United States v. Christopher Nelson , 385 F. App'x 566 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. A PP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2010
Decided July 12, 2010
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-3856
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 08-40089-001
CHRISTOPHER A. NELSON, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Christopher Nelson appeals the district court’s denial of his motion to suppress
evidence found in his hotel room and surrendered from inside his pants after he was
arrested for possessing drug paraphernalia. Because we conclude that the police had
probable cause to arrest Nelson and the evidence obtained following his arrest was not
tainted, we uphold the district court’s ruling and affirm Nelson’s conviction.
No. 09-3856 Page 2
After Cory Tompkins’s neighbors complained to the Kewanee, Illinois, Police
Department that his home was receiving a lot of suspicious traffic, the police began
monitoring Tompkins’s residence. In July 2008 the police used a confidential source to
conduct two controlled purchases of crack cocaine from the home. According to the
source, during the first buy he went into the house, gave Tompkins $20, saw Tompkins
confer with a large, unidentified black male, then Tompkins gave the source a small
amount of crack packaged in a tied-off corner of a plastic baggie. During the second
controlled buy, after the source purchased crack packaged in the same manner as the first
transaction, Tompkins offered to let the source smoke the crack in his home.
The police obtained a warrant to search Tompkins’s house and seize any drugs,
drug paraphernalia, money, or documents identifying the home’s residents. When the
police executed the warrant, they entered the house and saw a white male later identified
as Tompkins attempting to run upstairs. Two other people, a large black male later
identified as Nelson and a white female later identified as Buffy Burcham, remained in the
living room. All three were detained and handcuffed while the police searched the house.
In plain sight the officers found incriminating materials: a spoon with suspected cocaine
residue, a small trash can containing about 70 plastic baggies with corners cut off, a plate
with suspected cocaine residue, a soda can poked with holes and covered with burn marks,
a digital scale, and a pipe with suspected marijuana residue. The police also noticed that
the home had no running water, no furniture upstairs, and sparse furnishings downstairs,
suggesting to them that the home was used for selling or consuming drugs.
During the search Burcham told one of the officers that “If it’s not on him
[indicating Nelson], it’s going to be in the kitchen.” The police arrested Tompkins, Nelson,
and Burcham for possession of drug paraphernalia. Before heading to the police station
two officers performed an “informal strip search” of Nelson and discovered only currency
in the amount of $292.
At the station Nelson signed a form waiving his Miranda rights and discussed
consenting to a search of the motel room where he was staying. Nelson initially refused to
consent to a search, but after he overheard that a search warrant was being prepared for the
room, he asked an officer if he would benefit from cooperating with the police. The officer
told him that the prosecutor’s office would be informed about any cooperation but the
police could not promise leniency. Nelson then signed a form consenting to the search of
the room.
The police took Nelson to the motel for the search. When they arrived, they realized
that the consent form listed the wrong room number, so they destroyed the first form and
had Nelson sign a second. Once inside the room, Nelson told the police that drugs and
No. 09-3856 Page 3
cash were inside a black gym bag. Officers searched the bag and found 14 individually
wrapped bags of crack cocaine with a combined weight of just over 45 grams and $800 in
cash. As they were leaving, Nelson pulled a clear plastic bag containing approximately 20
grams of crack out of the front of his pants. He told the surprised officers he’d “had it
down there” the entire time.
Nelson was charged with conspiracy to distribute crack, 21 U.S.C. §§ 841(b)(1)(A),
846, and unlawful possession with intent to distribute crack, id. § 841(a)(1), (b)(1)(A). He
filed a motion to suppress, arguing that the police lacked probable cause to arrest him at
Tompkins’s home and that his subsequent consent to search his motel room and surrender
of the drugs in his pants were the unlawful fruits of the illegal arrest. The district court
held a hearing at which Officer Nicholas Welgat, the “main officer” on the case who was
involved in the searches of both Tompkins’s home and Nelson’s motel room and Nelson’s
arrest and strip search, and Officer Troy Ainley, who participated in the search of
Tompkins’s home and Nelson’s interview, testified to the above facts. On cross-
examination Welgat admitted that he had not personally heard Burcham say that Nelson
might have drugs on him; he learned of Burcham’s statement from another, non-testifying
officer who took part in the search of Tompkins’s residence. At the hearing, however,
Nelson did not object to Welgat’s account on hearsay grounds. Welgat also conceded that
Burcham’s statement was not contained in any of the police reports about the search.
Finally, when Ainsley was cross-examined, he acknowledged that he had thrown away the
first consent to search form signed by Nelson and that his report did not mention that
Nelson had initially refused to consent to the search of his motel room.
The district judge expressed dismay about the officers’ failure to document in their
reports many of the facts to which they testified, but he nonetheless found the officers
credible. In denying Nelson’s motion to suppress, the court concluded that Nelson’s arrest
for possessing drug paraphernalia was “not a perfect situation” and the police would not
have been able to prove him guilty beyond a reasonable doubt at that time, but “that’s not
the test” and under the totality of the circumstances there was probable cause to arrest.
The court also determined that Nelson had knowingly and voluntarily waived his Miranda
rights and freely consented to the search of his motel room.
Nelson pled guilty to unlawful possession with intent to distribute but reserved the
right to appeal the denial of his motion to suppress; the government dismissed the
conspiracy charge. The district court sentenced Nelson to 120 months’ imprisonment, the
statutory minimum term. See 21 U.S.C. § 841(b)(1)(A).
