United States v. Tyron Freeman

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2658
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T YRON D. F REEMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-CR-30033—Richard Mills, Judge.
A RGUED A PRIL 2, 2012—D ECIDED A UGUST 21, 2012
Before R OVNER, S YKES, and T INDER, Circuit Judges.
S YKES, Circuit Judge. Tyron Freeman and Brent Garner
were caught in a sting operation set up by narcotics
officers in Springfield, Illinois, using a couple of known
drug associates working as cooperating informants.
Freeman and Garner showed up at the appointed time
and place for the undercover drug transaction in a
minivan matching the description given by one of the
informants. They remained at the scene for only a few
2 No. 11-2658
minutes, however. As they drove away, the police
initiated a traffic stop. A search of the two men and the
van did not turn up any drugs, but the police arrested
them anyway. When Freeman was booked into the jail,
he was strip-searched and found with a bag of crack
cocaine concealed between his buttocks. He was
convicted by a jury of possession of crack cocaine with
intent to distribute and sentenced as a career drug
offender to 30 years in prison.
On appeal Freeman challenges his arrest and the
strip search at the jail, and also argues that his 30-year
sentence is unreasonable. We reject these arguments
and affirm. The police had credible information about
Freeman’s drug-trafficking habits from the cooperating
informants, and his activities just prior to his arrest coin-
cided perfectly with the details of the undercover opera-
tion, thus supplying probable cause to arrest despite
the fact that no drugs were found in the search
during the stop. And based on his criminal history, the
specific grounds for his arrest, and his uncomfortable
fidgeting in his seat while awaiting booking, there
was adequate justification for a strip search before ad-
mitting him to the jail. Finally, Freeman’s sentence,
though lengthy, was at the bottom of the properly calcu-
lated guidelines range, and he has not given us any
good reason to find it unreasonable.
I. Background
In May 2008 a confidential informant told Spring-
field Police Officer Tammy Baehr about two drug
No. 11-2658 3
dealers—“Big D” and “Worm”—who drove around town
in a silver minivan. The informant said he had traveled
to Chicago with Big D on four occasions and that Big D
had a habit of concealing drugs between his buttocks
when he thought he might be stopped by police. The
informant also said Big D was a diabetic and had
recently been in the hospital because “[h]is leg was
rotting off.” Further investigation identified “Big D” as
Tyron Freeman and “Worm” as Brent Garner.
Two months later, Springfield police arrested Terance
Carter, another area drug dealer. In an attempt to
obtain leniency, Carter offered to help the police with
undercover transactions targeting other drug dealers,
including one he knew only as “Banks.” On July 24, 2008,
at the direction of Officer James Cordery, Carter called
Banks to arrange a drug purchase. A man with a raspy
voice answered. (Carter later told Officer Cordery that
he thought Banks was trying to disguise his voice
because he did not normally talk that way.) Carter asked
to buy six “eightballs”—six 3.5-gram quantities of crack
cocaine—and suggested that they meet at a local liquor
store to complete the transaction. The man with the
raspy voice agreed, but the sale did not occur as
planned because the seller did not show up at the
meeting place.
Four days later, on July 28, 2008, Carter called Banks
again and asked to purchase the same amount of crack.
The raspy-voiced man answered, and this time he sug-
gested that they rendezvous at the Sav-A-Lot store.
Carter agreed. Officer Baehr and a DEA agent set up
4 No. 11-2658
surveillance outside the store. The parking lot was rela-
tively empty, with only about five unoccupied cars.
Twenty minutes after the first call, under the direction
of Officer Cordery and DEA agents, Carter redialed
Banks’s phone and claimed to be waiting inside the
store. The raspy-voiced man answered and said he
would be there in two minutes.
Officer Baehr soon noticed a silver minivan pull
into the lot and park near the store’s door. She could
see two black occupants in the van, one behind the
wheel and the other sitting in the front passenger seat.
The two occupants did not get out of the van. At
Officer Cordery’s direction, Carter called Banks’s
number again. The raspy-voiced man answered and
said he was by the door. The silver minivan idled in
front of the entrance for a few more minutes and then
abruptly pulled out of the lot. Neither occupant had
stepped out of the van.
Officer Baehr instructed uniformed officers on her
surveillance team to follow and conduct a traffic stop.
As the van drove away from the Sav-A-Lot, the driver
failed to signal a turn. Officer John Shea initiated a stop
about two blocks from the store. When Officer Baehr
arrived at the scene, she heard the passenger—identified
as Freeman—speaking with a “real raspy” voice. An-
other officer described Freeman’s voice as “very rough
and coarse, gravelly almost.” The driver—identified as
Garner—spoke with a normal voice. Freeman had a
walking cast on his leg.
