United States v. Ottriez Sands , 815 F.3d 1057 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3409
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OTTRIEZ SANDS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 295 — Amy J. St. Eve, Judge.
ARGUED SEPTEMBER 25, 2015 — DECIDED NOVEMBER 4, 2015
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. Defendant-appellant, Ottriez Sands
(?Sands”), was found guilty by a jury of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Sands appeals the district court’s order denying his motion to
quash his arrest and suppress the evidence derived therefrom.
He claims the search and seizure violated his Fourth Amend-
ment rights. Sands also argues that the district court erred in
2 No. 14-3409
prohibiting him from making a particular argument to the jury
during closing argument. We agree with the district court’s
rulings and affirm its judgment.
I. BACKGROUND
In January 2012, Officer Perry Williams of the Chicago
Police Department received information from a registered
confidential informant that an individual whom the informant
personally knew was selling narcotics out of a gold-colored
car. On February 3, 2012, the informant told Officer Williams
that the suspect was actively selling narcotics out of a gold-
colored Toyota Camry with tinted windows in the area of 71st
and Paxton. The informant gave Officer Williams the license
plate number of the Camry and a physical description of the
suspect.
Based on that information, Officer Williams drove to the
area of 71st and Paxton and saw Sands seated in the driver’s
seat of a gold-colored Toyota Camry parked at 7102 South
Paxton. Officer Williams parked his car about 30 feet away
from the Camry on the south side of 71st Street and facing in
the opposite direction of the Camry to conduct surveillance.
From his position, Officer Williams turned around and looked
over his shoulder to see the Camry and observe Sands.
While Officer Williams was conducting surveillance,
Chicago Police Department Officers Kevin Kilroy, Matthew
Darling, and Nathan Gadzik were nearby in a second vehicle.
Their enforcement vehicle was parked in an area away from
71st and Paxton, out of sight of Sands’s Camry. They were an
enforcement team ready to perform an investigation or an
arrest as needed by Officer Williams. The officers in the
No. 14-3409 3
enforcement vehicle could not see Sands’s Camry and were not
conducting surveillance of it.
About fifteen minutes later, Officer Williams saw Sands
engage in a hand-to-hand transaction through the driver’s side
window of the Camry with another individual, later identified
by police as Katon Hunter. Based on his training and experi-
ence, Officer Williams believed the hand-to-hand transaction
was a narcotics transaction. He informed the enforcement
officers via radio that a narcotics transaction had occurred and
ordered them to arrest Sands. After receiving this information
from Officer Williams, Officer Kilroy drove the enforcement
vehicle from its hidden location down Paxton, against one-way
traffic, and parked the enforcement vehicle at an angle to, and
approximately two or three feet from, the front bumper of the
Camry. Officer Kilroy saw Sands sitting in the driver’s seat of
the Camry.
Officer Kilroy testified that he saw Katon Hunter get out of
the Camry from the front passenger seat and run into the
nearby Family Dollar store. Officer Darling testified that as
they drove toward the Camry, he saw a person standing
outside the passenger side of the Camry, who also went into
the Family Dollar store.
All three officers left the enforcement vehicle; Officer
Gadzik pursued Katon Hunter into the Family Dollar store,
Officer Darling walked over to a red Monte Carlo parked in
the area as a safety precaution, and Officer Kilroy approached
the Camry. As he was walking towards the Camry, Officer
Kilroy saw Sands through the Camry windshield holding a
firearm in his right hand. He then saw Sands move the firearm
4 No. 14-3409
to the open center console. Officer Kilroy drew his firearm and
ordered Sands to get out of the Camry. Sands did not immedi-
ately comply, and Officer Kilroy had to open the car door and
remove Sands from the vehicle. Officer Kilroy patted Sands
down to ensure that he had no weapons and passed Sands to
another officer at the scene.
Officer Kilroy entered the Camry to locate the firearm that
he had seen Sands holding. When he opened the center console
it appeared empty, but he located Sands’s firearm, containing
live ammunition, and 10 to 15 bags of marijuana under a false
floor in the center console.
