United States v. Daniel Bohman , 683 F.3d 861 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3656
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANIEL L. B OHMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:10-cr-00038—William M. Conley, Chief Judge.
A RGUED A PRIL 13, 2011—D ECIDED JUNE 28, 2012
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. The question presented in this
appeal is whether the police may stop a vehicle only
because it emerged from a site suspected of drug activ-
ity. Appellant Daniel Bohman raised this question
in a motion to suppress evidence discovered when the
car he was driving on August 18, 2009, was stopped
leaving what turned out to be an active meth lab. His
motion was denied after a hearing conducted by a magis-
2 No. 10-3656
trate judge and review by a district judge on a report
and recommendation. Bohman preserved his objection
to the adverse ruling through a conditional guilty plea
pursuant to Fed. R. Crim. P. 11(a)(2). So we consider
the evidence presented below.
The investigation began with information provided
by a man named Ed Olmsted who was arrested in Mara-
thon County, Wisconsin for possessing an anhydrous
ammonia tank and wanted to “snitch in exchange for
consideration on his charges.” United States v. Barttelt,
No. 10-cr-38-wmc, 2010 WL 3363247, at *1 (W.D. Wis.
July 12, 2010). Olmsted’s offer piqued the interest of
Sgt. Brian Kingsley of the nearby Lincoln County, Wis-
consin Sheriff’s Department because Kingsley credited
another trusted investigator’s endorsement of Olmsted’s
reliability. Olmsted met with Kingsley and told him that
he saw known meth cook Jack Barttelt brew meth
three times in the past two months at a hunting cabin
on “Big Tony’s” property. Olmsted identified a rural
forty-acre parcel owned by Tony Thorenson in a plat
book and also told Kingsley that (1) he had seen an anhy-
drous ammonia tank at the cabin within the last week
or so; (2) that a locked cable blocked the drive leading
to the Thorenson cabin; and (3) that Barttelt drove a
green Mercury Grand Marquis.
Kingsley’s 17-plus years with the department, his 40-or-
so meth lab busts, and his training and experience
qualify him as a veteran meth investigator. With a sniff
he can distinguish between household ammonia (often
diluted in cleaners) and anhydrous ammonia (used legiti-
No. 10-3656 3
mately as a fertilizer but also in cooking meth) because
of the latter’s noticeably more pungent odor and the
burning sensation it causes in his mouth and nose.
Based on his experience, Kingsley thought he would
find evidence of a meth lab at the cabin in one of three
phases because meth cooks do not tend to store anhydrous
ammonia for more than a week or so: (1) precooking
(gathering ingredients, paraphernalia); (2) cooking; or
(3) post-cooking (glassware, filters, starter fluid cans,
lithium battery strips, and so on).
Sgt. Kingsley drove to the Thorenson property shortly
after his evening interview with Olmsted, arriving at
about 11 p.m. Another officer rode along but only
Kingsley testified at the suppression hearing. Kingsley
testified that he found a locked cable blocking a drive-
way just as Olmsted described. About 300 yards
through the woods, he saw a cabin and a light. As he
prepared his surveillance gear, Kingsley inadvertently
beeped his horn. Vehicle lights came on near the cabin
and started down the drive toward the cabled gate.
Kingsley quickly backed his squad car westward away
from the driveway with his lights off. Kingsley saw the
vehicle stop at the cable for about twenty to thirty
seconds and then back up the driveway to the cabin’s
vicinity. Kingsley testified that the vehicle’s movement
caused him to be “very surprised” and seemed unusual
to him because he thought that if someone were
checking on a car honk they would have come onto the
road and possibly a little farther rather than just
stopping at the gate. About five minutes later, after he
had repositioned his car to the east of the driveway,
Kingsley observed a second incident of a vehicle
4 No. 10-3656
driving up to the cable. This time, like before, the
vehicle stopped at the cable, but unlike earlier, it
emerged out of the driveway about twenty seconds
later, driving toward Kingsley’s position. Kingsley
flipped on his police lights and pulled in front of the
approaching car, which stopped immediately. Kingsley
frankly conceded that he did not observe any traffic
violations before the stop. At some point it became clear
that the stopped car was not a green Grand Marquis
but was instead a reddish-maroon Chevrolet Beretta
coupe. Kingsley did not testify that the vehicle that
came down the driveway either time appeared to be a
Grand Marquis, or even that it appeared to be the
same vehicle both times. Kingsley said that all he could
tell about the car before he stopped it was that it was
a vehicle with two headlights.
