United States v. Brown, Datona D. , 233 F. App'x 564 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 12, 2006
Decided May 11, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4365
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plaintiff-Appellee, Central District of Illinois
v. No. 03-20091-001
DATONA D. BROWN, Michael P. McCuskey,
Defendant-Appellant. Chief Judge.
ORDER
During the course of a routine traffic stop, Datona Brown fled from the scene
and assaulted two of the arresting officers from the Decatur, Illinois Police
Department. After the officers were able to restrain Brown and take him into
custody, they handcuffed and locked him in their squad car. Because of Brown’s
suspicious actions at the scene, the officers believed that he might be in possession
of a controlled substance, they proceeded to search his person and the surrounding
area. Shortly thereafter they discovered a brown bag containing crack cocaine on
his person in the area of his crotch. Brown was charged with possession of five
grams or more of cocaine base with intent to deliver, and he filed a motion to
No. 05-4365 Page 2
suppress both the cocaine and his incriminating statements to police. He now
appeals and contests the district court’s ruling that the search of his person was
valid as incident to an arrest. We affirm.
During his patrol on September 20, 2003, Officer Christopher Hale observed
Brown driving his automobile without a seatbelt,1 and began to follow him. While
being pursued, Brown accelerated his vehicle and drove through a stop sign,
resulting in Officer Hale activating the warning lights on his vehicle after which
Brown stopped his vehicle.
Hale approached Brown and informed him that he was going to give him two
citations: one for failing to wear a seatbelt and another for running the stop sign.
Hale walked back to his squad car to process the tickets. At about this time, Officer
Roger Craig arrived as a backup to assist and Hale and Craig both approached
Brown’s car. Hale was on the driver’s side and Craig on the passenger side. Hale
advised Brown that he was of the opinion that he was attempting to flee when he
accelerated his car and ran a stop sign. Hale asked Brown for permission to search
his car and Brown refused, with Hale responding that he was going to request a
canine sniff of the exterior of the car.
As Hale began to return to his squad car, Craig observed Brown reach inside
his jacket pocket and, fearing that the suspect might be armed, he alerted Hale. The
defendant immediately exited the car, pushing Hale aside and fled from the scene.
Hale, in an attempt to restrain him, grabbed his coat, but Brown slipped out of his
coat and bolted across the street. Hale chased Brown and wrestled him to the
ground, while spraying him with pepper spray. While struggling, Hale observed
Brown pull a small brown paper bag out of his shirt and clutch the bag in his right
hand.
During the struggle Officer Craig jumped on both Hale and Brown, allowing
Brown to escape and run a few more yards. The officers tackled Brown and he
proceeded to resist arrest. During the ensuing fight, Brown kicked and punched
Hale, all the while keeping his right hand strangely positioned beneath his body
while he was on the ground. After the officers succeeded in restraining him, they
patted him down and searched his person, including his pockets, but found nothing.
The officers handcuffed him, locked him in the squad car, and conducted a search of
the area, looking for the brown bag, but were still unable to locate it. Hale returned
1
Driving without a seatbelt is a violation of Illinois law. See 625 Ill. Comp. Stat.
5/12-603.1 (2003).
No. 05-4365 Page 3
to the squad car and instituted another more thorough search of Brown’s person,
and at this time discovered a small brown bag, containing crack cocaine, in the
crotch of Brown’s pants. The officers took custody of the brown bag, transported it
with Brown to the police station, where they read him his Miranda rights.
Before trial, Brown moved to suppress the introduction of the crack cocaine
arguing that: (1) he was not under arrest at the time of the search; and (2) there
was no justification for the search of Brown’s crotch area. The district court denied
the motion, finding that there was probable cause to arrest Brown and the search
was valid as incident to that arrest. Thereafter, Brown entered a conditional plea of
guilty while preserving his right to appeal the ruling on the suppression motion.
On appeal, Brown argues that the district court erred in holding that the
search was valid as incident to his arrest. He now asks this court to rule that he
was not “under arrest” in spite of the fact that the officers had tackled him,
restrained him, handcuffed him, and locked him in the squad car. Instead, Brown
somehow contends that he was only briefly detained in order to subdue him and
prevent further flight until after the search, when he was arrested and taken to the
police station. We review the district court’s findings of fact for clear error and its
determinations of law de novo. United States v. Sandoval-Vasquez, 435 F.3d 739,
742 (7th Cir. 2006).
