United States v. Erick Charles

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1530
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERICK CHARLES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 883 — James B. Zagel, Judge.
____________________
ARGUED DECEMBER 10, 2014 — DECIDED SEPTEMBER 14, 2015
____________________
Before EASTERBROOK, SYKES, and HAMILTON, Circuit
Judges.
SYKES, Circuit Judge. Early one spring evening a fright-
ened woman called 911 to report an unfolding road-rage
incident on Chicago’s north side. The woman reported that
she was in her car in a narrow alley when another driver
blocked her exit, got out of his car, and was approaching her
in a menacing manner, screaming obscenities. A moment
later the woman called back and said the man was now
2 No. 14-1530
violently pounding on her car window and had displayed a
gun.
A Chicago police officer responded to the scene and saw
a car parked at the entrance to the alley. The driver—later
identified as Erick Charles—emerged from the car. He
matched the caller’s description of the man with the gun, so
the officer detained and frisked him. Finding nothing, the
officer searched the car and discovered a loaded handgun.
Charles was indicted for possessing a firearm as a felon. See
18 U.S.C. § 922(g)(1).
The prosecution was marred by some procedural irregu-
larities. A week before trial, long after the pretrial-motion
deadline lapsed, Charles moved to suppress the gun. A few
days later, the parties notified the court that Charles wanted
a bench trial. The judge suggested consolidating the (un-
timely) suppression motion with the bench trial. Both sides
initially agreed, but Charles’s lawyer changed his mind and
asked to keep the two proceedings separate. The judge
denied that request. As planned, Charles waived his right to
a jury. The judge held a combined suppression hearing and
bench trial, admitted the gun, and found Charles guilty.
Before sentencing Charles changed counsel several times
and filed multiple posttrial motions challenging the admis-
sion of the gun. In the meantime, the case was transferred to
a new judge, who held a hearing and agreed that the gun
should have been suppressed. But the judge declined to
disturb the conviction, concluding that Charles would have
been found guilty even without the gun in evidence. Charles
was sentenced to 15 years in prison. He appeals, challenging
the denial of suppression.
No. 14-1530 3
Despite the procedural missteps, we affirm the judgment.
The suppression motion was properly denied. The officer
had probable cause to search Charles’s car for a gun based
on the 911 caller’s report and his own observations at the
scene. As such, the search was permissible under the auto-
mobile exception to the Fourth Amendment’s warrant re-
quirement.
I. Background
On May 9, 2008, two strangers found their cars at an im-
passe in a narrow alleyway at 1607 W. Howard in Chicago.
One driver would have to back out for either to get through.
As the situation escalated, Nedra Summerise, one of the
drivers, called 911 twice. In her first call, she reported that
the other driver had gotten out of his car and was approach-
ing hers in a threatening manner, yelling obscenities. In her
second call, she told the operator that the man had reached
her car, was violently pounding on the driver’s side window,
and had pulled his shirt back to reveal a gun in his waist-
band. The dispatcher broadcast this information over the
police radio, sending patrol officers to investigate “a person
with a gun” described as “a male black with a gun on his
side, [who] has a plaid shirt and blue jeans, he is light com-
plexion, [and] he’s also bald.” The dispatcher also noted that
the caller “is in the alley” and “says that she is afraid.”
Two officers arrived at the scene within minutes. The first
was Sergeant John Baranowski, who reported his arrival just
two minutes after the dispatch. According to his testimony at
trial, Sergeant Baranowski saw a man behind the wheel of a
red Ford Taurus parked three feet from the curb next to the
4 No. 14-1530
alley. The driver, Erick Charles, emerged from the car, and
the officer saw that he matched the description of the man
with a gun. Leaving his car door open, Charles began walk-
ing toward the officer. As he approached, Sergeant
Baranowski saw a bulge under Charles’s clothing and decid-
ed to detain, handcuff, and frisk him. The bulge turned out
to be a cell-phone holder.
