United States v. Christopher Radford ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 21-1715
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER RADFORD,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cr-00395-TWP-DLP-4 — Tanya Walton Pratt, Chief Judge.
SUBMITTED JANUARY 20, 2022* — DECIDED JUNE 30, 2022
Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. Christopher Radford pled guilty to
one count of possession with intent to distribute a controlled
*
On January 6, 2022, we granted the parties’ joint motion to waive oral
argument. Thus, the appeal is submitted on the briefs and record. Fed. R.
App. P. 34(f); Cir. R. 34(e).
2 No. 21-1715
substance, in violation of 21 U.S.C. § 841(a)(1). As part of his
plea agreement, he retained his right to appeal the denial of his
motion to suppress in which he challenged a traffic stop and
accompanying search of his person. We affirm.
I.
On November 19, 2018, the Drug Enforcement Agency
(“DEA”) was conducting surveillance on a suspected drug
house in the vicinity of Indianapolis, Indiana. Detective John
Maples, a fifteen-year veteran of the nearby Brownsburg Police
Department and an officer for the United Drug Task Force, was
assisting the DEA that day. As a member of the task force,
Maples often conducted traffic stops to investigate drug
trafficking on routes that passed through the Brownsburg area.
Maples estimated that, throughout his career, he had con-
ducted hundreds and perhaps thousands of traffic stops.
At approximately 2:15 p.m. on that day, Maples was
monitoring traffic on Rockville Road when DEA agents at the
surveillance site reported that a white Audi had just departed
from the suspected drug house and was heading towards
Rockville Road. Surveillance units followed the Audi and
watched it enter and leave a strip mall parking lot without
stopping to park. The car then proceeded onto Rockville Road
and Maples began to monitor it for possible traffic violations.
From his position in an LA Fitness parking lot on the north
side of Rockville Road, Maples observed the Audi pass him at
approximately 40 to 45 miles per hour, following the car in
front of it by less than a car length. He decided to pull the
driver of the Audi over for the infraction of following too
closely, in violation of Ind. Code § 9-21-8-14. Maples pulled
No. 21-1715 3
into traffic and once he was able to maneuver behind the Audi,
he activated his flashing lights and followed the Audi into the
parking lot of a PNC Bank. The Audi pulled into a parking
spot at the bank and Maples stopped behind the Audi, block-
ing it from behind.
As Maples approached the Audi on the driver’s side of the
car, he noticed the driver making “quick and furtive move-
ments with his hands” in the right side of the driver’s seat. As
the driver turned to exit the car, he appeared startled that
Maples was standing at his door. When the driver, the defen-
dant Christopher Radford, began to open the door, Maples
pulled the door open from the outside and saw Radford reach
for a cell phone. Maples directed him to place the phone on the
dashboard and exit the vehicle. Radford did not initially
comply but reached for a second phone. Maples again directed
Radford to place the phones on the dashboard and exit the car.
Radford then complied.
As Radford exited the car, he reached for his belt area and
continued making quick movements with his hands while
holding his left arm close to his body. After Radford reached
towards his beltline with his left hand, Maples commenced a
pat-down search which we will describe more completely
below. During the search, Maples saw a vacuum-sealed plastic
bag in Radford’s left inner pocket that Maples believed
contained heroin. With the assistance of another officer, Maples
then handcuffed Radford and continued to search him,
removing the bag from Radford’s pocket. The officers then
checked Radford’s license status and whether he had any
outstanding warrants. Minutes after Radford was taken into
custody, Maples learned that there was an outstanding
4 No. 21-1715
warrant for Radford’s arrest based on charges for operating a
vehicle after a lifetime suspension of his license. Maples also
learned that Radford was listed as a habitual traffic violator,1
and had a prior felony conviction related to narcotics. A brief
inventory search of the Audi revealed a small caliber revolver
in the cargo compartment of the driver’s side door.
