United States v. Gregory Sanford

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2860
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY SANFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:12-cr-10069-JES-JEH-1 — James E. Shadid, Chief Judge.
____________________
ARGUED OCTOBER 6, 2015 — DECIDED NOVEMBER 25, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. Chicago is a major destination city
for illegal drugs originating in Central and South America.
Interstate 55, which runs from LaPlace, Louisiana, to Chica-
go, is part of the network of north-south and west-east
highways used by drug dealers to deliver their illegal drugs
to the Windy City. See, e.g., National Drug Intelligence Cen-
2 No. 14-2860
ter, National Drug Threat Assessment 2006, “Drug Transporta-
tion Corridors,” www.justice.gov/archive/ndic/pubs
11/18862/transport.htm; Kathy Sweeney, “I-Team: I-55 Drug
Busts,” Feb. 11, 2014, www.kfvs12.com/story/24695389/i-
team-investigation-55-drug-busts (both visited Nov. 24,
2015). Drug dealers also use Interstate 55 to transport drugs
from Chicago to other cities, such as Peoria (southwest of
Chicago)—as we’re about to see.
Shortly after midnight on February 28, 2012, an Illinois
state trooper stopped a car that he had clocked speeding
southbound on I-55 between Chicago and Peoria at 83 miles
per hour—18 miles per hour over the speed limit. The stop
led to a search of the car and the seizure of 1.5 kilograms of
cocaine found in the search. Gregory Sanford, one of two
passengers in the car, was prosecuted in federal court for
possessing and intending to sell the cocaine that had been
found. He pleaded guilty after his motion to suppress the
evidence of the cocaine was denied, and was sentenced to 15
years in prison. But his plea was conditional, Fed. R. Crim. P.
11(a)(2), and allowed him to appeal to challenge the legality
of the search, as he has done. And since the conditional plea
did not purport to affect his right to appeal the sentence, he
has also appealed from the conditions of supervised release
imposed by the district judge.
The trooper who stopped the car for speeding quickly
learned that it had been rented 12 hours earlier in Peoria but
that neither the driver of the car nor either of its two passen-
gers had rented it or was authorized by the rental contract to
drive it. (Apparently Sanford’s brother had rented it.) The
trooper asked each of the three occupants for identification,
and having received it returned to his car to run a criminal-
No. 14-2860 3
history check on each of them. The check revealed that San-
ford and the other passenger were affiliated with the notori-
ous Gangster Disciples street gang, that Sanford had a rec-
ord of 19 arrests for a variety of offenses including drug of-
fenses, and that the other passenger had a recent arrest for
manufacturing cocaine. The trooper requested that a drug-
sniffing dog be fetched to check the stopped car for drugs.
The dog arrived, alerted, and the troopers (a second had ar-
rived 14 minutes after the stop, to provide backup, and had
been joined 5 minutes later by a third trooper, who brought
the drug-detection dog) opened the trunk of the car and
found the cocaine. They gave the driver a speeding ticket
and arrested all three occupants but later released them
when they denied knowledge of the drugs. Sanford, howev-
er, was re-arrested two months later, was indicted, and
pleaded guilty as we said to possession with intent to sell the
cocaine found in the car.
He contends that the search that revealed the cocaine was
illegal because the car he was riding in had been stopped for
speeding and therefore the driver should just have been giv-
en a speeding ticket and allowed to drive off. He insists that
the trooper had no right to look up the driver’s criminal his-
tory on the police car’s computer, let alone the criminal his-
tories of the passengers, for there was no reason to think
them responsible for the driver’s having been speeding. The
trooper acknowledged that he doesn’t usually search the
criminal histories of drivers or passengers during stops for
mere traffic violations, such as speeding. But he testified that
his suspicions had been aroused by a combination of facts
that he knew, or quickly learned when he stopped the car:
drug couriers often use cars rented by third parties; I-55 is a
known drug corridor; and the occupants were nervous and
4 No. 14-2860
evasive, reluctant to speak, and made poor eye contact (un-
like, the trooper testified, most persons in a car stopped by
police for a traffic violation). In addition, although to drive
from Peoria and Chicago and back again takes about four
hours, the travelers had spent very little time in Chicago—
enough time for a drug delivery or pickup, but not enough
for a normal visit.
The trooper checked the occupants’ criminal histories on
the computer in his car—a procedure permissible even
without reasonable suspicion, see United States v. Braca-
montes, 614 F.3d 813, 816 (8th Cir. 2010); United States v. Pur-
cell, 236 F.3d 1274, 1278–79 (11th Cir. 2001); United States v.
