United States v. Charles Gary , 790 F.3d 704 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1788
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
v.
CHARLES GARY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 09 CR 50041-7—Frederick J. Kapala, Judge.
____________________
ARGUED DECEMBER 3, 2014 — DECIDED JUNE 19, 2015
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Defendant Charles Gary appeals
from his conviction for conspiracy to distribute heroin after a
jury trial. He appeals, challenging only the district court’s
denial of a motion to suppress evidence obtained as a result
of his arrest. Gary argues that he was seized without prob-
able cause following a traffic stop and that the cell phone
and drug evidence obtained as a result of his arrest was ob-
tained unlawfully. He also argues that even if the arrest was
valid, the search of his cell phone exceeded the scope of a
lawful search incident to arrest. For both reasons, Gary ar-
2 No. 13-1788
gues, the district court should have suppressed evidence
linking a cell phone he was carrying at the time of arrest to a
drug-trafficking organization.
We affirm the district court’s decision to deny the motion
to suppress. The police had probable cause to arrest Gary.
An undercover agent saw Gary talking on the phone in the
passenger seat of a car when the agent bought heroin from
the driver of the car. The driver made no attempt to conceal
the drug transaction from Gary. For purposes of probable
cause (quite apart from guilt or innocence), the agent could
reasonably infer from the circumstances that Gary was prob-
ably involved in a common and unlawful drug enterprise
with the driver.
We also hold that the evidence obtained from the search
of Gary’s cell phone after his arrest should not be excluded.
The Supreme Court ruled in 2014 that the warrantless search
of a cell phone is not a permissible search incident to arrest.
Riley v. California, 134 S. Ct. 2473, 2495. But the search of
Gary’s phone took place five years earlier, in 2009. In 2009,
the cell phone search was lawful under binding circuit prec-
edent that allowed the search of personal effects immediate-
ly associated with an arrestee even if the search was not con-
temporaneous with the arrest. Because the officer who con-
ducted the search complied with then-binding precedent,
the evidence obtained from the search should not be exclud-
ed because the search was conducted with the objectively
reasonable good-faith belief that it was lawful. See Davis v.
United States, 564 U.S. —, 131 S. Ct. 2419, 2428–29 (2011).
No. 13-1788 3
I. Gary’s Arrest
Gary first argues that the district court erred in finding
that there was probable cause for his arrest following a traf-
fic stop. The relevant facts are not in dispute. We review de
novo questions of law presented by a district court’s decision
on a motion to suppress. United States v. Nicksion, 628 F.3d
368, 376 (7th Cir. 2010).
Gary was seized by two officers following a traffic stop of
a car in which Gary was a passenger. The officers stopped
the car because a narcotics detective gave them the license
plate number and told them to make a stop if they observed
any violations. During the stop, the officers discovered hero-
in on the driver of the car during a frisk for weapons. Gary
was also patted down. One of the officers making the traffic
stop spoke with Gary’s parole officer, who asked to see Gary.
The police officer at the scene then handcuffed Gary and
searched him—turning up two cell phones, one black and
one blue. Gary was placed in the back of the squad car and
transported to the police station. The arresting officer admit-
ted that the sole reason he seized Gary was to bring him to
speak with his parole officer at the police station. The gov-
ernment concedes that this seizure of Gary amounted to an
arrest.
Gary argues that the police did not have probable cause
to seize him for two reasons. First, the arresting officer ad-
mitted that the sole reason he was seized was to bring him to
speak with his parole officer. Second, he argues, his mere
presence in the car with a driver who was observed selling
drugs was not enough to find probable cause.
4 No. 13-1788
The district court was correct to find that this seizure was
a lawful arrest. The district court rightly dismissed Gary’s
argument that the arrest lacked probable cause because the
arresting officer stated that he seized Gary to bring him to
speak with his parole officer. As the district court recog-
nized, the arresting officer’s subjective justification is irrele-
vant as long as there was objective probable cause for the ar-
rest. United States v. Mosby, 541 F.3d 764, 768 (7th Cir. 2008),
citing Whren v. United States, 517 U.S. 806, 812–13 (1996).
Evaluating objectively the facts and circumstances known
to the police at the time of the arrest, we agree there was
probable cause to believe that Gary was committing a crime.
