United States v. Pittman, Korvell D. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2546
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KORVELL DENNIS PITTMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-40095—Michael M. Mihm, Judge.
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ARGUED APRIL 5, 2005—DECIDED JUNE 13, 2005
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Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
being a felon in possession of a firearm and was sentenced
under the federal sentencing guidelines (before the Supreme
Court’s Booker decision) to 188 months in prison, the bottom
of the applicable guideline range but only eight months
above the statutory minimum. The Armed Career Criminal
Act, 18 U.S.C. § 924(e), imposes a 180-month minimum
sentence on anyone who has at least three prior convictions
of specified offenses. The judge found that the defendant’s
2 No. 04-2546
criminal record qualified under this provision, and findings
of prior convictions are not within the scope of Booker’s rule.
United States v. Booker, 125 S. Ct. 738, 756 (2005); United States
v. Ngo, 2005 WL 1023034, at *2-4 (7th Cir. May 3, 2005).
In pleading guilty, the defendant reserved the right to
challenge the district court’s denial of his motion to sup-
press evidence that was seized from his car when he was
arrested. The facts are not in dispute. A Rock Island police
officer, on patrol in a squad car one night accompanied by
a civilian observer, spotted a car that didn’t have a function-
ing rear-license-plate light, as required by Illinois law. The
officer turned on his emergency lights. The defendant, who
was driving the car, pulled over to the side of the road and
stopped. There was a passenger in the front seat of the car,
and when the car stopped he leapt out and starting running.
The police officer, soon joined by other officers whom he
had summoned, chased the passenger, who was soon found
hiding in the basement of a house half a block from the car.
A check with the police dispatcher revealed that the passen-
ger, whose name was Raymond Stinde, had an outstanding
arrest warrant. So the police arrested him, brought him back
to the first officer’s squad car, and locked him in the back
seat. The civilian observer told the officer that as soon as the
officer had disappeared from sight in pursuit of Stinde, the
driver of the stopped car had leapt out of the driver’s side
of the car and run away too. Upon learning this, police
searched the glove compartment of the car and discovered
shotgun shells. Stinde told them that there was a sawed-off
shotgun in the trunk of the car and that both the shotgun
and the shells belonged to the defendant.
The defendant had fled with the car keys, and the police
didn’t try to open the trunk or to obtain a warrant to search
it, but instead had the car towed to the police department.
Having in the meantime discovered through a registration
No. 04-2546 3
check that the defendant’s wife was the registered owner of
the car, the police went to the defendant’s home to interview
him and while there obtained from his wife a written
consent to search the car (it was her car, remember). The
police asked the defendant to come with them to police
headquarters, and he agreed. After being given his Miranda
warnings, he admitted that the shells, and the shotgun in
the trunk, were his, just as Stinde had said. The police
recovered the car keys, which the defendant had discarded
in his flight, and opened the trunk of the car in the police
department’s parking lot; sure enough, there was the
shotgun.
The district judge, in reliance on our decision in
United States v. Arango, 879 F.2d 1501 (7th Cir. 1989), ruled
that the search of the glove compartment was a valid inci-
dent to the arrest of Stinde, even though he was half a block
away from the car when he was arrested. Arango is indeed
an identical case, the only difference being that the passen-
ger there was arrested a full block, rather than half a block,
from the car—which makes this a stronger case for the
government. See also United States v. Riedesel, 987 F.2d 1383,
1388-89 (8th Cir. 1993); United States v. McLaughlin, 170 F.3d
889 (9th Cir. 1999). But there are contrary cases. United States
v. Edwards, 242 F.3d 928, 937-38 (10th Cir. 2001); United States
v. Strahan, 984 F.2d 155, 159 (6th Cir. 1993); United States v.
Fafowora, 865 F.2d 360, 361-62 (D.C. Cir. 1989); see also 3
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 7.1 (4th ed. 2004). These cases explain that the
rationale of the rule (the “Belton rule,” after New York v.
