United States v. Adamson, Shawn D. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1721
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN D. ADAMSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20036—Michael P. McCuskey, Chief Judge.
____________
ARGUED DECEMBER 14, 2005—DECIDED MARCH 20, 2006
____________
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. While investigating suspected
drug activity at a motel in Mattoon, Illinois, police de-
tained convicted-felon Shawn Adamson and discovered
a .22 caliber handgun in his possession. Mr. Adamson
was charged with being a felon in possession of a firearm.
See 18 U.S.C. § 922(g)(1). He moved to suppress the hand-
gun as the product of an unreasonable search and detention.
The district court denied his motion. Adamson then pleaded
guilty and was sentenced to 24 months’ imprisonment. On
appeal, he challenges the district court’s denial of his
2 No. 05-1721
motion to suppress. For the reasons set forth in the follow-
ing opinion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
The facts pertaining to this appeal arise out of a routine
home visit conducted by probation officers of a proba-
tioner’s motel room at Hannah’s Inn in Mattoon, Illinois. In
the room, the officers discovered drug residue and para-
phernalia and noticed several individuals hastily leaving the
motel through a back exit. Together with local police, the
officers began questioning these individuals. In this group
was Adamson, who, when police found him, was clutching
what appeared to be a bundle of clothing. A pat-down
search of Adamson and his parcel revealed a handgun
wrapped in a pillowcase. At the hearing on Adamson’s
motion to suppress, the district court heard testimony from
the police officers involved in the encounter with Adamson
and from several witnesses called by the defense. The
testimony conflicted. We first shall set forth the story
presented by the officers and then describe the account of
the defense witnesses.
1. The Officers’ Testimony
At the suppression hearing, probation officer Steve
Kelly, Mattoon police officers Brad Gabel and Jeremy
Clark and Auxiliary Sergeant Steve Newlin testified for
the Government. Kelly testified that he went to Hannah’s
Inn with a few other probation officers to conduct a home
visit for a probationer who resided there. The officers also
No. 05-1721 3
were looking for a second probationer, who was the sub-
ject of an outstanding warrant. The probation officers
first spoke with a motel employee who told them that the
second probationer was staying in the motel and was
currently in a room with four other people: “two black
males and a couple white individuals.” R.45 at 8, 10. The
probation officers went to that room, where they found
drug residue and paraphernalia. The probationer, who
was the subject of the home visit, was alone in the room. He
admitted that, just prior to the officers’ arrival, he had been
using drugs with some other individuals, but he declined to
identify them.
Kelly, hoping to find the probationer with the outstanding
warrant, then left the motel room in search of the others. He
observed four individuals—two black men, a white man
and a white woman—leaving the motel through a back exit
“the minute” he stepped outside the motel. Kelly recognized
two of the men, Adamson and Darryl Ferrell, as former
probationers. The officer had been involved in “a violent
incident” with Ferrell in the probation office on a previous
occasion and had participated in a home visit when Adam-
son was a juvenile probationer. Kelly knew that both men
had prior felony convictions.
As he approached the four individuals, Kelly noticed
that Adamson was clutching what appeared to be a
white bag, as well as some clothing, “very tightly in front of
his chest and . . . seemed to wrap around it and be
very concerned.” Id. at 12. Kelly testified that he knew
from “community reports” that Adamson “was known to be
carrying and at times brandishing a firearm.” Id. at 13. Kelly
asked the two individuals that he did not recognize for
identification; they refused. He then asked all
four individuals if they were motel residents, and one of
4 No. 05-1721
them replied affirmatively. Kelly stated that Adamson “was
acting a little bit differently than my prior encounters with
him,” id. at 15-16; instead of acting “very argumentative,
profane, basically telling me where to go,” id., he
was nervous. Kelly radioed the Mattoon Police Depart-
ment and asked the dispatcher to send a squad car. He
asked Adamson and his companions to “stand by until
we could sort through the situation with the crime scene
in the room.” Id. at 17. Kelly testified that there was “no
objection whatsoever” and that all four individuals followed
his request. Id.About ten minutes later, Officer Gabel arrived at the
motel. Kelly told Gabel that, based on his past experience
with Adamson and Adamson’s behavior that day, he
was “very suspicious” that Adamson might be armed.