The facts supporting probable cause came from events earli-
er that day when narcotics detectives were investigating the
Hollis Daniels drug-trafficking organization. The officers
who pulled over the car had no personal knowledge of that
investigation. They stopped the vehicle at the direction of a
narcotics detective. But knowledge of the investigation can
be imputed to the arresting officers through the collective
knowledge doctrine, under which the court will consider the
information known to the officers collectively to determine if
there was probable cause for the arrest. See United States v.
Nafzger, 974 F.2d 906, 912–13 (7th Cir. 1992) (officer who was
told the defendant was a suspect could rely on collective
knowledge of investigative team to supply facts supporting
reasonable suspicion for stop); United States v. Randall, 947
F.2d 1314, 1319 (1991) (“The police who actually make the
arrest need not personally know all the facts that constitute
probable cause if they reasonably are acting at the direction
of another officer or police agency. In that case, the arrest is
proper so long as the knowledge of the officer directing the
arrest, or the collective knowledge of the agency he works
No. 13-1788 5
for, is sufficient to constitute probable cause.”), quoting
United States v. Valencia, 913 F.2d 378, 382–83 (7th Cir. 1990)
(internal quotation marks omitted).
The morning of Gary’s arrest, a narcotics detective work-
ing undercover called a phone number known as the Hollis
Daniels drug line to order heroin. The person who answered
the phone told the detective to go to the area of Bruce Street
and Ridge Avenue. The detective rode a bicycle to that loca-
tion and saw a blue Buick pull up with two men inside. The
driver motioned to him to come over. The detective handed
the driver $200 and said he needed “twenty,” meaning twen-
ty ten-dollar bags of heroin. The driver made no effort to
conceal his words from Gary, the passenger, who was talking
intermittently on a cell phone. The driver gave the detective
two ten-dollar bags of heroin and motioned him to follow
the car around the corner. The detective followed, but the
Buick drove away. The detective was in contact with other
officers conducting surveillance and relayed a description of
the blue Buick.
The detective called the drug line again after the Buick
drove away. The person who answered said that there were
“undercovers” around and told the detective to go to the ar-
ea of Main Street and John Street. The detective went to that
location but no one was there to meet him. The detective
kept calling the drug line but the person who answered kept
putting him off, saying for example “we were out of town or
we were here, we were there.” At one point, the person told
the detective that “we’re getting our stuff together,” meaning
they were preparing an order of heroin.
These facts support a finding of probable cause. Gary
was a passenger sitting right next to the driver when the
6 No. 13-1788
driver sold the detective heroin without any attempt to con-
ceal the transaction. In such close quarters, it was reasonable
to infer that Gary and the driver were probably engaged in a
common enterprise. The police here relied on more than the
“mere propinquity to others independently suspected of
criminal activity.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979), cit-
ing Sibron v. New York, 392 U.S. 40, 62–63 (1968).
A passenger in a car “will often be engaged in a common
enterprise with the driver, and have the same interest in con-
cealing the fruits or evidence of their wrongdoing.” Mary-
land v. Pringle, 540 U.S. 366, 373 (2003) (finding probable
cause for the arrest of the front-seat passenger in a car with
drugs and cash hidden throughout the passenger compart-
ment), quoting Wyoming v. Houghton, 526 U.S. 295, 304–05
(1999) (internal quotation marks omitted). This is particular-
ly true when the driver is engaged in drug dealing, “an en-
terprise to which a dealer would be unlikely to admit an in-
nocent person with the potential to furnish evidence against
him.” Id.
Given the reasonable inference that Gary was engaged in
a common and unlawful enterprise with the driver, he was
not arrested due to his mere presence in the car. Cf. United
States v. Di Re, 332 U.S. 581, 593 (1948) (no probable cause to
arrest passenger due solely to presence in a car with another
person independently suspected of a crime). In contrast to Di
Re, where the passenger would not necessarily have known
about the illegal nature of the contraband the driver was sell-
ing (counterfeit ration coupons) and had not been present
when the driver sold the contraband, the illegality of the
driver’s conduct here was apparent. The sale of heroin is
unmistakably illegal, and Gary was very close by when the
No. 13-1788 7
driver sold heroin to an undercover agent. It is hard to imag-
ine that the driver would have made no attempt to hide this
from Gary unless he was involved in the drug-dealing en-
terprise.