Sergeant Peter Koconis arrived a moment later and as-
sumed responsibility for Charles while Baranowski investi-
gated further. Summerise was still at the scene. Sergeant
Baranowski testified that he spoke with her and she con-
firmed that Charles was the man with the gun who had
threatened her. According to Summerise’s testimony, howev-
er, the officer simply “motioned [her] to come out of the
alley” and did not question her at this point in the investiga-
tion. Regardless, after frisking Charles, Sergeant Baranowski
looked through the open driver’s side door of the red Taurus
and spotted a green gun case. He opened the case and found
a loaded semiautomatic pistol and an extra clip of ammuni-
tion. He also recovered a box of 9-millimeter rounds from
the area between the driver’s and passenger’s seats. Charles
was arrested and charged with possession of a firearm by a
felon. See § 922(g)(1). 1
The case was initially assigned to Judge James Zagel. Af-
ter several extensions of time, Judge Zagel set June 26, 2009,
as the deadline for pretrial motions and November 16, 2009,
1 Charles has a long felony record, including convictions for two separate
armed robberies, aggravated battery, possession of a controlled sub-
stance with intent to distribute, delivery of a controlled substance, and
impersonating a police officer.
No. 14-1530 5
as the trial date. On November 10, just one week before trial,
Charles’s counsel moved to suppress the gun and the state-
ments Charles had made to the police officers. The motion
asserted that the officers lacked probable cause to search the
car and hadn’t given Charles Miranda warnings before
questioning him. The government responded that the mo-
tion was untimely.
As it turned out, Judge Zagel was unavailable to handle
the trial, so Judge Wayne Andersen agreed to preside in his
place. Judge Andersen announced that he would hold a
hearing on the (untimely) suppression motion immediately
before trial.
The day before trial, Charles’s counsel informed the pros-
ecutor that his client wanted a bench trial. Judge Andersen
welcomed the additional flexibility of a bench trial and
proposed consolidating the suppression hearing and the
trial. The prosecutor called this “a good idea” and said
“[t]here is really no reason to go separately.” The judge
paused to consider one possible concern:
[O]ftentimes after people lose a suppression
[hearing], they then decide to plead. Some-
times conditionally. Sometimes absolutely. That
would affect timely plea and acceptance of re-
sponsibility. … I don’t think at this point in
time, since we are ready to go through all the
work, it should prevent the defendant from
electing that option.
To address the potential loss of guidelines credit for a timely
guilty plea, the judge assured Charles that if he lost the
suppression motion and thereafter wanted to plead guilty,
6 No. 14-1530
the guilty plea would be treated “just as if he had done that
between the suppression hearing and trial.”
Charles’s lawyer didn’t object in principle but wanted to
“think about it a little bit more.” The next day he had a
change of heart and asked to separate the suppression
hearing from the bench trial. Judge Andersen denied that
request, saying that he had spoken with other judges and
concluded that if the defendant opted for a bench trial, then
the two proceedings could safely be conducted together. The
judge noted that he was going to hear all the evidence
anyway, regardless of whether or not he ultimately decided
to suppress the gun or the statements. Charles then formally
waived his right to a jury trial and the proceedings began.
Summerise testified that Charles blocked her exit from
the alley, approached her car yelling obscenities, and began
to “hammer” at the driver’s side window of her car with his
fists. She testified that he lifted his shirt to reveal a handgun
with a silver handle sticking out of his waistband. The
officers also testified, explaining their investigation at the
scene, the search of the red Taurus, and their questioning of
Charles. The judge suppressed Charles’s statements but
admitted the gun, the gun case, and the ammunition. Fol-
lowing closing arguments, the judge found Charles guilty
and set a January 15, 2010 deadline for posttrial motions.
A long delay ensued. Charles filed multiple posttrial mo-
tions seeking judgment of acquittal or a new trial—some by
counsel, others pro se, and most after the deadline for
posttrial motions had expired. By the time of the motion on
which this appeal is largely based (filed on October 12,
2012), Charles was on his fourth set of attorneys. In the
No. 14-1530 7
meantime, Judge Andersen retired from the bench. The case
returned to Judge Zagel.
In the October 12 motion, Charles argued that the gun
and ammunition should have been suppressed because the
search of his car was impermissible as a search incident to a
Terry stop and the gun case was not “in plain view.” On
May 24, 2013, Judge Zagel held an evidentiary hearing on
the motion. He continued the hearing and took additional
evidence on June 28. On September 6 he rendered a decision,
ruling that the gun and related evidence should have been
suppressed because the gun case wasn’t unmistakably a gun
case and the police lacked probable cause to open it. He
deferred judgment on whether the suppression error war-
ranted a new trial.
On October 4, 2013, Judge Zagel denied the motion for a
new trial. For starters, he said he was now “inclined to
believe that … [the motion was] untimely.” Alternatively, he
concluded that the admission of the gun and related evi-
dence was harmless because Charles would have been found
guilty based on Summerise’s testimony alone.
