United States v. Johnnie Collins ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3317
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHNNIE C. C OLLINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:11-CR-58-TLS—Theresa L. Springmann, Judge.
A RGUED M ARCH 6, 2013—D ECIDED A PRIL 18, 2013
Before M ANION, W OOD , and S YKES, Circuit Judges.
P ER C URIAM. Johnnie Collins fled police officers by
car and then by foot after he was stopped for speeding.
An officer kicked Collins repeatedly and dosed him
with pepper spray, but Collins did not stop resisting
until another officer deployed his Taser. Afterward, the
officers discovered a bag containing crack and powder
cocaine that Collins had discarded during the foot
chase, as well as a wad of cash in his pocket. After Collins
2 No. 12-3317
was charged with possession of crack and powder
cocaine with intent to distribute, he moved to suppress
the drugs and money on the principal ground that they
were obtained through the use of excessive force. The
district court denied the motion to suppress, explaining
that under United States v. Watson, 558 F.3d 702, 705
(7th Cir. 2009), the use of excessive force during an
arrest is not a basis for suppressing evidence. Moreover,
the court reasoned, the drugs and money were not
seized as a result of the alleged use of excessive force.
On appeal Collins challenges this ruling, specifically
arguing that we should overturn Watson. We reject his
arguments and affirm the judgment.
I. Background
The following account is drawn from the testimony of
three Fort Wayne, Indiana police officers who testified
at the hearing on Collins’s motion to suppress. Collins
did not introduce any evidence.
The discovery of the drugs and money was set in
motion when Officer Stephen Ealing stopped Collins
for speeding. Collins stepped out of his car, and when
Ealing instructed him to get back inside, Collins sped
away through red lights and stop signs in a residential
neighborhood. Ealing gave chase but his lieutenant even-
tually ordered him to abandon his pursuit. At about
the same time, Collins crashed into a stop sign. Collins
then ran from the scene and, within a few seconds,
threw a small bag into the bushes. Ealing pursued
Collins on foot, and Collins repeatedly disregarded the
officer’s instructions to stop.
No. 12-3317 3
When Ealing finally caught up to him, Collins con-
tinued to resist. Trying to subdue him, Ealing elbowed
him in the neck and back. Collins still did not submit,
so Ealing discharged pepper spray in his face. A fight
ensued; Collins swung at Ealing, who responded with
more pepper spray and repeated kicks to the stomach
and groin. Collins still resisted, ignoring commands to
get on the ground.
At that point Officer Kenneth Johnson arrived and
saw Collins fighting with Officer Ealing. Johnson an-
nounced that he possessed a Taser, but Collins would
not surrender and get on the ground. Johnson then de-
ployed the Taser, and Collins fell to the ground but
still refused to put his hands behind his back. Only
after Johnson deployed the Taser again were the officers
able to gain control over Collins and handcuff him.
After the arrest the police officers retrieved the bag
that Collins had thrown into the bushes during the
foot chase. A field test was positive for cocaine, and
later analysis would confirm that the bag contained
28.8 grams of powder cocaine and 44.8 grams of crack.
The arresting officers searched Collins and discovered
the money. Medics on the scene determined that
Collins’s vital signs were normal, and hospital staff
later gave him a tetanus shot as a precaution.
Collins was indicted on one count of possession of
crack with intent to distribute and one count of posses-
sion of powder cocaine with intent to distribute. He
moved to suppress the drugs and money on the theory
that this evidence was discovered only after he was
4 No. 12-3317
arrested through the use of excessive force. The
district court denied the motion. Citing Watson, the
court noted that the use of excessive force in making an
arrest cannot be remedied by suppression of evidence.
And even if suppression was an available remedy,
the court continued, Collins would not be entitled to
relief because he discarded the drugs before any force
was applied and the money would have been seized
during a search incident to arrest, negating any causal
connection between the discovery of evidence and the
use of force.