A grand jury returned an indictment charging Sands with
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1). Prior to trial, Sands moved
to quash his arrest and suppress evidence found in the Camry,
arguing that both the search and seizure violated his Fourth
Amendment rights. The district court denied Sands’s motion.
The government moved in limine to preclude Sands from
arguing to the jury that Katon Hunter was the one who placed
the firearm into the center console of the Camry. After hearing
the evidence presented during trial, the district court granted
the government’s motion. Although the district court pre-
cluded Sands from arguing to the jury that Katon Hunter was
the one who placed the firearm in the center console, it allowed
Sands to argue that the firearm was Katon Hunter’s and not
Sands. The case proceeded to the jury, which found Sands
guilty.
No. 14-3409 5
II. DISCUSSION
A. Arrest and Search
We turn first to Sands’s contention that the district court
erred when it denied Sands’s motion to quash his arrest and
suppress evidence based on Fourth Amendment grounds.
Sands argues that an arrest occurred at the moment when
Officer Kilroy parked the enforcement vehicle in front of the
Camry and that the arresting officer did not have probable
cause at that time to arrest Sands. Sands further argues that
Officer Kilroy’s observations of Sands holding and placing the
firearm into the center console of the Camry cannot be consid-
ered to support a probable cause determination, because those
observations occurred after the impermissible seizure (the
parking of the enforcement vehicle). Thus, Sands argues, those
observations and the results of the search of the Camry should
have been suppressed. We do not agree with Sands’s conten-
tions.
We review a district court’s denial of a motion to suppress
evidence under a dual standard: findings of fact are reviewed
for clear error, while legal conclusions are reviewed de novo.
United States v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012)
(citation omitted). Credibility determinations made by the
district court are clearly erroneous only if they are “completely
without foundation.” Id. (citation omitted). If the district
court’s factual findings are supported by the record, we will
not substitute our judgment for that of the district court, nor
disturb such findings. United States v. Packer, 15 F.3d 654, 656
(7th Cir. 1994); United States v. Adebayo, 985 F.2d 1333, 1337 (7th
Cir. 1993).
6 No. 14-3409
In reviewing the factual findings in this case, we decline to
disturb the district court’s factual and credibility determina-
tions. The district court observed the officers testify at the
hearing on Sands’s suppression motion and found them to be
credible. Further, the district court’s factual findings are amply
supported by the record.
Preliminarily, we note that Sands has forfeited the discrete
issue of whether an arrest occurred at the moment Officer
Kilroy parked the enforcement vehicle in front of Sands’s
Camry. See, e.g., United States v. Kelly, 772 F.3d 1072, 1077–78
(7th Cir. 2014); United States v. Murdock, 491 F.3d 694, 698 (7th
Cir. 2007).1 Sands failed to raise this argument during his
motion to suppress in the district court, and that forfeited the
argument on appeal. Kelly, 772 F.3d at 1077–78. Because Sands
has presented no good cause for the failure to preserve the
argument for appeal, we are precluded from reviewing this
discrete issue. Id.
Moreover, given the facts of this case, the parking of the
enforcement vehicle without lights, siren, or guns drawn does
not rise to the level of an arrest. See, e.g., United States v.
Lechuga, 925 F.2d 1035, 1037, 1040–41 (7th Cir. 1991) (two police
vehicles “sandwiching” suspect’s vehicle and forcing it to stop
did not constitute arrest, and catalogue of police activity,
1
It should be noted that contrary to Sands’s contention, the holdings of
United States v. Kelly, 772 F.3d 1072 (7th Cir. 2014) and United States v.
Murdock, 491 F.3d 694, 698 (7th Cir. 2007) remain “good law” and unaf-
fected by the relocation of Rule 12(e) to Rule 12(c)(3) as a result of the 2014
amendment to Federal Rule of Criminal Procedure 12. See FED. R. CRIM. P.
12(c)(3); FED. R. CRIM. P. 12 advisory committee’s note, 2014 amendments.
