United States v. Larry Bentley, Jr. , 795 F.3d 630 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2995
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY BENTLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 10-10108-001 — James E. Shadid, Chief Judge.
____________________
ARGUED DECEMBER 11, 2014 — DECIDED JULY 28, 2015
____________________
Before WOOD, Chief Judge, and FLAUM and MANION, Cir-
cuit Judges.
WOOD, Chief Judge. A great many police departments rely
on trained dogs to detect hidden drugs (or other substances,
including explosives, blood, and human remains). Nagging
questions remain, however, about the accuracy of the dog’s
performance, especially when a dog’s alert provides the sole
basis for a finding of probable cause to search or arrest
someone.
2 No. 13-2995
In Larry Bentley’s case, a police officer initiated a traffic
stop after observing Bentley’s vehicle cross into another lane
on an Illinois highway without signaling. After stopping
Bentley, the officer decided to call for a drug-detection dog
named Lex. Once on the scene, Lex alerted, and the officers
found close to 15 kilograms of cocaine in the vehicle.
But what if Lex alerts every time he is called upon? The
fact that drugs are (or are not) found would have nothing to
do with his behavior. That, in essence, is what Bentley is ar-
guing here. The evidence Bentley was able to gather sug-
gests that Lex is lucky the Canine Training Institute doesn’t
calculate class rank. If it did, Lex would have been at the bot-
tom of his class. Nevertheless, in light of the Supreme
Court’s decision in Florida v. Harris, 133 S. Ct. 1050 (2013),
which addressed the use of drug-detection dogs, we con-
clude that the district judge did not err when he decided that
Lex’s alert, along with the other evidence relating to the stop,
was sufficient to support probable cause. Bentley’s other two
challenges based on the traffic stop and his alleged lack of
knowledge of the cocaine in the vehicle also fail. We thus af-
firm his conviction.
I
On October 14, 2010, Aaron Veerman, an officer with the
Bloomington (Illinois) Police Department, ran a license check
on a Chrysler Pacifica he observed at a Circle K convenience
store. Veerman learned that the car was registered to Tonya
Smith of Kankakee, Illinois, but that Smith’s driver’s license
had expired 18 years earlier. Officer Veerman followed the
car onto I-55 and stayed with it until the driver committed a
lane violation. At that point, he signaled for the car to pull
over. When it did, he learned that Tonya Smith was not driv-
No. 13-2995 3
ing the car; Larry Bentley was. Veerman explained to Bent-
ley that he had seen the car commit lane violations and
wanted to make sure he was all right. Bentley first informed
Veerman that he was driving from Chicago to his home in
St. Louis and that Smith was his girlfriend. He then fumbled,
said that Smith lived with him in St. Louis, and then
changed his story again and said that she actually lived in
Kankakee, but often stayed with him in Missouri. Bentley
handed over a valid driver’s license and some documents
(including proof of insurance) from the glove compartment.
Another officer, Nikolai Jones, arrived during this exchange
and with a flashlight observed a spare tire in the back seat of
the car. The two officers spoke and then radioed for a drug-
detection dog.
Officer Justin Shively responded and brought Lex, a
trained drug dog, to the scene. Bentley agreed to get out of
the car and to allow the officers to search him while Lex was
sniffing. The officers found $1,699 in cash in Bentley’s pock-
ets—far more than the “couple hundred” to which Bentley
had admitted. The officers also found a cell phone, nine
money orders for a total of $5,600, and a wallet that con-
tained three more money orders adding up to $900. Mean-
while, Lex alerted to drugs in the car. Sure enough, officers
found nearly 15 kilograms of cocaine in a trap compartment.
Bentley was later charged by a federal grand jury with
possession with intent to distribute more than five kilograms
of cocaine. 21 U.S.C. § 841(a)(1). After an evidentiary hear-
ing, the district court denied Bentley’s motion to suppress. It
found that Officer Veerman had both probable cause and
reasonable suspicion to stop Bentley, because even though
the officer did not see who the driver was, the officer knew
4 No. 13-2995
that the owner of the vehicle did not have a valid license and
the officer observed a lane violation. The court also found
that Lex was reliable enough as a drug-detection dog to es-
tablish probable cause. At the conclusion of the trial, the jury
convicted Bentley. The district court denied Bentley’s Rule
29 motion for a judgment of acquittal and sentenced him to
240 months, followed by 10 years of supervised release. This
timely appeal followed.
