United States v. Eddie Carlisle ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1173
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DDIE L AMAR C ARLISLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:08-CR-22—William C. Lee, Judge.
A RGUED JUNE 1, 2010—D ECIDED A UGUST 11, 2010
Before B AUER, FLAUM and T INDER, Circuit Judges.
F LAUM, Circuit Judge. On February 18, 2008, Eddie
Lamar Carlisle was arrested at the home of Michael
Chapman during a drug sweep. Two officers caught
Carlisle fleeing from the back of the house while two
other officers entered the front door of the house. Carlisle
was carrying a closed backpack with him. The officers
searched the backpack and found marijuana, crack, a
scale, a spatula, and packaging materials. Carlisle was
2 No. 10-1173
charged with one count of knowingly possessing with
intent to distribute five grams or more but less than fifty
grams of a mixture containing a detectible amount of
cocaine base and one count of possessing with intent to
distribute marijuana. Carlisle moved to suppress the
evidence found in the bag, arguing that the search
violated his Fourth Amendment rights. The district court
held a suppression hearing. At the hearing, Carlisle
claimed that the backpack was not his and that someone
in the house asked him to carry the bag to the garage.
The district court denied the motion to suppress on the
ground that Carlisle did not have standing to raise a
Fourth Amendment challenge to the search of the bag
because he did not have a privacy interest in the bag.
Carlisle pleaded guilty but reserved his right to appeal
the district court’s denial of his motion to suppress.
Because we agree with the district court that Carlisle
did not have a reasonable expectation of privacy in the
bag, we affirm.
I. Background
The series of events that led up to the arrest of
defendant-appellant Eddie Lamar Carlisle began in the
middle of the afternoon of February 18, 2008, when Ser-
geant Thomas Strausborger of the Fort Wayne Police
Department executed a search warrant several doors
down from Michael Chapman’s residence. While there,
Strausborger observed people coming and going from
Chapman’s residence in a manner that he considered
indicative of a drug operation. Considering the suspicious
No. 10-1173 3
traffic pattern and several tips his office had previously
received, Strausborger contacted Detective Andrew
Irick, who worked with the agency that monitors home
detention detainees, and told Irick about his suspicions.
That evening, Officers Michael Smothermon, Matthew
Snyder, Andrew Irick, and Jeff Halsey went to Chap-
man’s house to perform an unannounced visit to search
for drugs. Chapman was a home detention detainee
who voluntarily submitted to wearing a tracking device
on his ankle and consented to announced and unan-
nounced searches of his home as part of the home deten-
tion program. Because of Chapman’s status as a home
detainee, the officers did not need a search warrant. At
the house, Smothermon and Snyder went to the back
while Irick and Halsey remained in the front. Although
all of the officers were in radio contact, the record
does not precisely reflect how the timeline of what oc-
curred in front of the house lines up with the timeline
of events behind the house. Upon arriving, Irick
knocked on the front door and identified himself as a
police officer. Irick saw a woman peek out and begin
to play with the lock. Officer Halsey looked through a
side window and saw a man, a woman, and a younger
child moving around the living room. Irick and Halsey
heard glass breaking inside the house and then the
woman opened the front door.
At some point between when the officers in front first
knocked and when the officers gained access to the
house through the front door, Carlisle exited through the
back door of the house. Prior to Carlisle exiting the
4 No. 10-1173
house, Officer Smothermon saw someone look out of the
vertical blinds on the side of the house. Then, according
to Officer Smothermon, Carlisle exited the rear of the
house in a nervous manner, paused for a second glancing
around, and began to run toward the alleyway behind
the garage. Carlisle was carrying a backpack with him.
When Carlisle started to run, Officer Smothermon came
out of his hiding position and ordered Carlisle to stop.
Officers Smothermon and Snyder did not know who
Carlisle was and thought he may be Chapman trying
to escape. Smothermon drew his taser and ordered
Carlisle to the ground. Snyder drew his gun. Carlisle
put the bag down and laid down on the ground.