The substance in the vacuum-sealed plastic bag turned out
to be fentanyl rather than heroin, and Radford was charged
with possession with intent to deliver a controlled substance,
in violation of 21 U.S.C. § 841(a)(1). Radford moved to sup-
press the evidence obtained at the traffic stop. He contended
that, on the day he was stopped, he was driving under the
speed limit, was operating his vehicle in a safe manner and did
not commit any traffic violations. In an affidavit that accompa-
nied his motion to suppress, he averred that he never followed
any vehicle by less than a car length. Radford also asserted in
his motion that the officer’s view would have been obstructed
by businesses and a tree line given his claimed position in an
LA Fitness parking lot on Rockville Road. He also pointed out
that there were no traffic violations recorded during any part
of Maples’ video of the incident. Radford argued that the stop
and subsequent search both violated the Fourth Amendment
1
Ind. Code § 9-30-10-4 sets forth the criteria for drivers to be adjudged
habitual violators of the traffic laws, and Ind. Code § 9-30-10-5 provides for
various periods of license suspension depending on the underlying traffic
offenses. The public docket of the Boone County Superior Court shows that
Radford eventually pled guilty to the lesser charge of driving on a
suspended license. Case No. 06D02-1207-FC-000433, in Boone Superior
Court 2. Available at https://www.in.gov/courts/local/boone-county/ (last
visited June 16, 2022).
No. 21-1715 5
because he had not committed any traffic violation and because
Maples’ search of his person was not justified by any exigent
circumstances, except those created by Maples’ own actions.
The government responded that a hearing was necessary in
order for the court to make a credibility determination between
Radford’s version of the incident and that of Detective Maples,
who had also provided affidavits describing the circumstances
of the stop. The government argued that the evidence would
show that the officer had probable cause to stop the Audi for
following too closely, and that Maples had a reasonable
suspicion that Radford was armed based on the reports of
other officers and on Radford’s actions during the stop. The
government also contended that the controlled substance was
properly seized because it was in plain view in Radford’s
pocket during the frisk and the incriminating nature of the
package was immediately apparent to the experienced officer.
Radford filed no reply to the government’s brief.
The court subsequently held a hearing at which both
Maples and Radford testified. Maples explained that he had
moved into the exit lane of the LA Fitness parking lot on being
notified by the officers surveilling the drug house that the
white Audi was approaching. Maples affirmed that a photo-
graph of the scene represented an accurate picture of the
placement of his car in the exit lane, close to and facing
Rockville Road when the white Audi passed him, making plain
that he had a clear and unobstructed sight line to traffic on
Rockville Road. Maples testified that prior to the stop, he had
been informed that the white Audi had driven evasively, and
entered and exited a parking lot without stopping or parking.
In his experience, this was a tactic practiced by persons in the
6 No. 21-1715
drug trade to check if anyone is following them, contributing
to his suspicions about the driver of the Audi.
Maples testified that he saw the Audi traveling approxi-
mately 40 to 45 miles per hour, and less than a car length away
from the car in front of it at the time it passed his position. He
testified that a safe distance is approximately one car length for
every ten miles per hour of speed, so that at 40 to 45 miles per
hour, the Audi should have allowed four to five car lengths
behind the vehicle it trailed. Maples decided to stop the car for
following too closely under Ind. Code § 9-21-8-14, which
would allow him to determine whether the driver was prop-
erly licensed, whether the vehicle was properly licensed and
whether there were any outstanding warrants on the driver.
Maples explained that on the day of the stop, he was using
a new video system that he had not previously employed. The
system was designed to begin recording when the officer
activates the police car’s flashing lights, which Maples did not
do until he was on Rockville Road and positioned behind the
white Audi, after he observed the infraction. The system then
kept a recording from one minute prior to activation of the
lights and continued recording going forward. Maples also
explained his escalating concern with Radford’s movements
from the moment he approached the car until Radford was
handcuffed. Among the factors that raised his level of concern
for safety, he testified that Radford first appeared startled to
see the officer, that Radford did not put down his phone when
directed to do so, and that he then reached for a second phone.
Maples explained that this indicated to him that Radford might
have something on the phone that he wished to conceal. Once
out of the car, Radford moved his hands towards his beltline,
No. 21-1715 7
an area where a gun might be stowed, and held his left arm
tightly close to his body, leading Maples to be concerned that
Radford had a weapon hidden on the left side.