Charles moved for reconsideration, but this motion too
was denied. The judge imposed a sentence of 15 years and
this appeal followed.
II. Discussion
Charles argues that Judge Zagel should have granted a
new trial after concluding that the gun and ammunition
should have been suppressed. We disagree, although our
reasons differ from Judge Zagel’s. There was no suppression
error in the first place. This case falls squarely within the
8 No. 14-1530
automobile exception to the warrant requirement, so the gun
and ammunition were properly admitted at trial.
Warrantless searches are per se unreasonable under the
Fourth Amendment unless they fall within “a few specifical-
ly established and well-delineated exceptions.” Arizona v.
Gant, 556 U.S. 332, 338 (2009) (quotation marks omitted). As
we’ve noted, at issue here is the automobile exception. First
recognized in Carroll v. United States, 267 U.S. 132 (1925), and
clarified in United States v. Ross, 456 U.S. 798 (1982), the
automobile exception permits the police to search a vehicle if
there is probable cause to believe it contains evidence of
criminal activity. Gant, 556 U.S. at 347. The authority to
search encompasses any area of the vehicle where evidence
of the crime might be found. Id.
“[T]he scope of the warrantless search authorized by th[e
automobile] exception is no broader and no narrower than a
magistrate could legitimately authorize by warrant.” Ross,
456 U.S. at 825. So if there is probable cause to search a
vehicle for contraband or evidence of a crime, a police officer
may search containers within the vehicle that could hold
such evidence. See, e.g., United States v. Edwards, 769 F.3d 509,
514 (7th Cir. 2014) (search for evidence relating to ownership
of car after its theft was reported); United States v. Nicksion,
628 F.3d 368, 377 (7th Cir. 2010) (search for evidence of drug
transactions seen during surveillance of defendant).
“Probable cause exists when based on the known facts
and circumstances, a reasonably prudent person would
believe that contraband or evidence of a crime will be found
in the place to be searched.” Edwards, 769 F.3d at 514 (inter-
nal quotation marks omitted). This is an objective determina-
tion made without regard to an officer’s motive, but with an
No. 14-1530 9
eye toward additional knowledge the officer may have had
as a result of his training and experience. United States v.
Reed, 443 F.3d 600, 603 (7th Cir. 2006).
Here, the dispatcher’s report of Summerise’s 911 call es-
tablishes beyond dispute that Sergeant Baranowski had
probable cause to believe that Charles was carrying or had
very recently carried a handgun. At the time, Chicago com-
prehensively banned handgun possession, CHICAGO, ILL.,
MUNICIPAL CODE §§ 8-20-040(a), 8-20-050(c) (2009); see gener-
ally McDonald v. City of Chicago, 561 U.S. 742, 750–51 (2010),
and Illinois prohibited carrying a gun in public unless it was
“unloaded and enclosed in a … container,” 720 ILL. COMP.
STAT. 5/24-1(a)(4)(iii) (2008); see generally Moore v. Madigan,
702 F.3d 933, 934 (7th Cir. 2012) (discussing the statute). 2
The dispatcher reported the gist of Summerise’s 911 call
and directed responding officers to look for “a person with a
gun” in the alley at the West Howard Street address. The
dispatcher also gave a detailed description of the suspect
and reported that the caller, Summerise, was in the alley and
“says that she is afraid.” Just two minutes later Sergeant
Baranowski arrived on the scene and saw Charles, who
matched the description, emerging from a car parked at the
entrance to the alley. A reasonable officer would have con-
sidered it likely that Charles had stashed the gun—evidence
of these crimes—in his car.
2 The government also argues that there was probable cause to believe
that Charles had threatened Summerise with a gun. We find it unneces-
sary to address this argument.
10 No. 14-1530
It’s true that Chicago’s handgun ban was later invalidat-
ed, see McDonald, 561 U.S. at 791, as was the Illinois con-
cealed-carry law, see Moore, 702 F.3d at 942. But the “[p]olice
are charged to enforce laws until and unless they are de-
clared unconstitutional,” so a search based on a violation of
a law later declared unconstitutional does not necessarily
violate the Fourth Amendment. Michigan v. DeFillippo,
443 U.S. 31, 38 (1979). Although Charles could not be pun-
ished for violating an unconstitutional statute or ordinance,
unless a law is “grossly and flagrantly unconstitutional,” a
police officer conducting a search may reasonably rely on it
for Fourth Amendment purposes. Id.