Belton, 453 U.S. 454, 460 (1981); see also Thornton v. United
States, 124 S. Ct. 2127, 2130-31 (2004); United States v. Orozco-
Castillo, 404 F.3d 1101, 1103 (8th Cir. 2005)) that allows the
search of the entire passenger compartment of an automo-
bile as an incident to arresting an occupant of the automo-
4 No. 04-2546
bile (and thus without needing either a warrant, or probable
cause to believe that the automobile contains contraband or
evidence of crime) is that there might be a weapon within
the occupant’s reach that he might grab, or contraband or
evidence of crime that he might try to flee with, throw
away, conceal, or in some cases even swallow. Thornton v.
United States, supra, 124 S. Ct. 2127, 2130-31 (2004); United
States v. Sholola, 124 F.3d 803, 817-18 (7th Cir. 1997); United
States v. Mayo, 394 F.3d 1271, 1276-77 (9th Cir. 2005).
The rationale embraces the case in which the occupant is
outside the car but within easy reach of it, so that he might
dive back in and grab a weapon, or perhaps grab con-
traband or other evidence of a crime and run off with it.
Thornton v. United States, supra, 124 S.Ct. at 2131;
United States v. Sholola, 124 F.3d at 817; United States v. Bush,
404 F.3d 263, 275-76 (4th Cir. 2005); United States v. Holmes,
385 F.3d 786, 791-92 (D.C. Cir. 2004). In Bush, for example,
“because officers had seen Canty exit the Jeep just before
entering the Norwest Financial Bank, and because Canty
was in the process of reentering the Jeep at the time of her
arrest, [Officer] Jones was permitted to search the Jeep
incident to Canty’s arrest.” 404 F.3d at 275-76. But the
rationale can’t be stretched as far as this case (or Arango). By
the time the police got around to searching the car, one of
the two occupants had run away (the defendant) and the
other (Stinde) was safely under arrest, locked in the back
seat of the squad car.
The government argues that Arango is justified on
grounds of simplicity, as creating a bright-line rule; and it
is true that the evolution of the law governing vehicle
searches has been marked by a concern for simplifying the
standards governing police conduct. Thornton v.
United States, supra, 124 S.Ct. at 2130-31; New York v. Belton,
supra, 453 U.S. at 459-60; United States v. Sholola, supra, 124
No. 04-2546 5
F.3d at 816-17; United States v. Osife, 398 F.3d 1143, 1145 (9th
Cir. 2005); see also Atwater v. City of Lago Vista, 532 U.S. 318,
347 (2001). Police shouldn’t have to carry well-thumbed
copies of the multivolume LaFave treatise on search and
seizure with them wherever they go. The bright line that
Belton drew was to permit the police to search the entire
passenger compartment, and the bright line that Thornton
drew was to permit the search even if the driver had
stepped out of his car before the police officer accosted him.
What is Arango’s bright line? Suppose the police had not run
Stinde to ground until the following day, miles from the car;
could they still search the car as an incident to arresting
him? If not, what is the sharp boundary between that case
and Arango? Is it measured by distance? By time? By both?
There doesn’t seem to be a bright-line alternative to a
necessarily rather vague standard of “immediacy.” If there
is an argument for Arango, it is not the desirability of bright
lines, but that we don’t want to give occupants of a car
stopped by the police an incentive to flee in order to prevent
the car from being searched.
We need not wrestle to the ground our doubts about
the soundness of Arango, as there are other grounds for
upholding the search of the glove compartment. Besides the
“Belton rule” of automobile searches, there is the older but
still valid “automobile exception” to the warrant require-
ment, the exception that permits the search of an automobile
without a warrant when there is probable cause to believe
that the search will uncover contraband or evidence of
crime. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999)
(per curiam); United States v. Ross, 456 U.S. 798, 809 (1982);
Carroll v. United States, 267 U.S. 132, 153-56 (1925);
United States v. Washburn, 383 F.3d 638, 641 (7th Cir. 2004).
When both occupants bolted and one was discovered to
have an arrest warrant outstanding against him, the police
6 No. 04-2546
had probable cause to believe that a search of the car would
turn up contraband or evidence of crime. It was apparent
not only that both occupants had strong reasons to evade
contact with the police, but also that they were probably
in league, perhaps embarked on a criminal venture signs
of which might be present in the car. The car might also
contain documentation that would enable the police to iden-
tify and locate the defendant, whereas if they waited to get
a warrant to search the car the fugitive’s trail might grow
cold. And when Stinde was brought back to the police car,
he said that nothing the police might find in the defendant’s
car was his—a tipoff that the car contained contra-
band—though the search may already have begun when he
said this; noticing that the police were about to search the
car may indeed have been what prompted the remark.