Collins later entered a conditional plea of guilty, re-
serving the right to challenge the suppression ruling
on appeal. He was sentenced to 70 months’ imprisonment.
II. Analysis
On appeal Collins argues, through appointed counsel,
that we should overrule Watson. Collins also filed a pro se
brief in which he asserts that his former counsel was
ineffective. According to Collins, the lawyer did not
adequately present his contention that the police lacked
probable cause to arrest him. That contention is not
preserved by Collins’s conditional guilty plea and, more-
over, is foreclosed by the appellate waiver in his plea
agreement.
Moving to the main claim on appeal, Collins concedes
that his disagreement with Watson gets him nowhere
unless there is a “causal nexus” between the use of force
and the discovery of the drugs and money. He also ac-
No. 12-3317 5
knowledges the district court’s conclusion that no
causal connection exists because the drugs were aban-
doned before any force was applied and the money
would have been discovered during a search incident
to arrest. The flaw in the district court’s reasoning,
he argues, is in identifying “when the excessive force
began.” Relying on Clark v. Thomas, 505 F. Supp. 2d 884(D. Kan. 2007), Collins insists that Officer Ealing
subjected him to the use of force—indeed, excessive
force—merely by giving chase on foot after the dis-
patcher had said to abandon the vehicular pursuit.
That theory is meritless, and without it Collins has
no answer to the district court’s causation analysis. A
claim that excessive force was used by the police against
a citizen is analyzed under the Fourth Amendment’s
prohibition of unreasonable seizures of the person, see
Graham v. Connor, 490 U.S. 386, 394-95 (1989); Marion v.
City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir. 2009), and
Collins had not yet been seized at the point when he
abandoned his drugs by tossing the bag into the bushes.
No seizure occurs until force is applied or the suspect
submits to the officer, and the moment of seizure does
not relate back to an initial show of authority that was
ignored. California v. Hodari D., 499 U.S. 621, 625-26
(1991); United States v. Griffin, 652 F.3d 793, 798, 800-01
(7th Cir. 2011), cert. denied, 132 S. Ct. 1124 (2012);
Marion, 559 F.3d at 705. And Clark v. Thomas lends no
help to Collins; that civil case was not about the
exclusionary rule, and all it stands for is the unremark-
able proposition that using a police car moving at high
speed as a means of stopping an unarmed suspect who
6 No. 12-3317
is fleeing on foot raises a question of fact about the rea-
sonableness of the force employed. See 505 F. Supp. 2d
at 895-97. In fact, in addressing the plaintiff’s Fourth
Amendment claim, the court in that case assigned no
significance to the fact that the officer had disregarded
an instruction to abandon the car chase before he
struck the plaintiff; the decision concerns the constitu-
tional ramifications of striking the plaintiff, not chasing
him. See id. at 895. Finally, it does not matter that Collins
was seized previously during the brief traffic stop; “[a]
seizure is a single act, and not a continuous fact,”
Hodari D., 499 U.S. at 625, and the minute Collins fled
from the scene of the traffic stop that brief period of
custody ended, see United States v. Baldwin, 496 F.3d
215, 218 (2d Cir. 2007); United States v. Washington, 12
F.3d 1128, 1132 (D.C. Cir. 1994).
In any event, the reasons Collins offers for revisiting
Watson are unpersuasive. In Watson we noted that the
exclusionary rule does not apply to every Fourth Amend-
ment violation and concluded that evidence legally
seized should not be suppressed based on the use of
excessive force collateral to that seizure. 558 F.3d at 705.
As support we cited Hudson v. Michigan, 547 U.S. 586,
598 (2006), which holds that exclusion is not an appro-
priate remedy for violations of the knock-and-announce
rule, and United States v. Ramirez, 523 U.S. 65, 71
(1998), similarly rejecting the exclusionary rule as a
remedy for “excessive or unnecessary destruction of
property in the course of a search.” We also reasoned
that a suit for damages is the better remedy to address
excessive force because a civil action is “better calibrated
No. 12-3317 7
to the actual harm done the defendant” than exclusion,
which can impose great social costs. Watson, 558 F.3d
at 705.
