United States v. Martez Dickson , 849 F.3d 686 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1039
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTEZ DICKSON,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:14-cr-50061 — Philip G. Reinhard, Judge.
____________________
ARGUED NOVEMBER 16, 2016 — DECIDED FEBRUARY 27, 2017
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
PER CURIAM. Martez Dickson appeals his conviction for
being a felon in possession of a gun. 18 U.S.C. § 922(g)(1). He
argues that the district court erred by denying his motion to
suppress evidence and by imposing vague conditions of su-
pervised release. We find no error in the court’s evidentiary
ruling but agree with Dickson that two of his conditions of
supervision are problematic. Consequently, we affirm in
2 No. 16-1039
part, vacate in part, and remand for a limited resentencing
hearing.
In May 2014, three police officers in Rockford, Illinois, re-
sponded to a report that two individuals were asleep in a
parked car in a McDonald’s drive-thru. One of the officers
opened the driver’s-side door and tried to wake the slumber-
ing driver, who was later identified as Dickson. Once Dick-
son finally stirred, another officer observed a handgun
lodged in the center console of the front seat. That officer
lunged through the passenger’s-side door and recovered the
gun. Dickson was then arrested on various charges, includ-
ing unlawful use of a weapon by a felon, 720 ILCS 5/24-
1.1(a). An inventory search of the car uncovered small
amounts of heroin and marijuana.
The matter was referred to federal authorities, and Dick-
son was charged with being a felon in possession of a fire-
arm. 18 U.S.C. § 922(g)(1). Dickson then moved to suppress
the gun and drugs, arguing that the police had no lawful ba-
sis for searching him or the car.
The district court held a hearing on the motion to sup-
press evidence. The government first introduced a rental-car
agreement showing that the car had been rented to a woman
named Tyota Keeylen. The rental agreement did not list
Dickson as an authorized driver, but the parties stipulated
that Keeylen would testify that she told Dickson he could
drive the car. The government also introduced records
showing that Dickson’s driver’s license was suspended at
the time of his arrest.
At the evidentiary hearing, two of the three officers in-
volved in Dickson’s arrest testified. Officer Anthony Curran
No. 16-1039 3
testified that around 6:30 a.m. on a Saturday morning they
received a call about two individuals asleep in a car in a
McDonald’s drive-thru. Upon arriving at the restaurant,
Curran saw that the car was running, that Dickson and a fe-
male passenger were sitting motionless inside, and that there
was a bottle of vodka in the front seat’s center console. Sus-
pecting that Dickson was drunk, Curran opened the front
driver’s-side door, removed the keys from the ignition, and
placed the keys on top of the car. Curran explained that he
did this for safety reasons: he was squeezed in a three-foot
space between the car and the building, and he feared he
would be crushed if the car started to move.
After Curran took the keys from the ignition, he tried to
wake Dickson by yelling at him. Dickson did not respond, so
Curran started shaking him. About thirty seconds later,
Dickson finally woke up. Curran ordered him to get out of
the car, but Dickson responded by trying to shift the car into
drive. Nothing happened, of course, because Curran already
had removed the keys from the ignition.
Meanwhile, one of the other officers yelled out a police
code for a gun and dove through the front passenger’s-side
door, over the female passenger, pushing Dickson partially
out of the car toward Curran. Curran, spotting the handgun
lodged between the driver’s seat and the center console,
pulled Dickson out of the car while the other officers recov-
ered the gun. Curran then cuffed Dickson, searched him,
and placed him in a squad car. Further investigation re-
vealed that the gun was loaded and that Dickson did not
have a Firearm Owner’s Identification Card. The officers ar-
rested Dickson and impounded the car, and an inventory
search uncovered heroin and marijuana.
4 No. 16-1039
One of the other two officers also testified at the eviden-
tiary hearing, mostly repeating what Curran had said about
the events leading to Dickson’s arrest. Dickson presented no
evidence in rebuttal.