Maples testified that during the search, Radford turned
towards him in such a way that his jacket fell open, and Maples
looked directly down into the jacket where he saw a vacuum-
sealed plastic bag containing what he believed to be heroin
based on his law enforcement training and experience. He
testified that vacuum sealing is used for dealer-sized quantities
of certain drugs, including heroin. Maples confirmed that he
did not manipulate the jacket in any way to see the bag, but
rather that the jacket fell open through Radford’s movements
during the search. He described the package as “sticking out of
an inside pocket on the left side” of the jacket.
Radford testified that he first drove east on Rockville Road
and through a parking lot without stopping because he was
looking for a Chinese restaurant. When he did not see one, he
left the lot and proceeded west on Rockville because he needed
to go to the bank. He testified that, at the moment he passed
the LA Fitness parking lot, he was traveling at most 30 miles
per hour because he had just taken off from a red light at the
intersection where Maples was stationed and he did not have
sufficient time to accelerate to 45 miles per hour. He denied
that he ever followed a car on Rockville Road by less than the
length of a car, and he denied that he was operating the vehicle
in a dangerous manner. He affirmed on cross-examination that
he was stopped at a red light at the intersection where Maples
claimed to see him pass at 40 to 45 miles per hour, and asserted
that Maples’ testimony that Radford had a green light was
inaccurate. Radford asserted that Maples physically pulled him
8 No. 21-1715
from the car despite the video evidence showing that Radford
exited the car under his own power. He also denied that he
held his left arm against his body after exiting the car, claiming
that he put both arms in the air for the pat-down search, again
despite video evidence to the contrary. After asserting that he
drove safely that day and considered himself a safe driver, the
government questioned him regarding fifteen prior occasions
when he had been pulled over and charged with a traffic
offense, and he confirmed that he did recall being pulled over
in his “younger years.” He also claimed that, despite his
extensive experience in being pulled over, he was unaware that
Maples was pulling him over that day until Maples appeared
at his car door.
The court entertained argument from counsel after the
testimony. The government added only that whether Radford
was aware that Maples had pulled him over had no bearing on
Maples’ observations of Radford’s furtive movements in the
car that contributed to the officer’s reasonable suspicion that
Radford was armed, justifying the pat-down search. Defense
counsel argued only that the stop was pretextual and that the
government had failed to meet its burden of showing that
Radford had violated any traffic laws, emphasizing that
Maples failed to catch the alleged infraction on the video
recording. The court noted that “what it’s going to come down
to is a credibility determination.” R. 190, at 75.
In a written ruling, the court denied the motion to suppress.
United States v. Radford, 2019 WL 6682172 (S.D. Ind. Dec. 3,
2019). In its findings of fact, the court credited Radford’s claim
that he was not aware that he was being stopped by a police
officer and was surprised to find Maples at the door of his car.
No. 21-1715 9
In every other respect, the court adopted Maples’ version of
the stop as we have recounted it. In addition, the court found
that the suspected heroin tested positive for fentanyl, a search
of the vehicle turned up a gun in the driver’s side door, and
Maples learned that there was an outstanding warrant for
Radford on the charge of operating a vehicle as a lifetime
habitual traffic violator.
The court then rejected Radford’s arguments that Maples
lacked probable cause to make the traffic stop, and found that
the subsequent search of Radford’s person was supported by
reasonable suspicion. Responding to the arguments that
Radford made in his motion to suppress, the court found that
Maples had a credible explanation for the lack of video of the
traffic infraction itself and that photo exhibits demonstrated
that Maples did have a clear sight line to traffic on Rockville
Road. In judging the credibility of Radford’s claim that he had
not committed any traffic infraction, the court noted that
Radford had previously been pulled over fifteen times between
2003 and 2012, and had been charged with a criminal traffic
offense on each occasion. The court also noted that it was
reasonable to believe that an experienced officer like Maples
had waited until he observed a traffic infraction before effect-
ing a stop, and that it is not uncommon for motorists to follow
the car ahead of them by less than a car length. All in all, the
court found that the government proved by a preponderance
of the evidence that Maples observed Radford commit a traffic
infraction before stopping him that day. The court also found
that the pat-down search of Radford was justified by reason-
able suspicion that Radford was armed because Maples had
been informed by other officers that Radford had just departed
10 No. 21-1715
a suspected drug house; Radford made quick movements with
his hands and his phones as he emerged from the car; Radford
appeared very nervous and was at times non-compliant with
Maples’ directives; Radford kept his left arm tensed with his
hand near his beltline; and Radford repeatedly reached for his
belt area where guns are commonly kept. Finally, the court
concluded that the package was recovered not as a direct result
of the pat-down search but because Maples saw the package in
plain view when Radford turned toward him, and the criminal
nature of the vacuum-sealed package was immediately
apparent to Maples. The court therefore denied the motion to
suppress. Radford appeals.