Immediately, Gabel recognized Adamson from prior
encounters and knew that he was a convicted felon. After
the probation officers apprised him of the situation, Gabel
obtained identification from each of the four and contacted
the police dispatcher to check for outstanding warrants.
Adamson told Gabel that he did not have any drugs or
weapons on his person, but that Gabel could not “check
him.”
Within ten minutes, Officer Clark and Sergeant New-
lin arrived on the scene. Shortly after their arrival, “someone
mentioned that there was a possibility of a weapon from a
report that happened the night before.” Id. at 19. Clark
asked Adamson whether he minded if Clark searched him
for weapons and, according to Clark’s testimony, Adamson
replied, “Whatever.” Clark then asked Adamson to put
down the bundle he was carrying, and Adamson rested it in
the bed of a pickup truck. After Adamson placed his hands
on the side of the truck, Clark patted him down. Meanwhile,
No. 05-1721 5
Kelly reached into the truck bed and ran his hand along the
top of Adamson’s bundle “to see if [he] could possibly feel
the outline of a weapon inside the belongings.” Id. at 20.
When he ran his hand over the pillowcase, Kelly “immedi-
ately” felt the outline of a gun. Kelly told Newlin what he
felt; Newlin also felt the pillowcase and verified that there
appeared to be a gun inside. Newlin then informed Clark
and Gabel that he and Kelly had felt a handgun in the
bundle of clothing that Adamson had been carrying. At that
time, Gabel handcuffed Adamson and formally arrested
him for possession of a firearm by a felon. Once Adamson
was in custody, Gabel and Clark “went through the clothing
and removed the gun.” Id. at 43.
2. The Defense Witnesses’ Testimony
Mr. Adamson called two witnesses at the suppres-
sion hearing. First, Darryl Ferrell testified that he had
spent the day of February 19 with Adamson and “a couple
more people” drinking and playing video games in a
friend’s room at Hannah’s Inn. They left when alerted to the
presence of probation officers at the motel. As the group left
through a rear exit, they were approached by Officer Kelly,
who began to ask them questions. When Officer Gabel
arrived on the scene, Ferrell testified, Adamson refused to
be searched because he “wasn’t on probation” and “didn’t
have any arrest warrants.” Id. at 75. According to Ferrell, the
two other individuals did consent to being searched. After
Clark and Newlin had arrived on the scene, one of them
“asked everybody” to be searched, and Adamson again
refused, stating that he was not on probation and did not
have any outstanding warrants. Ferrell testified that Adam-
son was handcuffed and arrested before any of the officers
patted him down. He further stated that Adamson did not
6 No. 05-1721
have a gun with him that day and that he never saw the
police recover any weapons from anyone on the scene. On
cross-examination, Ferrell admitted that he previously had
been convicted of aggravated battery against probation
officer Kelly. Ferrell also admitted that he was drinking
alcohol for several hours before the officers arrived at
Hannah’s Inn.
Shelby Guyette, the woman in Adamson’s group that day,
testified that she had been pulled aside by one of the
probation officers and that “whenever I came back, they
were searching [Adamson].” Id. at 91. She stated that
Adamson refused to be searched but was told to set down
his bundle of clothing and was searched anyway. After the
officers searched Adamson and the clothing, Guyette
testified, they placed him in handcuffs and arrested him.
Guyette did not recall who searched Adamson or whether it
was a police officer or probation officer.
B. District Court Proceedings
After receiving closing arguments in written form, the
district court denied Adamson’s suppression motion. The
district court found that Kelly, Gabel, Clark and Newlin
were credible witnesses but that Ferrell and Guyette
were not; the court contrasted Ferrell and Guyette’s testi-
mony with the “straightforward” and “consistent” testi-
mony of the officers. In addition, Ferrell had admitted to
consuming alcohol on the day of the incident, and he had a
prior conviction for aggravated battery in connection with
an altercation with Kelly. The district court doubted the
credibility of Guyette’s testimony and her “ability to
observe” because she had testified that she did not observe
any evidence of drinking in the motel room despite Ferrell’s
No. 05-1721 7
admission that he had been drinking for several hours that
day. The district court also cited the witnesses’ “manner and
demeanor” as reasons for discrediting Ferrell and Guyette.