Even if all else fails, the “inevitable discovery” doctrine
provides a solid ground for upholding the search. The trunk
as well as the passenger compartment would doubtless have
eventually been searched, and the shotgun and shotgun
shells found, after the car was towed to police headquarters,
so that the police could inventory its contents. Warrantless
inventory searches of vehicles are lawful if conducted
pursuant to standard police procedures aimed at protecting
the owner’s property—and protecting the police from the
owner’s charging them with having stolen, lost, or damaged
his property. South Dakota v. Opperman, 428 U.S. 364, 372
(1976); United States v. Richardson, 121 F.3d 1051, 1054-56
(7th Cir. 1997); United States v. Lomeli, 76 F.3d 146, 148 (7th
Cir. 1996). The Rock Island Police Department has an
established policy of conducting inventory searches, and
one of the criteria is whether the vehicle has been aban-
doned. If the driver of a car flees at the approach of the
police, this is pretty good evidence that he’s abandoned the
car—that he doesn’t want to be associated with it and
No. 04-2546 7
therefore isn’t going to reclaim it. Moreover, the police
could hardly have left the car sitting where they had
stopped it; for all they knew, the driver—who, remember,
had run off with the car keys—was lurking about and
would come back and drive off as soon as the police left.
Rather than sit there indefinitely waiting for the driver to
return, the police were entitled to have the car towed, and
once it was thus lawfully in their custody they were entitled
to conduct an inventory search.
So the motion to suppress was properly denied. The re-
maining question concerns the impact of the Booker decision.
In sentencing the defendant, the judge did not realize that,
as the Supreme Court was later to hold in Booker, the federal
sentencing guidelines are merely advisory. The normal
remedy in this circuit for such a mistake is a limited remand
to the district court to enable the judge to advise us whether,
had he known the guidelines were merely advisory, he
nevertheless would have imposed the same sentence. United
States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). If the
judge advises us that he would have imposed a different
sentence, we vacate the judgment and return the case to the
judge for resentencing.
We can skip the limited remand if we are highly confident
that the judge would have imposed a different sentence, and
this exception may seem applicable here because in sentenc-
ing the defendant the judge said that it was “true that in the
absence of this law, I would probably not be sentencing you
to the number of months that I am now required to sentence
you to, but I also understand that Congress and the Sentenc-
ing Commission were justified in creating special categories
for people who have committed violent crimes, a number of
violent crimes, so it’s no surprise that this sentence is as
severe as it is.” That makes it sound as if the judge would
have imposed a lighter sentence if freed from the incubus of
8 No. 04-2546
mandatory guidelines, but we are not sure. For he also
remarked that “the uncontroverted truth is that when you
got out of the Department of Corrections in 2001, you
understood that you had three felony convictions for
aggravated criminal sexual abuse and two armed robberies.
You knew that whether you felt you were guilty of those
crimes or not. You went back in because of this domestic
battery, which sounded a little scary too.” Moreover, it was
the Armed Career Criminal Act, rather than the sentencing
guidelines, that placed a 180-month floor under the defen-
dant’s sentence. The judge’s criticism may have been
directed at Congress for specifying such a stiff minimum
sentence rather than at the Sentencing Commission’s
decision to place the bottom of the guideline range applica-
ble to the defendant slightly above the statutory minimum,
mainly it seems because of the nature of the firearm (a
sawed-off shotgun). U.S.S.G. § 4B1.4(b). A further consider-
ation is that a tiny increment to a long sentence has little
practical significance, given discounting to present value
(because people discount costs and benefits that accrue only
in the future), so the judge might decide that there was no
good reason to depart from the guidelines.
To resolve the uncertainty, we order the Paladino remand
and meanwhile retain jurisdiction of the appeal.
No. 04-2546 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-13-05
10 No. 04-2546