McRae, 81 F.3d 1528, 1535–36 n. 6 (10th Cir. 1996)—indeed a
procedure in itself normally reasonable, as it takes little time
and may reveal outstanding arrest warrants. After checking
for criminal histories the trooper waited for the arrival of the
dog that he’d requested be brought to check for the presence
of illegal drugs. While waiting he obtained additional suspi-
cious information from the driver. She claimed to have been
visiting Sanford’s hospitalized grandmother, but also said
that she and her passengers had left Peoria at 6 pm, which
meant that the visit would have been late at night. And she
couldn’t name the hospital.
The total time from the initial stop of the car until the dog
alerted for drugs was 26 or 27 minutes.
The district judge denied Sanford’s motion to suppress
the cocaine evidence mainly on two grounds: that as a pas-
senger in the car rather than the owner, a renter, or the driv-
er he had no standing to file such a motion, and that even if
he had standing the delay had not made the search unlaw-
ful. In the judge’s words,
No. 14-2860 5
I don’t see that there is standing to challenge the
search of the car given that he [Sanford] was a pas-
senger … . Nothing in his name, no valid license to
enter into the rental agreement, any indication oth-
er than his brother entered into the rental agree-
ment. I don’t think really the officer had any reason
to think that Mr. Sanford had an interest in the ve-
hicle other than the fact that he was told that his
brother rented the car. The rental agreement indi-
cated that there was no authorization available to
anybody else to drive the car. To the extent that his
brother renting the car and giving it to the defend-
ant caused some interest that may cause standing, I
believe still that the combination of the matters, the
facts as addressed by [the prosecutor], the speeding
created the probable cause to stop the car, and then
the—asking questions, the third-party rental in-
formation, gathering the information from that, the
computer screen info, was not any kind of an un-
reasonable extension of the stop, and then finally,
as the officer testified to something about the par-
ties given his experience, the late at night, again the
third-party rental information, and then the dog
sniff, created probable cause for the search. So the
motion would be respectfully denied.
We are mindful that the Supreme Court, in Rakas v. Illi-
nois, 439 U.S. 128, 139–140 (1978), said that it was better to
ask whether a person asserting a Fourth Amendment right
has a personal “interest” that the search infringed than
whether he has “standing” to challenge the search. But the
two formulas come to the same thing, and cases continue to
discuss Fourth Amendment “standing.” See, e.g., Brendlin v.
California, 551 U.S. 249, 259–60 (2007); United States v. Padilla,
508 U.S. 77, 80–82 (1993); Minnesota v. Olson, 495 U.S. 91, 101
6 No. 14-2860
(1990) (concurring opinion); United States v. Wilbourn, 799
F.3d 900, 908–10 (7th Cir. 2015); United States v. Walton, 763
F.3d 655, 660–66 (7th Cir. 2014); United States v. Miller, 799
F.3d 1097, 1103, 1107 (D.C. Cir. 2015); United States v. Angui-
ano, 795 F.3d 873, 878 (8th Cir. 2015). There is no practical
difference between the two usages.
The Fourth Amendment entitles people “to be secure in
their persons, houses, papers, and effects against unreasona-
ble searches and seizures.” The last three “theirs”—houses,
papers, and effects—have been understood compendiously
as “property” in a sense not limited to the enumerated terms
interpreted literally, and not even requiring ownership. E.g.,
Rakas v. Illinois, supra, 439 U.S. at 141–43. More to the point,
the Supreme Court has enlarged the scope of the Fourth
Amendment to include the protection of privacy. See Minne-
sota v. Olson, supra, 495 U.S. at 98–100 (“a houseguest has a
legitimate expectation of privacy in his host’s home” and
therefore “can claim the protection of the Fourth Amend-
ment”); United States v. Salvucci, 448 U.S. 83, 91–92 (1980)
(“while property ownership is clearly a factor to be consid-
ered in determining whether an individual’s Fourth
Amendment rights have been violated, property rights are
neither the beginning nor the end of this Court’s inquiry”
(citation omitted)). “[A] person can have a legally sufficient
interest in a place other than his own home so that the
Fourth Amendment protects him from unreasonable gov-
ernment intrusion into that place.” Rakas v. Illinois, supra, 439
U.S. at 142. Yet even if you had no formal or informal prop-
erty interest in the premises, you would still have grounds to
resist a search or seizure of your person, or of personal
property of yours that you might have with you in the room
in which you’re staying (even if you’re a guest rather than
No. 14-2860 7
an owner or tenant), or the car in which you’re riding. See,
e.g., Brendlin v. California, supra, 551 U.S. at 251; Wyoming v.
Houghton, 526 U.S. 295, 303–07 (1999); Ybarra v. Illinois, 444
U.S. 85, 91–92 (1979).
