United States v. Cooks, Derrick T. , 168 F. App'x 93 ( 2006 )


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  •                              UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued October 19, 2005
    Decided February 15, 2006
    Before
    Hon. DANIEL A. MANION, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    Hon. DIANE P. WOOD, Circuit Judge
    No. 03-4035
    UNITED STATES OF AMERICA,                       Appeal from the United States District
    Plaintiff-Appellee,                Court for the Central District of Illinois
    v.                                        No. 03-CR-10004
    DERRICK T. COOKS,                               Michael M. Mihm,
    Defendant-Appellant.              Judge.
    ORDER
    Police officers in Macomb, Illinois, found crack cocaine and a handgun after
    stopping Derrick Cooks for speeding. A jury found him guilty of drug and gun
    charges after the district court denied his motion to suppress. In this appeal, Cooks
    challenges the suppression ruling. We uphold that decision and affirm Cooks’s
    convictions.
    At 11:11 p.m. on January 1, 2003, Macomb police officer Anthony Fillingham
    stopped Derrick Cooks for speeding. Eleven minutes later, at 11:22 p.m., a drug-
    detection dog alerted to the closed trunk of Cooks’s car. Fillingham and the dog
    handler, Officer Kenneth Neaver, searched the car. Although they saw nothing
    illegal in the trunk, they found a loaded gun in the passenger compartment. Cooks
    was arrested; a later search of his clothing yielded 36.8 grams of crack. He was
    No. 03-4035                                                                     Page 2
    charged with possession of crack with intent to distribute, 
    21 U.S.C. § 841
    (a)(1), and
    carrying a firearm during and in relation to a drug trafficking crime, 
    18 U.S.C. § 924
    (c).
    Cooks moved on Fourth Amendment grounds to suppress the gun, the crack,
    and his statements to the officers. In his written motion, he conceded that the stop
    was valid at its inception, but he alleged that Officer Fillingham stalled in writing a
    speeding ticket in order to give Officer Neaver and his dog time to arrive and walk
    around the car. Cooks also alleged in his motion that Neaver coached the dog into
    alerting. At the suppression hearing, however, Cooks pressed the additional
    argument that the drug dog’s accuracy rate was too low to give the officers probable
    cause to search his car. The two police officers were the only witnesses at the
    suppression hearing. The government also introduced a video (and partial audio)
    recording captured by a dashboard camera in Fillingham’s patrol car.
    During the hearing Officer Fillingham testified that he stopped Cooks for
    driving ten miles per hour over the speed limit. At 11:12 p.m. he approached
    Cooks’s car to request his driver’s license and proof of insurance. Cooks, who
    remained seated in his car, told Fillingham that his driving record was clean. At
    11:14 p.m., Fillingham returned to his squad car and ran a computer check on
    Cooks’s driver’s license. He promptly received a response showing that, in fact,
    Cooks had a prior speeding ticket. At that point, the officer said, he contacted the
    dispatcher and requested a criminal history check on Cooks. Within 30 seconds he
    was notified that Cooks had multiple arrests for drug and weapons offenses.
    Officer Fillingham then started writing a speeding ticket. According to his
    testimony, however, at approximately 11:15 p.m. Cooks began “making motions”
    toward the passenger side of the vehicle and even disappeared from view as “he
    ducked his head and shoulders down.” These movements continued for a period of
    time, Fillingham said, leading him to suspect that Cooks might be accessing or
    hiding a weapon or drugs. The video taken from Fillingham’s car confirms the
    officer’s testimony. At 11:17 p.m., Fillingham exited his squad car to investigate.
    He explained that he briefly circled Cooks’s car but returned to his own car to finish
    writing the ticket because Cooks had ceased his “suspicious” movements. At this
    point, it was 11:18 p.m., only seven minutes after Fillingham pulled Cooks over.
    Fillingham was still writing the ticket, he said, when Officer Neaver arrived
    with his dog, Hondo. Fillingham insisted that he never asked for backup, but once
    Neaver arrived, Fillingham asked him to walk Hondo around Cooks’s car.