On appeal Nelson renews his argument that the police did not have probable cause
to arrest him for possession of drug paraphernalia and that, consequently, the evidence
No. 09-3856 Page 4
obtained from the consensual search of his hotel room and relinquished from his pants
following his arrest was inadmissible. We review a district court’s legal conclusions on a
motion to suppress—including a determination of probable cause—de novo, and factual
findings for clear error, giving special deference to a district court’s credibility findings.
United States v. Thompson, 496 F.3d 807, 809 (7th Cir. 2007). Probable cause exists “if an
officer reasonably believes, in light of the facts known to her at the time, that a suspect had
committed or was committing an offense.” United States v. Reed, 443 F.3d 600, 603 (7th Cir.
2006). It “relies on the common-sense judgment” of officers based on the totality of the
circumstances and allows officers to draw reasonable inferences from their training and
experience. Id. Probable cause “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” United States v. Levy, 990 F.2d
971, 973 (7th Cir. 1993) (quoting Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983)).
Nelson attempts to analogize his situation to Ybarra v. Illinois, 444 U.S. 85 (1979),
where the Supreme Court reversed a conviction for drug possession after determining that
the police lacked probable cause to search the defendant. In Ybarra the police received a tip
that a bartender was dealing heroin out of a public tavern, so they obtained a warrant to
search the bartender and the tavern. Id. at 87-88. While executing the warrant the police
conducted patdown searches of every customer at the tavern and found heroin on Ybarra,
one of the tavern’s patrons. Id. at 88-89. The Supreme Court noted that when the police
entered the tavern, they did not recognize Ybarra or have any reason to believe that he had
committed a crime and he did nothing to arouse their suspicions. Id. at 90-91. The Court
held that “a person’s mere propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to search that person” and
explained that the requirement of particularized probable cause cannot be avoided by
pointing out that there is probable cause to search the premises where person is found. Id.
at 91.
Similar to the defendant in Ybarra, Nelson asserts, the police had no probable cause
to suspect that he was involved in criminal activity when they entered Tompkins’s home;
they arrested him, he argues, based on nothing more than his presence in the house while it
was being searched. He points out that, unlike Tompkins, he did not run from the police
and contends that although he was found in the living room where police discovered drug
paraphernalia, none of the items was in his “immediate physical control.” He attempts to
minimize the significance of the inculpatory comment attributed to Burcham —“If it’s not
on him, it’s going to be in the kitchen”—because it is not in any of the official police reports
and the officer who allegedly heard the remark did not testify at the suppression hearing.
No. 09-3856 Page 5
The police had probable cause to arrest Nelson at Tompkins’s home because, unlike
Ybarra, the arrest here is based on more than his “mere presence” near criminal activity in a
public place of lawful business. Nelson was present in a private dwelling that, with its
drug paraphernalia, drug transactions, lack of furnishings and no running water, appeared
to have no lawful purpose. In United States v. Pace, 898 F.2d 1218, 1240 (7th Cir. 1990), we
rejected the defendants’ argument that the police lacked probable cause to arrest them
where officers executing a search warrant for a home suspected to be a site for drug-
dealing observed the defendants exiting rooms in which the police found large quantities
of either drugs or money out in the open. We reasoned that these observations, combined
with the fact that the homeowner trusted the defendants enough to have them in his home
while the money and cocaine were out in the open, could lead a reasonable person to
conclude that the defendants were involved in a cocaine deal with the owner. Id. Here,
similarly, Tompkins appeared to trust Nelson enough not to hide his drug dealing and
paraphernalia, giving Nelson ready access to that paraphernalia at a private site that
appeared to be a place specifically for drug dealing. These facts supported an inference
that Nelson himself might be a drug customer or dealer.
Burcham’s suggestion to the officers that Nelson had drugs on him further
enhanced the inference of probable cause. Nelson criticizes the district court for crediting
Burcham’s arguably hearsay statement, but the court did not clearly err in doing so. First,
the district judge heard testimony about the statement from Officer Welgat without any
hearsay objection. Second, Officer Welgat credibly explained that he learned of the
statement from a fellow officer who heard it directly from Burcham at the scene. For the
district court to have erred, we would need to have the “definite and firm conviction” that
Burcham did not make the incriminating statement. See Easley v. Cromartie, 532 U.S. 234,
242 (2001); United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). But Nelson offers no
legitimate reason for that conclusion, so the court’s finding of probable cause is secure.
Nelson also argues that it would be anomalous to uphold the denial of his
suppression motion when, he says, reversal would be warranted under United States v.
Johnson, 170 F.3d 708 (7th Cir. 1999), if only he had been leaving Tompkins’s home when
the police entered. Nelson’s reliance on Johnson is misplaced. In Johnson we concluded that
the police lacked reasonable suspicion to stop the defendant when he emerged from an
apartment officers were hoping to investigate after receiving reports that it might be a spot
for drug activity. Id. at 711, 720. We explicitly limited the scope of our decision, explaining
that “we hold only that before a police officer targets a particular house and decides to
seize literally anyone who might emerge from that house, he or she must either have a
warrant or fall within one of the warrant exceptions that the Supreme Court has
recognized.” Id. at 710. The officers who arrested Nelson entered Tompkins’s home
No. 09-3856 Page 6
pursuant to a search warrant and, as explained above, based their arrest on both Nelson’s
position near drug paraphernalia in a house that seemed to have no legal purpose and
Burcham’s statement intimating that Nelson possessed drugs.
The totality of the circumstances reasonably suggested that Nelson was engaged in
illegal activity, so the police had the right to arrest him. Nelson’s only challenge to the
consensual search of his motel room and his surrender of the drugs in his pants is that they
were the product of the arrest. But because Nelson’s arrest was legal, there is no problem
with the subsequent search and surrender.
AFFIRMED.