The district court denied Dickson’s motion to suppress
evidence of the gun and drugs. First, it found the govern-
ment’s witnesses credible. The court next concluded that
Dickson lacked standing to challenge the search of the car
because Dickson—as an unlicensed, unauthorized driver of
a rental car—did not have a reasonable expectation of priva-
cy in the car. The court also concluded that the officers acted
reasonably in confronting Dickson, seizing the gun when it
came into plain view, and arresting him once they learned
that his possession of the gun was unlawful. And once Dick-
son had been lawfully arrested, the court reasoned, the po-
lice also were entitled to impound and conduct an inventory
search of the car.
The case then proceeded to trial. The three officers testi-
fied about the events that occurred after they found Dickson
asleep in the drive-thru. Keeylen, who had not been present
during Dickson’s arrest, said that she rented the car to travel
Saturday but let Dickson borrow it Friday night to get some-
thing to eat. The female passenger who had been sleeping in
the car testified that Dickson agreed to give her a ride home
after a party and that she had not seen the gun until the po-
lice recovered it. Dickson again presented no evidence in re-
buttal.
The jury found Dickson guilty of being a felon in posses-
sion of a firearm, 18 U.S.C. § 922(g)(1). The district court then
classified Dickson as an armed career criminal, 18 U.S.C.
No. 16-1039 5
§ 924(e)(1); U.S.S.G. § 4B1.4, and sentenced him to 235
months’ imprisonment.
Dickson objected to several supervised-release conditions
that the district court imposed, but only two of those condi-
tions are relevant to this appeal. The first required that he
“remain within the jurisdiction where the defendant is being
supervised, unless granted permission to leave by the court
or a probation officer.” Dickson objected to this condition on
the basis that “jurisdiction” is vague. Dickson also objected
to a condition requiring him to “notify, as directed by the
Probation Officer, third parties of risks that may be occa-
sioned by the defendant’s criminal record or personal histo-
ry or characteristics and … permit the Probation Officer to
make such notifications and to confirm the defendant’s
compliance with such notification requirement.” Both Dick-
son and the government objected to this condition because it
would require him to determine independently when notifi-
cation was required. The district court overruled the objec-
tions.
In May 2016, about five months after Dickson was sen-
tenced, the judge who sentenced him, Judge Reinhard, is-
sued a standing order modifying previously imposed condi-
tions of supervised release for “defendants … sentenced but
not yet on supervised release.” STANDING ORDER,
https://goo.gl/9oY1Ok (visited February 3, 2017). Among the
conditions modified by the standing order were the two to
which Dickson previously had objected.
On appeal Dickson first argues that the district court
erred in denying his motion to suppress evidence of the gun
and drugs because the police did not discover that evidence
until after Dickson had been unlawfully seized. We review
6 No. 16-1039
de novo a district court’s denial of a motion to suppress but
analyze its underlying factual findings for clear error. United
States v. Whitaker, 820 F.3d 849, 852 (7th Cir. 2016).
As an initial matter, it is unclear why Dickson challenges
the denial of his motion to suppress the drug evidence dis-
covered during the inventory search of the car. As the gov-
ernment notes, no evidence of the drugs was introduced at
trial. Dickson says in his reply brief that suppressing the
drugs “ensures they won’t be the basis of any related prose-
cution.” But since the drugs do not bear on this case, we
need not decide whether the drug evidence—as opposed to
evidence of the gun—should have been suppressed.
The parties vigorously debate whether Dickson had any
reasonable expectation of privacy such that he has standing
even to challenge any unlawful search of the car. See United
States v. Sanford, 806 F.3d 954, 958 (7th Cir. 2015) (question-
ing whether to revisit United States v. Haywood, 324 F.3d 514,
515–16 (7th Cir. 2003), in which we concluded that unli-
censed, authorized driver of rental car lacked reasonable ex-
pectation of privacy). But that debate is not germane to this
appeal—regardless of whether Dickson had any reasonable
expectation of privacy in the car he surely can challenge any
search that resulted from an unlawful seizure of his person.