Smothermon handcuffed Carlisle. The officers said that
they handcuffed Carlisle because he was attempting to
flee and because they feared for officer safety due to the
nature of the search of the house. Around the same time
that the officers in front gained access to the house, one
of the two officers in the back of the house radioed the
front door officers to tell them that they apprehended
an individual attempting to flee.
Inside the house, the officers conducted a consent
search. The officers secured the adults in the dining
room area and performed a protective sweep of the
home. Because it was cold outside, the officers took
Carlisle inside. The officers also grabbed the backpack
and brought it into the house. Inside the home, Officer
Snyder asked Carlisle for identification while Officer
Smothermon patted him down to determine whether
he had any weapons, which he did not. Officer Snyder
also searched the bag that Carlisle had been carrying.
No. 10-1173 5
Officer Snyder testified that he could not determine the
contents of the bag without opening it. There is no testi-
mony that Officer Snyder attempted to do a pat-down
of the bag to determine if it contained weapons without
opening it. When Officer Snyder opened the backpack
he saw a clear plastic bag containing a green leafy sub-
stance and an off-white substance in the shape of a
cookie, which turned out to be crack. Based on his ex-
perience, Officer Snyder recognized the green leafy sub-
stance as marijuana. He did not recognize the off-
white substance. Officer Snyder also saw a scale with a
powder residue on it, a spatula, and packaging materials
in the bag. At that time, Officer Snyder read Carlisle
his Miranda rights. According to Officer Snyder, Carlisle
denied knowledge of the contents of the bag. Carlisle
did not claim or deny ownership of the bag at that time.
Carlisle moved to suppress the evidence found in the
bag. At the suppression hearing, Carlisle gave the fol-
lowing testimony concerning his relationship to the bag:
Q: You were taking the bag to the garage?
A: Yes, sir.
Q: Going to throw it away?
A: No. Just asked me to put it there.
Q: They asked you to put it in there?
A: He, he asked me.
Q: Who asked you?
A: Michael Chapman.
6 No. 10-1173
Q: Because it wasn’t your bag, right?
A: No.
Q: It was Chapman’s bag?
A: Yes, sir.
Q: You didn’t know what was it in?
A: No.
The district court denied the motion to suppress the
evidence. First, the district court found that the initial
stop was a proper Terry stop based on reasonable sus-
picion arising from Carlisle’s exiting the rear of a
house that was being searched in connection with sus-
pected drug activity. Turning to the search of the back-
pack, the district court found that Carlisle did not have
standing to raise a Fourth Amendment claim regarding
the search because he did not have a reasonable expec-
tation of privacy in the bag. In the alternative, the district
court found that even if Carlisle did have standing,
the search was proper under the Fourth Amendment.
II. Discussion
Carlisle appeals the district court’s findings that the
initial stop was reasonable and that the warrantless
search of the backpack did not violate his Fourth Amend-
ment rights. When reviewing a district court’s denial of
a motion to suppress, we review factual determinations
for clear error and legal questions de novo. United States
v. Ellis, 499 F.3d 686, 688 (7th Cir. 2007). Determinations
of probable cause and reasonable suspicion are normally
No. 10-1173 7
mixed questions of fact and law, but when “what hap-
pened?” is not at issue, the ultimate resolution of
whether probable cause or reasonable suspicion existed
is a question of law which we review de novo. United
States v. Burnside, 588 F.3d 511, 516 (7th Cir. 2009).
A. The Initial Stop
Carlisle contends that the officers did not have suf-
ficient reasonable suspicion to stop and detain him
and therefore, this stop violated his Fourth Amendment
rights. If the stop was improper, the fruits of the stop
would also be improper and the contents of the bag
should have been excluded.