The district court first concluded, based on Kelly’s
credible testimony, that Adamson had consented to wait in
the parking lot with Kelly until police arrived. In the
alternative, the court held that there was reasonable suspi-
cion to believe that Adamson was involved in criminal
activity because of Kelly’s familiarity with Adamson and
the motel employee’s description of the individuals who
had been in the room where probation officers discovered
drugs and drug paraphernalia. Next, the court found that
Adamson had consented to be searched when he answered,
“Whatever” to Clark’s request. The district court also
concluded, in the alternative, that the officers had reason-
able suspicion to pat down Adamson and the bundle he was
carrying. The court cited Adamson’s proximity to the motel
room where drugs were discovered, the police report that
he had brandished a gun the day before, his nervous
demeanor and the fact that he seemed to be guarding his
pile of clothing. The court noted that it would “defy logic”
to conclude that the officers had reasonable suspicion to pat
down Adamson’s person but not the bundle he was clutch-
ing. The court denied Adamson’s motion, and weeks later
he pleaded guilty, reserving the right to challenge the denial
of the suppression motion.
II
DISCUSSION
When evaluating the denial of a suppression motion,
we review questions of law de novo and findings of fact
8 No. 05-1721
for clear error. See United States v. Banks, 405 F.3d 559, 570
(7th Cir. 2005). Mr. Adamson directs his arguments at the
district court’s conclusions that there was reasonable
suspicion to stop him and to pat him down. He first submits
that the general description given to the probation officers,
his proximity to the motel room where drugs had been
found and Kelly’s familiarity with him did not amount to
reasonable suspicion to stop him. He also contends that the
duration of the stop exceeded what is permitted for an
investigative detention. Finally, Adamson argues that the
frisk cannot have been conducted in the interest of officer
safety because twenty-five minutes had passed between the
initial stop and the pat-down.
A.
Before addressing the contentions set forth in Mr. Adam-
son’s opening brief, we must pause to note that, in that
brief, he leaves unchallenged the explicit factual findings
that he consented to remain with Kelly and to undergo the
subsequent pat-down search. To the extent that Adamson
mentions the district court’s finding of consent at all, he
baldly asserts that he was stopped and searched without
consent. He does not contend, however, that the district
court clearly erred in finding that he acceded to Kelly’s
request to “stand by” until police arrived and that he
answered, “Whatever” in response to Clark’s request for
consent to search him for weapons. These findings stem
from the district court’s decision to credit the testimony of
Kelly, Clark and Newlin over that of Ferrell. Credibility
determinations are factual in nature and therefore are
reviewed for clear error; a credibility determination will be
found clearly erroneous “only if the district court has
‘chosen to credit exceedingly improbable testimony.’ ”
No. 05-1721 9
United States v. Robinson, 314 F.3d 905, 907 (7th Cir. 2003)
(citation omitted); see United States v. Briggs, 273 F.3d 737,
740 (7th Cir. 2001) (explaining that a district court’s decision
to credit one witness over another “can almost never be
clear error”). Mr. Adamson’s mere assertion that he was
stopped and searched without consent is insufficient to
undermine the district court’s credibility determination
under the clearly erroneous standard. United States v.
Huerta, 239 F.3d 865, 872 (7th Cir. 2001) (stating that merely
presenting a contradictory statement of facts does not
suffice to show that the district court credited exceedingly
improbable testimony).
In failing to challenge the district court’s factual find-
ings that he consented to wait with Kelly and to be patted
down by Clark, Adamson also passes over any argument
with respect to the scope of his consent. The district court
found that Adamson consented to remain in the motel
parking lot “until police arrived.” R.16 at 5. The Govern-
ment interprets this finding to mean that Adamson con-
sented to stay on the scene “while officers conducted a drug
investigation.” Appellee’s Br. at 16. Even after learning the
Government’s view that his consent extended to the entire
encounter—not merely until the arrival of police—Adamson
in his reply brief declines to respond to the Government’s
expansive interpretation or to its submission that the
duration of the encounter is irrelevant because it was
consensual. He does not suggest that his consent was
limited in scope or was withdrawn at any point, although
he does hint that his consent, if given, was not “voluntary.”