In addition, the person who answered the drug line re-
peatedly used the pronoun “we,” implying that one or more
other persons were involved. That provided an additional
indication that Gary could be the person answering the drug
line when he was seen talking on the phone in the passenger
seat while the driver sold the heroin. There could have been
innocent explanations for Gary’s phone use, of course, but
the inference of the criminal activity was reasonable for pur-
poses of probable cause. See United States v. Funches, 327 F.3d
582, 587 (7th Cir. 2003) (finding probable cause where “the
inference of illegal conduct by trained and experienced offic-
ers is at least as probable as any innocent inference”). The
district court correctly denied Gary’s motion to quash the
arrest.
II. Search of the Cell Phone
Gary also challenges the warrantless search of his cell
phone after he was arrested. He was brought to the police
station only to speak to his parole officer, but drugs fell from
his pants as he was walking through the station. He was
then formally arrested and placed in a holding cell. The two
cell phones found in his pocket in the initial arrest were then
placed on a table outside the cell. Sometime later that day, a
detective involved in the Hollis Daniels investigation picked
up the phones and started pushing buttons. He quickly dis-
covered that one of the phones—the black phone—was as-
signed to the drug line number that the undercover detective
had called that morning to order heroin. He also verified
8 No. 13-1788
that the phone’s log of received calls contained the detec-
tive’s cell phone number.
Gary argues that this warrantless search of the cell
phones violated his Fourth Amendment rights so that the
evidence linking the phone to the drug line must be sup-
pressed as the fruit of the unlawful search. Gary cites the
Supreme Court’s recent decision in Riley v. California, 134 S.
Ct. 2473 (2014), which held that the police must generally get
a warrant before searching a cell phone seized incident to an
arrest.
After Riley, the search of Gary’s phone can no longer be
upheld as a lawful search incident to arrest. The Court was
unequivocal in announcing its new rule: “Our answer to the
question of what police must do before searching a cell
phone seized incident to an arrest is accordingly simple—get
a warrant.” Id. at 2495. Though the search took place before
Riley was decided, we apply the new constitutional rule an-
nounced in Riley because this is the direct appeal of a crimi-
nal conviction. See Griffith v. Kentucky, 479 U.S. 314, 328
(1987). Applying Riley, the warrantless search of the cell
phone cannot be justified as a search incident to arrest and
therefore violated the Fourth Amendment absent some other
justification for the search. 1
This conclusion does not require, however, that we re-
verse the district court and order the evidence suppressed.
The Supreme Court has held that unlawfully obtained evi-
1 In the district court, the government argued the search of the cell
phone was justified by exigent circumstances, but that justification for
the search was not pressed on appeal.
No. 13-1788 9
dence should not be suppressed “when the police act with
an objectively ‘reasonable good-faith belief’ that their con-
duct is lawful.” Davis v. United States, 131 S. Ct. 2419, 2427
(2011), quoting United States v. Leon, 468 U.S. 897, 909 (1984).
Davis explained: “Police practices trigger the harsh sanction
of exclusion only when they are deliberate enough to yield
meaningfu[l] deterrence, and culpable enough to be ‘worth
the price paid by the justice system.’” Id. at 2428 (alteration
in original), quoting United States v. Herring, 555 U.S. 135, 144
(2009). Davis held that when “binding appellate precedent
specifically authorizes a particular police practice,” officers
should use that tool without facing later suppression of evi-
dence if that precedent is later overruled by the Supreme
Court. Id. at 2429.
Under Leon and Davis, evidence obtained from an unlaw-
ful search is not always excluded. The evidence can still be
used against a defendant in a criminal trial if the search was
lawful under binding appellate precedent at the time of the
search. Id. at 2429 (“An officer who conducts a search in reli-
ance on binding appellate precedent does no more than ac[t]
as a reasonable officer would and should act under the cir-
cumstances.”) (alteration in original), quoting Leon, 468 U.S.
at 920 (internal quotation marks omitted).
The government argues that the evidence from Gary’s
cell phone should not be excluded because the search, which
took place on May 14, 2009, was a lawful search incident to
arrest under then-binding appellate precedent. We agree that
the search of Gary’s cell phone was conducted in objectively
reasonable good faith because the search was authorized
under our precedent at the time of the search.
