United States v. Jennings, Keith A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1818
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EITH A BDUL JENNINGS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06 CR 71—Robert L. Miller, Jr., Chief Judge.
A RGUED N OVEMBER 13, 2007—D ECIDED S EPTEMBER 15, 2008
Before C OFFEY, E VANS, and SYKES, Circuit Judges.
S YKES, Circuit Judge. Moments before heavily armed
police began to execute a nighttime search warrant at an
apartment in South Bend, Indiana, Keith Jennings drove
his car into a parking spot next to the targeted apartment.
This area was inside the security perimeter that police
had established for the search, so two officers boxed him
in with their cars and approached with guns drawn. In
plain view through Jennings’s window, the officers saw a
2 No. 07-1818
plastic bag containing what turned out to be 13 grams
of crack cocaine.
Jennings was charged with possessing the crack with
intent to distribute, see 21 U.S.C. § 841(a)(1), and he
moved to suppress the drugs on the ground that he was
detained without reasonable suspicion. The district court
denied that motion, and a jury found him guilty. The
court sentenced him to 360 months after concluding that
two of his prior convictions—one for a drug-trafficking
crime and the other for resisting a law enforcement
officer—qualified him as a career offender. See U.S.S.G.
§ 4B1.1(a). On appeal Jennings challenges the suppression
ruling and his sentence. We affirm.
I. Background
Several South Bend police officers testified at the sup-
pression hearing and described the events leading up
to Jennings’s arrest. Sergeant Tim Medich testified that
on May 3, 2006, he applied for a warrant to search an
apartment located at 428 South 27th Street in South Bend.
In his supporting affidavit, Medich related that within
the previous 48 hours an informant bought cocaine at
the apartment. A state judge issued a warrant for the
premises, a one-story duplex at the end of a cul-de-sac.
Lieutenant David Ryans described the area around the
targeted apartment. He testified that 27th Street runs
south about 200 to 300 feet from its intersection with
Jefferson Street and dead-ends in the cul-de-sac, which
serves as a parking area because the surrounding apart-
No. 07-1818 3
ments have no driveways or off-street parking. The
apartment to be searched has ground-level entrances in
the front and back, and the front door is on the north
side, closest to the cul-de-sac.
Lieutenant David Ryans testified that before the search
officers had set up a security perimeter around the targeted
apartment to secure the front, rear, and sides of the build-
ing. The purpose of a security perimeter is to protect the
safety of the officers and innocent bystanders while a
warrant is being executed. Ryans testified that the scope
of a security perimeter at a search scene varies, but he
said that it typically covers the outer 25- to 50-foot radius
of the building to be searched.
Officer Charles Flanagan testified that on the night of the
search, he was assigned to “eyeball” the 27th Street apart-
ment while a SWAT team was briefed at the station. The
SWAT team planned to enter the apartment through the
back door. Because they would be armed with high-
powered rifles that could penetrate walls or windows, it
was Flanagan’s responsibility to inform them if there
were any bystanders around the front of the building
before the search began. Around 8:30 or 8:45 p.m.,
Flanagan went to 27th Street in an unmarked car and
positioned himself on the street just short of the cul-de-sac
where he could watch the front of the apartment. Although
there were quite a few cars parked in the cul-de-sac, there
was no traffic on 27th Street. At about 9:30 p.m., just before
the search began, Sergeant John Mortakis arrived with
several other officers in an unmarked van. Mortakis
parked his van directly behind Flanagan’s car.
4 No. 07-1818
Officer Flanagan and Sergeant Mortakis described what
happened next. About 30 seconds before the search began,
the SWAT-team commander radioed Flanagan, who
confirmed that all was clear. To Flanagan’s surprise, just
after he gave the all clear, Jennings drove up from Jefferson
Street in a white Cadillac, passed Mortakis’s van and
Flanagan’s car, and parked within the security perimeter,
about 35 to 50 feet away from the targeted apartment.
Another car was parked in the space closest to the apart-
ment, but Jennings parked the Cadillac in the next-closest
space. Mortakis immediately pulled his van directly
behind the Cadillac, blocking it from leaving. Flanagan
saw the Cadillac’s reverse lights come on, so he drove
his car between Mortakis’s van and the Cadillac, right
against the Cadillac’s bumper, to make sure it could not
leave.
Several officers then approached the Cadillac with their
guns drawn, yelling for its occupants to show their
hands. The passenger complied immediately, but the
officers saw Jennings making furtive movements with his
hands. As they approached with flashlights, the officers
saw Jennings put a plastic bag containing crack under
the center armrest before putting his hands in the air.
Sergeant Mortakis explained at the suppression hearing
that he blocked the Cadillac because it had entered the
security perimeter surrounding the scene of the search.
Other officers confirmed that it was police policy to stop
anyone who enters the security perimeter during an
ongoing narcotics search because the execution of a drug-
related search warrant creates special dangers for the
public and for the officers conducting the search.