Sanford, though he’d not rented the car that the police
stopped, could be thought to have had a property interest in
it as a kind of subtenant. Although he’d driven it earlier that
day, he didn’t have a valid license–a situation that we said in
United States v. Haywood, 324 F.3d 514, 515–16 (7th Cir. 2003),
deprives a mere borrower of a rented car of standing to chal-
lenge a search of it. That decision, on which our subsequent
decision in United States v. Walton, supra, 763 F.3d at 666,
casts a shadow, may be due for reconsideration. It can be ar-
gued that if you rent a limousine, or it’s lent to you by a
friend, you have a possessory interest in it even though
you’re not expected to drive it—indeed, even if you not only
don’t have a valid driver’s license but have never learned to
drive. Sanford’s situation is analogous. He was a borrower
of the car.
For completeness we note the existence of a circuit split
over whether an unauthorized rental-car driver has a legiti-
mate expectation of privacy sufficient to establish standing
to challenge a search. Most circuits have ruled that pos-
sessing a rental car without the rental company’s permission
precludes standing. But two circuits disagree and this court
has yet to take sides (as noted in United States v. Walton, su-
pra, 763 F.3d at 662–63). Compare United States v. Kennedy,
638 F.3d 159, 164–68 (3rd Cir. 2011); United States v. Wellons,
32 F.3d 117, 118–19 (4th Cir. 1994); United States v. Boruff, 909
F.2d 111, 117 (5th Cir. 1990); and United States v. Obregon, 748
F.2d 1371, 1374–75 (10th Cir. 1984), with United States v.
8 No. 14-2860
Thomas, 447 F.3d 1191, 1198–99 (9th Cir. 2006); and United
States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998). The Sixth
Circuit takes the position that an unauthorized rental-car
driver may have standing in special circumstances, such as
where he has a valid license, he arranged the rental, and his
wife was listed as the authorized driver. United States v.
Smith, 263 F.3d 571, 586–87 (6th Cir. 2001).
We need not resolve Sanford’s standing as a borrower
and passenger because even if he lacks standing to challenge
the search on the basis of having a quasi-property right of
some sort in the car, he has standing to challenge the seizure
of his person (in the loose sense in which “seizure” is used in
Fourth Amendment cases) when the car was stopped by the
police. Therefore he has standing to challenge any search
that resulted from his seizure if the seizure was unlawful.
Brendlin v. California, supra, 551 U.S. at 256–59; United States
v. Wilbourn, supra, 799 F.3d at 908–10; United States v. Bueno,
703 F.3d 1053, 1055–62 and 1059 n. 3 (7th Cir. 2013), vacated
in part on other grounds, Gonzalez-Zavala v. United States, 133
S. Ct. 2830 (2013). Such a seizure, of driver and passengers
alike, occurs every time police stop a car that has a passen-
ger, but is lawful if there’s reason to think the driver is vio-
lating a traffic law, as in this case.
Recently, however, the Supreme Court has held that such
a seizure turns unlawful if it is prolonged in order to con-
duct a dog sniff (which requires bringing the dog to the sce-
ne of the stop, and therefore takes a while), without reason-
able suspicion that there are illegal drugs secreted in the
stopped vehicle. Rodriguez v. United States, 135 S. Ct. 1609,
1614–16 (2015). But there was reasonable suspicion in this
case (in contrast, in Rodriguez the Supreme Court remanded
No. 14-2860 9
for a determination of whether there had been reasonable
suspicion), given the factors listed earlier in this opinion that
had made the trooper suspicious. Cf. United States v. Finke,
85 F.3d 1275, 1280–82 (7th Cir. 1996); United States v. Winters,
782 F.3d 289, 298–303 (6th Cir. 2015); United States v. Davis,
636 F.3d 1281, 1291–92 (10th Cir. 2011). Since the criminal-
history check was justified, Sanford is left only to argue that
having finished the check the police dawdled in issuing the
ticket, thereby gratuitously extending the time in which San-
ford was trapped in the stopped car (“seized”). The trooper
who had stopped the car spent several minutes chatting with
a fellow trooper about sports and a euchre tournament while
twice stating (then quickly correcting himself) that he want-
ed to wait for the dog to arrive before completing the writing
of the ticket. The criminal histories that he uncovered in his
computer search made a compelling case to wait for the
dog—the trooper had reasonable suspicion of criminal activ-
ity at that point and so was justified in prolonging the stop
for a reasonable time to confirm or dispel, with the dog’s as-
sistance, his mounting suspicions. Only about eight more
minutes elapsed before the dog arrived. That was not an un-
reasonable amount of time to prolong the stop. See United
States v. Pettit, 785 F.3d 1374, 1378, 1383 (10th Cir. 2015) (rea-
sonable suspicion justified the trooper in prolonging the stop
by 15 minutes to wait for the arrival of the drug dog); United
States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007) (a 31-minute
wait for the drug dog to arrive was reasonable because there
was reasonable suspicion that drugs would be found in the
vehicle).