Kingsley and his colleague got out of their car and
walked toward the stopped vehicle. As soon as Kingsley
could see into the car, he recognized the driver as Daniel
Bohman but did not recognize the passenger. Both com-
plied with Kingsley’s request to step out of the Beretta.
As Kingsley questioned the passenger, who identified
himself as Jake Barttelt, he smelled the distinctive
odor of anhydrous ammonia. Barttelt claimed he had
been bear hunting, but that sounded unlikely to Kingsley
because of Barttelt’s attire (shorts, tennis shoes, and
socks, but no shirt) and the time of night. Kingsley con-
cluded that he had uncovered a meth cook site. Backup
arrived and police placed Bohman and Barttelt into
different squad cars. Kingsley asked Bohman about a
meth cook and Bohman answered affirmatively and
indicated that Barttelt was cooking.
No. 10-3656 5
A search of the cabin (authorized by a subsequently
issued warrant, based in part on information learned
during the vehicle stop) confirmed that it was indeed a
lab, but the particulars are not relevant to the issue
before us. Bohman doesn’t dispute that a justifiable stop
of his car would permit his removal from the car, and
properly so. E.g., Smith v. Ball State Univ., 295 F.3d 763,
769 (7th Cir. 2002) (officers may order drivers to exit
their vehicles during investigatory stops). And he essen-
tially concedes that once Kingsley sniffed anhydrous
ammonia, to say nothing of Bohman’s admission, there
was probable cause to search the cabin. Instead, Bohman
maintains that if the stop was unreasonable, then any-
thing obtained during the stop should be suppressed
and the cabin search would be fruit from that poisonous
tree. The district court found that Kingsley had rea-
sonable suspicion that there was or recently had been
meth cooking at the cabin, United States v. Barttelt, No. 10-
cr-38-wmc, 2010 WL 3363307, at *5 (W.D. Wis. Aug. 23,
2010), but it noted that finding reasonable suspicion for
stopping the car was a “closer call” and a “debatable
point,” id. at *5-*7. Yet the court found that Olmsted’s
corroborated information and the “suspicious behavior”
in response to the horn honk justified moving the
suspicion regarding the car from “beyond a hunch to at
least minimal suspicion.” Id. at *6-*7. Alternatively, the
court found that even if the stop was unreasonable, the
determination’s closeness justified concluding that any
error was merely negligent and that Kingsley acted in
good faith—that is, his conduct did not justify exclusion.
Id. at *7.
6 No. 10-3656
A mere suspicion of illegal activity at a particular place
is not enough to transfer that suspicion to anyone who
leaves that property. See United States v. Johnson, 170
F.3d 708, 720 (7th Cir. 1999). The Fourth Amendment
allows officers to “stop and briefly detain a person for
investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal
activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S.
1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This
reasonableness standard typically requires a set of facts
that we can measure against an objective standard such
as “probable cause or a less stringent test” such as rea-
sonable suspicion. Delaware v. Prouse, 440 U.S. 648, 654
& n.11 (1979) (internal footnotes omitted). In those cir-
cumstances where we do not insist on “some quantum
of individualized suspicion,” we rely on other safe-
guards to assure that the reasonable expectation of
privacy is not “subject to the discretion of the official in
the field.” Id. at 654-55 (quoting Camara v. Mun. Court, 387
U.S. 523, 532 (1967)). For instance, an officer with a
warrant to search a place may stop anyone leaving that
place without additional individualized suspicion, see
Michigan v. Summers, 452 U.S. 692, 702-03 & n.16 (1981),
but a mere suspicion of illegal activity about a place,
without more, is not enough to justify stopping every-
one emerging from that property, see Johnson, 170 F.3d
at 720.