Police officers may conduct a brief investigatory stop
of a suspect if they have reasonable suspicion based on
articulable facts that a crime is about to be or has been
committed. United States v. Wimbush, 337 F.3d 947, 949
(7th Cir. 2003) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
The suspicious conduct may be ambiguous and sus-
ceptible to an innocent explanation, but the officers may
detain the individual to resolve such ambiguity. Illinois
v. Wardlow, 528 U.S. 119, 125-26 (2000). Officers may rely
on their experience in evaluating the significance of the
suspect’s conduct. United States v. Baskin, 401 F.3d 788,
791 (7th Cir. 2005). During the stop, the officer may con-
duct a pat-down search to determine whether the person
is carrying a weapon if the officer has an articulable
suspicion that the subject is armed and dangerous. Terry,
392 U.S. at 24. The protective search permitted without
8 No. 10-1173
a warrant during a Terry stop is “limited to that which
is necessary for the discovery of weapons which might
be used to harm the officer or others nearby.” Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993). The officers may
also detain a bag or luggage from a suspect when they
have reasonable suspicion to believe that the bag con-
tains contraband or evidence of a crime. United States
v. Place, 462 U.S. 696, 708-09 (1983); United States v.
Ward, 144 F.3d 1024, 1030-31 (1998).
We find that the officers had reasonable suspicion to
believe that criminal activity was occurring and that
Carlisle was armed and dangerous, thereby making the
initial stop proper. Officer Smothermon testified at the
suppression hearing that he stopped Carlisle because:
We, um, were there to, um, search the home based
on the tip information that there may be narcotics
that could be going on, and they would be looking
out the blinds and, and, um, this, um, individual
suddenly bursting out the rear of the home attempting
to flee, I felt it prudent to stop and see what he
might be doing. That seemed suspicious to me.
In response to a follow-up question regarding why he
feared for officer safety, Smothermon stated, “I had a
heightened sense of awareness based on the peeking out
of the blinds. The reason that we were there to start
with, and that he, he did it in an urgent manner, try to
flee the residence.” When asked why the officers hand-
cuffed Carlisle once he had stopped, Officer Snyder
responded:
No. 10-1173 9
We were there to do a narcotics investigation due to
tips we have received from the Fort Wayne City
vice narcotics, and, um, basically when you are in
a situation like that with narcotics, um, usually weap-
ons are involved more often than not, so we hand-
cuffed for officer safety and escort them back inside.
Both officers testified that they did not attempt to
identify Carlisle until they were back inside the house.
The government relies on the following factors to
justify the propriety of the stop: (1) the nature of the
officers’ visit to the house; (2) the person peeking out
from the blinds prior to Carlisle exiting the house;
(3) Carlisle’s attempt to leave the house while a drug
search was occurring; and (4) the nervous manner that
Carlisle left the house, described by Officer Smothermon
as “target glancing” and then running. These factors are
all relevant to our consideration. We have previously
held that the detention of an individual attempting to
enter an area that was currently secured for the purpose
of a narcotics sweep was proper. United States v. Jennings,
544 F.3d 815, 818-19 (7th Cir. 2008). In Jennings, we rea-
soned, “it was reasonable for the officers to ‘exercise
unquestioned command of the situation’ by detaining
Jennings long enough to ensure that he was unarmed and
uninvolved in criminal activity.” Id. Additionally, the
Supreme Court has held that evasive behavior and
flight are suggestive of wrongdoing and can be factors
considered in a court’s determination of whether an
officer had reasonable suspicion to execute a Terry stop.
Illinois v. Wardlow, 528 U.S. 119, 125-26 (2006). These
10 No. 10-1173
cases, read together, make it unquestionable that an
individual fleeing an area where a narcotics sweep is
taking place gives rise to reasonable suspicion to justify
a Terry stop.
Carlisle does not rest his argument solely on the con-
tention that the initial stop was improper, but rather
argues that the officers’ continuation of the stop was
improper once Carlisle complied with the officers’ order
to get down on the ground. To support this argument,
Carlisle interprets the officers’ testimony to mean that
the only purpose of the stop was to insure that he was not
Chapman attempting to escape. As such, he claims that
the officers should have asked for name and identifica-
tion and let him go upon learning that he was not Chap-
man. The government casts the reasonable suspicion in
broader terms. The government suggests that the officers
had a reasonable suspicion that someone in the home
wanted to hide contraband and that anyone leaving
should at least be stopped and asked about what was
happening. The government’s formulation of the rea-
sonable suspicion is consistent with the totality of the
evidence—someone glancing out the window blinds,
Carlisle exiting from the rear of the house while
officers were knocking at the front, Carlisle carrying the
backpack, Carlisle looking from side to side once outside
the door, and Carlisle running towards the only possible
exit from the rear. Under these circumstances, it was
reasonable for the officers to stop Carlisle and detain him
to ask questions to determine why he was leaving the
house with a backpack during a drug sweep. While
handcuffing is not a normal part of a Terry stop, it does not
No. 10-1173 11
automatically turn a Terry stop into an unlawful arrest.