10 No. 13-1788
As of 2009, the Supreme Court had long recognized a
categorical rule allowing the police to conduct a search of a
person incident to a lawful arrest. The Court acknowledged
two primary functions of a search incident to arrest: first,
removing weapons to protect the officers making the arrest,
and second, seizing evidence to prevent the arrestee from
concealing or destroying it. United States v. Robinson, 414 U.S.
218, 251 (1973), citing Chimel v. California, 395 U.S. 752, 763
(1969). The Court expressly rejected the need for “case-by-
case adjudication” to determine if a particular search served
those functions and instead held without qualification that a
search of an arrestee’s person was per se reasonable under the
Fourth Amendment. Id. at 235. The Court held:
A custodial arrest of a suspect based on prob-
able cause is a reasonable intrusion under the
Fourth Amendment; that intrusion being law-
ful, a search incident to the arrest requires no
additional justification. It is the fact of the law-
ful arrest which establishes the authority to
search, and we hold that in the case of a lawful
custodial arrest a full search of the person is
not only an exception to the warrant require-
ment of the Fourth Amendment, but is also a
‘reasonable’ search under that Amendment.
Id.
This rule extends to personal effects found on the ar-
restee’s person at the time of arrest. Robinson itself upheld
not only the search of the arrestee’s body incident to the ar-
rest but also the search of a crumpled cigarette package
found in the arrestee’s pocket that revealed heroin capsules
that were seized as evidence. Id. at 236. And United States v.
No. 13-1788 11
Edwards, 415 U.S. 800 (1974), found lawful the search of an
arrestee’s clothes taken from him while he was in custody
and the seizure of incriminating evidence that was found.
The Court held the clothes were plainly searchable incident
to the arrest: “This was no more than taking from respond-
ent the effects in his immediate possession that constituted
evidence of crime. This was and is a normal incident of a
custodial arrest … .” Id. at 805.
Gary objects that the cell phone found in his pocket is a
type of personal effect different from the cigarette package
or clothes. Quoting extensively from the Supreme Court’s
reasoning in Riley, 134 S. Ct. at 2488–90, Gary argues that a
cell phone cannot be searched without a warrant incident to
arrest because it can contain vast amounts of private infor-
mation. But even the Riley Court recognized that its hold-
ing—excepting cell phones from Robinson’s categorical rule
allowing searches of a person (and effects in their immediate
possession) incident to arrest given the unique privacy con-
cerns posed by digital data—was a novel approach. The
Court acknowledged that “a mechanical application of Rob-
inson might well support the warrantless searches at issue
here.” 134 S. Ct. at 2484.
And as of 2009, without the benefit of Riley, this court
had refused to differentiate between physical items and digi-
tal data in searches incident to arrest. United States v. Ortiz,
84 F.3d 977, 984 (7th Cir. 1996). The facts of Ortiz are remark-
ably similar to those found here. An electronic pager was
searched to discover precisely the same limited information
sought by the police in this case—recent history of received
calls to confirm the identity of the phone and the phone
number assigned to it. In Ortiz, the police called a pager
12 No. 13-1788
number that a cooperator said belonged to his heroin sup-
plier (who was later identified as Ortiz). The cooperator ar-
ranged a meeting with Ortiz. When Ortiz arrived, the police
arrested him. The police seized an electronic pager found on
Ortiz during a search. While still at the scene of the arrest, an
officer pushed a button on the pager that revealed previous-
ly transmitted numeric messages. One of those messages
showed the phone number from which the police had called
earlier that day. Id. at 982–83. We affirmed the denial of
Ortiz’s motion to suppress that evidence because we con-
cluded the “the information from the pager was admissible
because the officers conducted the search of its contents in-
cident to the arrest.” Id. at 984. The force of Ortiz was strong
enough that we applied it in 2012 to uphold a warrantless
search of a cell phone to identify its number. United States v.
Flores-Lopez, 670 F.3d 803 (7th Cir. 2012). That decision was
issued after the search in this case but before the Supreme
Court decided Riley, and it was a strong indication that the
police could rely on Ortiz as binding circuit precedent to
search Gary’s cell phones incident to his arrest.
