United States v. Robinson, Gregory

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2003
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY D. ROBINSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 CR 20035—Michael P. McCuskey, Judge.
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ARGUED NOVEMBER 14, 2002—DECIDED JANUARY 3, 2003
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Before RIPPLE, ROVNER and DIANE P. WOOD, Circuit
Judges.
RIPPLE, Circuit Judge. Gregory Robinson pleaded guilty
to possessing with intent to distribute 50 grams or more
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). Mr. Robinson’s conditional plea agreement
reserved his right to appeal the denial of his motion to
suppress evidence, and he now argues that the district
court erred by determining that the arresting officer had
probable cause to stop the car in which he was traveling.
For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
2 No. 02-2003
I
BACKGROUND
At about 7:15 in the evening on April 20, 2001, Richard
Shutter, the police chief of Bethany, Illinois (pop. 1,287),
was backing up another officer during a traffic stop near
the intersection of Route 121 and Church St. The Chief,
who had served in positions in corrections and then in
law enforcement, after a labor dispute had cost him his
earlier position in private industry, was sitting in his
car on Church St., facing the intersection. To his right,
Route 121 curved gradually out of view behind a stand
of trees. Chief Shutter observed a small tan car come
around this bend. Following this vehicle was a purple
Buick with a driver and one passenger. The Chief esti-
mated that both cars were traveling about 30 to 35 miles
per hour (“mph”). Chief Shutter pulled his car onto the
road behind the purple Buick and followed it through the
rest of Bethany, a five-block ride lasting about thirty sec-
onds. The driver of the Buick committed no traffic viola-
tions while the Chief followed; nor did any of the occu-
pants do anything suspicious. On the west side of Bethany,
the Chief stopped the Buick for “following too closely” be-
1
hind the tan car, in violation of 625 ILCS 5/11-710(a). The
driver consented to a search of the car; that search re-
vealed some marijuana stuffed between the seats and
751 grams of crack cocaine in a nylon bag behind the pas-
senger seat.
The Government charged Mr. Robinson, who had been
the Buick’s passenger and who had claimed ownership
1
“The driver of a motor vehicle shall not follow another vehi-
cle more closely than is reasonable and prudent, having due
regard for the speed of such vehicle and the traffic upon and
the condition of the highway.” 625 ILCS 5/11-710(a).
No. 02-2003 3
of the crack, with one count of possessing with intent to
distribute crack cocaine. Mr. Robinson filed a motion to
suppress that, among other issues subsequently waived,
contested the legality of the traffic stop.
Chief Shutter was the only witness at the hearing on
the motion to suppress. On direct examination, the Chief
testified that he had stopped the Buick because, as it
came around the bend, he had observed that it was fol-
lowing the tan car by eight to ten feet (approximately half
a car length). In the Chief’s opinion, an eight- to ten-foot
distance between two cars traveling at about 35 miles
per hour was “too close” for that stretch of Route 121. He
noted that the route had three nearby access roads and
that it was usually busy at that time of evening. The Chief
further explained that he had waited until the Buick
reached the far side of town before stopping it because,
throughout Bethany, there are curbs that prevent cars
from pulling completely off the road and he did not want
to block traffic. On cross-examination, the Chief admit-
ted that, as one enters Bethany on Route 121, the posted
speed limit descends from 55 mph to 50 mph, and then
to 40 mph. He further acknowledged that, directly across
from where he had sat in his car, a sign informs drivers
that during school hours the speed limit further descends
to 20 mph in the school zone. The effect of these descend-
ing speed limits, Chief Shutter agreed, was that trailing
cars might encroach on leading ones as the leaders slowed
along this stretch of road. The Chief further agreed that
he had observed the alleged traffic violation for only “one
or two seconds” as the Buick and the tan car passed di-
rectly in front of his position on Church St.
The district court orally denied the motion to suppress.
The court found Chief Shutter a “very credible witness”
and reasoned that his testimony made “sense when you
4 No. 02-2003
put it in its totality of circumstances.” Tr. at 55. The court
further concluded that it was “probably not” reasonable
or prudent for the purple Buick to have been trailing
the tan car by eight to ten feet at 35 mph and that Chief
Shutter had specific, articulable facts supporting his on-
site determination that there was probable cause to be-
lieve that a moving violation had occurred.
