United States v. Archie Kenerson ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1183
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RCHIE R. K ENERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-CR-40015—Michael M. Mihm, Judge.
A RGUED S EPTEMBER 15, 2009—D ECIDED O CTOBER 30, 2009
Before P OSNER, F LAUM, and R OVNER, Circuit Judges.
F LAUM, Circuit Judge. Defendant-appellant Archie R.
Kenerson challenges the circumstances of a traffic stop,
the subsequent Terry search, and a police officer’s
resulting visual identification of crack cocaine in
defendant-appellant’s back jean pocket. The district court
denied Kenerson’s motion to suppress evidence after
examining the testimony and viewing a reenactment of
the Terry frisk.
2 No. 09-1183
For the following reasons, we affirm the district court’s
denial of a motion to suppress.
I. Background
On February 26, 2008, a grand jury indicted Archie R.
Kenerson on one count of possession with intent to dis-
tribute crack cocaine. On April 16, 2008, Kenerson filed a
motion to suppress evidence. On May 15, following an
evidentiary hearing, the district court denied the motion.
On September 16, 2008, Kenerson pleaded guilty to the
charge in the indictment, reserving his right to appeal the
denial of his motion. On January 23, 2009, the district
court sentenced Kenerson to a term of 120 months of
imprisonment, 8 years of supervised release, and a $100
special assessment. Kenerson appeals from the district
court’s denial of his motion to suppress.
The material facts describing the procurement of the
evidence are not in dispute. In response to complaints of
gun violence and drug activity from residents of Rock
Island, Illinois, Officers Richard Carlson and Douglas
Williams began a special patrol of the Century Woods
housing complex in early 2008. On Jan. 15, 2008, around
10:30 p.m., a narcotics officer passed on a tip from an
unknown source to Carlson and Williams that one Bryant
Williams delivered up to an ounce of crack cocaine to a
Century Woods apartment in a white sport-utility vehicle
and that other vehicles would soon be pulling up to the
apartment for a drug exchange. Officer Carlson began
surveillance of the address, 1415 3rd Street, while
Officer Williams parked east of the apartment complex.
No. 09-1183 3
After forty-five minutes of surveillance through a set of
binoculars from a distance of approximately seventy-five
feet, Officer Carlson observed a white Plymouth Acclaim
with two occupants park next to the apartment building.
The car remained running with its lights on. After a
few minutes, a heavy-set man exited the building, walked
over to the car, and leaned into the front passenger win-
dow. After appearing to converse with the passengers,
the man walked away and called someone on his cell
phone. Next, a smaller black male wearing an oversized
white t-shirt and baggy jeans walked out of the apart-
ment. This individual was later identified as defendant-
appellant Kenerson. Kenerson spoke to the heavy-set
man in front of the car for a few minutes and then, from
the perspective of Officer Carlson, Kenerson exchanged
something with the heavy-set man. Kenerson next got
into the back seat of the Plymouth; the larger man stayed
near to the car, appeared to exchange something with
Kenerson a bit later, and returned to the apartment.
At that point, the car drove away. Officer Carlson
radioed Officer Williams, describing the vehicle and
stating his belief that he had witnessed a drug deal. Officer
Williams spotted the car, began following it, and called
the police department to get a K-9 officer to the area. Some
distance later, Officer Williams pulled the Plymouth
over after its driver failed to activate a turn signal within
the one hundred feet prescribed by the Illinois Motor
Vehicle Code, 625 ILCS 5/11-804(b), instead doing so
only five feet before the turn.
While Officer Williams approached the car, he observed
Kenerson move around in the back seat and shone a
4 No. 09-1183
flashlight on him; Kenerson then stopped moving. When
he got to the car, Williams asked the driver, later
identified as Anna Byrd, if she knew the back seat passen-
ger. Byrd said she did not and that she gave him a ride
so he could buy beer because she enjoyed helping peo-
ple. Officer Williams then asked the occupants of the
vehicle to step out of the car so Officer Sharp, who had
just arrived on the scene with a K-9 unit, could carry out
a free air search of the car. The driver consented to the
sniff test.
