United States v. Swift, Ricky ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1028
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
RICKY SWIFT and JOE LOUIS TAYLOR,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:99 CR 44--Robert L. Miller, Jr., Judge.
Argued June 5, 2000--Decided July 17, 2000
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Around 8:30 a.m. on
September 2, 1999, two men robbed the First
Source Bank in Osceola, Indiana, a few miles east
of Mishawaka and its neighbor, South Bend. Within
hours of the robbery, the police thought they had
the bandits in their clutches. But their case hit
the skids when the suspects (now the defendants),
Ricky Swift and Joe Taylor, filed motions to
suppress the evidence, which the district court
granted. The court reasoned that the duo was
arrested without probable cause. This
determination led to the conclusion that all the
evidence seized after the arrest had to be
excluded as "fruit of the poisonous tree." The
government appeals this decision.
The facts, which we will set out in some
detail, are pretty much undisputed. Our standard
of review is de novo. Ornelas v. United States,
517 U.S. 690 (1996); United States v. Finke, 85
F.3d 1275 (7th Cir. 1996). Here, then, are the
facts.
Officer Richard Hurley of the Mishawaka police
department heard the first of several calls about
the robbery at 8:31 a.m. It was reported that two
African-American men, armed and wearing dark,
hooded clothing, beards (probably fake), and
braids, robbed the bank and fled in a red Jeep
Grand Cherokee bearing an Indiana license plate
beginning with "71A." Officer Hurley and other
officers set up a perimeter around the area to
watch for a red Jeep. When that effort was
unsuccessful, Robert Sherbun, a captain in
Mishawaka’s detective bureau, ordered Hurley to
go to Hickory Village, an apartment complex about
9 miles from the bank, where he knew a red Jeep
had been seen, one which he thought was
associated with other robberies. Lieutenant
George Haywood and Officer Steve Madison were
also looking for the red Jeep Cherokee at Hickory
Village. Once in the Hickory Village vicinity, a
red, 4-door, 1991 Jeep Cherokee Sport bearing
Indiana license number 71E1905, driven by an
African-American male with another African-
American man in the passenger seat, passed in
front of Hurley. He radioed his observations to
other officers at 9:53 a.m. (time is very
important and this one, an hour and 23 minutes
after the robbery, should be noted) and stopped
the Jeep. Officers Haywood and Madison pulled in
behind Hurley.
Officer Hurley asked for identification from the
men in the Jeep; both produced drivers licenses.
The driver’s identification said he was Ricky
Swift, and the passenger’s license identified him
as Joseph Taylor. Hurley radioed in the names. At
the same time, he recalled that Swift was a
suspect in some Mishawaka and South Bend
robberies in the 1980’s.
Hurley then asked Swift who owned the Jeep;
Swift said it was his mother’s. When Hurley asked
Swift where he was coming from, Swift said he had
been at Joe Taylor’s house in Hickory Village.
When Hurley observed that Taylor’s drivers
license did not give a Hickory Village address,
Swift responded, "Well, we didn’t do nothing,
man."
Hurley asked Swift if the officers could search
the Jeep, and Swift agreed. The officers asked
the men to get out of the Jeep, and a pat-down
for weapons came up dry. Hurley and Lieutenant
Haywood then did a search in the Jeep, but they
saw nothing they personally recognized as
evidence of participation in the bank robbery,
although, as it turns out, two items that looked
innocent--but were very incriminating--were
there.
Meanwhile, Captain Sherbun was at the bank. He
learned the identities of the Jeep’s occupants
over the radio. And the names, Swift and Taylor,
he said "kind of rang a bell" for he recalled
that both were involved (he offered no other
details on this and there were no convictions) in
a series of restaurant robberies in which
employees were tied up or put in a cooler.
Importantly, from his investigation at the bank,
he learned that the robbers had bound the
employees with duct tape and placed them in a
separate room during the robbery. He saw a
similar pattern between the restaurant robberies
(apparently some occurred a dozen years ago and
one a little over a year ago) and the Osceola
bank robbery. For that reason, at 10:02 a.m.