    Fillingham’s video shows that Neaver started the walk-around at the trunk and
    allowed Hondo to sniff around the car. After one full lap, Neaver pointed and
    tapped on the trunk, and Hondo alerted by pawing at it. The alert came at
    No. 03-4035                                                                     Page 3
    11:22 p.m., approximately 30 seconds after Neaver started the walk-around and less
    than 11 minutes after Fillingham first approached Cooks’s car.
    Once Hondo alerted, Officer Fillingham returned to Cooks’s car, asked him to
    step out, and handed him the ticket he just finished writing. Fillingham then
    conducted a pat-down with Cooks’s permission, but found nothing. He further
    testified that at that point he began searching the interior of Cooks’s car while
    Cooks and Officer Neaver stood by. Neaver, though, suddenly yelled, “Gun!” and
    started to handcuff Cooks. Fillingham went to his aid and, after learning that the
    loaded gun was inside the car, retrieved it from the center console. According to
    Fillingham, further searching uncovered an open bottle of cognac beneath the
    driver’s seat and two marijuana seeds on the passenger side of the car. However, no
    contraband was found in the trunk where the dog alerted. Cooks was transported
    to the lockup, where an officer, while searching Cooks’s clothing, found a clear
    plastic bag containing the crack.
    Officer Neaver corroborated Fillingham’s account. Neaver confirmed that no
    one dispatched him to assist Fillingham. Instead, he said, he heard the results of
    Cooks’s criminal background check over the radio and independently decided that
    Fillingham might need a dog handler. Neaver testified that he and Hondo trained
    together and were first certified in narcotics detection in 2000. They were re-
    certified the following year and completed a 16-hour refresher course in 2002.
    However, Neaver did not challenge defense counsel’s representation that a log
    Neaver kept to document Hondo’ performance showed that drugs had been found in
    just 43% of the instances where the dog alerted. Neaver did explain, however, that
    he tapped and pointed at the trunk because handlers routinely use this method to
    keep their dog interested in sniffing areas within reach of its nose.
    Neaver also told the court that, as Officer Fillingham began searching the
    passenger compartment, Cooks volunteered that he and his girlfriend often smoked
    marijuana while driving and that he had just smoked marijuana in the car the
    previous day. It was then, Neaver said, that Cooks also volunteered that he had a
    gun in his car. That statement is what prompted him to shout a warning to
    Fillingham about the gun.
    At the conclusion of the suppression hearing, the district court denied Cooks’s
    motion from the bench. The judge, who watched the video tape of the stop,
    emphasized that any delay in processing the speeding ticket resulted from Officer
    Fillingham’s need to investigate Cooks’s “substantial” and “truly unusual”
    movements to ensure his own safety. The court further concluded that Fillingham
    did not stall in writing the ticket in order to allow time for Officer Neaver to arrive
    with Hondo, and that the officers completed the ticket and the dog sniff within a
    “reasonable time period.” With regard to the dog sniff itself, the court
    No. 03-4035                                                                      Page 4
    acknowledged that what seemed to be a low accuracy rate in the dog’s previous
    alerts presented an “interesting situation,” and suggested that at some level a low
    accuracy rate might undermine reliance on a dog’s alert as the basis for finding
    probable cause to search. The court also recognized, however, that dogs will alert to
    drug residue even where the drugs themselves are no longer present. The court
    observed that a more useful inquiry is whether the dog was properly certified.
    Nothing in the record indicates that Hondo did not have proper certification. In
    addition, the court explicitly found that Neaver’s tapping did not coax Hondo to
    alert, but merely focused the dog’s attention on his task. The court added,
    moreover, that Hondo’s alert really did not matter because Cooks’s suspicious
    movements were enough to give Officer Fillingham a basis for searching the
    passenger compartment.
    On appeal Cooks contends that, by the time the dog alerted to his car, he
    already had been detained for an unreasonable period of time. He also argues that
    the scope of the stop should have been limited to ticketing him for speeding, and
    that, regardless, Hondo’s positive alert did not constitute probable cause to search
    because the dog is too often wrong. When reviewing a suppression ruling, we
    review questions of law de novo and findings of fact for clear error. See United
    States v. Banks, 
    405 F.3d 559
    , 570 (7th Cir. 2005). We will uphold a district court’s
    factual findings so long as they are plausible in light of the evidence. United States
    v. White, 
    240 F.3d 656
    , 660-61 (7th Cir. 2001).