Once Kenerson exited the car, Officer Williams ordered
him to put his hands on the car so Williams could carry
out a protective pat-down. During the pat-down, Williams
felt a bulge in Kenerson’s left rear pocket that was not
consistent with the size or shape of a weapon. Williams
asked Kenerson what was in the pocket. Kenerson re-
sponded “nothing” and opened the pocket up, pulling
it away from his waistband. Williams saw three small
“baggie corners” that he believed contained crack cocaine.
Officer Williams then arrested Kenerson. During the
evidentiary hearing, Kenerson put on the pants he was
wearing at the arrest and the parties reenacted the pat-
down in court.
II. Discussion
A. Probable Cause to Stop the Automobile
On a motion to suppress evidence, this Court reviews
a district court’s legal conclusions, including determina-
tions of probable cause and reasonable suspicion, de novo
No. 09-1183 5
and the district court’s factual findings for clear error.
United States v. Thompson, 496 F.3d 807, 809 (7th Cir. 2007).
Defendant-appellant argues that the initial stop was
illegal because the statute giving rise to the traffic viola-
tion does not make sense. Kenerson claims that because
the defendant came to a full and complete stop, there
was no traffic at the intersection, and a hypothetical
driver who decided that he wanted to turn right only
after stopping could not comply with relevant provision
no matter how hard he tried, the code yields “an
absurd result” and cannot provide a lawful basis for a
Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968).
Kenerson does not cite any cases supporting the novel
proposition that subjective inconvenience negates the
binding power of valid laws. Kenerson also acknowl-
edges that under Whren v. United States, 517 U.S. 806
(1996), an officer can carry out a traffic stop when given
adequate legal and objective authorization regardless of
the officer’s subjective intent. See also United States v.
Trigg, 878 F.2d 1037, 1040-41 (7th Cir. 1989). Accordingly,
we affirm the district court’s finding that a violation of
the relevant provision of the Illinois Motor Vehicle Code,
routine and safe though it might have been, gave Officer
Williams probable cause to stop the Plymouth Acclaim.
See United States v. Williams, 106 F.3d 1362, 1365 (7th Cir.
1997) (police were authorized to stop vehicle for
untimely turn signal despite the minor nature of offense).
6 No. 09-1183
B. Reasonable Suspicion of Safety Risk Sufficient for a
Terry Frisk
Kenerson next argues that Officer Williams lacked
specific and articulable facts necessary to form a belief
that Kenerson was armed or dangerous and conduct a
protective frisk following the traffic stop. Under United
States v. Pedroza, 269 F.3d 821, 827 (7th Cir. 2001), “a
protective pat-down search . . . is appropriate only if
the agents have at a minimum some articulable suspicion
that the subject is concealing a weapon or poses a danger
to the agents or others . . . .” The standard is less demand-
ing than probable cause and requires only “a minimal
level of objective justification for making the stop.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Courts must
determine reasonable suspicion based on the totality of
circumstances, not by considering each factor in isola-
tion. United States v. Arvizu, 534 U.S. 266, 274 (2002). When
evaluating a situation, officers are entitled to consider
practical considerations of everyday life, United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006) (quoting Ornelas
v. United States, 517 U.S. 690, 695 (1996)), as well as the
prevalence of criminal activity in a particular location,
United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002).
The government asserts that the combination of
factors surrounding Kenerson’s traffic stop justifies a
reasonable suspicion that the defendant was armed. In
particular, it emphasizes the violent nature of the drug
trade, United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir.
1994) (“weapons are ‘tools of the trade’ of drug dealers”),
and the frequency of gun crime in the Century Woods area.
No. 09-1183 7
From an objective standpoint, these bits of information
supplement an otherwise suspicious situation, give
rise to a reasonable concerns about safety for Officer
Williams, and justify a Terry frisk of defendant-appellant.