II.
On appeal, Radford contends that the stop was not sup-
ported by probable cause because the government failed to
satisfy its burden of proof and the court used an inappropriate
and unreasonable methodology in reaching its credibility
finding. Radford also asserts that Maples conducted a “re-
peated” frisk that continued long after a reasonable officer
would have concluded that Radford was not armed, and the
search transformed into an arrest without probable cause once
Radford was handcuffed. Finally, Radford asserts that the
vacuum-sealed package was not in plain view and its criminal
nature was not immediately apparent. In considering a district
court’s decision on a motion to suppress, we review findings
of fact for clear error and questions of law de novo. United States
v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014); United States v.
Garcia–Garcia, 633 F.3d 608, 612 (7th Cir. 2011). See also Ornelas
v. United States, 517 U.S. 690, 699 (1996) (“[A]s a general matter
determinations of reasonable suspicion and probable cause
No. 21-1715 11
should be reviewed de novo on appeal. … [A] reviewing court
should … review findings of historical fact only for clear
error[.]”). The prosecution bears the burden of proving by a
preponderance of the evidence that a warrantless stop is
supported by probable cause. Peters, 743 F.3d at 1116; Gar-
cia–Garcia, 633 F.3d at 612. When a police officer reasonably
believes that a driver has committed even a minor traffic
offense, probable cause supports the stop. Whren v. United
States, 517 U.S. 806, 819 (1996); Peters, 743 F.3d at 1116.2 An
officer making a traffic stop may “perform a ‘patdown’ of a
driver and any passengers upon reasonable suspicion that they
may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113,
117–18 (1998) (citing Terry v. Ohio, 392 U.S. 1 (1968)). We would
normally review the “plain view” seizure of contraband as we
would any other part of the motion to suppress but in the
district court, Radford relied entirely on the validity of the stop
and the pat-down search in asserting that the physical evidence
of the vacuum-sealed package should be suppressed; he
presented no evidence or argument in support of his claim
now that the officer “manipulated” Radford in order to make
the package visible, and that the incriminating nature of the
package was not immediately apparent. Radford also failed to
raise any claim in the district court that the use of handcuffs
transformed the pat-down into an arrest lacking probable
2
On appeal, the government seeks to justify the stop using the reasonable
suspicion standard rather than probable cause. Because the government
relied solely on probable cause in the district court, we employ that
standard here. Obviously, a stop that meets the more exacting standard for
probable cause will also meet the criteria for reasonable suspicion.
12 No. 21-1715
cause. We will therefore review those claims for plain error
only.
A.
We begin with the stop itself and with the credibility
determination that formed the basis for the district court’s
ruling. According to Radford, the court made a “methodology”
error in assessing the credibility question and we should
therefore review that decision de novo rather than for clear
error. In particular, he first contends that the district court
confused issues of historic fact with the ultimate fact and
simply chose between Maples’ and Radford’s assessments of
the ultimate fact of whether he had committed the offense of
following too closely:
The principal components of a determination of
reasonable suspicion or probable cause will be the
events which occurred leading up to the stop or
search, and then the decision whether these histori-
cal facts, viewed from the standpoint of an objec-
tively reasonable police officer, amount to reason-
able suspicion or to probable cause. The first part of
the analysis involves only a determination of histori-
cal facts, but the second is a mixed question of law
and fact[.]
Ornelas, 517 U.S. at 696–97.
