light of the
totality of circumstances. In cases involving a defendant’s
unprovoked flight from the police, the inference of criminal-
ity is commonly derived from the fact that the person has
fled “an area of expected criminality.” Wardlow, 528 U.S. at
124. Baskin contends that the government must produce
“specific data” establishing that a location is a “high-crime
area” for this inference of criminality to be drawn from the
8 No. 04-2698
defendant’s flight. He, however, identifies no decisions by
this court in support of that proposition. In fact, the only
support Baskin offers is the dissenting opinion from a deci-
sion by the Ninth Circuit, United States v. Diaz-Juarez, 299
F.3d 1138 (9th Cir. 2002), which, needless to say, is not
binding on this court. In this case, location was not the de-
terminative factor in the district judge’s analysis. However,
it is highly relevant to the reasonable suspicion analysis
that the approaching vehicle’s acceleration occurred in such
close proximity to a newly discovered methamphetamine
lab in an otherwise remote county park at a time when
most people are asleep. Therefore, it was appropriate for
the district court to consider the proximity to the metham-
phetamine lab in performing the analysis.
It was also reasonable for Deputy Uhan to interpret the
vehicle’s sudden acceleration as evidence of unprovoked
flight. Baskin argues that the speed at which he was trav-
eling could not have been suspicious because when Uhan
observed him traveling at a speed of 10 to 15 miles per hour
he was in the process of negotiating a curve in a 15 miles-
per-hour zone, and his acceleration coincided with the
straightening of the road into a 35 miles-per-hour zone.
Baskin also offers that he continued to proceed toward
Uhan’s squad car rather than perform a U-turn, which he
submits would have been more indicative of evasion. We
keep in mind, however, that behavior which is susceptible
to an innocent explanation when isolated from its context
may still give rise to reasonable suspicion when considered
in light of all of the factors at play. Here, the approaching
car’s acceleration coincided not just with the straightening
of the road, but also with Uhan turning on the lights of her
squad car, which revealed her presence near the cave that
housed the suspected methamphetamine lab. Baskin plays
down the acceleration issue, but Uhan described it as a rel-
atively rapid increase from 10-15 miles per hour to 40-50
miles per hour. That is a substantial acceleration, especially
No. 04-2698 9
when it occurred on an unlit, dirt road in the middle of the
night. As Uhan noted, a reasonable driver might also have
proceeded more carefully upon spotting another vehicle
parked on the same, narrow road, especially when that ve-
hicle was a squad car. Uhan’s suspicions about the car’s
sudden acceleration were reasonable. That the car contin-
ued toward Uhan does not change our analysis, especially
given the uncertain feasibility of performing an abrupt U-
turn on that narrow, dirt road. Proceeding quickly toward
the squad car might have been the best way to put some
distance between Baskin and his partner and the metham-
phetamine lab without drawing additional attention.
III. Conclusion
For the reasons stated, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-17-05