(note the time again) Sherbun directed the
officers at the Jeep to take Swift and Taylor to
the Mishawaka police station. He informed the
officers that he was on his way to where the Jeep
had been stopped.
Swift and Taylor were transported to the police
station in separate squad cars around 10:10 a.m.
Taylor was taken to an interview room and Swift
to a holding cell. Both men were required to
leave their personal belongings--including
Swift’s pager--with the police.
Captain Sherbun arrived at the Jeep by 10:25
and looked inside by extending his head into the
open front window. Two items caught his eye. Near
the corner of the rear seat on the passenger side
he saw wadded duct tape of the same color as the
tape used to bind and confine the bank employees
during the robbery. He also saw a headphone for
a Walkman-type device; the headphone was without
one of the foam cups that cover the earpieces. In
the vault area of the First Source Bank that
morning, Captain Sherbun had seen a round,
nickel-sized, cup-shaped piece of black or grey
sponge pad for a Walkman-like headphone. The ear-
pad piece in the bank vault was a match for the
Walkman earpiece in the jeep. These innocent-
looking items, of course, had to be in view in
the jeep when Hurley and Haywood looked in, but
they had no reason to appreciate the significance
of the items.
As to the critical facts on the issue before
us, we could stop here, but we will add more
details so the reader has a full picture of what
was going on.
When FBI Special Agent Ronald Ryniak arrived at
the scene of the Jeep stop around 11:00, he, too,
saw duct tape on the rear seat, and he also
recognized that it matched the tape he saw
earlier at the bank. SA Ryniak began preparing an
application for a search warrant for the Jeep.
The warrant was issued later that evening.
At 10:47 a.m. the witness who saw the robbers
drive away from the bank was brought to the Jeep.
She told Sherbun that Swift’s Jeep "was the same
type vehicle" she saw leave the bank after the
robbery.
Meanwhile, at the station, Lieutenant Robert
Pawlowski called the county prosecutor’s office
and spoke with a deputy prosecutor, Laura
Curliss, who suggested that Swift and Taylor be
put in a lineup. Lieutenant Pawlowski then began
the process of getting a lineup together.
South Bend police department investigator Eugene
Eyester arrived at the Mishawaka police station
after hearing that Swift and Taylor had been
taken there. Eyester had been assigned the
investigation of an armed robbery 3 days earlier
at a restaurant/tavern in South Bend called The
Landing, in which two African-American males
wearing fake beards and wigs duct-taped the
employees. Eyester was familiar with the names of
Ricky Swift and Joe Taylor, Jr. and recalled that
Swift was a suspect in previous armed robberies,
including one of a Long John Silver’s restaurant
and one of a Ponderosa.
At the station, Swift was told that the police
were investigating the First Source bank robbery
and The Landing robbery. Swift said he didn’t
want to answer any questions and asked to talk to
an attorney. He called his attorney sometime
around 12:10 p.m., after which he agreed to
participate in a lineup. Swift declined to sign
a consent to search the Jeep. Taylor declined to
answer any questions about the bank robbery.
Sometime around 2:00 p.m., the officers were
ready to conduct lineups. The lineups took from
2:15 to 4:30. Eight First Source Bank employees
and/or witnesses and two Landing employees viewed
two lineups--one with Swift and the other with
Taylor. None of the First Source Bank witnesses
made identifications, but the two Landing
witnesses identified Taylor, and one of the
Landing witnesses said he was 75 percent sure
that Swift was the other robber.
At one point in the afternoon, Swift’s pager
(located in a small pile of his personal effects
which had been taken from him upon his arrival at
the jail) started sounding. Officer Eyester
silenced the signal and looked at the numbers
recorded on the pager as incoming calls.
Swift’s pager sounded again around 5:30. Officer
Eyester wrote down the number, which belonged to
a Gayle Richmond who lived in the Hickory Village
apartments. Officers then went to Richmond’s unit
at Hickory Village. Richmond signed a consent
form allowing a search of her apartment. And the
police struck pay dirt, finding hundreds of
thousands of dollars--some of the bills were
still in First Source Bank wrappers--wigs, fake
beards, and a handgun. The formal bank robbery
charges against Swift and Taylor followed.