United States v. Smith, 3 F.3d 1088 (7th Cir. 1993). Given the
totality of the circumstances, the officers’ actions in
detaining Carlisle did not violate his Fourth Amend-
ment rights.
B. The Search of the Bag
Carlisle next challenges the search of the bag. After
securing Carlisle and bringing him and the bag into the
home, Officer Snyder opened the backpack and searched
it. Carlisle challenges this as a warrantless search and
argues that the evidence inside the bag should have
been suppressed. The district court rejected this claim
because it found that Carlisle did not have a reasonable
expectation of privacy in the contents of the bag. We agree.
The Supreme Court has consistently held that “Fourth
Amendment rights are personal rights which, like some
other constitutional rights, may not be vicariously as-
serted.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Under
Rakas, the Court held that the “standing” issue under
the Fourth Amendment should be addressed through
the substantive Fourth Amendment question of whether
the person challenging the search “had a legitimate
expectation of privacy in the premises he was using
and therefore could claim the protection of the Fourth
Amendment with respect to a governmental invasion
of those premises, even though his ‘interest’ in those
premises might not have been a recognized property
interest at common law.” 439 U.S. at 143. When con-
sidering whether an individual has a legitimate expecta-
12 No. 10-1173
tion of privacy, a court must consider: (1) whether the
individual, by his conduct, has exhibited an actual (sub-
jective) expectation of privacy; and (2) whether the indi-
vidual’s subjective expectation of privacy is one that
society is prepared to recognize as reasonable. Smith v.
Maryland, 442 U.S. 735 (1979) (citing Katz v. United States,
389 U.S. 347 (1967)). In this case, it is the first prong, the
subjective expectation of privacy, that is at issue. Whether
an individual has exhibited a subjective expectation of
privacy is a highly fact-specific inquiry. Several key
cases shed light on where courts have drawn the line
for when an individual has a reasonable expectation of
privacy, and can therefore challenge the search, and
when he does not.
Before we examine the case law in this area, it is impor-
tant to separate cases of abandonment from cases where
it is ambiguous at the time of the search whether the
individual had a subjective expectation of privacy in the
searched area. Both the government and Carlisle cite
several cases where the defendant abandoned the
property at the time of the search. See United States v.
Rush, 890 F.2d 45 (7th Cir. 1989); United States v. Smith,
3 F.3d 1088 (7th Cir. 1993); Bond v. United States, 77 F.3d
1009 (7th Cir. 1996). In these three cases cited by the
parties, the defendants openly denied ownership of the
property at the time of the search. In all three cases we
found that the defendant’s disavowal of ownership was
sufficient to constitute abandonment. “Abandoned prop-
erty is not subject to Fourth Amendment protection.”
United States v. Pitts, 322 F.3d 449 (7th Cir. 2003) (citing
Abel v. United States, 362 U.S. 217 (1960)). However, this
No. 10-1173 13
case is not as clear cut as an abandonment case. Officer
Snyder testified that Carlisle did not claim nor deny
ownership of the bag at the time of the search. Therefore,
the abandonment line of cases are inapplicable and we
must answer a more nuanced question: under what
circumstances does a defendant have a subjective pri-
vacy interest in a piece of property when ownership
is ambiguous at the time of the search?
Two years after Rakas instructed courts to focus on
whether the defendant had a legitimate privacy interest
in the searched property to resolve questions of standing
under the Fourth Amendment, the Supreme Court issued
two opinions on the same day clarifying the issue. In
Rawlings v. Kentucky, 448 U.S. 98 (1980), the Supreme
Court held that the defendant did not have a legitimate
expectation of privacy in his girlfriend’s purse such that
he could challenge a search of the purse that led to the
discovery of illegal drugs belonging to him. At the time
of the search, Rawlings was sitting next to his girlfriend
on the couch with the purse between them. Rawlings,
448 U.S. at 100-01. Rawlings’s girlfriend had her hand
on the purse. Id. One officer ordered Rawlings to stand.
