United States v. Dowthard, Kenneth R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2817
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH R. DOWTHARD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 05 CR 50052—Philip G. Reinhard, Judge.
____________
ARGUED APRIL 11, 2007—DECIDED AUGUST 29, 2007
____________
Before CUDAHY, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. On April 7, 2005, Kenneth
Dowthard was pulled over by a Rockford, Illinois, police
officer. The officer testified that she stopped Dowthard
because she had observed him driving without wearing
a seatbelt. During the traffic stop, the officer learned that
there were two outstanding warrants for Dowthard’s
arrest. She accordingly placed him under arrest. Subse-
quent searches of his person led to the discovery of cocaine,
a large sum of cash, and a gun. After his indictment,
Dowthard moved to suppress this evidence, claiming
that the officer lacked probable cause to stop him. The
district court credited the officer’s testimony and denied
Dowthard’s motion to suppress. Dowthard entered a
2 No. 06-2817
conditional plea of guilty to counts of possession with
intent to distribute cocaine base and being a felon in
possession of a firearm, and now appeals the denial of
the suppression motion.
I
Officer Amy Kennedy was patrolling the northwest side
of Rockford, Illinois, on April 7, 2005. Just after 10:00 pm,
her vehicle was stopped facing westbound at a red light
at the intersection of Auburn Street and Central Avenue.
From that vantage point, she told the district court, she
observed Dowthard driving a dark-colored vehicle, and
she was able to see that he was not wearing a seatbelt.
Dowthard turned from southbound Central Avenue onto
westbound Auburn Street, directly in front of her.
Dowthard disputes this, claiming instead that he was
heading north on Central Avenue, and turned left onto
westbound Auburn Street; if that had been the case,
Officer Kennedy would have had at best an obstructed
view of Dowthard’s seatbelt. Either way, Officer Kennedy
made the decision to pull over Dowthard after he made
the turn.
One block west of that intersection, two other police
officers were by the side of the road because they had
stopped another vehicle. Officer Kennedy decided to pull
over Dowthard’s vehicle a short distance away, about two
blocks past the other traffic stop. As Dowthard’s vehicle
came to a stop, the passenger in the front seat ran from
the vehicle. Another passenger remained in the back seat.
Officer Kennedy approached the vehicle and, according
to her report, smelled marijuana coming from the vehicle.
She asked Dowthard to turn off the engine, asked about
the fleeing passenger, and asked whether Dowthard had
been smoking marijuana. Dowthard claimed barely to
know the fleeing passenger, but admitted that he had
No. 06-2817 3
been smoking marijuana. Officer Kennedy retrieved
identification documents from both Dowthard and the
remaining passenger. She radioed for warrant checks on
both of them.
Officer Kennedy learned that Dowthard was wanted on
two outstanding arrest warrants, which she confirmed
were active. She arrested him, and then two additional
police officers who had since arrived on the scene searched
him. These officers found some United States currency
and a cell phone. At that point, Officer Kennedy took
Dowthard to a local police station where she wrote two
tickets for him, one for “No insurance” and one for “Not
Wearing a Seat Belt.” When Dowthard was searched again
at the police station, the officers found crack cocaine
and a .22 caliber semi-automatic firearm on his person.
Dowthard was indicted for possession with intent to
distribute a controlled substance, possessing a firearm
during and in relation to a drug trafficking crime, and
being a felon in possession of a firearm, in violation of 21
U.S.C. § 841(a)(1), 18 U.S.C. § 924(c)(1)(A), and 18 U.S.C.
§ 922(g)(1). He filed a motion to suppress the evidence
discovered on his person, claiming that Officer Kennedy
lacked probable cause to stop him and that her later
discovery of his outstanding arrest warrants did not
dissipate the taint of the unlawful stop. The district
court held a hearing and then denied the motion to
suppress. Dowthard entered a conditional guilty plea to
the first and third counts, allowing him to challenge the
motion to suppress on appeal. The government dismissed
the second charge against him.
II
A
“On appeal of the district court’s denial of [a] motion to
suppress, we review the district court’s legal conclusions
4 No. 06-2817
de novo and its findings of fact for clear error.” United
States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir. 2003).
An officer has probable cause for a traffic stop when she
has an “objectively reasonable” basis to believe a traffic
law has been violated. United States v. McDonald, 453
F.3d 958, 961-62 (7th Cir. 2006). “A stop based on a
subjective belief that a law has been broken, when no
violation actually occurred, is not objectively reasonable.”
Id. at 962. In McDonald, however, the police officer
believed that the driver of the vehicle he stopped had
violated a traffic law regarding turn signal usage, but in
fact there was no such traffic law. Id. The officer’s “good
faith belief ” may have been subjectively reasonable, but
alone it was not objectively reasonable. Id.
Here, in contrast to McDonald, there is no dispute
about the fact that driving without wearing a seatbelt
violates Illinois law. See 625 ILCS 5/12-603.1. Indeed,
Dowthard received a ticket the night of the traffic stop
for exactly that infraction, in addition to being arrested on
his outstanding warrants. Dowthard argues nonetheless
that Officer Kennedy’s testimony about her observations of
Dowthard prior to the stop is insufficient to establish
probable cause, because it represents only the officer’s
“subjective belief.” Dowthard likens this basis for probable
cause to a situation where a police officer with her eyes
closed decides to make a traffic stop without having
observed a thing. This is ridiculous. It is uncontested that
Officer Kennedy believed at the time of the stop that
driving without wearing a seatbelt violated a traffic law,
and she was correct. She also thought, based on her
observations, that Dowthard was not wearing his
seatbelt. Only in the realm of epistemology might one
think that this could be inadequate, but courts perforce
rely on normal human observation of the natural world
every day.