The Fourth Amendment protects "against
unreasonable searches and seizures." See U.S.
Const. Amend. IV. The amendment does not prevent
all encounters between the police and citizens.
It comes into play when a police officer uses
physical force or a show of authority to restrain
the liberty of a citizen. United States v. Odum,
72 F.3d 1279 (7th Cir. 1995). To make an arrest,
a police officer needs probable cause to believe
that a person has committed or is committing a
crime. See, e.g., United States v. Johnson, 910
F.2d 1506 (7th Cir. 1990). Police are also
allowed to make "Terry stops," which are
investigatory stops limited in scope and executed
through the least restrictive means reasonable.
Terry v. Ohio, 392 U.S. 1 (1968). For an
investigatory stop, police officers do not need
probable cause. They need only have reasonable
suspicion supported by articulable facts that
criminal activity is afoot. Terry. Reasonable
suspicion is "some objective manifestation that
the person stopped is, or is about to be, engaged
in criminal activity." United States v. Cortez,
449 U.S. 411, 417 (1981). It is something less
than probable cause and more than a hunch. United
States v. Tipton, 3 F.3d 1119 (7th Cir. 1993). In
evaluating the reasonableness of an investigatory
stop, we look first to see whether the officers’
actions were justified at the inception of the
stop and next to see whether the stop was
reasonably related in scope to the circumstances
which justified the stop in the first place.
United States v. Smith, 3 F.3d 1088 (7th Cir.
1993). Whether the stop is reasonable may depend
in part on the nature or the length of the
intrusion. United States v. Sharpe, 470 U.S. 675
(1984); United States v. Tilmon, 19 F.3d 1221
(7th Cir. 1994); United States v. Griffin, 150
F.3d 778 (7th Cir. 1998). But we must not be
overly focused on any one factor. The proper
analysis involves a consideration of "the
totality of circumstances known to the officers
at the time of the stop." United States v. Quinn,
83 F.3d 917 (7th Cir. 1996). The totality of the
circumstances includes "the experience of the law
enforcement agent and the behavior and
characteristics of the suspect." Odum, 72 F.3d at
1284.
A difficult question often arises regarding at
exactly what point a Terry stop matures into an
arrest. When does the conduct of the officers
exceed what is allowable under Terry and veer
into the kind of major intrusion requiring
probable cause? See United States v. Ienco, 182
F.3d 517, 525 (7th Cir. 1999). Then, if there was
neither a reasonable suspicion or probable cause,
the issue becomes whether evidence obtained by
the stop is admissible or whether it must be
excluded under the exclusionary rule.
The exclusionary rule is a judicially created
remedy, aimed at curbing overly zealous police
action. It tells police that if they obtain
evidence illegally, they will not ordinarily be
allowed to use it against the suspect they are
after. United States v. Leon, 468 U.S. 897
(1984). Evidence which is obtained as a result of
an illegal arrest is fruit of the poisonous tree
and it must be excluded unless the government can
show that it was obtained as a result not of the
illegality, but rather "by means sufficiently
distinguishable to be purged of the primary
taint." Wong Sun v. United States, 371 U.S. 471
(1963). The evidence may be purged of the taint
by a finding that it was discovered by an
independent source, that it would inevitably have
been discovered without the unlawful search, or
that its discovery is sufficiently distant in
causal connection from the illegal search so as
to attenuate the connection between the two.
United States ex rel. Owens v. Twomey, 508 F.2d
858 (7th Cir. 1974). The goal of the "poisonous
tree" doctrine is to ensure that the prosecution
is not put in a better position by means of the
illegality, but the countervailing consideration
is that the prosecution must not be put in a
worse position. Nix v. Williams, 467 U.S. 431
(1984). There is no bright-line rule to make the
analysis of these issues easy.
