NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 13, 2011
Decided February 28, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐2913 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Indiana,
Plaintiff‐Appellee, Fort Wayne Division.
v. No. 1:09‐cr‐00091
RICHARD L. SCHLATTER, Theresa L. Springmann,
Defendant‐Appellant. Judge.
O R D E R
Richard Schlatter pled guilty to a charge of being a felon in possession of a firearm,
in violation of 18 U.S.C § 922(g)(1). In his plea agreement, Schlatter reserved the right to
appeal the denial of his motion to suppress evidence. He now exercises that right with this
appeal.
We start with the facts which are based pretty much on the testimony of Indiana
State Trooper Caleb Anderson, the only witness to testify at the suppression hearing.
No. 10‐2913 Page 2
Anderson’s testimony, we note, was found to be “forthright and straightforward” by the
district court.
On June 20, 2009, at approximately 1:30 a.m., Trooper Anderson spotted a car
heading southbound on West Main Street in Fort Wayne, Indiana. He would later learn that
the driver was Richard Schlatter. Anderson, who was in a marked squad car, used a radar
gun to clock the car at 41 m.p.h. in a 30 m.p.h. zone. Anderson turned his squad car around,
activated his emergency lights, and began following Schlatter. But Schlatter did not
immediately stop his car. Anderson saw Schlatter (the car’s sole occupant) moving around
and reaching toward the middle console and passenger areas of the car, as if he was trying
to hide something. Anderson then activated his siren; Schlatter continued driving.
Approaching a dark intersection at West Jefferson Boulevard and Illinois Road, with
an unlit cemetery on the right, Schlatter tried to veer at the last second onto Illinois Road,
but Anderson was able to angle his car so Schlatter could not make the turn. Anderson
testified that the pursuit lasted for about four to six city blocks (roughly a quarter of a mile)
and around 30 seconds and that Schlatter continued to make furtive movements within the
car the whole time.
Anderson then exited his car and ordered Schlatter to do the same. Anderson
approached the car with caution, worried that Schlatter might be armed. Schlatter got out
of the car and put his hands up. Anderson—who had drawn his gun but hidden it behind
his thigh so that Schlatter could not see—re‐holstered his gun. Anderson then asked
Schlatter why he did not stop and what he was hiding; Schlatter responded that he was not
hiding anything.
Anderson then told Schlatter that for officer safety he was going to pat him down for
weapons before letting him return to the car. Schlatter was not handcuffed. Anderson was
the only officer at the scene and used a calm voice. Schlatter was cooperative once he exited
the car, and at no time did Anderson use any force. When the pat down did not reveal any
weapons or other contraband, Anderson said that for officer safety he was going to search
Schlatter’s car. Specifically, in anticipation of letting Schlatter back in his car, Anderson said
he was going to search the area of the car where a weapon could be accessed by a driver.
At this point, Schlatter told Anderson that he had mushrooms in the car. Anderson
asked if there were any needles or dangerous items in the car. Schlatter responded that
there were no weapons, but that he did have Vicodin pills for which he had no prescription.
Anderson then handcuffed Schlatter, as he had admitted to two felony drug charges.
As Anderson was handcuffing Schlatter, Fort Wayne Police Department Sergeant
James Gephart arrived at the scene. Gephart stayed with Schlatter as Anderson searched
No. 10‐2913 Page 3
Schlatter’s car. Anderson saw a bag of pills on the seat and a bag containing powder in the
side compartment of the driver’s door. He also found a loaded handgun and a pill bottle in
the center console and a plastic baggie between the passenger seat and center console. He
removed four bags that contained what appeared to be marijuana and illegal mushrooms.
To add to his troubles, it was discovered that Schlatter had a prior felony conviction.
That information caused a federal grand jury to return a three‐count indictment against
Schlatter, charging him with being a felon in possession of a firearm, plus two other counts
that are immaterial at this time (they were dismissed after he pled guilty to Count 1).
In denying Schlatter’s motion, the district judge found that Schlatter’s initial
statements to Anderson were not the product of a custodial interrogation, that the
statements provided probable cause for the search of the car under the automobile
exception, and that the search of the car for Anderson’s safety was reasonable. For his
troubles, Schlatter received a 41‐month sentence.
We review the judge’s denial of Schlatter’s motion to suppress under a dual
standard: questions of law de novo and findings of fact for clear error. United States v.
Jackson,
598 F.3d 340, 344 (7th Cir. 2010). “The determination of probable cause is normally
a mixed question of law and fact, but when ‘what happened’ questions are not at issue, the
ultimate resolution of whether probable cause existed is a question of law, which we review
de novo.” United States v. Ellis,
499 F.3d 686, 688 (7th Cir. 2007) (internal citation omitted).
Schlatter makes two arguments on appeal: (1) Anderson had no constitutional basis
to search his car; and (2) his admission to Anderson that he had drugs was the product of an
improper custodial interrogation. We address each separately.