While the transaction taking place at 1415 3rd Street was
unlikely to be a major drug deal—per the anonymous
tip, the officers could not have expected much more than
a few ounces of crack to change hands—it is an
unfortunate fact of life that trade in controlled sub-
stances is dangerous for all involved. Dealers may arm
themselves for protection against competitors, addicts,
and the police. In fact, a rational drug dealer may
well carry a gun, given these same realities and expecta-
tions. Officer Williams was aware of these trends; he
had personally arrested armed individuals in the
Century Woods area after he and Officer Carlson began
their special detail. The peculiar interaction between the
heavy-set man, Kenerson, and the passengers of the
Plymouth in front of the apartment building also strongly
suggested a covert exchange of some sort. At 11:30 p.m.
on a January night, people generally don’t walk up to a
car, briefly talk to the drivers, walk away, call someone,
talk to an acquaintance, follow the acquaintance to the
car, and walk away for good, especially with minute-
long pauses punctuating the actions. The suspicious
nature of such activity was supplemented by the
existence of a tip that drug deals would be going on at this
specific address. Once pulled over, Kenerson made a
furtive movement with his shoulders that made Williams
concerned about the possible presence of a weapon in
8 No. 09-1183
the car. Finally, when Officer Carlson asked Byrd, the
driver of the Plymouth, about whether she knew Kenerson,
the man in her back seat, she claimed that she picked
Kenerson up to get beer because he looked cold (Officer
Williams previously witnessed an entirely different
meeting between the two and notified Carlson accord-
ingly). This attempt to obfuscate the nature of the en-
counter between Byrd and Kenerson makes the con-
clusion that an illegal transaction involving Kenerson
had just transpired all the more likely. Together,
these factors all justify a reasonable suspicion by
Officer Williams that the rear-seat passenger of the Plym-
outh was a drug dealer who may be armed and dangerous.
Appellant’s invocation of Sibron v. New York, 392 U.S. 40
(1968), a case whose holding Terry and its progeny sig-
nificantly narrowed, see, e.g., Minnesota v. Dickerson, 508
U.S. 366, 375 (1993), does nothing to alter this conclusion.
We therefore hold that the district court made a correct
determination that Officer Williams validly carried out
a Terry frisk of Kenerson.
C. Discovery of Crack Cocaine and Probable Cause
for Kenerson’s Arrest
Kenerson’s final argument is that Officer Williams had
no basis to believe the hard bulge he felt in Kenerson’s
pocket during the pat-down was a weapon or contraband.
Appellant cites United States v. Gibson, 19 F.3d 1449,
1551 (D.C. Cir. 1994), which held that a hard, flat object
did not reveal incriminating character sufficient to justify
No. 09-1183 9
further search. Kenerson further relies on the rule
in Minnesota v. Dickerson, 508 U.S. 366, 373 (1993), that once
a protective search establishes that the suspect is
unarmed, all further fruits will be suppressed.
Here, however, the district court determined that
Officer Williams saw the crack cocaine when Kenerson
voluntarily opened his pocket in response to Williams’s
question about the lumps. Defendant does not challenge
the validity of the initial question about the content of
the pocket. Instead, defendant essentially asks this
Court to reverse the district judge’s finding that Officer
Williams could and actually did see the three “baggie
corners” at the bottom of the pocket during a nighttime
traffic stop. The judge’s determination that Officer Wil-
liams’s testimony was credible rests upon a reenactment
of the arrest using both the defendant and the pants
in question. By contrast, defendant offers only concerns
about the general improbability of the event. While
the scenario where a police officer visually identifies
drugs at the bottom of a jean pocket may be unlikely in
the abstract, the district court found that exactly these
events transpired during this specific arrest. We have no
basis to conclude that this factual determination was
clearly erroneous. Once Officer Williams saw the crack
containers in plain view, he had probable cause to seize
the contraband and arrest Kenerson. United States v.
Raney, 342 F.3d 551, 558-59 (7th Cir. 2003); United States
v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997).
10 No. 09-1183
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
denial of Kenerson’s motion to suppress evidence.
10-30-09