Here, there was ample probable cause to believe that
Charles had violated the Chicago ordinance and Illinois
statute and that evidence of those crimes could be found in
his car. Accordingly, the search of the car was not unreason-
able. Judge Andersen properly denied the suppression
motion.
Charles also claims he is entitled to a new trial because
Judge Andersen held the suppression hearing and trial
concurrently. This argument invokes Rule 12 of the Federal
Rules of Criminal Procedure, which provides that “[t]he
court must decide every pretrial motion before trial unless it
finds good cause to defer a ruling.” FED. R. CRIM. P. 12(d)
(emphasis added). Judge Andersen did not make a specific
finding of good cause to defer ruling on the suppression
motion. This step should not be overlooked, especially
where suppression of physical evidence is at stake. Deferring
a ruling in this context risks serious prejudice to the prosecu-
tion and defense alike.
No. 14-1530 11
One obvious problem is that a defendant may wish to
testify at the suppression hearing but not at trial. Delaying a
suppression decision also implicates the timeliness of a
potential guilty plea and the availability of sentencing credit
for acceptance of responsibility, as the judge recognized in
this case.
Even more problematic is the interplay of the Double
Jeopardy Clause and mistaken suppression rulings. If pivot-
al evidence were improperly excluded during (rather than
before) trial, the government could challenge the exclusion
only by petition for a writ of mandamus and never after an
acquittal. Mandamus is appropriate during a criminal trial
only very rarely, when “a trial judge’s ruling … is so patently
unsound as to exceed the legitimate bounds of judicial
power.” In re United States, 614 F.3d 661, 663 (7th Cir. 2010)
(granting a writ of mandamus where the evidentiary ruling
was based on “implausible speculation” by the judge of
criminal obstruction of justice by the government). Ordinary
legal errors are unlikely to meet this standard.
A mandamus petition as a remedy for an evidentiary er-
ror during trial seems particularly inappropriate where, as
here, the prosecutor consented to the judge’s decision to
merge the suppression hearing and the trial, thus foreclosing
a government appeal from a pretrial decision excluding
evidence. See 18 U.S.C. § 3731 (permitting interlocutory
government appeals of evidentiary rulings before the de-
fendant is placed in jeopardy). We find it difficult to under-
stand why the government consented to consolidation here,
where the “good cause” prerequisite of Rule 12(d) was
neither addressed nor met.
12 No. 14-1530
The judge had two options when confronted with the
tardy suppression motion: hold a hearing and address and
decide the merits of the suppression issue before trial, or
deny the motion as untimely. 3 To defer ruling required good
cause. That finding was never made.
Although the court erred, Charles hasn’t demonstrated
any prejudice. He does not claim that he would have testi-
fied at a separate suppression hearing. And in any case,
probable cause to search the car was conclusively established
by the details of the dispatch and Sergeant Baranowski’s
observations at the scene. Charles contends that he “waived
his Sixth Amendment right to a jury trial without a full
understanding of the evidence against him.” But he request-
ed a bench trial before the first hearing at which the parties
addressed the motion to suppress—and the timing of its
consideration—so we don’t see how anything would have
changed if he had known the result of his suppression
motion earlier. It’s no surprise that having made his request
for a bench trial when he did, Charles now emphasizes that
he isn’t challenging the validity of his jury waiver.
Charles also suggests that his opening statement and
closing argument would have been prepared differently if he
had known the result of the suppression motion. But the
evidence against him was overwhelming; we’re satisfied that
he would have been convicted no matter what his lawyer
said in opening statement and closing argument.
3 A motion to suppress evidence filed after the court’s deadline may be
denied as untimely, but a court may consider it on a showing of “good
cause.” FED. R. CRIM. P. 12(c)(3). Charles filed his motion on the eve of
trial on November 10, 2009, more than four months after the June 26
deadline.
No. 14-1530 13
Finally, Charles says that he might have considered
pleading guilty if the judge had ruled on his suppression
motion before trial. But there is no possibility that a guilty
plea could have produced a lighter sentence for the single
count charged in the indictment. Charles has at least three
violent felony or serious drug convictions (more, actually),
which triggered application of the enhanced penalties in the
Armed Career Criminal Act, including its 15-year minimum
sentence. 18 U.S.C. § 924(e)(1). Indeed, Charles was sen-
tenced to the minimum 15-year term, and he hasn’t de-
scribed a chain of events that could have plausibly produced
a lesser sentence in his case. Accordingly, although the judge
erred by deferring a ruling on Charles’s suppression motion
without good cause, the error was harmless.
AFFIRMED.