In order to prove probable cause, the government need
show only that it was “reasonable” for Officer Kennedy to
No. 06-2817 5
conclude that Dowthard was not wearing a seatbelt. Even
if her belief was incorrect, “[w]hen an officer makes a stop
based on a mistake of fact, we ask only whether the
mistake was reasonable” in order to determine if there
was probable cause for the stop. McDonald, 453 F.3d at
362 (emphasis in original). Therefore, the only argument
available to Dowthard is the factual question whether it
was reasonable for Officer Kennedy to believe that she
actually observed him driving without wearing a seatbelt.
Officer Kennedy testified that she did. Dowthard claims
that she could not have seen his seatbelt (or lack thereof)
from her vantage point. As we noted above, we give
considerable deference to the district court’s findings of
fact, reviewing them for clear error.
The court evaluated Officer Kennedy’s testimony and
concluded that it supported the stop:
I have no reason to believe that there was not probable
cause, that is, I’d have to disbelieve her [Officer
Kennedy], and I do not, at least for the purposes of this
hearing, disbelieve her testimony that there was
probable cause that she believed that he did not have
a seatbelt on. . . . I believe that it is correct that she
thought he did not have it on, and that’s all that’s
required for probable cause.
In the leisure of his chambers, the district court might
have phrased this point more felicitously, but we find the
meaning clear. The district court understood that Officer
Kennedy was saying that she observed Dowthard driving
without wearing a seatbelt, and it credited her testimony.
The court acknowledged that there was a factual dispute
between Dowthard and Officer Kennedy about the direc-
tion in which Dowthard’s vehicle was heading (northbound
or southbound) at the intersection where Officer Kennedy
first observed Dowthard. The district court found this
dispute to be immaterial, because it concluded that
6 No. 06-2817
Kennedy “was able to see the seatbelt” from either direc-
tion.
Dowthard tries to undermine the district court’s credibil-
ity finding by digging for contradictions in Officer Ken-
nedy’s testimony, but he has not uncovered anything that
would compel us to override the judge’s conclusion.
Dowthard argues that Officer Kennedy waffled in her
testimony about the time of the traffic stop. When asked
by the prosecution if the stop occurred at 8:18 pm (rather
than the correct time of 10:18 pm), Officer Kennedy
agreed. Later, when confronted with the conflict between
her testimony and her report of the traffic stop, which
listed the time of the stop as 10:18 pm, she admitted that
she misspoke if her earlier testimony contradicted her
written report. She said that “[w]hatever the paper [her
official report of the stop] says, yes. If it says 22:18, [then
it was 22:18].” Nothing in this exchange was so egregious
that it would require us to upset the district court’s
decision.
Dowthard next argues that Officer Kennedy did not
know which lane she was in when she first observed
Dowthard. Officer Kennedy testified that she believed she
was in the “inside lane” rather than the “outside” or “[left]
turn” lanes, and then later testified that she was in the
“middle” lane as opposed to the “outside” lane or the “[left]
turn” lane. As the transcript plainly indicates, these are
simply two different ways of describing the same lane.
There is no inconsistency.
Dowthard also finds some significance in the fact that
Officer Kennedy did not pull him over until he was three
blocks past the intersection where she first observed him.
But Officer Kennedy testified that there was a traffic
stop in progress on the block where Dowthard’s vehicle
turned in front of her. Although Officer Kennedy’s testi-
mony did not connect the dots precisely, it is logical that
No. 06-2817 7
an officer would not conduct a second traffic stop in the
immediate vicinity of an ongoing stop if she did not need to
do so. Driving an extra three blocks after observing a
violation is not so extraordinary to suggest that the rea-
son for the traffic stop was contrived.
Dowthard’s allegations about Officer Kennedy’s lack of
specific facts that she might have observed that night are
nothing but nit-picking. She did not know the color of the
car, but it was night, and she knew that the car was
“dark.” She did not observe whether Dowthard was
wearing his seatbelt when she approached his stopped car.
She testified, however, that not only do drivers often pull
on their seatbelts as they are stopped, but also that she
was preoccupied by the fact that the front seat passenger
had just fled from the car. She did not recall Dowthard’s
outfit, but again she said this was because she was
concerned about the fleeing passenger.
Finally, Dowthard relies on videos that he submitted
that show the view of an officer driving behind a vehicle
like Dowthard’s. He contends that the district court
concluded that these videos demonstrate that the officer
could not observe whether a seatbelt was being worn. This
is not what the judge said. The district court explicitly
found that one could see on the video whether the seat-
belt was “tight” or “loose,” showing whether it was being
worn or not.
Reviewing the transcripts and the court’s conclusions, we
can see that the judge credited the officer’s testimony that
she acted on her perception that Dowthard was not
wearing a seatbelt as he drove through the intersection of
Auburn and Central. We find no clear error in this find-
ing or any other of the district court’s findings of fact.
The district court properly concluded that Officer Kennedy
had probable cause to stop Dowthard.
8 No. 06-2817
B
The government argues that even if Officer Kennedy did
not have probable cause to stop Dowthard, this court’s
opinion in United States v. Johnson, 383 F.3d 538, 544 (7th
Cir. 2004), compels the conclusion that the officer’s
discovery of the outstanding warrants dissipated the taint
of the illegal stop. Because we have concluded that the
district court correctly determined that Officer Kennedy
had probable cause for the stop, we do not need to reach
this argument.
* * *
We AFFIRM the district court’s denial of Dowthard’s
motion to suppress.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-29-07