We determine whether a suspect is under arrest after looking to the totality
of the circumstances surrounding any restraint on the suspect’s movements created
by a police officer’s use of physical force or the suspect’s submission to an officer’s
show of authority. See Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868 (1968);
United States v. Barker, 467 F.3d 625, 628-29 (7th Cir. 2006); Qian v. Kautz, 168
F.3d 949, 954 (7th Cir. 1999). Those circumstances include whether a reasonable
person in the suspect’s position would have felt free to leave and whether the
officers have acquired physical control over the suspect, either through the use of
physical force or a show of physical force, i.e., placing their hands on their armed
holsters. See California v. Hodari D., 499 U.S. 621, 626-28 (1991); United States v.
Mendenhall, 446 U.S. 544, 553-54 (1980); Leaf v. Shelnutt, 400 F.3d 1070, 1089-90
(7th Cir. 2005); Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir. 2004). A
suspect is under arrest when “a reasonable person in the suspect’s position would
have understood the situation to constitute a restraint on the freedom of movement
of the degree which the law associates with formal arrest.” See Sornberger v. City of
Knoxville, Ill., 434 F.3d 1006, 1017 (7th Cir. 2006) (citing United States v. Ienco, 182
F.3d 517, 523 (7th Cir. 1999)).
No. 05-4365 Page 4
We use an objective standard in applying the case law to the facts. Hodari D.,
499 U.S. at 628. In this case, after Brown had initially fled the scene and assaulted
the two arresting officers, and one of the officers had observed a suspicious bag,
both officers were able to wrestle Brown to the ground, spray him with pepper
spray, handcuff him, and lock him in the squad car. It is obvious that Brown was
seized; his movements were restrained when he sat handcuffed and locked in the
squad car and he clearly was not free to leave. Moreover, the officers had initially
acquired physical control over him at the time they tackled him, sprayed him with
pepper spray, and cuffed him. Obviously, any reasonable person in Brown’s position
at that time in the arrest scenario would have considered himself or herself
restrained, beyond the limited Terry-like stop, and under “arrest.” See Ienco, 182
F.3d at 523 (“arrest” occurs when suspects are locked in a squad car); United States
v. Swift, 220 F.3d 502, 508 (7th Cir. 2000) (same). Brown’s argument that a
reasonable person would not consider himself or herself “under arrest” after being
tackled, handcuffed, and locked in the back of the squad car is preposterous.
Brown argues that he was not under arrest because, after restraining and
locking him in the squad car, the officers failed to pronounce the magic word
(“arrest”) and explicitly advise him that he was under arrest. He cites not a scintilla
of case law to support his self-serving theory. Officers do not have to formally advise
the suspect that he or she is under arrest or complete other formalities of this notice
in order to make an arrest valid. Dunaway v. New York, 442 U.S. 200, 212-13;
United States v. Jackson, 377 F.3d 715, 717 (7th Cir. 2004). Common sense dictates
that he was under arrest. “‘[T]here is no canon against using common sense.’”
United States v. Croft, 750 F.2d 1354, 1362 (7th Cir. 1984) (quoting Roschen v.
Ward, 279 U.S. 337, 339 (1929)).
The case of United States v. Wilson, 2 F.3d 226 (7th Cir. 1993), on which
Brown relies and argues that no arrest occurred, is inapposite. In Wilson, the police
saw Wilson jump out of a moving car and thereafter fled from the police and hid
under a porch. Id. at 227. After ordering Wilson to come out from under the porch,
the police used handcuffs to prevent further flight during the Terry stop, and this
court held that the application of handcuffs alone under those circumstances did not
constitute arrest. Id. at 231-32. The court also emphasized the short length of the
detention (less than one minute) in determining that there was no arrest. Id. at 232.
