United States v. Clark, Tony , 182 F. App'x 540 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 4, 2006
Decided May 18, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1220
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central District
v. of Illinois
No. 03-20057-001
TONY T. CLARK,
Defendant-Appellant. Michael P. McCuskey,
Chief Judge.
ORDER
Tony Clark appeals from his conviction and sentence of life imprisonment for
possession with intent to distribute 50 or more grams of cocaine base (crack), 21
U.S.C. § 841(a), (b)(1)(A)(iii). He argues that the district court erroneously refused
to suppress his confession which he says was the result of an illegal arrest. He also
argues that his life sentence violates the Eighth Amendment and his Sixth
Amendment right to a jury trial. We affirm Clark's conviction because the police
had received information from several confidential sources that was sufficient to
establish probable cause for an arrest. We also affirm his sentence because the
Eighth and Sixth Amendment arguments are precluded by this court's and the
United States Supreme Court's case law.
No. 05-1220 Page 2
Background
The Illinois state police received an anonymous tip on June 11, 2003 that
Clark and his wife were distributing crack cocaine and heroin in Champaign-
Urbana, Illinois. The tipster stated that Clark was "recently in possession of" five
eight-balls of heroin, eight ounces of crack, scales, and $48,000. (R. 35 at 2.) The
tipster also identified Clark's and his wife's cell phone numbers (the tipster said
these were the numbers used by customers who wanted to buy drugs) and the color
and model of the cars they drove. Finally, the tipster said that Clark got his drugs
from a man named "Louis" who is from Chicago.
The police next received information from a confidential source using the
assumed name of "Bo Powers." Powers had been known by the Champaign police
for over five years and had provided them with accurate information in the past. In
particular, just a week before Clark's arrest, Powers provided information that
resulted in the arrest of a man named Jack Duge, as well as the recovery of five
grams of a controlled substance and $11,000. When Duge was arrested, he had a
cell phone number that Powers identified as belonging to Clark. Powers said that
Clark had provided the seized drugs from Duge.
More generally, Powers had known Clark for twenty years, purchased drugs
from Clark more than fifty times (most recently on June 5, seven days before the
warrant issued), and sold drugs for him on "multiple occasions" in the past few
years. Powers said Clark made trips to Kankakee and Chicago to purchase drugs in
a white sports car that matched the description of Clark's car given by the tipster.
Powers also spoke of going on trips to both of these locations with Clark to meet
Louis, the man identified by the tipster as Clark's supplier. Powers said the
Chicago meetings took place around 95th Street, which is where the tipster said
Louis owned a gas station. Powers correctly identified Clark's two most recent
residences. Powers also mentioned seeing Clark in possession of ten grams of crack
as recently as June 5 and, on June 7, hearing Clark talk about a shipment of
cocaine he had gotten from Louis.
The police also spoke with another confidential informant "Nancy Wood" who
admitted purchasing heroin from Clark twice and confirmed that Clark drives a
white sports car. They also discovered that Clark had two prior drug convictions
and confirmed that cars matching the description given by Powers and the tipster
were registered to Clark's wife and mother. Finally, they learned that Clark was
stopped for a traffic violation on June 12 and, during the stop, a police dog alerted
to the presence of narcotics in the car.
Armed with this information, the police applied for a search warrant of
Clark's residence on June 12. After the warrant was issued, police stopped Clark
for a traffic violation. They told him about the search warrant, handcuffed him, and
drove him to his residence. A search of Clark's car, person, and residence did not
No. 05-1220 Page 3
turn up any drugs. However, police were also aware that Clark's supplier, Louis,
was associated with Sandra Westman, a woman living in the Champaign area.
After reading Clark his rights, police told Clark that they "had information linking
him to probable drug sales" at Westman's house and suggested that she would
implicate Clark to save herself. (Appellant's Br. 5.) Although police had not found
any drugs at Westman's house at this point, the tactic worked: Clark confessed that
he had been selling crack and directed police to thirty-one "eight-balls" of crack that
were stored in Westman's house.
Analysis
Clark's principal argument on appeal is that police did not have probable
cause to arrest him because, at the time of the arrest, they knew that some of the
information given them by the tipster—namely that Clark would be in possession of
eight-balls of heroin—was false. He also says that they knew that some of Powers'
information was false because Powers told police that Clark did not use safehouses,
a statement undermined by the fact that no drugs were found at Clark's home.
Clark asserts that since his arrest was illegal and his confession was the result of
the arrest, the confession should be suppressed. The district court determined that
the facts presented to obtain the search warrant were sufficient to show probable
cause for an arrest. We review that conclusion de novo, United States v. Brown, 366
F.3d 456, 459 (7th Cir. 2004).
First, it is unclear whether police were aware of the "inaccuracies" in the
informants' information at the time they arrested Clark. Clark asserted at oral
argument that he was not arrested until he was Mirandized at his house, at which
point the police had already conducted their unsuccessful searches of his person,
car, and home. But Clark said in the district court that he was "not free to leave"
while being transported from the location of the traffic stop to his home.
(R. 53 at 3.). This suggests that he was arrested at the traffic stop, before the police
had completed any of their searches and before they knew that they would not find
the drugs mentioned by the tipster in Clark's immediate possession.