II
Bentley offers three challenges to his conviction. He be-
gins with the contention that the officer did not have reason-
able suspicion to make the initial stop. Even if the stop sur-
vives scrutiny, he argues next that Lex’s alert was not suffi-
ciently reliable to support probable cause. Finally, he main-
tains that even if the stop and search were valid, the gov-
ernment failed to present sufficient evidence to establish his
guilt beyond a reasonable doubt. We address his challenges
in that order.
A
When a criminal defendant appeals the district court’s
denial of a motion to suppress, we review both legal conclu-
sions and mixed questions of law and fact de novo. United
States v. Henderson, 748 F.3d 788, 790 (7th Cir. 2014). Vehicle
stops are analyzed using the Fourth Amendment’s reasona-
bleness standard. Whren v. United States, 517 U.S. 806, 810
(1996). We have recognized that it is a mistake to treat “all
traffic stops identically.” United States v. Childs, 277 F.3d 947,
952 (7th Cir. 2002) (en banc). Instead, we distinguish be-
tween stops based on reasonable suspicion and those based
on probable cause. The latter are not subject to the scope and
No. 13-2995 5
duration restrictions of Terry v. Ohio, 392 U.S. 1 (1960).
Childs, 277 F.3d at 952–53. While Bentley argues that the ini-
tial traffic stop was not justified by either probable cause or
even a reasonable suspicion, he does not challenge the dura-
tion of the stop. As a result, we need consider only whether,
under the totality of the circumstances, an officer would
have had reasonable suspicion that Bentley had committed a
lane violation.
Officer Veerman pulled Bentley over for violating
625 ILCS 5/11-709(a). That provision reads, “Whenever any
roadway has been divided into 2 or more clearly marked
lanes for traffic … (a) A vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be
moved from such lane until the driver has first ascertained
that such movement can be made with safety.” To establish
probable cause for a violation of Section 11-709(a) (a petty
offense under Illinois law, see 625 ILCS 5/16-104), “the of-
ficer must point to facts which support a reasonable belief
that the defendant has deviated from his established lane of
travel and that it was ‘practicable’ for him to have remained
constant in his proper lane.” People v. Hackett, 971 N.E.2d
1058, 1066 (Ill. 2012). Veerman testified that Bentley’s car
committed two lane violations, once on the curved on-ramp
and later when he crossed the line dividing a new lane
caused by another on-ramp. According to Bentley, both oc-
curred on a curve in the road during or immediately after he
merged onto the interstate highway.
The video the government offered at the suppression
hearing supported Officer Veerman’s testimony. It is hard to
see from the video when Bentley’s car supposedly crossed
the line the first time, because there is a car between Officer
6 No. 13-2995
Veerman’s squad car and Bentley’s. The video leaves no
doubt, however, about the second infraction: it unmistakably
captures Bentley’s car crossing the fog line. That evidence,
coupled with Veerman’s testimony, is enough to support
probable cause for the traffic stop. See, e.g., United States v.
Hernandez-Rivas, 513 F.3d 753, 759 (7th Cir. 2008) (“We have
held improper lane usage is a legitimate reason for an inves-
tigatory stop.”). In the video, one can hear Officer Veerman
say to Bentley, “The reason I’m stopping you is you drifted
over into the side of the road a couple of times. You passed
over the white line here. I’m just making sure you’re all
right.”
Bentley insists that the video is not so clear and thus does
not reveal any violation of the traffic laws. He maintains that
the wheels of his car only briefly touched the fog line, maybe
crossing it momentarily, while he was driving in the dark
and merging onto an interstate highway with faster vehicles
passing him. But, especially for probable cause determina-
tions, there is no rule excusing momentary slips. Hackett, 971
N.E.2d at 1065–66; see also People v. Geier, 944 N.E.2d 793,
799 (Ill. App. Ct. 2011). Bentley is right that a car was start-
ing to pass his, but the other car was not moving in such a
way that would suggest Bentley was driving in adverse
conditions and was unable safely to stay in his lane.
Alternatively, Bentley demands that this court interpret
the term “practicable” in the statute as ambiguous and re-
solve the ambiguity in his favor. See City of Chi. v. Morales,
527 U.S. 41, 56 (1999). The problem with this argument is
that there were no extenuating circumstances that made it
difficult for Bentley to stay in his lane. His case is thus not
like others in which courts have found extenuating circum-
No. 13-2995 7
stances. See United States v. Freeman, 209 F.3d 464, 466 (6th
Cir. 2000) (no probable cause to stop a large motor home
crossing into an emergency lane once); United States v. Grego-
ry, 79 F.3d 973, 978 (10th Cir. 1996) (no reasonable suspicion
when defendant’s car crossed a fog line on a winding road in
windy conditions). In Bentley’s case, the lanes were clearly
marked on a well-lit highway. The weather was good with
high visibility and little wind. And there was no dispute at
the suppression hearing about the quality of the road or the
behavior of other drivers.