The officers searched Freeman and Garner but found
no drugs. A canine unit arrived, and the dog alerted
No. 11-2658 5
when it circled the van. The officers then searched the
van but again found no drugs. Carter, still with
Officer Cordery and the DEA agents, was told to redial
the number he had just used to set up the sting. He did
so, and the call came through to a cell phone located in
the armrest on the passenger-side door of the van,
where Freeman had been sitting.
At this point the police officers had still not located
any drugs, so Officer Baehr called a state prosecutor
to discuss what to do. The prosecutor told her to
arrest both men for attempted cocaine distribution. The
officers placed Freeman and Garner under arrest and
took them to the police station, and from there to the
jail one block away. At the station one of the officers
noticed that Freeman was visibly uncomfortable while
seated; he “kept fidgeting and changing positions in the
seat, back and forth from side to side.” During the
booking process at the jail, Freeman was strip-searched
and found to be concealing a bag containing 31.8 grams
of crack cocaine between his buttocks.
Freeman was charged with possession with intent
to distribute 28 or more grams of crack cocaine. See 21
U.S.C. § 841(a)(1) & (b)(1)(B). The government later
served notice that it would seek an enhanced sentence
under 21 U.S.C. § 851 based on Freeman’s prior drug
offenses. Freeman moved to suppress the crack-cocaine
evidence, arguing first that the police lacked probable
cause to arrest, and second, that they lacked reasonable
suspicion to conduct the strip search. The motion was
heard by a magistrate judge, who credited the officers’
6 No. 11-2658
testimony recounting the facts we have just described.
Freeman did not testify. The magistrate judge concluded
that both the arrest and the strip search were justified.
He explained that at the time Freeman was arrested,
the “officers had overheard the six phone calls placed
by Carter, which . . . clearly attempt to set up a drug
transaction.” They had also observed the silver van and
its occupants engage in behavior uniquely consistent
with the planned drug sale. And once the officers
stopped the van for traffic violations, they noticed that
Freeman had a raspy voice, just like the man Carter
had called to arrange the sale.
The magistrate judge further concluded that even if
the foregoing facts “did not rise to the level of probable
cause,” the information known to the officers “quickly
blossomed to that level as the stop progressed.” By
the time the officers arrested Freeman, they had two
additional pieces of information: (1) the drug dog had
alerted on the van; and (2) when Carter redialed the
number he had been using to set up the sting,
the call came through to a phone located on the front-
passenger side of the van. The judge held that these
facts, considered together, established probable cause
to arrest Freeman for attempted distribution of cocaine.
With respect to the strip search at the jail, the
magistrate judge explained that circuit precedent allows
warrantless strip searches of pretrial detainees if jail
officials have reasonable suspicion at the time of the
search that the individual might be concealing contra-
band. See Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th
No. 11-2658 7
Cir. 1995). The judge concluded that in Freeman’s case,
there were many grounds for suspicion, including
strong evidence connecting him to a narcotics-trafficking
offense, the inability of the officers to find drugs at
the scene of the stop, his known history of concealing
drugs between his buttocks, and his obvious discomfort
and suspicious fidgeting while seated at the police station.
The district court adopted the magistrate judge’s recom-
mendation and denied Freeman’s motion to suppress.
A jury found Freeman guilty, and at sentencing the
district court classified Freeman as a career drug
offender based on convictions in 1999 and 2005 for dis-
tributing narcotics. See U.S.S.G. § 4B1.1(b). With an
offense level of 37 and a criminal history category of VI,
Freeman’s advisory guidelines range was 360 months to
life with a mandatory minimum sentence of ten years.
Freeman argued for a below-guidelines sentence
primarily because his 2005 conviction involved less than
one gram of cocaine. The judge rejected this argument,
noting that this was Freeman’s fifth drug-related con-
viction and third drug-trafficking crime:
In 1993, at the age of 17, the defendant was first
convicted of possessing cocaine. Since then he has
been convicted multiple times for serious drug of-
fenses.
....
Mr. Freeman has steadily become involved in more
serious drug crimes and he has not performed well
while on probation or parole. When he’s been given
probation on drug charges[,] he’s often failed to
8 No. 11-2658
comply with the restrictions and has been sent to a
state prison. When he’s been paroled, he sub-
sequently violated parole, usually because of a new
drug offense. The result is a revolving door between
drug dealing and imprisonment. Each time the penal-
ties are enhanced, but the defendant returns to
the same patterns of dealing drugs.