II
DISCUSSION
Mr. Robinson faces a difficult task in challenging these
rulings on appeal. Although we review the district court’s
probable cause determination de novo, we must defer to
that court’s findings of historical fact that are not clearly
erroneous. See United States v. Cashman, 216 F.3d 582, 586
(7th Cir. 2000).
A.
Mr. Robinson submits that the “facts adduced at the
hearing on the motion to suppress belie any credible or
reasonable notion that the violation for following too
closely . . . ever occurred.” Plaintiff’s Br. at 12. This argu-
ment is essentially an attack on the district court’s finding
that Chief Shutter was a “very credible” witness who had
specific articulable reasons for pulling the Buick over
when and where he did. We shall disturb such credibility
findings only if the district court has “chosen to credit
exceedingly improbable testimony.” See United States
v. Dillon, 150 F.3d 754, 758 (7th Cir. 1998). Although Mr.
Robinson discusses eleven facts that he says “militate”
against the district court’s findings, these facts do not
make the Chief’s testimony “exceedingly improbable.” For
No. 02-2003 5
example, Mr. Robinson submits that Chief Shutter’s inex-
perience as a police officer undercuts his credibility. This
is an argument that can be made only to the district
court. Even an inexperienced officer can determine accu-
rately that a vehicle was following less than ten feet be-
hind another, and the district court was entitled to credit
the Chief’s testimony. And, even though Chief Shutter
testified that he saw the traffic violation for only one or
two seconds, the district court was entitled to determine
that his observation was sufficient to permit an accurate
assessment.
Mr. Robinson intimates Chief Shutter stopped the Buick
because its occupants were African American. The Su-
preme Court has made clear, however, that the subjec-
tive motivations of an officer in stopping a vehicle are
not relevant to an ordinary probable cause analysis. See
Whren v. United States, 517 U.S. 806, 813 (1996). See also
Gustafson v. United States, 414 U.S. 260, 266 (1973); United
States v. Robinson, 414 U.S. 218 (1973). The evidence of
record permitted the district court to determine that Chief
Shutter had seen what he claimed to have seen—a purple
Buick trailing a tan car closer than was reasonable or
prudent for that stretch of road. “We of course agree . . .
that the Constitution prohibits selective enforcement of
the law based on considerations such as race.” Whren, 517
U.S. at 813. But in the context of a Fourth Amendment
probable cause analysis, the district court was entitled
to rely upon the objective facts known to the officer at the
time the officer acted.
B.
Mr. Robinson also submits that the facts, as the district
court found that they were known to Chief Shutter at the
6 No. 02-2003
time of the arrest, did not constitute probable cause to
believe that the Buick was being operated in violation of
the Illinois Vehicle Code’s proscription on following
more closely than is “reasonable or prudent.” In support,
he relies upon two Illinois appellate cases that affirmed
Illinois trial courts’ decisions to suppress evidence on
the ground that an officer did not have probable cause
to stop a motorist for following too closely. See People
v. Phillips, 767 N.E.2d 842 (Ill. App. Ct. 2002); People v.
Manders, 740 N.E.2d 64 (Ill. App. Ct. 2000). In Phillips, the
trial court found that a police cruiser’s rapid approach
from the rear caused the defendant to pull his car into
another lane behind a truck. The truck slowed, the de-
fendant’s car encroached, and the officer in his cruiser
stopped the defendant for following too closely. The
trial court suppressed evidence found in a subsequent
search because the officer’s rapid approach forced the
defendant into the traffic violation. See Phillips, 740 N.E.2d
at 845-46. The appellate court affirmed the trial court’s
determination. Id. In Manders, the court affirmed without
much discussion a trial court’s judgment that following
either two or three car lengths (defendant’s estimate) or
20 feet (officer’s estimate) behind a truck at 50 mph was
not too close. Manders, 740 N.E.2d at 67.
These cases are of no help to Mr. Robinson. First, they
are factually distinguishable in significant ways. Officer
Shutter did not force the Buick into a traffic violation, and
the Buick was closer to the tan car than the car in Manders
was to the truck. More importantly, in each case, the
appellate court simply held that the trial courts’ probable
cause determinations were not “manifestly erroneous.” See
Phillips, 767 N.E.2d at 845-46; Manders, 740 N.E.2d at 67.
No. 02-2003 7
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-03