Schlatter argues that Anderson searched his car without a warrant, in violation of the
Fourth Amendment. First, it is important to note that Schlatter concedes Anderson had
probable cause to make a lawful traffic stop for speeding. The Supreme Court has held that
officers can order a driver out of a vehicle for any lawful traffic stop because of the
“inordinate risk confronting an officer as he approaches a person seated in an automobile.”
Maryland v. Wilson,
519 U.S. 408, 410 (1997); Pennsylvania v. Mimms,
434 U.S. 106, 110 (1977).
If the officer has a reasonable suspicion that the driver is armed or may be able to gain
immediate control of a weapon, he may conduct a pat down search of the driver, United
States v. Shoals,
478 F.3d 850, 853 (7th Cir. 2007), and a search of the passenger compartment
for any accessible weapons, Michigan v. Long,
463 U.S. 1032, 1049‐50 (1983). In assessing the
reasonableness of any search, the court balances the degree of intrusion against the
government’s justification for the search. See United States v. Knights,
534 U.S. 112, 118‐119
(2001).
No. 10‐2913 Page 4
In this case, Anderson had reasonable suspicion to search the car. Schlatter was
speeding at 1:30 a.m. in a dark part of the city. When Anderson turned on his lights and
siren, Schlatter continued driving. He was moving around suspiciously in the driver’s seat,
leaning across and making motions that were reasonably consistent with hiding contraband
or retrieving a weapon. Schlatter also did not stop his car until Anderson blocked his path.
Given these facts, this case is not a close call. These specific factors amount to more than a
reasonable suspicion that Schlatter was hiding contraband either on his person or in the car.
See United States v. Fryer,
974 F.2d 813, 819 (7th Cir. 1992) (officer must have “specific,
articulable facts which, in combination with inferences to be drawn from those facts,
reasonably warrant the intrusion”). Therefore, the judge correctly found that it was
reasonable for Anderson to search both Schlatter’s person and the passenger compartment
of the car to ensure officer safety following the traffic stop.
Furthermore, Anderson specifically told Schlatter that he was first going to search
his person and then the car for officer safety, and at that point, Schlatter admitted that he
had illegal drugs in the car. The government argues, and the judge agreed, that once
Schlatter admitted he had drugs in the car, Anderson could search the vehicle under the
automobile exception to the warrant requirement. Under the automobile exception, a car
may be searched without a warrant if there is probable cause to believe that it contains
contraband or evidence. Carroll v. United States,
267 U.S. 132, 149, 153‐56 (1925). We agree
with the judge—Anderson unquestionably had probable cause to believe that the car
contained illegal drugs. Schlatter admitted that it did. Thus, the automobile exception
applies.
Schlatter also argues that the judge should have granted his motion to suppress the
statements he made to Anderson because at the time they were made he was subject to a
full custodial interrogation and had not been read his Miranda rights. The government
argues that Schlatter was merely subject to a traffic violation stop, and individuals
temporarily detained pursuant to an ordinary traffic stop are not in custody for the
purposes of Miranda. See Berkemer v. McCarty,
468 U.S. 420, 440 (1984). The Supreme Court
was clear in Berkemer—ordinary traffic stops are not custodial interrogations.
Id. at 437.
Traffic stops are presumptively temporary and brief, conducted in public, and involve one
to two officers, unlike interrogations requiring Miranda rights.
We have previously held that a defendant who was questioned in the back of a
patrol car about drugs and a weapon found during the search of a car was not in custody
for Miranda purposes. United States v. Murray,
89 F.3d 459, 462 (7th Cir. 1996). The facts
here are even more favorable to the government: (1) Schlatter was not under arrest when he
told Anderson there were mushrooms and Vicodin pills in the car; (2) Anderson was the
only officer present; (3)Anderson’s gun was holstered once Schlatter exited his car with his
hands up, and even when it was out, Schlatter could not see it; (4) Anderson used a calm
No. 10‐2913 Page 5
voice and told Schlatter that he was only checking the car for safety before pursuing the
traffic violation; (5) the stop was conducted on a public street; (6) Anderson did not place
Schlatter in handcuffs until after he admitted the drugs were in the car; and (7) at no point
was Schlatter’s movement curtailed to the degree associated with a formal arrest.
Given these facts, a reasonable person would not have considered the brief
questioning at the scene of the traffic stop to be a custodial interrogation. There was no
basis to suppress Schlatter’s statements. And once Schlatter made the statements, Anderson
was free to search the car under the automobile exception, and at all times, for officer safety.
For these reasons, the judgment of the district court is AFFIRMED.