Today that revolving door is stopped. While I’ve
considered all of the factors set forth in [§] 3553, one
factor that is especially relevant, the need for the
sentence imposed to protect the public from further
crimes of the defendant. The risk of recidivism is
extremely high in this case. And I conclude that
Mr. Freeman must be incapacitated. If he cannot
stop himself from being a drug dealer, he must be
removed from society so that he cannot re-offend.
The judge imposed a sentence of 360 months, the bottom
of the guidelines range. This appeal followed.
II. Discussion
Freeman challenges the district court’s denial of his
suppression motion, reiterating his arguments that the
police lacked probable cause to arrest him and that the
strip search was not supported by reasonable suspicion.
He also argues that his 30-year sentence is substan-
tively unreasonable mainly because one of his prior drug-
trafficking offenses involved only a small amount
of cocaine.
No. 11-2658 9
A. Probable Cause for the Arrest
We review the district court’s denial of Freeman’s
suppression motion under a dual standard of review:
Factual findings are reviewed for clear error and legal
conclusions get independent review. See United States v.
Huebner, 356 F.3d 807, 812-13 (7th Cir. 2004). The
district court’s credibility determinations are not clearly
erroneous unless “completely without foundation.” Id.
at 812 (quotation marks omitted).
A warrantless arrest satisfies the Fourth Amendment
if supported by probable cause that the arrested
individual committed a crime. Maryland v. Pringle, 540
U.S. 366, 370 (2003). “Whether probable cause exists
depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time
of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152
(2004). Probable cause exists when officers have “a rea-
sonable ground for belief of guilt.” Pringle, 540 U.S. at
371 (quotation marks omitted). This standard “requires
only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” United
States v. Hicks, 650 F.3d 1058, 1065 (7th Cir. 2011)
(internal quotation marks omitted).
At the time of Freeman’s arrest, the police on the
scene had plenty of information to give them probable
cause to believe that he had committed the crime of
attempted distribution of cocaine. Officer Baehr had
just watched the silver van pull into the Sav-A-Lot
parking lot at precisely the time the planned drug deal
was supposed to occur, and the van was the only
10 No. 11-2658
occupied vehicle in the lot. Cf. United States v. Colon, 549
F.3d 565, 567 (7th Cir. 2008) (finding probable cause
to arrest an individual for purchasing drugs when he
“arrived when . . . the buyer would arrive, and during
the preceding 15 minutes no one else had entered
the house from the street”). The van matched the de-
scription provided by the first confidential informant.
Just before the van arrived, Carter, the cooperating in-
formant who worked with the police to set up the
sting, called Banks’s number to say that he was in the
store; the raspy-voiced man on the other end said he
would be there in two minutes. When Carter
called again to say he was ready to make the exchange, the
raspy-voiced man said he was at the Sav-A-Lot near
the door—exactly where the silver van was parked. And
when Carter did not immediately show up, the van
pulled away. The occupants never got out of the van
or took any other action to suggest that they were there
on legitimate business.
Once the traffic stop was underway, Officer Baehr
heard Freeman speaking in a raspy voice, just like the
man with whom Carter had arranged the sale. He was
also wearing a walking cast on his leg, matching the
information Officer Baehr had from the first confidential
informant that Big D had diabetes and had recently
been in the hospital because his leg was “rotting.”
Finally, when Carter redialed the number he had been
using to set up the sting, the call came through on a
phone in the van; the phone was located in an armrest
on the front passenger side, exactly where Free-
man—the suspect with the raspy voice—had been sitting.
No. 11-2658 11
These facts easily establish probable cause to believe
that the two occupants of the van came to the Sav-A-Lot
in response to the sting; that is, they were there to
sell cocaine to Carter, who had just arranged for this
illicit transaction to occur at that very time and place.
Freeman insists that the arresting officers did not
have probable cause to arrest him because he was only
a passenger in the van. Cf. United States v. Ingrao, 897
F.2d 860, 863 (7th Cir. 1990) (“[P]hysical proximity to
a suspected crime, without other indicia of [the defen-
dant’s] involvement, is insufficient to support a finding
of probable cause.”). This argument totally misses the
mark. Freeman’s status as the passenger in the car
makes no difference. See Wyoming v. Houghton, 526
U.S. 295, 304 (1999) (“[A] car passenger . . . will often be
engaged in a common enterprise with the driver . . . .”);
Pringle, 540 U.S. at 372 (finding probable cause to
arrest car passengers because police officers reasonably
inferred that “any or all three of the occupants had knowl-
edge of, and exercised dominion and control over,
the cocaine”). His presence in the car under these cir-
cumstances—and his raspy voice, matching the voice of
the drug dealer on the phone—provided the officers
with all the particularized reasons they needed to believe
that Freeman, though a passenger, was involved in
the attempted drug sale.