See Sanford, 806 F.3d at 958–59.
The government has not argued that the police officers
had probable cause to arrest Dickson for drunk driving
when they approached the car, arguing instead that they had
reasonable suspicion to detain Dickson under Terry v. Ohio,
392 U.S. 1 (1968). See Matz v. Klotka, 769 F.3d 517, 522 (7th
Cir. 2014). As Curran approached the car, he observed a bot-
tle of vodka and saw that Dickson had passed out behind the
No. 16-1039 7
wheel. Dickson all but concedes that it was reasonable in
these circumstances for Curran to investigate him for drunk
driving (and for having an open bottle of vodka) and to re-
move the keys from the ignition to ensure officer safety.
Dickson instead focuses on a peculiar Fourth Amend-
ment argument: because any safety concerns were “fully
abated” when Curran removed the keys from the ignition,
Dickson says, Curran unlawfully seized him by “entering
the car to shake Mr. Dickson awake for questioning.” But
Curran tried to shake Dickson awake only after “yelling” at
him failed to do so, and it is hard to see how Curran’s ac-
tions could be considered unreasonable under the circum-
stances. See United States v. Maher, 454 F.3d 13, 19 n.7 (1st Cir.
2006) (“Just because [a defendant] was so soundly asleep
(or unconscious) that [an officer] had to shake his arm to
wake him up does not mean he was ‘seized’ within the
meaning of the Fourth Amendment.”).
Moreover, even if the evidence from the car were unlaw-
fully obtained, it would be admissible under the inevitable
discovery doctrine. See United States v. Cartwright,
630 F.3d 610, 613 (7th Cir. 2010). Curran reasonably ordered
Dickson out of the car so he could investigate Dickson for
possibly driving drunk or having an open container of alco-
hol. Smith v. Ball State Univ., 295 F.3d 763, 770 (7th Cir. 2002).
Had Dickson complied with Curran’s order instead of trying
to drive away, the gun would have been visible to the offic-
ers once Dickson got out of the driver’s seat. Similarly, if
Curran had time to interrogate Dickson before the other of-
ficer spotted the gun, he would have quickly discovered that
Dickson did not have a valid driver’s license or the rental
company’s authorization to drive the car. And if Curran had
8 No. 16-1039
contacted the rental company, he likely would have been
asked to impound the vehicle, at which time the gun and
drugs would have been inevitably discovered. See Sanford,
806 F.3d at 959.
Turning to Dickson’s supervised release, we agree with
the parties that the conditions requiring him to remain in the
“jurisdiction” and notify third parties of unspecified “risks”
are impermissibly vague. United States v. Ortiz, 817 F.3d 553,
555 (7th Cir. 2016) (finding vague a condition requiring de-
fendant to remain within jurisdiction of supervision unless
granted permission to leave); United States v. Bickart, 825 F.3d
832, 841–42 (7th Cir. 2016) (same with third-party notifica-
tion requirement).
The question remains, however, how we should remedy
these problematic conditions. The government asserts that
remand is unnecessary because Judge Reinhard’s standing
order already has clarified any ambiguity in the conditions.
Yet Dickson may end up serving his supervised release in
another judicial district, so potential confusion can be avert-
ed by ensuring that the modified conditions are incorpo-
rated into a new judgment. On the other hand, we reject
Dickson’s suggestion that we should remand for a full resen-
tencing hearing. As we explained in United States v. Anglin,
No. 15-3625, 2017 WL 359666, at *12 (7th Cir. Jan. 25, 2017),
“[w]e do not think it plausible that orally pronouncing the
conditions and slightly modifying some of them would in-
duce the district judge to reconfigure other aspects of the
sentence, particularly the imprisonment term.”
Accordingly, we AFFIRM in part, VACATE in part, and
REMAND for the limited purpose of amending the condi-
tions of supervision.