No. 14-3409 7
including use of weapons, blocking in a vehicle, ordering
suspect to lie on ground, use of handcuffs, not constituting
arrest) (citations omitted). Further, an arrest occurs only once
the suspect has submitted to law enforcement’s show of
authority. California v. Hodari D., 499 U.S. 621, 625 (1991);
United States v. Griffin, 652 F.3d 793, 798 (7th Cir. 2011). Here,
Sands did not initially comply with Officer Kilroy’s order to
get out of the Camry. The seizure occurred when Officer Kilroy
physically removed Sands from the Camry and had him
physically detained.
Nevertheless, the issues of forfeiture and whether an arrest
occurred at the time of the parking of the enforcement vehicle
are obviated by the fact that we must still determine whether
the search and arrest were supported by probable cause, as
Sands challenges the district court’s ruling on his motion to
suppress evidence and quash the arrest. Because we continue
with a de novo review of the legal issues, we purposefully
address the issues of forfeiture and the parking of the enforce-
ment vehicle only in passing in the interests of brevity.
A warrantless arrest is constitutionally permissible if
supported by probable cause; probable cause for an arrest
exists “if the totality of the facts and circumstances known to
the officer at the time of the arrest would warrant a reasonable,
prudent person in believing that the arrestee had committed,
was committing, or was about to commit a crime.” Abbot v.
Sangamon Cnty., Ill., 705 F.3d 706, 714 (7th Cir. 2013) (citation
omitted). To support a finding of probable cause, the officer
need only have a belief that a crime occurred, not whether a
crime actually occurred. United States v. Muriel, 418 F.3d 720,
8 No. 14-3409
724 (7th Cir. 2005). An officer’s “trustworthy information”
establishing probable cause for an arrest may include informa-
tion provided by a confidential informant, as long as that
information is reliable. United States v. Levy, 990 F.2d 971, 973
(7th Cir. 1993) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964));
United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995)
(citations omitted). The reliability of an informant’s informa-
tion may be established by the reliability of the informant in
the past, corroboration by independent police work or observa-
tions, or by other means. Gilbert, 45 F.3d at 1166 (citation
omitted).
Here, Officer Williams testified that the confidential
informant was registered with the Chicago Police Department
and had been “very reliable” in providing him with credible
information for over six years. Based on the information
provided by the informant, Officer Williams went to the area
of 71st and Paxton and corroborated the information: the color
of the car, the make and model of the car, the fact that the car
had tinted windows, the location of the car, and the description
of the individual sitting in the driver’s seat. In addition, Officer
Williams observed Sands engage in a hand-to-hand transaction
through the driver’s side window of the Camry, which Officer
Williams believed, based on his training and experience, was
a narcotics transaction. The confidential informant had
previously told Officer Williams that an individual was dealing
narcotics out of the Camry, and Officer Williams independ-
ently observed that conduct. Based on the reliable information
known to him at the time, including his training and experi-
ence, Officer Williams believed Sands had engaged in an illegal
No. 14-3409 9
narcotics transaction. Officer Williams had probable cause at
that time to arrest Sands. See Abbot, 705 F.3d at 714.
The information known by Officer Williams may be
imputed to Officer Kilroy pursuant to the collective knowledge
doctrine. The collective knowledge doctrine allows officers
within an agency or officers from different agencies working
together to effectuate constitutionally permissible searches and
seizures. In other words, the doctrine “permits an officer to
stop, search, or arrest a suspect at the direction of another
officer or police agency, even if the officer himself does not
have firsthand knowledge of facts that amount to the necessary
level of suspicion to permit the given action.” United States v.
Williams, 627 F.3d 247, 252 (7th Cir. 2010) (citation omitted).
Three elements must be met for the collective knowledge
doctrine to apply: “(1) the officer taking the action must act in
objective reliance on the information received, (2) the officer
providing the information–or the agency for which he works
–must have facts supporting the level of suspicion required,
and (3) the stop must be no more intrusive than would have
been permissible for the officer requesting it.” Id. at 252–53
(citation omitted).
Here, the collective knowledge doctrine applies. First,
Officer Kilroy “act[ed] in objective reliance” on the information
received from Officer Williams that Sands had engaged in a
hand-to-hand narcotics transaction. Officer Kilroy’s subjective
thoughts or motivations are of no consequence in determining
“objective reliance.” Id. at 254–55. Once Officer Kilroy received
the information from Officer Williams, Officer Kilroy acted by
parking the enforcement vehicle in front of Sands’s Camry,
ordering Sands out of the vehicle, and when Sands did not
10 No. 14-3409
comply, getting Sands out of the vehicle and arresting him.