For its part, the Government states that the district court
“found that the defendant consented to a pat-down search
for weapons that included the pillowcase he was carrying.”
Id. at 37. With respect to the search, the district court found
that Adamson “consented to a pat down search.” R.16 at 6.
10 No. 05-1721
Again, Adamson does not dispute the Government’s
understanding of the finding of consent or assert that his
consent did not extend to his parcel.
In light of Adamson’s failure to challenge the district
court’s factual conclusions, and the “near absolute defer-
ence” owed to the district court’s credibility determina-
tion, see United States v. Williams, 209 F.3d 940, 943 (7th
Cir. 2000), we conclude that the district court did not clearly
err in finding that Adamson consented to wait with Kelly
and to be patted down by Clark.
B.
We now shall address the district court’s alternative
holding that the stop and pat-down search were independ-
ently justified by reasonable suspicion.
Mr. Adamson first contends that he was stopped initially
without reasonable suspicion. We believe that it is clear that
his initial interaction with Kelly was not a seizure that
implicates the Fourth Amendment.1 It is well settled that
police may approach an individual in a public place and
seek the individual’s cooperation in answering a few
questions. Such an encounter is not a “seizure” within the
meaning of the Fourth Amendment. See United States v.
Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). In determining
whether a stop is consensual, relevant factors include
1
Although Kelly is a probation officer rather than a police
officer, the Fourth Amendment applies to governmental actors
other than police officers, such as probation officers. See New
Jersey v. T.L.O., 469 U.S. 325 (1985). Therefore, the cited cases,
which primarily involve the actions of police officers, apply
with equal force to Kelly.
No. 05-1721 11
whether the encounter took place in public, whether the
suspect consented to speak to police, whether the offi-
cers told the suspect that he was not under arrest and free
to leave, whether the suspect was moved to another area,
the number of officers present and whether they dis-
played weapons or physical force. See United States v.
Robinson, 30 F.3d 774, 782 (7th Cir. 1994). Here, Kelly
approached Adamson and his companions outside the
motel and asked them some questions, some of which they
declined to answer, as was their right. A reasonable per-
son under the circumstances set forth in this record
would have felt free to leave. See id. at 783. Because no
“seizure” occurred when Kelly first engaged Adamson in
conversation, reasonable suspicion was not required.
However, the encounter soon ripened into an investiga-
tive detention. See Terry v. Ohio, 392 U.S. 1 (1968); United
States v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002). Such a
seizure is permitted when the police have reasonable
suspicion, supported by articulable facts, that criminal
activity is afoot. Terry, 392 U.S. at 21; United States v. Baskin,
401 F.3d 788, 791 (7th Cir. 2005). Contrary to Adamson’s
assertions, Kelly and the police officers who arrived later
had such reasonable suspicion. First, the motel was gen-
erally viewed as a site of frequent criminal activity. Kelly
stated that it “has a reputation in our county as to be
somewhat of a drug hangout or . . . a ‘no-tell motel,’ ”
R.45 at 8, and Gabel testified that he is often dispatched
to the motel to investigate various crimes. See Jackson, 300
F.3d at 746 (“An officer may also consider whether the
location of the stop is a ‘high crime area.’ ”). In addition,
Adamson was among a group of individuals matching
the motel employee’s description of the group that had been
in the room where the probation officers discovered evi-
dence of drug activity. See Broomfield, 417 F.3d at 655; United
12 No. 05-1721
States v. Breland, 356 F.3d 787, 791 (7th Cir. 2004). The proba-
tioner in the motel room told Kelly that he had been
using drugs with other people who had just left, and
immediately thereafter Kelly saw Adamson’s group slip-
ping out a back exit. Kelly and the police officers were all
familiar with Adamson as a prior felon. See Jackson, 300 F.3d
at 746. Kelly knew that Adamson was rumored to carry a
gun, and this suspicion was confirmed by a police report
that Adamson had brandished a weapon the night before.
See United States v. Mitchell, 256 F.3d 734, 737 (7th Cir. 2001).