A review of the district court’s order demonstrates that the
court made no such mistake. In the section of its opinion
setting forth its findings of fact, the court made the appropriate
findings of historical fact by crediting Maples’ testimony that
No. 21-1715 13
he saw the white Audi pass his location at 40 to 45 miles per
hour while traveling less than a car length behind the car in
front of it. Radford, 2019 WL 6682172, at *1. In assessing Maples’
credibility, the court specifically addressed Radford’s argu-
ments: that Maples did not have a clear line of sight to traffic,
and that no infraction was recorded on the video of the stop.
The court found that the photographic evidence supported
Maples’ claim that he did have a direct view of the Audi as it
passed, and found that Maples supplied a credible explanation
regarding the lack of video evidence due to the operation of
the new video equipment (which did not begin recording until
Maples activated his flashing lights). The Audi’s speed, the
distance between the cars, the sight line, and the operation of
the video camera are all historical facts underlying the credibil-
ity and probable cause determinations, and the court’s rejection
of the challenge to Maples’ credibility in finding these facts was
not based on any legal or “methodology” error.
As for judging the credibility of Radford’s assertions that he
never exceeded 30 miles per hour, never followed a car by less
than a car length and did not commit any traffic infractions, the
court considered Radford’s alarmingly extensive history of bad
driving. In its findings of fact, the court noted that a warrant
check for Radford had revealed an outstanding warrant for
driving on a permanently suspended license. The evidence that
Radford had received fifteen citations in ten years was cer-
tainly relevant to assessing whether Radford was accurately or
credibly judging his speed at the moment he passed Maples or
correctly assessing the distance between his car and the car he
trailed. We agree with Radford that his personal assessment of
whether he committed any traffic infraction was irrelevant to
14 No. 21-1715
the ultimate question of whether a reasonable officer could
conclude that he violated the Indiana statute, but we can
certainly understand why the district court scoffed at his claim,
especially in light of Radford’s status as a habitual traffic
violator with an outstanding warrant for driving on a perma-
nently suspended license. Because his license was suspended,
any driving Radford did that day would have constituted a
traffic infraction, even though Maples did not know that until
after the stop was effected and the warrant check was com-
pleted. In any case, the court did make appropriate findings of
historical fact to support the ultimate conclusion that a reason-
able officer would find that Radford committed the infraction
of following too closely.3
3
The district court made two stray remarks that were not relevant to its
assessment of Radford’s credibility: that it is reasonable to believe that
officers are trained to wait for a traffic violation before making a stop, and
that it is not uncommon for motorists to follow the car ahead of them by
less than a car length. Although both statements are arguably true, they
have no relevance to the question of whether Maples followed his training
on this day, or whether Radford was less than a car length away from the
car ahead of him on this occasion. Our review of the record as a whole
convinces us that the court did not rely on these observations in making its
findings. The court made clear that it was aware this was a credibility
contest between two versions of the material facts, namely the speed of the
Audi and the distance between the Audi and the car ahead. R. 190, at 75;
Radford, 2019 WL 6682172, at *2. The court’s credibility finding for Maples
appropriately rested on his convincing testimony regarding the operation
of the video equipment, and the photographic evidence corroborating his
claim of a clear sight line. The record, including the video, supplies plenty
of evidence supporting the court’s credibility findings.
No. 21-1715 15
Radford also asserts that the court applied the wrong legal
standard to the ultimate question of whether he had committed
the offense of following too closely. Indiana law provides, that
“[a] person who drives a motor vehicle may not follow another
vehicle more closely than is reasonable and prudent, having
due regard for the speed of both vehicles, the time interval
between vehicles, and the condition of the highway.” Ind.
Code § 9-21-8-14. Radford cites our opinion in Peters as
controlling the question of whether a driver is violating the
Indiana statute. According to Radford, we reaffirmed there
that “in assessing whether a vehicle is following another more
closely than is reasonable and prudent under Indiana law, the
‘use of the ‘two-second rule’ as a guide for reasonableness
comports with Indiana law.’” Peters, 743 F.3d at 1116 (quoting
United States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005)).