In the district court, Swift and Taylor
contended that there was no reasonable suspicion
to support the Terry stop, that they were under
arrest, without probable cause, when they were
taken to the police station, and that all the
evidence obtained after the arrest must be
suppressed: the duct tape, the headphones with
the missing earpiece, the telephone number
obtained from Swift’s pager which led the police
to Richmond’s apartment, and the money, wigs,
fake beards, and weapons that were found there.
The district court agreed with enough of the
argument to order the suppression of the
evidence.
Our analysis requires us to repeat some of the
facts we find significant. The first is the
discovery of the red Jeep Cherokee, which led the
police quickly to Swift and Taylor. Witnesses
said that the bank was robbed by two black men
with beards and braids who escaped in a red Jeep.
Officer Hurley said he thought the report
indicated fake beards and braids. One witness
said the vehicle was a Jeep Grand Cherokee with
a license number beginning with "71A." "71" tells
Indiana police that the car is registered in St.
Joseph County, that is, that it is local. An
immediate investigation ensued with a number of
officers involved both in the search for the
robbers and in a study of the scene of the crime.
Captain Sherbun was investigating the scene of
the robbery while at the same time directing
other officers to perform other tasks. He knew
that at the Hickory Village apartment complex,
located about 9 miles from the bank, there was a
red Jeep Cherokee which, he thought, was
associated with other robberies. Because he was
at the bank and unable to personally be
everywhere at once, he ordered Hurley to go to
Hickory Village to look for the red Jeep. At 9:53
a.m., about 1 hour and 23 minutes after the
robbery, Hurley spotted a red, 4-door Jeep
Cherokee Sport, Indiana license 71E1905, with two
black men inside. Suspecting that this could be
the red Jeep Sherbun referred to and the same
Jeep used in the bank robbery, he stopped the
vehicle. This, we have no trouble concluding, was
a valid Terry stop.
Also important is that during the stop, Swift
gave Hurley what seemed to him to be a fishy
story about having left a residence in Hickory
Village, for which he did not know the address.
When he was asked whose residence it was, he said
it belonged to Joe Taylor. But Hurley was holding
Joe Taylor’s drivers license and knew Taylor was
in the car with Swift. The license gave a South
Bend address for Taylor, not a Hickory Village
address. When confronted with this information,
Swift’s only response was they hadn’t done
anything wrong.
It is also significant that several officers
had previous knowledge of Swift and Taylor.
Hurley recalled that Swift was a suspect in
earlier robberies in the area; he radioed in the
names given on the drivers licenses. Lt. Haywood,
also participating in the stop, recalled that
Swift was a robbery suspect. Similarly, hearing
the radio report, Captain Sherbun recalled that
Swift and Taylor were suspects in a series of
restaurant robberies in which employees were tied
up or put in a cooler; from his investigation at
the bank he learned that the robbers had placed
the bank employees in a separate room during the
robbery and had bound them with duct tape. And he
saw the duct tape that was used. Given all this
information, Sherbun wanted to look at the Jeep
himself and to have a witness brought to the
scene to view it.
At this point, time becomes important. At 10:02
a.m., Captain Sherbun directed the officers to
take Swift and Taylor to the Mishawaka police
station. The men were removed from the scene
around 10:10 and arrived at the station around
10:16. Meanwhile, Sherbun was heading to the
Jeep, which he told the officers to secure. He
arrived at 10:25. At the station, Swift and
Taylor were told to turn over their personal
belongings, including Swift’s pager, and they
were placed in separate rooms. Despite the
government’s weak argument to the contrary, we,
like the district court, find that Swift and
Taylor were "arrested" when they were taken from
the scene around 10:10. And, arguably it is
without probable cause.