No. 07-1818 5
The district court denied Jennings’s motion to suppress.
The court concluded that even in the absence of reasonable
suspicion, the police “may detain—briefly, and with no
more than reasonable force—those whose presence adja-
cent to the scene of a search poses a potential significant
risk to the officers.” The court held that the safety risks
posed by Jennings’s breach of the security perimeter
justified a brief stop.
II. Analysis
A. The Suppression Ruling
In challenging the district court’s suppression ruling,
Jennings first argues that the search warrant did not
authorize the officers to search him or his car. But the
government has never argued that it did; instead, the
government has always contended that the officers were
justified in detaining Jennings to ensure his and their
safety during the search, and that once he was detained,
the police saw the bag of crack in plain view. Jennings
also argues that the detention violated the Fourth Amend-
ment because the officers had no reason to suspect that
he or his passenger were involved in criminal activity.
We review findings of fact on a motion to suppress for
clear error; a determination that a seizure was rea-
sonable is reviewed de novo. See United States v. Sandoval-
Vasquez, 435 F.3d 739, 742 (7th Cir. 2006).
The Fourth Amendment requires searches and seizures
to be reasonable, Illinois v. McArthur, 531 U.S. 326, 330
(2001), and the Supreme Court has held that this require-
6 No. 07-1818
ment authorizes officers executing a search warrant to
“take reasonable action to secure the premises and to
ensure their own safety and the efficacy of the search.” Los
Angeles County, Cal. v. Rettele, 127 S. Ct. 1989, 1992-93
(2007); see also Michigan v. Summers, 452 U.S. 692, 702-03
(1981). Accordingly, officers executing a search warrant
have categorical authority to detain any occupant of the
subject premises during the search. See Muehler v. Mena,
544 U.S. 93, 98 (2005); Summers, 452 U.S. at 705. This
authority exists in part because the probable cause under-
lying a warrant to search a premises gives police reason
to suspect that its occupants are involved in criminal
activity, and also because the officers have a legitimate
interest in minimizing the risk of violence that may erupt
when an occupant realizes that a search is underway.
See Summers, 452 U.S. at 702-03.
Other circuits have held that the rule of Summers also
permits police to detain people who approach a premises
where a search is in progress. For example, in United
States v. Bohannon, the Sixth Circuit upheld as reasonable
the detention of a man who drove into the driveway of a
suspected methamphetamine lab while a search was
underway. 225 F.3d 615, 616 (6th Cir. 2000). The man got
out of his car and walked toward the residence, and the
court held that detaining him was reasonably necessary
to protect the officers conducting the search, and that
the man’s arrival at a residence that housed a drug lab
made it reasonable for the officers to suspect that he
too was involved in criminal activity. Id. at 617. Similarly,
in Baker v. Monroe Township, the Third Circuit held that
it was reasonable for officers to detain dinner guests
No. 07-1818 7
who knocked on the door of a house where the police
were conducting a search. 50 F.3d 1186, 1188-89 (3d Cir.
1995). Because the officers knew that drug customers
regularly came and went from the house, the court con-
cluded that it was reasonable for the police to stop and
ascertain the identity of anyone approaching it during
the search. Id. at 1191-92.
It is a logical extension of the rule of Summers and
the reasoning in Bohannon and Baker to hold here that it
was reasonable for the officers to briefly detain Jennings
after he entered the security perimeter surrounding the
apartment where the narcotics search was underway.
Although Jennings never stepped onto the property being
searched, he entered the officers’ security perimeter just
as a SWAT team armed with high-powered rifles entered
the apartment from the rear. His arrival took the officers
by surprise, and given the elevated risk of violence during
a search for narcotics, they were reasonably concerned
for their own and for Jennings’s safety, as well as for any
activity that might compromise the search. Had it become
necessary for the officers to apprehend anyone trying to
escape through the front door of the apartment, Jennings
and his passenger would have been in their path. Under
these circumstances, it was reasonable for the officers to
“exercise unquestioned command of the situation” by
detaining Jennings long enough to ensure that he was
unarmed and uninvolved in criminal activity. Summers,
452 U.S. at 702-03.
The Fourth Amendment’s reasonableness requirement
strikes a balance between an individual’s interest in being
8 No. 07-1818
left alone and the public’s interest in community safety,
crime control, and the safety of law enforcement officers
engaged in the work of protecting the public and investi-
gating crime. See McArthur, 531 U.S. at 331; United States
v. Burton, 441 F.3d 509, 511-12 (7th Cir. 2006). Here, the
officers’ interest in maintaining control inside their
security perimeter until the SWAT team secured the
targeted apartment for the search far outweighed
Jennings’s interest in being left alone for the few
moments that he was detained. Seconds passed between
the moment the officers blocked in the Cadillac and the
moment they saw the bag of crack in plain view through
Jennings’s window, giving them probable cause for arrest.