Freeman also attacks Officer Baehr’s credibility, but
this argument is a nonstarter. A district court’s cred-
ibility assessment based on live testimony “will not be
disturbed unless it is completely without foundation.”
12 No. 11-2658
Huebner, 356 F.3d at 812 (quotation marks omitted).
Freeman critiques Officer Baehr’s testimony on sev-
eral grounds, but none gives us reason to overturn the
magistrate judge’s decision to credit her as a witness.
First, Freeman points to small inconsistencies in Officer
Baehr’s testimony—notably her statements that the
first confidential informant told her that Freeman
had hidden drugs between his buttocks “one time”
and “from time to time.” Minor inconsistencies like this
do not justify reversal. “Testimony is not incredible as
a matter of law . . . only because the witness may have
been impeached by certain discrepancies in [her] story,
by prior inconsistent statements, or by the existence of
a motive to provide evidence favorable to the govern-
ment.” United States v. Alcantar, 83 F.3d 185, 189 (7th Cir.
1996). The most important aspects of Officer Baehr’s
testimony were internally consistent.
Second, Freeman argues that Officer Baehr must have
lied because she testified about details that did not
appear in her police report. This argument mistakes
the purpose of a police report, which “is not an
all-encompassing account of exactly what was said
and done during an encounter between a law enforce-
ment agent and a private citizen, but rather is a
summary of what occurred.” United States v. Eddy,
8 F.3d 577, 582 (7th Cir. 1993). More importantly, this
kind of argument is for the factfinder, not a reviewing
court. “The absence of any indication in the police
report . . . may impact the credibility of the officers’
testimony, but . . . we will not disturb the district
court’s factual finding that such testimony was credible.”
No. 11-2658 13
United States v. Evans, 994 F.2d 317, 321-22 (7th Cir. 1993);
see also United States v. Briggs, 291 F.3d 958, 963 (7th
Cir. 2002).
Finally, Freeman argues that Officer Baehr must
have fabricated her testimony because otherwise she
would not have called a state prosecutor when the
officers failed to find any drugs at the scene. We disagree.
Police officers do not need to make an arrest every
time they have probable cause, and a “drugless” drug
bust is the type of case a prosecutor may not want to
pursue even when the officers have probable cause to
arrest. Officer Baehr’s decision to contact the prosecutor
does not call into question the presence of probable cause.
B. The Strip Search
Freeman argues that the strip search at the jail
violated his Fourth Amendment rights. We review this
claim de novo. United States v. Brack, 188 F.3d 748, 758
(7th Cir. 1999). We have held that jail officials must
have reasonable suspicion that a detainee is concealing
contraband before they may conduct a strip search, and
whether reasonable suspicion exists “depends upon
such factors as the nature of the offense, the arrestee’s
appearance and conduct, and the prior arrest record.”
Kraushaar, 45 F.3d at 1045 (internal quotation marks
omitted). Sometimes the nature of the charged offense
by itself may supply enough suspicion to justify the
search, see Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986),
and narcotics violations are the “kinds of crimes . . .
that might give rise to a reasonable belief that [an] arrestee
14 No. 11-2658
was concealing an item in a body cavity,” Mary Beth G. v.
City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983).1
The inquiry therefore recognizes that “[a] detention
facility is a unique place fraught with serious security
dangers. Smuggling of money, drugs, weapons, and other
contraband is all too common an occurrence.” Bell v.
Wolfish, 441 U.S. 520, 559 (1979).
Here, the strip search was amply justified. First,
Freeman was arrested for attempted drug distribution,
which is exactly the type of crime that raises reasonable
suspicion of concealed contraband. See Mary Beth G.,
723 F.3d at 1273; Bull v. City & County of San Francisco,
595 F.3d 964, 988-89 (9th Cir. 2010) (en banc) (Graber, J.,
concurring) (“[S]ome categories of pretrial detainees
(such as those with a criminal record and those
arrested for violent offenses and drug offenses) do pose
a significant risk of bringing contraband into the jail.”).