Finally, Kelly observed that Adamson appeared nervous
and very concerned with the bundle he was clutching. See
United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999).
Under the totality of the circumstances, it was not unreason-
able for Kelly to detain Adamson in connection with the
investigation.
Mr. Adamson also contends that, even if there was
reasonable suspicion for a Terry stop, the duration of the
stop eventually rendered it a de facto arrest, requiring
probable cause. See Robinson, 30 F.3d at 784. Adamson’s
argument lacks merit. There is no bright-line rule as to
how long an investigative detention may last; instead we
look to whether the police diligently pursued a means of
investigating that was likely to confirm or dispel quickly
their suspicions. See United States v. Sharpe, 470 U.S. 675,
685-86 (1985); Robinson, 30 F.3d at 784. Here, about twenty-
five minutes elapsed from when Kelly approached Adam-
son to when Adamson was formally arrested, and Adamson
does not suggest that the police were not diligently investi-
gating the drug activity during this time. Kelly and the
police officers asked questions of motel residents and
employees as well as the detained individuals in order to
determine who had been in the room where the drugs and
paraphernalia were found. Given the number of subjects
No. 05-1721 13
and their reluctance to reveal their names and why they
were at the motel, twenty-five minutes was a reasonable
amount of time in which to investigate whether the four
detained individuals had taken part in the drug activity.
With respect to the discovery of the gun, the manipulation
of a person’s effects from the outside is a “search” within
the meaning of the Fourth Amendment. Bond v. United
States, 529 U.S. 334, 338-39 (2000). To insure officer safety, a
protective search for weapons is permitted during a Terry
stop when police reasonably suspect that the subject is
concealing a weapon. See Terry, 392 U.S. at 29-30; United
States v. Ford, 333 F.3d 839, 843 (7th Cir. 2003). Mr. Adam-
son, who does not take issue with the district
court’s conclusion that, in this case, reasonable suspicion
would permit a pat-down of his effects as well as his
person,2 argues only that the police must have lacked
reasonable suspicion that he was armed because they
waited too long between stopping him and patting him
down.
The elapsed time is the only evidence Adamson cites in
support of his position that the officers were not con-
cerned with their safety at the time of the search. This
argument addresses whether the officers, having not
immediately patted him down, subjectively believed that he
was armed. But reasonable suspicion is measured against
2
Mr. Adamson suggests for the first time in his reply brief that
officers lacked reasonable suspicion to pat down the pillow-
case because he was not holding it and could not access its
contents at the time of the pat-down. Arguments made for the
first time in a reply brief are waived, see United States v. Blaylock,
413 F.3d 616, 619 (7th Cir. 2005), and in any event the argument is
not developed.
14 No. 05-1721
the totality of the circumstances, and the test is objective. See
Ford, 333 F.3d at 843. More importantly, however, the fact-
specific inquiry into the existence of reasonable suspicion
must be undertaken with due regard to common sense and
practicality. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000);
Ornelas v. United States, 517 U.S. 690, 695-96 (1996); United
States v. Hagenow, 423 F.3d 638, 642 (7th Cir. 2005); United
States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997). With that in
mind, we have no trouble concluding, based on the facts
before us, that the officers were legitimately concerned with
their safety at the time they patted down Adamson and his
effects. The location of the stop, the officers’ prior dealings
with Adamson and Adamson’s behavior—especially the
nervous clutching of the bundle in his arms—contributed to
reasonable suspicion that he was armed. Particularly after
Clark and Newlin arrived with information about the
previous night’s incident during which Adamson had
brandished a handgun, the officers had reason to fear for
their safety. See Jackson, 300 F.3d at 746 (explaining that
“officers were appropriately concerned for their safety”
where they knew the subject was armed in the past).
Accordingly, we conclude that the pat-down search was
reasonable under the totality of the circumstances.
Conclusion
The district court did not clearly err in finding that
Adamson consented to the initial stop and to the pat-down
search. Furthermore, the officers had reasonable suspic-
ion that Adamson was involved in criminal activity and that
he posed a threat to officer safety. Accordingly, the judg-
ment of the district court is affirmed.
AFFIRMED
No. 05-1721 15
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-06