United States v. Michael D. Weir ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3321
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL D. W EIR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:10-cr-00007-JMS-CMM-27—Jane E. Magnus-Stinson, Judge.
O N P ETITION FOR R EHEARING A ND R EHEARING E N B ANC —
JANUARY 9, 2013
Before P OSNER, R OVNER and SYKES, Circuit Judges.
On December 14, 2012, defendant-appellant filed a
petition for rehearing and petition for rehearing en banc. All
the judges on the original panel have voted to deny the
petition for rehearing and no judge in regular active service
asked for a vote on the petition for rehearing en banc.
The petition is therefore D ENIED.

Circuit Judge John Daniel Tinder did not participate in
the consideration of this petition for rehearing en banc.
2 No. 11-3321
R OVNER, Circuit Judge, concurring in the denial of re-
hearing. Michael D. Weir complains that his Fourth
Amendment rights were violated when a police officer
seized $6,655 from him during a traffic stop. Because
his trial counsel never objected to the seizure or to the
introduction of evidence obtained as a result of the
seizure, our review is for plain error. United States v.
Kelly, 519 F.3d 355, 361 n.1 (7th Cir. 2008).
To briefly review the facts of the seizure, the officer
stopped the car because Weir, a front-seat passenger, was
not wearing his seat belt. The officer immediately ascer-
tained that the driver lacked valid registration docu-
ments or proof of insurance for the car. She possessed
only an open title. She told the officer that the license
plates came from a different car, although she could not
say where they came from. On this basis, the officer
decided to impound the car. He ordered the other pas-
sengers out of the vehicle and asked them if they pos-
sessed any weapons. At this point, Weir told the officer
that he had a pocketknife. The officer conducted a pat-
down search and removed the small pocketknife from
the pocket of Weir’s trousers. Up to this point, Weir has
no viable objection to the legitimate traffic stop or the
officer’s routine Terry pat-down for a weapon that
Weir conceded he possessed.
But in the course of the pat-down, the officer also felt
an object in Weir’s pocket that he immediately believed
was a large sum of money. R. 74-15, Tr. at 671. Although
we have repeatedly held that mere possession of a large
amount of cash does not justify seizure of the money
as contraband or evidence of a crime, see United States v.
No. 11-3321 3
Moreland, 2012 WL 5992122, *8 (7th Cir. Dec. 3, 2012),
the officer removed the money from Weir’s pocket,
counted it, and seized it. As the traffic stop progressed,
the officer and other backup officers determined both
that the car had been reported stolen and that there
were digital scales in the car that could be characterized
as drug paraphernalia. The driver of the car was there-
fore arrested and charged with possession of drug para-
phernalia and possession of stolen property. But Weir
was allowed to leave the scene. R. 74-15, passim. The
driver, though, later implicated Weir in a drug con-
spiracy, claiming that the money in his pocket was the
proceeds of drug transactions. This led to Weir’s arrest,
and Weir then implicated himself further. None of this
would have happened, Weir complains, if the officer
had not wrongfully seized the cash from his pocket.
I agree with Weir that the officer did not have probable
cause to seize the cash at the time the officer effected
the seizure.
A warrantless seizure of an object is justified if:
“(1) the officer was lawfully present in the place from
where he viewed the item, (2) the item was in
plain view, and (3) its incriminating nature was ‘im-
mediately apparent.’ ” United States v. Cellitti, 387
F.3d 618, 623 (7th Cir. 2004). “For the incriminating
nature to be immediately apparent, the officer must
have probable cause to believe that the item is con-
traband or otherwise linked to criminal activity.” Id.
at 624.
United States v. Schmidt, 700 F.3d 934, 938, 39 (7th Cir. 2012).
It is difficult to discern from the record the sequence
4 No. 11-3321
and timing of the events as they unfolded during the
traffic stop and subsequent search of the car. The record
is simply undeveloped on when the officers learned that
the car was reported stolen, and when they discovered
the digital scales relative to when they seized the money
from Weir. The most reasonable reading of the officer’s
testimony is that the officer seized the cash before
knowing that the car was stolen or that there was drug
paraphernalia in the car. The officer also testified that
he did not know to whom the scales belonged. That Weir
was allowed to leave when the driver was arrested for
possessing the scales and the stolen car demonstrates
that the officers did not, at that time, tie the scales or the
car to Weir. In any case, the only theory advanced by
the government to justify the seizure was that the contra-
band nature of the money was “immediately apparent”
when the officer felt the object in Weir’s pocket.
The panel opinion (Moreland, 2012 WL 5992122, at *8)
rightly rejects that rationale on the basis of a long line of
cases holding that money alone is not contraband. The
incriminating nature of cash is not immediately apparent
unless there is some additional evidence connecting that
cash to criminal activity; thus only some evidence estab-
lishing such a nexus could have justified the warrantless
seizure of that money. The opinion concludes that the
officers could seize the money because Weir was the
passenger in a stolen car, and because they later discovered
the digital scales in that car. But at the time the officer
seized the cash, the officer had no evidence connecting
Weir or the cash to criminal activity. That the officer
later learned that the car was stolen and that it con-
No. 11-3321 5
tained drug paraphernalia cannot retroactively justify
the seizure.
We assess probable cause for a seizure at the time
the seizure occurred. See Anderer v. Jones, 385 F.3d 1043,
1051 n.11 (7th Cir. 2004) (we review probable cause deter-
minations based on the information available to the
police officer at the time of the arrest). And to my mind,
Weir’s presence in the car is simply not enough to give
rise to probable cause. Reasonable suspicion, perhaps—
and thus grounds to continue questioning Weir under
Terry—but not probable cause to seize the cash.
I concur in the denial of rehearing, however, because
it was not the seizure of the cash per se that initiated
the chain of events that incriminated Weir. It was the
discovery of the cash that led to Weir’s downfall, and
Weir has no viable objections to the events leading to
the discovery of the cash. Once the officers knew that
Weir possessed a large sum of money, they had a basis
to ask the driver about Weir’s possible involvement in
any drug-related activity. The driver would have impli-
cated Weir whether or not the police physically pos-
sessed the cash they discovered in his pocket. The driver
cooperated with the government in order to procure a
lighter sentence for herself; it is doubtful that she cared
whether the police were holding the cash when they
asked her about Weir. Weir would have been arrested
and would have further implicated himself. That chain
of events would have been no different whether the
cash was seized or simply discovered. The evidence
used to convict Weir would have been virtually identical.
6 No. 11-3321
The officer testified at trial regarding the money found
in Weir’s pocket. So inconsequential was the physical
stack of cash that the government never sought to intro-
duce it as evidence at trial.
So even if the seizure of the cash was error, it was not
plain error. Before we will reverse for plain error, we
must find (1) that there is error, (2) that it is plain, and
(3) that it affects substantial rights. United States v. Thorn-
ton, 642 F.3d 599, 605 (7th Cir. 2011). “Once these three
conditions have been met, we may exercise our dis-
cretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial pro-
ceedings.” United States v. James, 464 F.3d 699, 709 (7th
Cir. 2006). The defendant bears the burden of estab-
lishing that the error affected substantial rights by dem-
onstrating that the outcome probably would have
been different without the error. Id. As I have just dem-
onstrated, the outcome would have been the same
whether or not the officer seized the cash. Once the
cash was legitimately discovered, alea iacta est. I therefore
concur in the denial of the petition for rehearing, but
I do not endorse the rationale used in the opinion to
justify the seizure.
1-9-13