When Sgt. Kingsley stopped Bohman’s Beretta, every-
thing informant Olmsted said had checked out, but the
government does not attempt to justify the vehicle stop on
the basis that Kingsley had accumulated probable cause
that the cabin housed a meth cook. Kingsley still had a
No. 10-3656 7
few critical things to confirm: the presence of an
anhydrous ammonia tank, suspected cook Jake Barttelt,
and, of course, his green Grand Marquis. So we agree
with the district judge that Kingsley needed some-
thing extra to move the justification for the stop from “a
hunch to at least minimal suspicion.” 2010 WL 3363307,
at *7. The response to the horn honk doesn’t move the
suspicion on the Beretta beyond a hunch but for a dif-
ferent reason than Bohman argues. Bohman’s alternative,
innocent explanation for the reaction to the horn honk
(the equivalent of a doorbell ring in this rural environ-
ment) doesn’t undercut the reasonableness of Kingsley’s
surprised reaction or his belief that the behavior was
“unusual.” See, e.g., United States v. Baskin, 401 F.3d 788,
793 (7th Cir. 2005) (behavior “susceptible to an innocent
explanation when isolated from its context may still
give rise to reasonable suspicion when considered in
light of all of the factors”); United States v. Fiasche, 520 F.3d
694, 698 (7th Cir. 2008) (seemingly innocent behavior
suggested “something was rotten in Denmark when [a]
car sped up a bit”). Yet as surprising as this behavior
may have been, it does not on its own lend a suspicion
of something illegal or wrong as to the Beretta. It didn’t
give Kingsley anything to add to his existing suspicion
that the activity at the cabin might involve an anhydrous
ammonia tank, Jake Barttelt, and a green Grand Marquis.
So when Kingsley stopped the car he did so because it
emerged from a forty-acre tract containing a suspected
meth cook site.
In Johnson, we concluded that police are not entitled
to detain just anyone who walks out of an apartment
8 No. 10-3656
generally suspected of hosting illegal activity. 170 F.3d
at 719-20. The police did not suspect anyone in par-
ticular of criminal activity. Id. Yet the police still
detained the first person who happened to walk out of
the suspected apartment. Id. at 711. Bohman’s case is
indistinguishable (and, surprisingly, the government
ignores it in its briefing). Like the officers in Johnson,
Kingsley suspected that a particular place housed drug
activity. And like in Johnson, he stopped the first person
that emerged. The principal difference between this
case and Johnson is an immaterial one: in this case,
Sgt. Kingsley comported himself unobjectionably and
professionally (attempting to conduct covert surveillance
from public property) as opposed to Johnson, which
involved “knock and talk” techniques that opened the
officers’ conduct to criticism. See id. at 721 (Evans, J.,
concurring) (seeds of bad search “sown when the police
decided to use the ‘knock and talk’ ” shortcut).
The government’s attempt to justify the stop based
on reasonable suspicion despite the lack of particular
suspicion about the car actually stopped ignores that the
Supreme Court has only allowed such stops in narrow
circumstances. Namely, when the police have a warrant
to search a house, the detention of individuals found
leaving that house is constitutionally reasonable be-
cause of “the nature of the articulable and individualized
suspicion on which the police base the detention of
the occupant of a home subject to a search warrant.”
Summers, 452 U.S. at 703. The impending warrant-autho-
rized search of the home means that the detention, al-
though a meaningful restraint on liberty, “was surely less
No. 10-3656 9
intrusive than the search itself,” id. at 701, and “represents
only an incremental intrusion on personal liberty,” id. at
703. But in this case there was no warrant and the rea-
soning of Summers can’t be stretched to cover a case
like this which involves, at most, reasonable suspicion.
Moreover, there is also no suggestion that the Beretta
posed any danger to anyone. Unlike the officer in
United States v. Brewer, Sgt. Kingsley didn’t hear or receive
reports of an ongoing danger such as gunshots. 561 F.3d
676, 678 (7th Cir. 2009). In Brewer, as an officer prepared
to respond to a report of a fight at a notorious apartment
complex, he heard something that sounded like gunfire
coming from the complex. Id. at 677. Within minutes, a
dispatcher told him that shots had been fired and as he
drove toward the complex via its only access point a car
passed him going the other direction. Id. On those
facts, very different from this case, we found that “the
case is on the line between reasonable suspicion and
pure hunch” but given the unusual circumstances—the
single access point, the timing of the car’s departure
from the complex related to the shots fired, the lateness
of the hour and lack of traffic, and importantly, the situa-
tion’s dangerous nature—we found that reasonable
suspicion justified the stop. Id. at 678. Those are dif-
ferences that matter. The stop in this case was on the
other side of the line; it was based on a hunch.1
1
This case seems unusual because, as we noted earlier,
Kingsley did not observe the Beretta navigate the road in a
(continued...)