Gary argues that Ortiz is distinguishable because the
search there was conducted at the scene of and immediately
after the arrest, whereas Gary’s phone was searched some-
time later that day when the phone was left on a table by his
cell at the police station. Gary’s argument is undermined by
Edwards, which held that the search of the arrestee’s clothes
was lawful even though it was not contemporaneous with
the arrest: “Indeed, it is difficult to perceive what is unrea-
sonable about the police's examining and holding as evi-
dence those personal effects of the accused that they already
have in their lawful custody as the result of a lawful arrest.”
415 U.S. at 806. The Court explained that most courts of ap-
No. 13-1788 13
peals had “long since concluded” that it is a lawful search
“where the clothing or effects are immediately seized upon
arrival at the jail, held under the defendant’s name in the
‘property room’ of the jail, and at a later time searched and
taken for use at the subsequent criminal trial.” Id. at 807.
It is true that Ortiz considered the immediacy of the
search in upholding it as incident to the arrest. 84 F.3d at 984.
But Ortiz referred to immediacy only to distinguish United
States v. Chadwick, 433 U.S. 1 (1977), abrogated on other
grounds by California v. Acevedo, 500 U.S. 565 (1991). In
Chadwick, the Court held that a warrant was required for the
police to search a locked 200-pound footlocker over an hour
after it was seized. Id. at 4–5, 15. In so holding, the Court re-
jected the argument that the police were authorized to con-
duct later in time any search they could have conducted at
the time of the arrest. But Chadwick concerned a search inci-
dent to arrest of an item not on the arrestee’s person but in
the immediate control area surrounding an arrestee. Id. at 15.
Chadwick held that a warrant is required for searches “re-
mote in time or place from the arrest” and precluded the po-
lice from searching “luggage or other personal property not
immediately associated with the person of the arrestee.” Id. at
15 (emphasis added) (citation and internal quotation marks
omitted).
Chadwick did not disturb the earlier rule that items im-
mediately associated with the arrested person can be
searched at any time—whether at the scene of the arrest or
later at the station house. In fact, it recognized the key dif-
ference that justifies more extensive searches of items found
on the person: “Unlike searches of the person, United States
v. Robinson, 414 U.S. 218 (1973), United States v. Edwards, 415
14 No. 13-1788
U.S. 800 (1974), searches of possessions within an arrestee’s
immediate control cannot be justified by any reduced expec-
tations of privacy caused by the arrest.” Chadwick, 433 U.S. at
16 n.10.
As explained above, the search of items found on the
person of an arrestee does not require a warrant even if the
search is not immediately after the arrest. Edwards, 415 U.S.
at 803 (citing favorably the rule developed by courts of ap-
peals that “both the person and the property in his immedi-
ate possession may be searched at the station house after the
arrest has occurred at another place and if evidence of crime
is discovered, it may be seized and admitted in evidence”).
Riley may signal that we should revisit whether particularly
private personal effects can be searched many hours after an
arrest without a warrant, but as of 2009, the later search of
the phone in Gary’s pocket seized at the time of arrest was a
lawful search of an arrestee’s person and immediately asso-
ciated property.
And even if what police behavior is permitted by Robin-
son and Edwards is ambiguous, there can be no doubt that a
later search of an object in an arrestee’s pocket was lawful in
2009 because of our decision in United States v. Rodriguez, 995
F.2d 776 (7th Cir. 1993). Rodriguez sought to exclude evi-
dence the police obtained by photocopying an address book
found in his wallet. Id. at 777–78. Rodriguez argued that the
search was not a lawful search incident to his arrest because
it was conducted at the sheriff’s department rather than at
the scene of the arrest. Id. The Rodriguez decision squarely
rejected that distinction and upheld the search because of
Edwards. Id.
No. 13-1788 15
Finally, Gary argues that there is no evidence in the rec-
ord that the officer who conducted the search relied on Ortiz
or was even aware of it. But the Davis good-faith exception
applies if the officer’s conduct is in objectively reasonable re-
liance on precedent: exclusion of the evidence is not appro-
priate if “the officers’ conduct was in strict compliance with
then-binding Circuit law and was not culpable in any way.”
Davis, 131 S. Ct. at 2428. Absent some showing of culpable
misconduct, the officer’s subjective motivations are not rele-
vant to this inquiry. Objectively, the officer’s search of the cell
phone was lawful under then-binding precedent, so under
Davis the district court did not err by denying the motion to
suppress.
The judgment of the district court is AFFIRMED.