Id. The other officer ordered Rawlings’s girlfriend to
empty the contents of her purse, which led to the
discovery of the drugs. Id. At the suppression hearing,
Rawlings answered “no” to the questions: “Did you feel
that Vannessa [sic] Cox’s purse would be free from the
intrusion of the officers as you sat there? When you put
the pills in her purse, did you feel that they would be
free from governmental intrusion?” Id. at 104. In finding
that Rawlings did not meet his burden of proving that
14 No. 10-1173
he had a legitimate privacy interest in the purse, the
Court reasoned,
At the time petitioner dumped thousands of dollars
worth of drugs into Cox’s purse, he had known her
for only a few days. According to Cox’s uncontested
testimony, petitioner had never sought or received
access to her purse prior to that sudden bailment.
Nor did petitioner have any right to exclude other
persons from Cox’s purse. In fact, Cox testified that
Bob Stallions, a longtime acquaintance and frequent
companion of Cox’s, had free access to her purse on
the very morning of the arrest and had rummaged
through its contents in search of a hairbrush.
Id. at 105 (internal citations omitted). In United States v.
Salvucci, 448 U.S. 83 (1980), the Supreme Court held that
the defendants did not have an automatic legitimate ex-
pectation of privacy in the home of defendant-Zackular’s
mother. The Supreme Court did not reach any deter-
mination based on the facts of search, but rather
remanded for a new suppression hearing because “the
respondents relied on automatic standing and did not
attempt to establish that they had a legitimate expecta-
tion of privacy in the areas of Zackular’s mother’s home
where the goods were seized.” Id. at 95. What Salvucci
adds to our analysis is a clear statement from the
Supreme Court that the individual seeking suppression
of the evidence bears a burden to prove that he had a
legitimate expectation of privacy in the searched property.
Several years later, in United States v. Peters, 791 F.2d 1270(7th Cir. 1986) (overruled on other grounds), our circuit
No. 10-1173 15
had occasion to address the issue of when a defendant
has a subjective privacy interest in a piece of property.
The defendant, Peters, contested the admission of
evidence that came from the search of his co-conspirator’s
car. Peters occasionally used the car, had keys to the car,
stored the car in his parents’ driveway, and paid for
repairs to the car. In Peters, we identified the following
factors as key to determining whether an individual has
a legitimate privacy interest in a given piece of property:
(1) whether the defendant had a possessory [or owner-
ship] interest in the thing seized or the place
searched, (2) whether he had the right to exclude
others from that place, (3) whether he exhibited a
subjective expectation that it would remain free from
governmental invasion, (4) whether he took normal
precautions to maintain his privacy, and (5) whether
he was legitimately on the premises.
791 F.2d at 1281. Based on those factors, we found
that Peters did not have a legitimate expectation of pri-
vacy in the car because: (1) Peters was not in possession
of the car at the time of the search nor did he assert
legal ownership of the car; (2) Peters’s testimony at the
suppression hearing did not indicate that he had the
right to exclude others from using the car (he could only
use the car with the owner’s permission, and two or
three other people regularly used the car); (3) none of
Peters’s statements suggested that he believed he could
leave anything in the car and have it remain untouched;
(4) nothing in the record indicated that Peters took
any precautions to assure privacy in the car; and
16 No. 10-1173
(5) Peters was not in or near the car when the search
occurred.