Here, in contrast, Brown was observed operating a motor vehicle without a
seatbelt, proceeded to accelerate his vehicle with the officer in pursuit, and ran a
stop sign while fleeing the scene. Shortly thereafter he was apprehended, struggled
with the police officers, was sprayed with pepper spray, and was once again
apprehended after another struggle with the police officers. Thereafter, he was
No. 05-4365 Page 5
handcuffed and locked in a squad car. Obviously, Brown was restrained to a greater
degree than the suspect in Wilson. Moreover, Brown remained handcuffed and
locked in the squad car while the officers proceeded to search the surrounding area
for contraband. Under these facts, the district court did not err in determining that
Brown was under arrest and in custody.
Furthermore, unlike the suspect in Wilson, Brown had already given the
officers probable cause to arrest him. “There is probable cause to arrest if the
totality of the facts and circumstances known to a reasonable arresting officer
would support the belief that the suspect has committed or is committing a crime.”
Driebel v. City of Milwaukee, 298 F.3d 622, 643 (7th Cir. 2002); Marshall v. Teske,
284 F.3d 765, 770 (7th Cir. 2002). Probable cause “need not be based on evidence
sufficient to support a conviction, nor even a showing that the officer’s belief is more
likely true than false.” Driebel, 298 F.3d at 643 (quoting Woods v. City of Chicago,
234 F.3d 979, 996 (7th Cir. 2000)). Here, Brown failed to wear his seat belt, ran a
stop sign and fled from the scene, resisted arrest and struck two police officers.
Certainly the facts as set forth herein were more than sufficient to establish
probable cause that Brown had violated laws against resisting arrest and
aggravated assault. See 720 Ill. Comp. Stat. 5/31-1 (resisting or obstructing a peace
officer); 720 Ill. Comp. Stat. 5/12-2(5) (aggravated assault).
Brown goes on to argue that, even if he was arrested, the district court erred
in holding that the search into Brown’s crotch area was within the valid limits of a
search incident to arrest. He claims that the search into his crotch area was overly-
intrusive, and thus the officers were required to have some specific reason to believe
that Brown was concealing contraband in his crotch area before they could proceed.
It is a “bright-line rule” that officers are allowed to and should thoroughly
search suspects’ clothing and bodies upon arrest, even if they do not suspect at that
time that the person is armed or carrying contraband for the protection of
themselves and others. A search incident to arrest is reasonable and proper because
officers must recover any and all weapons from the suspect in order that they might
protect themselves as well as others who might come in contact with him. They
must also look for and preserve evidence of a crime that might otherwise be
destroyed. See Gustafson, 414 U.S. at 263-65; Robinson, 414 U.S. at 224-26; Chimel
v. California, 395 U.S. 752, 762-63 (1969), Jackson, 377 F.3d at 717. No additional
justification is required. See Gustafson, 414 U.S. at 263-65; Robinson, 414 U.S. at
235; Jackson, 377 F.3d at 716.
As we have made clear, Brown was under arrest, and thus the officers did not
need any further justification to search him. Furthermore, even if cause for the
No. 05-4365 Page 6
search was required, Officer Hale believed that he saw Brown holding contraband
during their struggle, and it was reasonable for him to continue to search Brown to
find that contraband.
The next question we will deal with is whether the search was conducted in
an overly intrusive manner. We have held that the intrusiveness of a search must
be balanced against the need for the search. See Williams, 209 F.3d at 943-44. See
also Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1270-73 (7th Cir. 1983)
(holding that a valid arrest allows for a full search but not any search no matter
how extreme or abusive). A search of the private areas of a suspect’s body is
reasonable if the suspect’s private parts are not exposed to onlookers and in
particular when an attempted flight from officers suggests that they must search
immediately because the suspect is in all probability likely to conceal or destroy
evidence. Williams, 209 F.3d at 943-44.
Here, Officer Hale early on had observed the suspect holding a small brown
bag that he believed to contain contraband, but was initially unable to locate the
bag either in Brown’s clothing or in the immediate surrounding area during a
search. As a result, a knowledgeable and experienced police officer would
reasonably suspect that Brown had it hidden under his clothing. See Robinson, 414
U.S. at 224-26; Jackson, 377 F.3d at 716 (upholding a search into a suspect’s crotch
area). The search was neither more intrusive than necessary for the purpose, and at
no time were Brown’s body parts exposed to onlookers. The search was not
intrusive.
AFFIRMED.