Finally, Bentley points out that Officer Veerman testified
that an owner’s suspended license was insufficient for a traf-
fic stop and that he would not have pulled Bentley over but
for the lane violation. Officer Veerman was mistaken. He
could have stopped Bentley’s vehicle on the ground of the
owner’s suspended license alone. See United States v. Jerez,
108 F.3d 684, 693 (7th Cir. 1997). Because the test is an objec-
tive one, we ignore Veerman’s mistake. A reasonable officer
would have had sufficient facts to justify a reasonable suspi-
cion that the driver of the Chrysler Pacifica was violating Il-
linois’s traffic law requiring a valid license. 625 ILCS 5/6-
101(a). Neither Rodriguez v. United States, 135 S. Ct. 1609
(2015), nor Heien v. North Carolina, 135 S. Ct. 530 (2014), to
which Bentley referred as supplemental authority, requires a
different result. Rodriguez dealt with stops of extended dura-
tion, but Bentley waived any challenge to the length of his
stop, while Heien held that reasonable suspicion for a traffic
stop may rest on a reasonable mistake of law—a holding that
if anything undermines Bentley’s position.
B
We now turn to Bentley’s challenge to the use of the
8 No. 13-2995
drug-detection dog. An alert from an adequately trained and
reliable dog is sufficient to give rise to a finding of probable
cause. United States v. Washburn, 383 F.3d 638, 643 (7th Cir.
2004). The government conceded that the police lacked
probable cause to search Bentley’s vehicle if we disregard
Lex’s alert. In so doing, it may have acted too hastily: before
Lex alerted, the police already knew that Bentley could not
keep his story straight, that the spare tire was in an odd
place, and that the search of Bentley’s person (done with his
permission) had turned up far more money than Bentley had
admitted to having. If Bentley can show that Lex was not
adequately trained and reliable, this would weaken the case
for probable cause, but we nonetheless would need to con-
sider the totality of the circumstances before finding that the
search of the car was unconstitutional.
In pressing his challenge to the dog’s alert, Bentley
makes two principal points. First, he contends that Lex’s
past performance in the field suggests he is particularly
prone to false positives (i.e., signaling to his handler that
there are drugs in a vehicle when there are not). He has a
point. Lex alerts 93% of the time he is called to do an open-
air sniff of a vehicle, and Lex’s overall accuracy rate in the
field (i.e., the number of times he alerts and his human han-
dler finds drugs) is not much better than a coin flip (59.5%).
The Supreme Court, however, recently rejected a proposed
rule that would have treated the dog’s field record as a “gold
standard.” To the contrary, it said, the record is of “relatively
limited import.” Florida v. Harris, 133 S. Ct. 1050, 1056 (2013);
see also United States v. Funds in Amount of $100,120.00, 730
F.3d 711, 724 (7th Cir. 2013) (recognizing that Harris changes
the district judge’s analysis). Instead, “evidence of a dog’s
satisfactory performance in a certification or training pro-
No. 13-2995 9
gram can itself provide sufficient reason to trust his alert.”
Harris, 133 S. Ct. at 1057. In order to assess whether the po-
lice adequately trained their dog, the Harris Court instructed
trial judges to hold a probable-cause hearing:
If the State has produced proof from controlled
settings that a dog performs reliably in detect-
ing drugs, and the defendant has not contested
that showing, then the court should find prob-
able cause. If, in contrast, the defendant has
challenged the State’s case (by disputing the re-
liability of the dog overall or of a particular
alert), then the court should weigh the compet-
ing evidence.
Id. at 1058. The Court did not, however, suggest what weight
courts should give to different types of evidence, nor did it
offer any tie-breakers for district courts to use.
The district judge dutifully followed the Harris Court’s
instructions: he let the government submit evidence about
Lex’s training. That evidence included the dog’s success
rates in controlled settings as well as testimony from the
dog’s handler and the training institute’s founder. The judge
also allowed Bentley to challenge those findings, to cross-
examine the handler and the Canine Training Institute’s
(CTI) founder, and to put on his own expert witness. The
judge then weighed all the evidence, decided to credit the
government’s experts over Bentley’s, and decided that Lex’s
alert was reliable enough to support probable cause. Our re-
view of a district court’s choice between one version of the
evidence and another is typically very deferential (even if
experts are involved), and we are given no reason to deviate
from that approach here.