Radford complains that the district court failed to employ the
Peters standard and that the record therefore lacked any
evidence regarding the amount of time Radford required to
avoid a collision, which is the purpose of the statute. But we
also made clear in Peters that, although the two-second rule
was a useful measure of reasonableness for the purposes of the
statute, there is no clear error in a court crediting the truthful
testimony of an experienced officer’s visual estimate of the
speed of a car or the distance between two cars. 743 F.3d at
1117 (although an officer can check a car’s speed with radar,
compare the car’s speed with that of his own vehicle, or count
the seconds to judge the distance between two vehicles, “none
of those things [are] necessary for the court to credit … truthful
testimony that … an experienced police officer … judged the
distance to be too short for cars moving so quickly”). We also
16 No. 21-1715
noted in Peters that, “[i]f an officer knowing these facts could
reasonably conclude that this combination of speed and
distance violated Indiana law, that is all that is necessary to
support probable cause.” 743 F.3d at 1117. This is not a close
case: Maples credibly testified to the court’s satisfaction that
the Audi was traveling 40 to 45 miles per hour and was less
than a car length from the car ahead of it. Any reasonable
officer could easily conclude without any other information
that this amounted to following “more closely than is reason-
able and prudent” in violation of the statute. There was no
error in the court’s conclusion that the government met its
burden of establishing probable cause for the stop of the Audi.
B.
Radford next complains that the frisk, which he now
characterizes as two separate frisks, continued long after a
reasonable officer would have concluded that Radford was not
armed. According to Radford, after a reasonable officer would
have ended the protective pat-down, the officer instead
continued and pursued an object in Radford’s pocket that the
officer did not believe to be a weapon. Radford also objects to
the officers’ use of handcuffs during the pat-down, characteriz-
ing the move as an arrest lacking probable cause. Finally, he
contends that the district court erred in holding that Maples
permissibly discovered the package under the plain-view
doctrine, contending both that the object was not in plain view
and that its incriminating nature was not immediately appar-
ent.
We begin by noting that Radford no longer appears to
object to the officer’s decision to conduct a frisk in this case,
No. 21-1715 17
and nor could he plausibly claim that the officer lacked
reasonable suspicion that he was armed and dangerous. In the
course of a traffic stop, an officer is justified in conducting a
limited search for weapons if the officer reasonably concludes
that the person who has been legitimately stopped might be
armed and presently dangerous. Pennsylvania v. Mimms, 434
U.S. 106, 111–12 (1977). At the time Maples stopped the car, he
knew that it had just come from a house being monitored by
the DEA as a drug house and had engaged in a driving pattern
consistent with evading detection. After the stop, Radford
immediately behaved in a manner that would have alarmed
any police officer. He failed to follow a directive to put down
his phone, reached for a second phone after that directive,
made quick movements with his hands while he was still in the
car and after he exited, reached for his waistband more than
once, and held his left arm stiffly and close to his side as if
hiding something on that part of his body. The district court
characterized Radford’s behavior as “nervous and at times
noncompliant.” As Maples tried to gain control of the situation,
Radford never stopped moving, even as Maples told him that
his movements were making the officer nervous. The indica-
tions from DEA surveillance that Radford might be involved
in drug dealing, his nervous behavior and alarming move-
ments, and his failure to comply with the officer’s directives all
justified the officer’s decision to search for weapons. See United
States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999). In this appeal,
it is not the frisk itself to which Radford objects but the scope
of the frisk, which he contends led to the discovery of the
package inside his jacket.
18 No. 21-1715
Before we directly address this claim, we note that in the
regular course of the traffic stop check on Radford’s driver’s
license (which was complicated by his inability to produce the
license on request) and the check for outstanding warrants,
Maples learned that there was an outstanding warrant for
Radford’s arrest for a previous charge of driving on a perma-
nently suspended license. Absent anything else that they found
that day, that warrant supplied the officers with all the
probable cause they needed to take Radford into custody and
search both his person and his car incident to that arrest. Thus,
the discovery of the fentanyl in Radford’s jacket and the
handgun in the pocket of the driver’s door would have been
inevitable. The government says nothing about this straight-
forward, alternative rationale for upholding the seizure of the
drugs and did not raise an inevitable discovery argument in
the district court, forfeiting the issue on appeal. See United
States v. Edwards, 34 F.4th 570, 583 (7th Cir. 2022). We are not
bound by the government’s view, and we may affirm the
district court’s decision on any ground supported by the
record. Edwards, 34 F.4th at 583–84. We may base our decision
on a forfeited ground when the record presents an exceptional
case. Edwards, 34 F.4th at 584. This is not an exceptional case,
but in light of Radford’s forfeiture of some of the issues he
argues on appeal, this alternative ground will inform our
analysis, as we explain below.