Recently, we addressed this issue again in United States
v. Amaral-Estrada, 509 F.3d 820 (7th Cir. 2007). In Amaral-
Estrada, the officers saw the defendant and another
male driving the car at issue. 509 F.3d at 822. The defen-
dant and passenger parked the car and walked away
from it. Id. at 823. Several blocks away, one of the
officers stopped the defendant and the passenger. Id. Ac-
cording to the officer’s testimony, the defendant denied
any knowledge of the car, ownership of the car, or ever
having driven the car. Id. Amaral-Estrada testified that
he never denied driving the car, he only denied owning
the car. Id. He testified that Sosa-Verderja, the owner of
the car, lent him the car about a week prior. Id. Amaral-
Estrada also testified that Sosa-Verderja told him to
drive to a specific Walgreens and go inside, and that
while he was inside the store, someone would come and
put something in the backseat of the car. Id. Amaral-
Estrada did as he was told and when he came out of the
Walgreens there was a black duffle bag in the back. Id.The officer took Amaral-Estrada back to the car. Id. The
duffle bag was still in the back. Id. Amaral-Estrada
still denied a connection with the car or the duffle bag.
Id. The officer used the keys obtained from Amaral-
Estrada to open the car and search the bag. Id. at 824. The
bag contained about $254,947.00. Id. We found that
Amaral-Estrada failed to manifest any actual or sub-
jective expectation of privacy in the car because, based
on his own testimony, he expected others to enter the
car to leave or remove items. Id. at 827-28. Although we
No. 10-1173 17
did not decide this case on abandonment grounds, we
also relied on the fact that Amaral-Estrada told the
officers he did not know anything about the car.
None of the cases cited by the parties are factually
identical to the case at hand, but when read together,
they provide sufficient guidance to consider Carlisle’s
claim within the Peters’s framework. As noted above,
Peters points the Court’s attention to five key factors:
(1) whether the defendant had a possessory [or owner-
ship] interest in the thing seized or the place searched;
(2) the right to exclude others from that place; (3) exhib-
ited a subjective expectation that it would remain free
from governmental invasion; (4) took normal precautions
to maintain his privacy; and (5) was legitimately on the
premises. The government argues that, because Carlisle
denied ownership of the bag, denied knowledge of the
contents, identified the owner of the bag as someone
else, and described only fleeting contact with the bag
in moving it at the owner’s direction, he cannot possibly
meet the five factors laid out in Peters.
While we ultimately agree with the government’s
position, this case is closer to the line than it appears at
first glance. Although Carlisle disclaimed ownership of
the bag, there is no dispute that Carlisle was legiti-
mately in possession of the property. This distinguishes
Carlisle’s situation from that of Rawlings, where Cox
was in possession of the purse at the time of the search,
and Peters, who was not near the car at the time of the
search. Carlisle also indicated that he intended to
maintain privacy in the bag by holding onto it as he
18 No. 10-1173
left the house and by keeping it closed. The issue of
exclusivity is murkier. From the testimony, it appears
that at the time he was in possession of the bag, he had the
right to exclude all others from the bag except Chapman.
This factor distinguishes this case from Amaral-Estrada,
where Amaral-Estrada expected others to take things
from and leave things in the car while he was entrusted
with it. What makes it questionable that Carlisle had
exclusive control is the appellant’s own testimony that
he did not know what was in the bag or who was
using the bag immediately prior to his taking it. This
testimony strongly cuts against any claim of exclu-
sive control and makes Carlisle’s situation similar to
Rawlings’s situation where he lacked control over who
had access to the searched property prior to the search.
What pushes this case fully over the line is the com-
plete lack of testimony that Carlisle had any subjective
expectation that the bag would remain free from gov-
ernmental invasion. Carlisle bears the burden of proving
that he had a subjective privacy interest in the bag suf-
ficient to challenge the search. See Salvucci, 448 U.S. 83.
The record lacks any evidence of this subjective expecta-
tion and Carlisle’s testimony cuts against a finding of
any subjective expectation of privacy in the bag since
he disclaimed ownership or even knowledge of its con-
tents. Therefore, we find that Carlisle did not have a
reasonable expectation of privacy in the backpack suffi-
cient to allow him to challenge the search. Because
Carlisle cannot validly assert a Fourth Amendment chal-
lenge to the search of the backpack, we do not reach
the merits of whether the search was proper.
No. 10-1173 19
III. Conclusion
For the reasons set forth above, we A FFIRM the
district court’s denial of the motion to suppress.
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