We say "arguably" because although no one
officer knew early on all the information in what
was an ongoing investigation involving many
officers (both federal and state), the critical
actors had sufficient facts in their possession
to support a finding of probable cause when Swift
and Taylor were taken from the scene. The police
had a red Jeep Cherokee (the difference between
a "Grand" Cherokee and a Cherokee "Sport" is not
particularly important, especially here where the
"Sport" was a large, 4-door vehicle) with part of
a license number close to the number actually on
the vehicle. Hurley and the officers at the scene
searched the Jeep, which contained, for them,
innocuous duct tape and a defective earpiece to
a Walkman. More importantly, their commanding
officer, Captain Sherbun, who was in
communication with them, had first ordered them
to focus their search on Hickory Village, had
accurately predicted that the red Jeep would be
found there, and he recalled Taylor’s and Swift’s
possible involvement in the restaurant robberies.
Sherbun also recalled that the restaurant robbers
bound up their victims in a manner similar to
that used by the bank robbers. This knowledge was
enough to permit Sherbun to order the continued
detention of Swift and Taylor while he was en
route to the scene--it may have even been enough
to establish probable cause. The fact that the
officers at the scene did not know all that
Sherbun knew is not decisive because when a
superior officer, in communication with an
inferior officer, orders that officer to make an
arrest, it is proper to consider the superior’s
knowledge in determining the overall
reasonableness of the police conduct as it
relates to probable cause. See United States v.
Edwards, 885 F.2d 377 (7th Cir. 1989); United
States v. Woods, 544 F.2d 242 (6th Cir. 1976).
But assuming there was no probable cause to
arrest until the moment Sherbun personally looked
in the Jeep and put it all together, it doesn’t
necessarily follow that the evidence should have
been suppressed. For we would have to determine
whether the early arrest put the police in a
better position than they would have been in
without it. Or whether the decision to take the
men to the station, rather than keeping them at
the scene until Sherbun got there and saw for
himself the evidence which established probable
cause, justifies putting the prosecution in a
worse position than it would have been in if the
officers had held the suspects at the scene.
It is clear that the only two alternatives, as
far as the police were concerned, were taking
Swift and Taylor in or holding them at the scene.
The suspects were not going to be released. At
the time the men were transported to the police
station, the information which could legitimately
be sought at a Terry stop was not complete. It
was not until after the men were taken from the
scene that the police tried to obtain a social
security number for Swift so they could do a
record check. They obtained the social security
number at 10:14. At 10:15 they learned the
registration address for the Jeep. They still did
not have the criminal record report. Knowing what
they already knew and suspected, the police were
not about to let Swift and Taylor go on their
way, and moments after Sherbun arrived the men
would have been arrested (and then taken to the
police station) with solid probable cause.
Of course, if the men had been held at the
scene, a different issue would be argued. The
defense would say that detaining the men for 32
minutes (recall, the Jeep was stopped at 9:53 and
Sherbun arrived on the scene at 10:25) means they
were, in fact, under arrest. But that isn’t
necessarily true, for the issue would have to be
analyzed under the totality of the circumstances,
and the answer is by no means on the side of
suppression. We have recognized that police
officers face a "fluid situation" during a Terry
stop. They can "graduate their responses to the
demands of the particular circumstances . . . ."
United States v. Weaver, 8 F.3d 1240, 1243 (7th
Cir. 1993). They may, for instance, approach a
vehicle with their guns drawn if they reasonably
fear for their personal safety. Tilmon. An
officer may have his gun drawn and order a
suspect to lie prone on the ground, handcuff, and
frisk him if the officer reasonably believes the
suspect is dangerous. Tilmon; Smith, 3 F.3d 1088
(7th Cir. 1993).
More importantly, we have recently upheld the
detention of a suspect at the scene of a Terry
stop while awaiting the arrival of another
officer in circumstances similar to those we face
here. In United States v. Scheets, 188 F.3d 829
(7th Cir. 1999), cert. denied, 120 S. Ct. 837
(2000), police came across a suspect in a bank
robbery at a casino. Their first encounter with
him was consensual. He accompanied them to the
security office of the casino. At some point the
encounter evolved into a Terry stop for which we
found there was reasonable suspicion. But then
the officers held the suspect, clearly without
letting him leave, for about 15 minutes longer
while another agent traveled to the scene. We
said that maintaining the status quo while
obtaining more information (in the person of the
other investigating agent) might be the most
reasonable action to take. We found that the
continuance of the Terry stop was justified.