In his motion to suppress, Radford relied almost entirely on
the legitimacy of the traffic stop in arguing that the evidence
seized during the stop should be suppressed. We have re-
solved that issue against Radford. As for the excessive scope of
the pat-down search, the use of handcuffs during the pat-
No. 21-1715 19
down, and the challenge to the district court’s finding that the
package of drugs was appropriately seized under the plain
view doctrine, Radford raised none of these arguments before
the district court and the government urges us to review them
for plain error only. Government’s Brief, at 19, 28–29. We
accept the government’s characterization of these issues as
forfeited and we review them for plain error only. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731 (1993)
(Rule 52(b) “provides a court of appeals a limited power to
correct errors that were forfeited because not timely raised in
district court”). To prevail under this standard, the appellant
must demonstrate that there is an error that is plain and that
affects substantial rights. Olano, 507 U.S. at 732. Moreover, Rule
52(b) leaves the decision to correct a forfeited error within the
sound discretion of the court of appeals, and the court should
not exercise that discretion unless the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.
Olano, 507 U.S. at 732.
In assessing the claim that the frisk was excessively long,
we have the benefit of the video and the full transcript of
Maples describing the frisk and justifying each segment. We
see no error in the court’s conclusion that the frisk was war-
ranted up to and including the point where the package was
visible to Maples. The frisk began moments after Radford
emerged from the car. Although Radford readily raised his
right arm for the search, he kept his left arm down and close to
his body, with his hand near his waistband, impeding the
search of that side of his body. Maples discovered some hard
objects in one pocket, which Radford described as rocks that he
carried for his spiritual well-being. Maples paused the pat-
20 No. 21-1715
down to have Radford remove the rocks from his pockets and
place them in the car. By Radford’s estimation, the search had
come to an end at that point, no reasonable officer would have
remained concerned that he was armed, and so any continued
search could not be justified.
But as is obvious from the video, the search was not yet
complete. Because of Radford’s movements and the manner in
which he held his left arm close to his body during the first
part of the search, Maples had not yet had full access to the left
side of Radford’s body. After Radford placed the stones in the
car, he continued to hold his left arm close to his body and
reach towards his waistband. As Maples testified, he therefore
continued the search, staying very close to Radford and
keeping a tight hold on Radford’s left arm. Seconds later,
Radford turned towards Maples and his jacket fell open.
Maples could then see directly into the left side inner pocket of
Radford’s jacket, in which the vacuum-sealed package was
plainly visible. Maples had already felt the pocket from the
outside and knew it contained a firm package, a little larger
than a cell phone. The district court credited Maples testimony
that, because of his training and experience, he immediately
recognized the package for what it was, namely, a dealer-sized
quantity of narcotics. Although Maples believed from the
appearance of the substance that it was heroin, it tested
positive for fentanyl, which is also a controlled substance. At
that point, Maples had probable cause to arrest Radford and
place him in handcuffs.
We conclude that the district court did not plainly err in
crediting Maples’ testimony that he saw that package in plain
view as he conducted a legitimate search for weapons, and
No. 21-1715 21
that, because of his training and experience, he recognized that
package as containing narcotics. We also note that, even if
Radford had shown plain error in the district court’s conclu-
sion that the pat-down search was legitimate and that the
drugs came into plain view in the course of that search, this is
not a case where we would exercise our discretion to correct
any error. As we noted, the court should not exercise that
discretion unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Olano,
507 U.S. at 732. Because there was an active warrant for
Radford’s arrest, a warrant that came to light during the
standard traffic-stop check of the license and for warrants, both
the drugs and the gun inevitably would have been discovered
when Radford was arrested on that warrant. Any error here
would therefore not affect the fairness, integrity or public
reputation of the proceedings.
III.
We have considered Radford’s remaining arguments and
find no merit in them. The judgment of the district court is
therefore
AFFIRMED.