10 No. 13-2995
We acknowledge that Bentley put on a good case. He
presented a fair amount of evidence that Lex was at the back
of the pack. The head of CTI, the company that trained Lex,
was embarrassed by Lex’s 93% alert rate in the field: “Well, I
don’t like to see that he indicated at that high of a rate.” He
went on to testify (consistently with the government’s theo-
ry) that the dog’s rate is so high because there is embedded
bias in his use: Lex is called only when the police already
suspect that drugs may be present. He added, “I understand
that the way that they are actually deploying the dogs in
Bloomington, not to do general interdiction but specifically
when there is suspicion that made me feel more comforta-
ble.” Bentley also brought out that long after the 2010 traffic
stop, Lex was removed from the field for two weeks in April
2012 after he failed two simulated vehicle searches. Bentley
rightly points out that Lex is smart. Shively testified that he
rewards Lex every time the dog alerts in the field. Presuma-
bly the dog knows he will get a “giftee” (a rubber hose
stuffed with a sock) every time he alerts. If Lex is motivated
by the reward (behavior one would expect from any dog), he
should alert every time. This giftee policy seems like a terri-
ble way to promote accurate detection on the part of a ser-
vice animal, lending credence to Bentley’s argument that
Lex’s alert is more of a pretext for a search than an objective
basis for probable cause.
Even if we were to ignore Harris and focus on Lex’s
59.5% field-accuracy rate, though, that rate is good enough
to support a finding of his reliability and thus to allow his
alert to constitute a significant piece of evidence supporting
the ultimate conclusion of probable cause. In the past, we
have concluded that a 62% success rate in the field is enough
to prevail on a preponderance of evidence, and we have
No. 13-2995 11
gone on to note that “’probable cause’ is something less than
a preponderance.” United States v. Limares, 269 F.3d 794, 798
(7th Cir. 2001) (citation omitted). Other circuits have accept-
ed field detection rates less than Lex’s 59.5%. See, e.g., United
States v. Holleman, 743 F.3d 1152, 1157 (8th Cir. 2014) (57%);
United States v. Green, 740 F.3d 275, 283 (4th Cir. 2014) (43%).
This should not become a race to the bottom, however. We
hope and trust that the criminal justice establishment will
work to improve the quality of training and the reliability of
the animals they use, and we caution that a failure to do so
can lead to suppression of evidence. We will look at all the
circumstances in each case, as we must.
Bentley’s second argument that Lex is an unreliable
source of probable cause hinges on the allegedly poor quali-
ty of the school that trained him and his handler. This argu-
ment cannot get off the ground. Bentley concedes that there
are no national standards by which we can judge the train-
ing Lex received at CTI. Moreover, there is evidence in the
record that CTI modeled its certification standards after the
leading national associations in the field.
The district judge did not err when he found Lex to be re-
liable for purposes of contributing to a probable cause de-
termination based on his training records, his 59.5% field
rate, and CTI’s curriculum. Lex’s mixed record is a matter of
concern, but under Harris’s totality-of-the-circumstances test,
we have no reason to override the district court’s determina-
tion.
C
Finally, we turn to Bentley’s “Hail Mary” argument: that
the district court erred by denying his motion for a judgment
12 No. 13-2995
of acquittal under Federal Rule of Criminal Procedure 29.
Our review is de novo, and we take the evidence in the light
most favorable to the government. United States v. White, 698
F.3d 1005, 1013 (7th Cir. 2012). We will affirm Bentley’s con-
viction if any rational trier of fact could have found him
guilty. United States v. Blitch, 773 F.3d 837, 846 (7th Cir. 2014).
The government had to prove beyond a reasonable doubt
that Bentley “knowingly or intentionally possessed a con-
trolled substance with the intent to distribute it, while know-
ing that it was a controlled substance.” United States v. Car-
raway, 612 F.3d 642, 645 (7th Cir. 2010) (citation omitted); see
21 U.S.C. § 841(a)(1). Bentley contends that the government
failed to prove that he knew there were drugs in the car.
Both Bentley and the government insist that we have
never had the occasion to hold that it is permissible to infer
knowledge that drugs are concealed in a vehicle solely from
proof that there are secret compartments and the driver is
alone in the car. We could not find a case to contradict them.