Collins insists that Watson is a minority position and
that we should align ourselves with what he describes
as the “judicial mainstream” represented by decisions
in other circuits. But he is wrong in asserting that this
circuit “stands alone in its absolute prohibition
against the suppression of evidence seized as a result
of excessive force.” After Watson there has been no
appellate decision holding that the exclusionary rule
can serve as a remedy for excessive force collateral to
a search or seizure. Collins cites only one case decided
after Watson, but that decision, United States v. Edwards,
666 F.3d 877 (4th Cir. 2011), does not undermine Watson.
Edwards vacated a district court’s refusal to sup-
press evidence obtained through an unreasonable
strip search of the defendant. 666 F.3d at 887. Thus,
Edwards deals with an unreasonable seizure rather
than excessive force collateral to a seizure. The three
other decisions he cites predate Watson: United States
v. Ankeny, 502 F.3d 829 (9th Cir. 2007); United States v.
Green, 25 F.3d 1058, No. 93-1284, 1994 WL 201105 (10th
Cir. May 17, 1994) (unpublished table decision); and
United States v. Caldwell, 750 F.2d 341 (5th Cir. 1984). We
explicitly addressed Ankeny in Watson. See Watson, 558
F.3d at 705. If there has been a pattern developing
in other circuits on this issue, that pattern has been to
implicitly agree with Watson. See United States v. Garcia-
Hernandez, 659 F.3d 108, 113-14 (1st Cir. 2011) (rejecting
claim that use of excessive force in executing search
8 No. 12-3317
warrant can provide basis for suppressing evidence
seized during search); United States v. Morales, 385
F. App’x 165, 167 (3d Cir. 2010) (citing Watson in re-
jecting claim that excessive force used to effect Terry
stop provided basis to suppress gun found during that
stop). And this court has continued to follow Watson’s
holding. See Gutierrez-Berdin v. Holder, 618 F.3d 647, 652
(7th Cir. 2010); Evans v. Poskon, 603 F.3d 362, 364 (7th
Cir. 2010).
Moreover, no opinion cited by Collins holds that the
use of excessive force in conducting search or seizure
requires suppression of the evidence seized. The
decisions included in his brief suggest that possibility
in dicta, but that is all. The Ninth Circuit never had to
decide the issue in Ankeny because the court concluded
there was no “causal nexus” between the evidence and
the alleged excessive force. 502 F.3d at 837. Although
the court noted that the “extent of the property damage”
and the defendant’s injury “weigh in favor of a conclu-
sion of unreasonableness,” id. at 836-37, nowhere does
the court suggest it would have suppressed the evi-
dence had it found that there was a causal connection
between the evidence and the officers’ use of force. To
the contrary, the court discusses Ramirez and Hudson
in noting that not every Fourth Amendment violation
is remedied by exclusion. Id. at 835, 837. In Caldwell
the Fifth Circuit similarly concluded that the evidence
the defendant sought to have suppressed was not the
fruit of any alleged unreasonable search and thus
refused to address the constitutionality of the search,
let alone whether exclusion would have been appro-
No. 12-3317 9
priate. 750 F.2d at 343. Neither did the Tenth Circuit
reach the issue in Green because the court concluded
that the defendant had not demonstrated that the
officers used excessive force when they activated a “flash-
bang” diversionary device in executing a search war-
rant. 1994 WL 201105, at *5.
What remains is the contention that the Watson
panel wrongly concluded that civil remedies are ade-
quate to the use of excessive force by police. Collins
has nothing new to say on the subject; he simply
disagrees with how the case was decided, but that
is not a sound reason for overturning the decision.
See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
864 (1992); United States v. Mitchell, 635 F.3d 990, 993
(7th Cir.), cert. denied, 132 S. Ct. 257 (2011); Tate v.
Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th
Cir. 2005).
A FFIRMED.
4-18-13