10 No. 10-3656
In certain circumstances, the Fourth Amendment
permits checkpoint stops as reasonable intrusions on in-
dividuals’ rights but only if the police satisfy a bal-
ancing test set forth in Mich. Dep’t of State Police v. Sitz,
496 U.S. 444, 450 (1990). But police cannot simply pull
over all vehicles on a certain road in hopes of finding
violators. See City of Indianapolis v. Edmond, 531 U.S. 32, 35-
36, 48 (checkpoint for “the general interest in crime con-
trol” violated the Fourth Amendment). Of course, the
government doesn’t justify the stop of Bohman’s Beretta
as a permissible checkpoint. But the purported basis of
the stop—a suspicion about a place and some surprising
behavior a few minutes earlier—would essentially allow
1
(...continued)
curious (let alone illegal) manner. Cf. United States v. Burton, 441
F.3d 509, 512-13 (7th Cir. 2006) (drug-house tip, defendant’s
emergence from adjacent house, and position assumed in street
causing cars to swerve was “minimal suspicion” needed for
“a minimal stop”). Kingsley simply stopped a car he knew
nothing about other than its emergence from a suspected
meth cook site. Cf. United States v. Bullock, 632 F.3d 1004, 1013
(7th Cir. 2011) (confirmed tip plus “behavior consistent with
a drug courier or distributor”); United States v. Booker, 579
F.3d 835, 837-39 (7th Cir. 2009) (informant pointed out car);
United States v. Rodriguez, 831 F.2d 162, 165 (7th Cir. 1987)
(reasonable to suspect visitor from Florida came to Indiana to
further drug distribution conspiracy after seeing him meet with
suspected conspiracy members). And a stop resting on the
mere emergence from a suspected drug site violates the pro-
hibition against stops based on nothing more than gen-
eralized suspicions. See Johnson, 170 F.3d at 719-20.
No. 10-3656 11
the government to set up checkpoint stops outside sus-
pected drug production or distribution sites to detect
“ordinary criminal wrongdoing.” Id. at 41.
Perhaps recognizing its shaky position, the govern-
ment argues in the alternative that even if Kingsley
lacked reasonable suspicion to justify the stop, that
error was merely negligent and did not warrant sup-
pression. The district court characterized Kingsley’s
decision as close and that any error under these circum-
stances was “no more than negligence” because Kingsley
made “a good faith attempt to” investigate lawfully
under Herring v. United States, 555 U.S. 135, 143 (2009).
2010 WL 3363307, at *7. We don’t doubt Kingsley’s good
faith efforts. But the government doesn’t point to a single
case where the good faith exception applied to a lack of
reasonable suspicion and we don’t think it does. As we
recognized in another context, “removing this sort of
police misconduct from the ambit of the exclusionary
rule would have significant implications: it would elimi-
nate the rule’s deterrent effect on” unreasonable sei-
zures. United States v. Burgard, 675 F.3d 1029, 1035 (7th
Cir. 2012), petition for cert. filed (May 31, 2012) (No. 11-
10613). Contrary than to the district court’s conclusion,
stopping a car just to identify its occupants is deliberate
enough to justify suppression when “there is neither
probable cause to believe nor reasonable suspicion that
the car is being driven contrary to the laws governing
the operation of motor vehicles or that either the car or
any of its occupants is subject to seizure or detention
in connection with the violation of any other applicable
law.” Prouse, 440 U.S. at 650. Although the circum-
12 No. 10-3656
stances may have supported a general suspicion about
the Beretta, because Kingsley lacked that “quantum of
individualized, articulable suspicion,” id. at 662, the
evidence from the stop must be suppressed.
The parties dispute whether Bohman had a sufficient
interest in the cabin area to allow him to seek suppres-
sion of the evidence discovered there, see Rakas v. Illinois,
439 U.S. 128 (1978); Alderman v. United States, 394 U.S.
165 (1969), and the extent of the taint that should result
from the stop, see Brown v. Illinois, 422 U.S. 590 (1975);
Wong Sun v. United States, 371 U.S. 471 (1963). The dis-
trict court did not need to reach these arguments and
the magistrate judge focused the evidentiary hearing on
the stop’s validity. We leave the issues of the sufficiency
of Bohman’s interest in the cabin and the extent of the
taint for the district court to address in the first instance
if Bohman withdraws his guilty plea and seeks to
suppress evidence acquired at the cabin on remand.
We R EVERSE the district court’s denial of Bohman’s
motion to suppress and R EMAND for further proceedings
consistent with this opinion.
6-28-12