Most circuits take the position that more is needed. United
States v. Tran, 519 F.3d 98, 105 (2d Cir. 2008) (“We agree with
the other courts to have addressed the issue that a defend-
ant’s sole occupancy of a vehicle cannot alone suffice to
prove knowledge of contraband found hidden in the vehicle;
corroborating evidence … is necessary to prove this ele-
ment.”); United States v. Stanley, 24 F.3d 1314, 1320–21 (11th
Cir. 1994); United States v. Anchondo-Sandoval, 910 F.2d 1234,
1236 (5th Cir. 1990).
We see no reason to depart from those holdings. Requir-
ing an additional showing of some evidence tending to show
knowledge appropriately prevents a finding of guilt in those
cases where a third party “conceal[s] the controlled sub-
No. 13-2995 13
stances in the vehicle with the intent to use the unwitting de-
fendant as the carrier in a smuggling enterprise.” United
States v. Martinez-Lugo, 411 F.3d 597, 599 (5th Cir. 2005) (quo-
tation marks and citation omitted). A rule that allows a fact-
finder to infer that a driver knows about a hidden compart-
ment in a vehicle simply because he is driving it goes too far.
But this does not help Bentley, because the government
did not try to rest its case on that one fact. Unlike the unwit-
ting smuggler contemplated by our sister circuits, there was
substantial evidence that gave rise to a reasonable inference
that Bentley knowingly possessed the cocaine hidden in the
car. First, physical evidence suggested that Bentley had been
driving the Chrysler Pacifica for some time. While Bentley
was not the owner of the car (his girlfriend Tonya Smith
was), Tonya’s license had expired nearly two decades earli-
er. Moreover, his documents were commingled with hers in
the glove compartment, including some dated 21 months be-
fore the stop. The police also found a key for a car Bentley
had rented a few weeks earlier, and they saw papers con-
nected to his employment. They thought it was peculiar that
a spare tire was placed in the backseat of the Pacifica, rather
than in the normal place. The fact that the spare tire was not
properly stowed suggested that the compartment may have
been used for other purposes and that Bentley was aware of
this.
Even more damning was the evidence that the police col-
lected during the search—evidence that could not be used to
support the search, but that was highly pertinent to guilt.
The sheer amount of drugs in the car (with a street value of
$2.4 million according to the government), the presence of
six cell phones, and thousands of dollars in cash or money
14 No. 13-2995
orders all supported an inference of knowledge. See, e.g.,
United States v. De Jesús-Viera, 655 F.3d 52, 60 (1st Cir. 2011)
(“The jury could have drawn the inference that De Jesús-
Viera knew that the over $1.45 million worth of drugs were
in his car based on its common sense.”).
The government provided testimony to the jury that
drug dealers carry multiple phones, particularly prepaid
phones that cannot be traced (as four of Bentley’s phones
were). See United States v. Hernandez-Mondaza, 600 F.3d 971,
977 (8th Cir. 2010) (concluding that the jury could infer
knowledge where there was evidence of four phones in the
vehicle and testimony of drug traffickers carrying multiple
phones to avoid detection). A large amount of cash also pro-
vides circumstantial evidence of a person’s involvement in
drug trafficking. See, e.g., United States v. Harris, 585 F.3d
394, 400 (7th Cir. 2009) ($8,900 in cash found in driver’s
pockets); United States v. Gamez-Gonzalez, 319 F.3d 695, 698
(5th Cir. 2003) ($1,600 in cash along with testimony about
defendant’s nervousness supports knowledge of hidden
drugs).
Finally, Officer Veerman noted Bentley’s odd behavior
during the stop. Bentley could not keep his story straight: he
contradicted himself about where his girlfriend, the owner
of the car, lived, and he said he was carrying a couple hun-
dred dollars even though he was carrying eight times that
amount. Also (although this may have been a function of a
general dislike of being stopped), Bentley’s hand trembled
when he handed over his license to Officer Veerman.
This evidence, taken as a whole, was enough to permit
the jury to reject Bentley’s protestation that he was unwit-
tingly driving a car with drugs stashed in a secret compart-
No. 13-2995 15
ment. The district court was thus correct to deny Bentley’s
Rule 29 motion.
III
Officer Veerman had reasonable suspicion to stop Bent-
ley’s car. Lex’s alert, though more equivocal than we might
prefer, taken together with the other evidence before the of-
ficers was enough to support the finding of probable cause
for the officers’ search of the vehicle. And the court properly
rejected Bentley’s challenge to the sufficiency of the evidence
to support his conviction. The district court’s judgment is
AFFIRMED.