Here, we think it would have been reasonable
under Terry for the officers at the Jeep to hold
Swift and Taylor until Captain Sherbun, who had
more information and was not far away, arrived at
the scene.
But they weren’t held at the scene. They were
taken to the station. Nine minutes after they got
there, 15 minutes after they were taken from the
scene, probable cause unquestionably existed for
their arrest when Sherbun saw the incriminating
duct tape and earphones in the Jeep and put two
and two together. Meanwhile, the Jeep properly
remained at the scene because police may hold a
vehicle for a reasonable period of time in order
to examine it further. Griffin; see also United
States v. Place, 462 U.S. 696 (1983). The Jeep,
as we have said, yielded the evidence which
provided probable cause.
One might suggest that a question remains as to
the pager, and the telephone number it much later
revealed, which in turn led to the Richmond
apartment with its trove of evidence. Swift and
Taylor argue that this evidence is fruit of the
poisonous tree. We disagree. It is true that the
pager was taken from Swift sometime after he
arrived at the station. It may have been seized
before probable cause undoubtedly existed at
10:25. However, as our previous discussion makes
clear, the police would inevitably have seized
Swift’s pager at the Jeep had he been kept there,
as he could have been, until Sherbun arrived.
Regardless whether the pager was seized at the
station or at the site of the Jeep, when it
revealed Richmond’s telephone number, Swift would
have been in legal custody for 7 hours. We see no
realistic scenario under which the police would
not have had the pager at the time the telephone
call came in, even if Swift was not taken to the
station at 10:10 a.m. The pager and the evidence
to which it led are not fruit of the poisonous
tree.
But we also conclude that the evidence would
have inevitably been discovered. Evidence which
is discovered by tainted police action is not
suppressed if it would have been inevitably
discovered even without the illegal act. Nix v.
Williams. Here, the Jeep was stopped leaving the
Hickory Village apartments, the police
investigation focused on that area, and
independent of taking the suspects to the
station, the police had evidence in their
possession which would have led them to the
Richmond apartment. They had a key ring from the
Jeep. On that ring was a key to Richmond’s
apartment. Hickory Village personnel were able to
match apartments to keys. Given the alert law
enforcement work evidenced in this case, the
police in all likelihood would have found the
apartment and Ms. Richmond without the pager by
use of the key. The pager, of course, made this
task a lot easier, but that doesn’t significantly
reduce the chance that Richmond’s apartment would
have inevitably, and fairly soon, come to the
attention of the investigators.
We also note that Taylor’s claim fails for
another reason. The Fourth Amendment is "a
personal right that must be invoked by an
individual." Minnesota v. Carter, 119 S. Ct. 469,
473 (1998). A defendant must show a violation of
"his (and not someone else’s)" rights. At 472.
Here, for instance, the discovery of the evidence
in the Richmond apartment resulted from the
seizure of Swift’s pager. It did not flow from
Taylor’s arrest. Taylor cannot assert that the
seizure of the pager violated his personal
rights. The evidence that the government wants to
use would have been captured even if Taylor had
been immediately released and allowed to go his
merry way after the Jeep was stopped. Nothing,
therefore, leading to the search of the Richmond
apartment can be traced to Taylor’s detention,
legal or not.
Suppression of evidence in this case rests on a
single possible misstep--that Swift and Taylor
were transported to the police station about 15
minutes too early; they should have been held at
the scene. That is the only misstep in the case.
And misstep aside, the evidence would have been
inevitably discovered if all the rules had been
followed to the letter. Sherbun certainly knew
enough to order his officers to continue the
Terry stop for an extra 15 minutes while he
traveled to the scene. Had they done so, Sherbun
would have arrived, seen the incriminating duct
tape and foam earpiece, and the collective
knowledge of the officers on the scene in
communication with one another would have
provided probable cause for the arrest. By the
time the pager revealed Richmond’s telephone
number, which led to the money, Swift and Taylor
were properly in custody. The evidence should not
have been suppressed. The decision of the
district court is
REVERSED.