In any case, even assuming that Clark was not arrested until the searches
were completed, he overstates his case by saying that the police "affirmatively knew
that the informants were substantially wrong." (Appellant's Br. 8.) The discovery
of drugs at Westman's house might have disproved Powers' assertion that Clark did
not use safehouses, but the police did not discover the drugs at Westman's house
until after Clark confessed. As for the tipster's statements, the affidavit submitted
in support of the application for the search warrant says that the tipster told police
that Clark was "recently in possession" of drugs. (R. 35 at 2.) That Clark did not
have drugs on his person, in his car, or at his home when he was searched does not
undermine the truth of the tipster's statement. Clark could have had the drugs
No. 05-1220 Page 4
"recently" and sold them before the police showed up or he could have stored them
somewhere else (as in fact turned out to be the case).
Although the police's ability to corroborate information in a tip is important
to an assessment of its reliability, Illinois v. Gates, 462 U.S. 213, 241–42; United
States v. Olson, 408 F.3d 366, 371 (7th Cir. 2005); United States v. Huebner, 356
F.3d 807, 814 (7th Cir. 2004); United States v. Rosario, 234 F.3d 347, 351 (7th Cir.
2000), police are not required to confirm everything an informant tells them before
arresting a suspect nor are informants required to be correct 100% of the time. See
Huebner, 356 at 816 (7th Cir. 2004) (finding probable cause even though police
could not corroborate all of facts in informant's tip); United States v. McClinton, 135
F.3d 1178, 1183 (7th Cir. 1998) (finding probable cause even though some of
informant's statements were incorrect). On the contrary, probable cause is
determined using a "totality of the circumstances" test. Gates, 462 U.S. at 230–31;
Brown, 366 F.3d at 458.
In this case, although the police were not able to corroborate everything the
tipster said, they were able to confirm several things, both through their own
investigation and through conversations with other informants. Specifically, the
police confirmed the information that Louis was Clark's supplier, as well as the
location of their transactions. The police also confirmed the details given by the
tipster about Clark's cars. Finally, police knew that, earlier on the day of Clark's
arrest, a police dog had alerted to the presence of drugs in one of Clark's cars,
suggesting that he had, as the tipster stated, recently possessed drugs.
Clark's argument also ignores the many other ways in which the information
provided by the informants was reliable. Both Powers and Wood had been reliable
confidential informants in the past. United States v. Rucker, 138 F.3d 697, 700 (7th
Cir. 1998) (fact that informant was known to police and had been reliable in the
past supported district court's finding of probable cause). Both informants also
implicated themselves in criminal activity—an indicator of increased reliability,
Olson, 408 F.3d at 371; Brown, 366 F.3d at 459—and both based their information
on firsthand encounters with the defendant, see Olson, 408 F.3d at 371 (little weight
given to statements of informant that were based on secondhand information she
received from an unnamed "concerned citizen").
In addition, the information provided by Powers was quite detailed. See
Huebner, 356 F.3d at 814 (amount of detail in tip is important in assessing its
reliability); Rosario, 234 F.3d at 351 (same). Powers not only knew background
information about Clark, such as his two most recent addresses and the color and
model of his cars; Powers also provided the name of Clark's supplier, information
about where Clark purchased his drugs, and information that Clark had supplied
the drugs to an individual who had recently been arrested in possession of
No. 05-1220 Page 5
narcotics. The background information about Clark's homes and vehicles was all
confirmed by the police's independent investigation. Furthermore, the information
about Clark's supplier and the location of Clark's drug buys matched the
information given by the tipster. Although the police did not independently
corroborate the informants' statements about Clark's future actions, such as where
and when he would meet Louis to buy drugs, Rosario, 234 F.3d at 351; United
States v. Navarro, 90 F.3d 1245, 1253 (7th Cir. 1996), the other information
obtained by the police in their investigation was more than sufficient to establish
probable cause for the arrest.
As for his sentencing arguments, Clark concedes that they are precluded by
this court's and the Supreme Court's case law and that he makes them solely to
preserve review by the Supreme Court. In any case, both arguments are without
merit. Clark first argues that the life sentences mandated by 21 U.S.C.
§ 841(b)(1)(A) for repeat drug offenders are cruel and unusual punishment. The
contention is foreclosed by Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding
life sentence for a single drug conviction against an Eighth Amendment challenge);
see also United States v. Jensen, 425 F.3d 698, 708 (9th Cir. 2005) (upholding
mandatory life sentence under § 841(b)(1)(A) against Eighth Amendment
challenge), cert. denied, 126 S. Ct. 1664 (2006); United States v. Washington, 109
F.3d 335, 338 (7th Cir. 1997) (holding a similar statute mandating life sentences for
individuals convicted of three violent felonies does not violate the Eighth
Amendment). Clark does not identify a single case in which § 841(b)(1)(A) was held
to violate the Eighth Amendment. Instead he points to two cases in which states'
recidivism statutes were held unconstitutional as applied to certain defendants.
However, both of these cases involved defendants whose most recent offenses were
thefts involving less than $200. Clark's most recent offense, by contrast, involved
the possession and distribution of a significant amount of crack.
Clark next argues that his sentence violates the Sixth Amendment because
his prior convictions were not proven to a jury beyond a reasonable doubt as
required by Apprendi v. New Jersey, 530 U.S. 466 (2000). But Apprendi by its own
terms does not apply to prior convictions. Id. at 489–90. Even if it did, Clark's life
sentence does not exceed the statutory maximum sentence for his offense of
conviction. § 841(b)(1)(A)(iii). It is a mandatory minimum sentence, and the
Supreme Court has held that Apprendi does not apply to mandatory minimums.
Harris v. United States, 536 U.S. 545, 565 (2002).
For the above reasons, we AFFIRM Clark's conviction and sentence.