United States v. Grogg, Clarence ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3908
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLARENCE GROGG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 07 CR 27—Larry J. McKinney, Judge.
____________
ARGUED JUNE 6, 2008—DECIDED JULY 28, 2008
____________
Before BAUER, RIPPLE and MANION, Circuit Judges.
BAUER, Circuit Judge. On November 16, 2007, Clarence
Grogg entered a conditional plea of guilty to an indict-
ment charging him with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The only issue
before us on the appeal is the district court’s denial of
Grogg’s motion to suppress evidence obtained by the
government when law enforcement agents searched his
car at the Indianapolis International Airport. For the
following reasons, we affirm Grogg’s conviction.
2 No. 07-3908
I. BACKGROUND
On September 18, 2006, Special Agent Eric Jensen of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF), notified the Indianapolis office of the Bureau of
Customs and Immigration Enforcement that Clarence
Grogg, a suspicious person, would be arriving that day
at the Indianapolis International Airport from France via
Detroit.
The government had been monitoring Grogg based on
a report from a “concerned citizen” that Grogg possessed
weapons or drugs, and that he might be involved in child
molestation or child pornography.
The investigation disclosed that Grogg’s car had been left
in short-term parking at the airport for more than twenty
days, accruing parking fees in excess of five hundred
dollars; that Grogg had changed his return flight multiple
times; and that at some point prior to Grogg’s return,
Indiana State Police had used a narcotics-detecting dog
to perform a sweep of Grogg’s car in the airport parking
lot and the dog had positively alerted.
Two plain-clothed agents waited for Grogg’s plane to
arrive in Indianapolis. After disembarking, Grogg ap-
peared to be very confused. He spoke with several ticket
agents and then proceeded to the baggage claim area.
Before getting his bags, Grogg stepped outside to smoke
a cigarette. The agents followed Grogg and overheard
him ask an unidentified woman for a ride to a hotel. While
he was loading his luggage into her car, the agents ap-
proached Grogg, identified themselves as law enforce-
ment officers, and asked to speak with him. Grogg
agreed. The agents explained to Grogg that they had
observed him acting suspiciously and that they were
No. 07-3908 3
looking for people carrying contraband. At some point
during the conversation, the agents instructed the
woman who had offered to drive Grogg to a hotel to leave.
During the encounter, Grogg was very cooperative and
insisted that he did not have any contraband. Grogg told
the agents, “You can search my bags. . . . You can
search anything you want.” The agents searched Grogg’s
bags but found nothing illegal. The agents then asked
him if he had a car parked at the airport and what he was
doing in Indiana. Grogg, a Virginia resident, first told the
agents that he was in Indiana visiting a friend (whom he
refused to name), but then changed his story and said
he was in town for an air show. Grogg confirmed that he
had a car at the airport and that it was parked in the short-
term parking lot. The agents asked Grogg if they could
search his car, to which Grogg responded, “Sure. I have
nothing to hide.”
At the car, the agents requested and again received
Grogg’s permission to search the car. The agents also
asked for and received Grogg’s permission to search a
suitcase found in the backseat of the car. In the suitcase,
the agents found a Weihrauch .357 magnum revolver
containing six live rounds of .38 special ammunition and
a box of ammunition. Grogg appeared surprised and
stated that he had forgotten about the weapon, and that
it belonged to his late father. Grogg was arrested, and
because he had two prior felony convictions, he was
indicted on March 7, 2007 for one count of felon in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(1).
On August 1, 2007, Grogg filed a motion to suppress,
arguing that he had been stopped by the agents without
reasonable suspicion and that his consent to search the
suitcase in the car was invalid. The district court ruled
that the agents had reasonable suspicion to seize Grogg
4 No. 07-3908
in light of the positive dog alert on Grogg’s car. Accord-
ingly, the district court found that Grogg’s consent to
the searches was valid.
II. DISCUSSION
On appeal, Grogg argues that he was stopped without
reasonable suspicion and that his subsequent consent to
search both his car and the suitcase inside the car was
therefore “fruit of the poisonous tree.” Grogg seeks to
distinguish his circumstances from the “typical drug dog
cases” based on the break in the temporal connection
between Grogg and his vehicle. Grogg argues that he
was seized almost three weeks after he had left his car
in the parking lot at the airport and that he was not even
attempting to return to the car when the agents seized
him. So, Grogg asserts, the stop while Grogg was loading
his baggage into the unidentified woman’s car lacked
reasonable suspicion of criminal conduct and should
be suppressed and that his consent to the searches
stemmed from this improper seizure and was thus invalid.