There is no evidence that Officer Kilroy did not rely on the
information received from Officer Williams. Second, as
discussed above, Officer Williams, “the officer providing the
information,” had probable cause to arrest Sands based on his
corroboration of the informant’s information and his witness-
ing an illegal narcotics transaction. Third, because the arrest
was supported by probable cause, Officer Kilroy’s arrest of
Sands was “no more intrusive” than had Officer Williams
effected an arrest of Sands. The scenario at issue here is not that
Officer Williams had only reasonable suspicion for a Terry stop,
but Officer Kilroy effected an arrest. Rather, probable cause
supported an arrest. Ultimately, because Officer Williams had
probable cause to arrest Sands, Officer Kilroy had probable
cause to arrest Sands.
As to the search of Sands’s Camry, the vehicle exception
provides that a warrantless search of a vehicle is constitution-
ally permissible if police have probable cause to believe the
vehicle contains contraband or other evidence of illegal
activity. United States v. Edwards, 769 F.3d 509, 514 (7th Cir.
2014); United States v. Navarro, 90 F.3d 1245, 1252 (7th Cir. 1996)
(citations omitted). Probable cause to search a vehicle exists
when, based on the totality of the circumstances, “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983).
Officer Kilroy understood that the officers were conducting
surveillance because the information received from the
confidential informant was that Sands was selling narcotics out
of his Camry. Additionally, Officer Kilroy had probable cause
No. 14-3409 11
to arrest Sands once he heard from Officer Williams that a
hand-to-hand narcotics transaction had occurred. After Officer
Kilroy parked the enforcement vehicle in front of Sands’s
Camry, Officer Kilroy saw Sands place a firearm in the center
console of the Camry. Based on the information that Sands had
just engaged in a narcotics transaction in his car and Officer
Kilroy’s own observation of Sands with a firearm, Officer
Kilroy had probable cause to believe Sands’s Camry contained
contraband and/or evidence of a crime. See Edwards, 769 F.3d
at 514. Therefore, the search of Sands’s Camry falls within the
vehicle exception and did not infringe on Sands’s Fourth
Amendment rights.
B. Closing Argument
Sands’s second contention on appeal is that the district
court erred when it granted the prosecution’s motion in limine
to preclude Sands from arguing during closing argument that
Katon Hunter placed the firearm in the center console of the
Camry. The district court ruled that no evidence had been
presented during trial to support Sands’s argument that Katon
Hunter placed the firearm in the center console. While the
district court allowed Sands to argue during closing argument
that the firearm belonged to Katon Hunter and/or that Katon
Hunter ran from the firearm, it precluded Sands from going
further and claiming Katon Hunter placed the firearm in the
center console.
“Broad discretion is reposed in the trial court to control
closing arguments and its discretion in this area will not be
overturned absent a showing of clear abuse.” United States v.
Grabiec, 563 F.2d 313, 319 (7th Cir. 1977) (citation omitted). “It
12 No. 14-3409
is fundamental that counsel cannot rely or comment on facts
not in evidence during closing argument.” United States v.
Henry, 2 F.3d 792, 795 (7th Cir. 1993) (citations omitted). A jury
may only hear a defense theory “‘that is supported by law and
that has some foundation in the evidence.’” United States v.
White, 443 F.3d 582, 587 (7th Cir. 2006) (quoting United States v.
Carter, 910 F.2d 1524, 1531 (7th Cir. 1990)).
Here, no direct or circumstantial evidence was presented
during the trial that Katon Hunter placed the firearm in the
center console. There was no clear abuse on the part of the
district court in precluding Sands from arguing that Katon
Hunter placed the firearm in the center console. Sands was
permitted to and did in fact argue to the jury that the firearm
belonged to Katon Hunter, and when Katon Hunter ran from
the Camry he ran from the firearm. The district court was
within its discretion in limiting Sands’s closing argument. See
White, 443 F.3d at 587.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.