There is a further wrinkle. The car-rental contract prohib-
ited anyone from driving the car whom the contract didn’t
authorize to drive it, and none of the three persons in the car
10 No. 14-2860
was authorized. The trooper could therefore have called the
rental agency, alerted it to the situation, and in all probabil-
ity have been asked by the agency to impound the car, as in
United States v. Wellons, supra, 32 F.3d at 118–19. The trooper
didn’t do that (we’re not told why he didn’t), but the fact
that he could have, with predictable results, further attenu-
ates the defendant’s claim to have been unjustifiably seized.
So Sanford’s conviction was proper, but he also challeng-
es the conditions of supervised release that the district judge
imposed. The government acknowledges that this part of his
appeal has solid merit, and so agrees with Sanford that the
case should be remanded with instructions that the judge
reconsider the sentence he imposed, though just the condi-
tions of supervised release and not the prison term.
There are three problems with the conditions of super-
vised release that the judge imposed. First, the written
judgment contains thirteen so-called “standard” conditions
of supervised release that the judge did not mention at the
sentencing hearing. Those conditions must be stricken be-
cause only punishments stated orally, in open court, at sen-
tencing are valid. United States v. Johnson, 765 F.3d 702, 711
(7th Cir. 2014). Second, the judge did not attempt to justify
the conditions that he did impose at the sentencing hearing,
as required by United States v. Thompson, 777 F.3d 368, 373
(7th Cir. 2015). And third, a number of the conditions listed
in the written judgment suffer from a variety of infirmities
identified in decisions such as Thompson and United States v.
Kappes, 782 F.3d 828 (7th Cir. 2015), decisions rendered after
Sanford had been sentenced.
We need to consider whether the resentencing hearing
that we’re ordering should be limited to conditions of su-
No. 14-2860 11
pervised release, or whether the judge should be permitted
to alter the prison sentence that he imposed. The second
course generally is preferable, given the interplay between
the two types of sentencing. See, e.g., id. at 867. Although
conditions of supervised release take effect (as the name im-
plies) only upon the defendant’s release from prison, realis-
tically they are a form of custody, like parole, because they
impose significant limitations on a person’s freedom. Con-
sider for example the common condition of supervised re-
lease that requires the permission of the defendant’s proba-
tion officer to take a trip outside the federal judicial district
in which the defendant lives. See 18 U.S.C. § 3563(b)(14);
U.S.S.G. § 5D1.3(c)(1).
The more severe the conditions of supervised release, the
stronger the case for a lighter prison sentence; the less se-
vere, the weaker that case. Sanford was given a prison sen-
tence that, though long, was 82 months below the bottom of
his guidelines range. So were the district judge on remand to
lighten the conditions of supervised release that he imposed,
which he has now to reexamine, he might wish to lengthen
the prison sentence, as a kind of compensation. Conversely,
were he to impose more severe (and this time valid) condi-
tions of supervised release, he might wish to shorten San-
ford’s prison sentence somewhat. But Sanford and the gov-
ernment had agreed to the 180-month prison term as part of
his guilty plea, and the district judge’s acceptance of the plea
agreement will bind the district judge on remand just as it
does the parties. Fed. R. Crim. P. 11(c)(1)(C); see also Advi-
sory Committee Note, 1999 Amendments. “[O]nce the court
has seen the presentence report and given its approval, it is
not free to revisit the plea agreement simply because, for
whatever reason, the defendant later comes back to the court
12 No. 14-2860
for resentencing.” United States v. Ritsema, 89 F.3d 392, 401
(7th Cir. 1996). A contrary rule would deprive plea agree-
ments governed by Rule 11(c)(1)(C) of finality and indeed
render them illusory by depriving both sides of the benefits
they had anticipated from entering into such agreements.
United States v. Ritsema, supra, 89 F.3d at 400–01; see also
United States v. Ray, 598 F.3d 407, 408–11 (7th Cir. 2010);
United States v. Main, 579 F.3d 200, 202–04 (2d Cir. 2009);
United States v. Olesen, 920 F.2d 538, 539–43 (8th Cir. 1990).
Because the district judge accepted Sanford’s Rule
11(c)(1)(C) plea agreement, the judge is bound by the agree-
ment’s terms. And he can’t retract that acceptance even if
our remand makes the judge regret having accepted it. Unit-
ed States v. Ritsema, supra, 89 F.3d at 401. In short he can re-
vise the conditions of supervised release but he can’t alter
the term of imprisonment.
The judgment is therefore
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.