We review a district court’s legal conclusions on a
motion to suppress, such as whether reasonable sus-
picion existed to justify a stop, de novo, while findings of
fact are reviewed for clear error. United States v. Fiasche,
520 F.3d 694, 697 (7th Cir. 2008) (citing United States v.
Riley, 493 F.3d 803, 808 (7th Cir. 2007)).
The Fourth Amendment protects against unreasonable
searches and seizures. Police are permitted, however, to
make investigatory stops limited in scope and executed
through the least restrictive means reasonable, referred
to as Terry stops. See Terry v. Ohio, 392 U.S. 1 (1968); United
States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000). Terry stops
are permissible so long as they are supported by rea-
No. 07-3908 5
sonable and articulable suspicion that the suspect has
committed a crime or is about to do so. United States v.
LePage, 477 F.3d 485, 487 (7th Cir. 2007); United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). Reasonable
suspicion is less than probable cause, but more than a
hunch. Fiasche, 520 F.3d at 697; Lawshea, 461 F.3d at 859.
In evaluating the reasonableness of a Terry stop, we
examine “the totality of the circumstances known to the
officer at the time of the stop, including the experience
of the officer and the behavior and characteristics of the
suspect.” Lawshea, 461 F.3d at 859. While certain behavior
in isolation may have an innocent explanation, that
same behavior, when viewed in the context of other
factors at play, may amount to reasonable suspicion. Id.We agree with the district court that the agents’ ques-
tioning of Grogg amounted to a Terry stop when they
directed his ride to leave without him, and that the posi-
tive dog alert to Grogg’s vehicle created, at a minimum,
reasonable suspicion warranting the stop. Grogg makes
no argument on appeal that the canine sniff of his car in
the airport’s parking garage was improper, and right-
fully so, since the Supreme Court has made clear that a
dog sniff in a public place is not a search because it is
unique, in that it does not intrude on or disclose any
information other than whether contraband is present,
and a possessor of contraband cannot maintain a legit-
imate expectation that the contraband’s presence will not
be revealed. See United States v. Place, 462 U.S. 696, 706-07
(1983) (finding dog sniffs sui generis under the Fourth
Amendment).1
1
The fact that the narcotics/currency detecting dog turned out
to be incorrect in positively alerting to Grogg’s vehicle is of no
(continued...)
6 No. 07-3908
In addition to having the positive dog alert on Grogg’s
car, the detaining agents had additional information that
supported a reasonable suspicion that Grogg had com-
mitted or was about to commit a crime. The agents knew
of a concerned citizen’s report that alleged Grogg may
have weapons or drugs, and might be involved in child
molestation or pornography. The agents were also aware
that Grogg had changed his return flight multiple times.
See United States v. Yang, 286 F.3d 940, 949 (7th Cir. 2002)
(listing defendant’s travel itinerary as a factor to consider
for reasonable suspicion purposes by customs agents).
Then, upon disembarking in Indianapolis, the agents
observed Grogg acting oddly, meandering the con-
course confused before eventually asking a woman for a
ride to a nearby hotel despite having a car parked at
the airport. The agents also knew that Grogg had left his
car in short-term parking for nearly three weeks, racking
up over five hundred dollars in parking fees. See id. (listing
nervous or unusual conduct as a factor to consider for
reasonable suspicion purposes). During questioning,
Grogg refused to give the friend’s name who he initially
claimed to be visiting, and then changed his story as to
why he was in Indiana and said he was there for an air
show. See id. (listing evasive or contradictory answers as
1
(...continued)
consequence here, since the record contains no evidence that
would call into question the premise that drug-detection dogs
alert only to contraband, nor has Grogg preserved the issue
for appeal. See Illinois v. Caballes, 543 U.S. 405, 409 (2005)
(noting that the error rate of narcotics-detection dogs is ir-
relevant unless there is evidence that legitimate private infor-
mation is revealed that would engage a Fourth Amendment
privacy interest).
No. 07-3908 7
factors to consider for reasonable suspicion purposes). This
information, together with the positive canine alert on
Grogg’s car, compels us to conclude that the agents had
articulable facts that support the reasonable suspicion
necessary to conduct a Terry stop.
Grogg does not deny giving his consent to the search
of his car and the suitcase containing the gun therein. Since
there was no illegal search, we need not discuss his as-
sertion that his consent was the “fruit of the poisonous
tree.” See United States v. Schoals, 478 F.3d 850, 853 (7th Cir.
2007).
III. CONCLUSION
The conviction is AFFIRMED.
USCA-02-C-0072—7-28-08