The officers knew of Freeman’s habit of hiding drugs
1
The Supreme Court recently addressed the legality of a policy
of strip searches prior to a detainee’s admission to jail. See
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132
S. Ct. 1510 (2012). The Court explained that when a jail has
a policy of strip-searching each of its inmates before admittance,
“deference must be given to the officials in charge of the jail
unless there is ‘substantial evidence’ demonstrating their
response to the situation is exaggerated.” Id. at 1518 (quoting
Block v. Rutherford, 468 U.S. 576, 584 (1984)). Florence may require
reconsideration of some aspects of our circuit’s caselaw, but
there is no need to do so here; the strip search in this case
was well-supported by particularized suspicion.
No. 11-2658 15
between his buttocks, and when they failed to find
drugs at the scene of the traffic stop, it was completely
reasonable to think that he might be concealing drugs
in this way. Finally, there was Freeman’s telltale uncom-
fortable fidgeting while seated at the police station.
This evidence gave the officers particularized grounds
for suspecting that Freeman might be hiding drugs or
contraband and that a strip search was warranted.
Cf. Kraushaar, 45 F.3d at 1045-46 (finding reasonable
suspicion based on a detainee’s furtive hand movements
suggesting he was trying to hide something in his pants).
Freeman complains that the police reports did not
mention his history of concealing drugs or his
suspicious fidgeting. We have already explained that
this is an argument for the factfinder, not a reason for
us to overturn the district court’s credibility determina-
tion; as a general matter, this kind of attack does not
warrant reversal on appeal. See Eddy, 8 F.3d at 582;
Evans, 994 F.2d at 321-22; Briggs, 291 F.3d at 963. It was
up to the magistrate judge to decide whether to credit
the officers’ testimony about Freeman’s fidgeting and
his history of concealing drugs even though these
details were not in their reports. We see no reason to
disturb the judge’s credibility determination.
Even setting aside these additional facts, Freeman
was under arrest for attempted cocaine distribution, a
drug dog had alerted to the presence of drugs at the
scene of the stop but no drugs were found, and the
officers knew he was at the Sav-A-Lot trying to sell six
eightballs of cocaine. These facts, combined with his
16 No. 11-2658
history of drug crimes, was enough to justify the strip
search before booking him into the jail.
C. Reasonableness of the Sentence
Finally, Freeman challenges his 30-year sentence as
substantively unreasonable. “A sentence is reasonable
if the district court gives meaningful consideration to
the factors enumerated in 18 U.S.C. § 3553(a), including
the advisory sentencing guidelines, and arrives at a
sentence that is objectively reasonable in light of the
statutory factors and the individual circumstances of
the case.” United States v. Shannon, 518 F.3d 494, 496
(7th Cir. 2008). Although the sentencing judge is free
to disagree with the policy judgments underlying the
guidelines, the judge is not required to do so. United
States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en
banc). We review the substantive reasonableness of a
sentence deferentially, for abuse of discretion, and
presume that a within-guidelines sentence is reasonable.
United States v. Garcia, 580 F.3d 528, 540 (7th Cir. 2009).
Freeman concedes that the district court properly
calculated the guidelines range and that his sentence
is within it, but he maintains that 360 months is an unrea-
sonably long sentence under the circumstances because:
(1) he was a “small time, small quantity” dealer and not
a “repeat drug trafficker,” in that one of his two prior
trafficking offenses involved less than one gram of
cocaine; (2) career-offender enhancements dispropor-
No. 11-2658 17
tionately affect black offenders; and (3) career-offender
enhancements do not reduce recidivism.
These arguments, individually or together, are insuffi-
cient to overcome the appellate presumption that Free-
man’s within-guidelines sentence is reasonable. The
district court thoroughly considered Freeman’s argu-
ments as well as the relevant § 3553(a) factors. The
judge noted that Freeman had “steadily become
involved in more serious drug crimes” since his first
drug conviction at age seventeen and that he had failed
to comply with restrictions while on both probation
and parole. The judge also determined that Freeman’s
persistent involvement in narcotics trafficking was
more important than the small quantity of cocaine in-
volved in his 2005 conviction. The judge ultimately con-
cluded that Freeman’s unbroken criminal history war-
ranted the lengthy incapacitation called for by the
advisory guidelines. While severe, the 30-year sentence
follows the policy judgments underpinning the guide-
lines; the judge was permitted—but not required—to
disagree with those policy judgments. We see no com-
pelling reason to overturn the district court’s presump-
tively reasonable sentence.
A FFIRMED
8-21-12