In light of the limited nature of the intrusion and the
officers’ compelling need to maintain control within the
security perimeter, Jennings’s detention was reasonable.
See McArthur, 531 U.S. at 332; Burton, 441 F.3d at 511-12.
Accordingly, the district court properly denied Jennings’s
motion to suppress the crack.
B. Jennings’s Sentence
Jennings argues that the district court erred when it
concluded that his Indiana conviction for resisting a law
enforcement officer—a Class D felony—is a crime of
violence qualifying him to be sentenced as a career of-
fender. A “crime of violence” for purposes of the Sen-
tencing Guidelines’ recidivist enhancement includes an
offense that has “as an element the use, attempted use, or
threatened use of physical force against the person of
another” or “otherwise involves conduct that presents a
No. 07-1818 9
serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a). Jennings argues that because the
Indiana statute under which he was convicted requires
proof of “a substantial risk of bodily injury to another
person,” see IND. C ODE § 35-44-3-3, instead of a “serious
potential risk of physical injury,” see U.S.S.G. § 4B1.2(a),
his conviction for resisting a law enforcement officer
does not constitute a crime of violence.
We review de novo the district court’s determination
that Jennings’s conviction was a crime of violence. See
United States v. Otero, 495 F.3d 393, 400 (7th Cir. 2007).
Whether Jennings qualifies as a career offender hinges on
whether the Indiana statute criminalizing the offense of
resisting a law enforcement officer categorically describes
a crime of violence. Begay v. United States, 128 S. Ct. 1581,
1584 (2008); James v. United States, 127 S. Ct. 1586, 1593-94
(2007); United States v. Lewis, 405 F.3d 511, 514-15 (7th
Cir. 2005). At the time of Jennings’s offense, the statute
provided that a person commits a Class A misdemeanor
if he:
(1) Forcibly resists, obstructs, or interferes with a law
enforcement officer or a person assisting the officer
while the officer is lawfully engaged in the execution
of his duties as an officer;
(2) Forcibly resists, obstructs, or interferes with the
authorized service or execution of a civil or criminal
process or order of a court; or
(3) Flees from a law enforcement officer after the
officer has, by visible or audible means, identified
himself and ordered the person to stop . . . .
10 No. 07-1818
IND. C ODE § 35-44-3-3(a) (1995). Jennings was convicted of
the felony version of this resisting offense, however, which
has this additional element: “the person draws or uses a
deadly weapon, inflicts bodily injury on another person, or
operates a vehicle in a manner that creates a substantial
risk of bodily injury to another person.” Id. § 35-44-3-3(b).
The charging document shows that Jennings was prose-
cuted under paragraph (3) of the base offense: it says that
in fleeing from a police officer, he “did speed, ignore
traffic control devices, and thus did endanger drivers.”
That, plus the additional felony element that he operated
the vehicle “in a manner that creates a substantial risk of
bodily injury to another person” makes Jennings’s offense
a categorical crime of violence. Jennings’s semantic quibble
that an offense that creates a substantial risk of injury does
not equate to one that creates a serious risk of injury is
just that—a semantic quibble.
The Supreme Court held last term in Begay that the
Armed Career Criminal Act’s requirement that
qualifying predicate felonies be offenses “that present[ ] a
serious potential risk of physical injury to another,” 18
U.S.C. § 924(e)(2)(B)(ii), contemplates only those offenses
that are similar to those itemized in the statute, that is,
“burglary, arson, . . . extortion, . . . use of explosives.” 128
S. Ct. at 1586. The Court noted that these itemized offenses
involved “purposeful, violent, and aggressive conduct”
and held that the statute’s “otherwise” clause—bringing
within its ambit those offenses that “otherwise involve[ ]
conduct that presents a serious risk of physical injury to
another,” 18 U.S.C. 924(e)(2)(B)(ii)—must be interpreted to
require conduct of a similar nature. Id. We have recently
No. 07-1818 11
held that Begay’s interpretation of § 924(e) applies to the
career-offender guideline, § 4B1.1, which contains
identical language. United States v. Templeton, No. 07-2949,
2008 WL 4140616, at *2 (7th Cir. Sept. 9, 2008).
Jennings’s felony resisting-an-officer conviction
required conduct that created a “substantial risk of bodily
injury to another person” by an act of vehicular fleeing
from a police officer by “speed[ing], ignor[ing] traffic
control devices, and thus . . . endanger[ing] other drivers.”
This version of the resisting-an-officer offense under
Indiana law thus involves the sort of purposeful and
aggressive conduct that the Court’s decision in Begay
requires. The district court properly applied the career
offender guideline. See United States v. Spells, No. 07-1185,
2008 WL 3177284, at *8 (7th Cir. Aug. 8, 2008) (affirming
district court’s determination that defendant’s convic-
tion for an alternative version of the felony fleeing/resisting
offense under Indiana law qualified as a violent felony
under the Armed Career Criminal Act).
A FFIRMED.
9-15-08