    We start with, and readily reject, the contention that Officer Fillingham
    unreasonably prolonged the traffic stop so that Officer Neaver could walk Hondo
    around his car. Although Cooks concedes that the stop was “reasonable at its
    inception,” Cooks argues that Fillingham “unreasonably prolonged the length of the
    stop by his inaction during the time he claimed to be writing the ticket in his squad
    car.” A stop justified solely by the need to investigate a traffic violation “can become
    unlawful if it is prolonged beyond the time reasonably required to complete that
    mission.” Illinois v. Caballes, 
    125 S. Ct. 834
    , 837 (2005); accord United States v.
    Martin, 
    422 F.3d 597
    , 602 (7th Cir. 2005). On the other hand, information lawfully
    obtained while investigating the traffic offense “may provide the officer with
    reasonable suspicion of criminal conduct that will justify prolonging the stop to
    permit a reasonable investigation.” Martin, 
    422 F.3d at 602
    ; accord United States v.
    Muriel, 
    418 F.3d 720
    , 726 (7th Cir. 2005).
    The problem for Cooks is that his argument directly contradicts the district
    court’s factual finding that Officer Fillingham did not tarry in writing the ticket
    before or after Officer Neaver arrived. This finding is not clearly erroneous, and
    Cooks does not even argue otherwise. Fillingham’s video supports the court’s
    finding; the clock shows that just over eight minutes elapsed between the time
    Fillingham began writing the ticket and when the dog alerted. Moreover, there is
    No. 03-4035                                                                     Page 5
    no evidence contradicting Fillingham’s testimony that he did not call for backup and
    did not even know that Neaver was en route.
    If anything, as the district court found, any delay in writing the ticket was
    entirely Cooks’s fault. Although Cooks disputes this finding, it is not clearly
    erroneous. The video shows him making quick, jerky movements with his head and
    shoulders and ducking out of sight several times. Given Cooks’s movements, the
    district court correctly found that Fillingham had reason to believe the Cooks was
    attempting to hide or access drugs or a weapon and, thus, grounds, to pause to
    investigate. See United States v. Arnold, 
    388 F.3d 237
    , 239, 240 (7th Cir. 2004)
    (explaining that motorist’s “clambering” into backseat created reasonable suspicion
    to search passenger compartment for weapons); United States v. Fryer, 
    974 F.2d 813
    , 819 (7th Cir. 1992) (holding that “furtive movements” between driver and
    passenger during traffic stop created reasonable suspicion to search passenger
    compartment for weapons).
    We can also quickly dispense with Cook’s related contention that the “arrival
    of the drug-sniffing dog impermissibly expanded the scope of the traffic stop from a
    stop to issue a citation for speeding into a full-blown drug investigation.” As Cooks
    must know because he cites Caballes, no level of suspicion is necessary to conduct a
    dog sniff during an ongoing traffic stop. Caballes, 
    125 S. Ct. at 838
    ; United States v.
    Brock, 
    417 F.3d 692
    , 695 (7th Cir. 2005). Only if the dog sniff is conducted during
    an unlawful detention will contraband discovered as a result be considered the
    product of an unconstitutional seizure. Caballes, 
    125 S. Ct. at 837
    ; see People v.
    Cox, 
    782 N.E.2d 275
    , 281 (Ill. 2002). That was the situation in Cox, which Cooks
    tries to analogize to this case.
    The analogy does not work. In Cox, an officer pulled the defendant over for a
    traffic violation, called a dog handler to conduct a sniff, and subsequently
    discovered marijuana. Cox, 
    782 N.E.2d at 277
    . The Supreme Court of Illinois held
    the detention unlawful because the officer stalled in completing the ticket and was
    unable to articulate any specific reason justifying the defendant’s extended
    detention for the dog sniff; the officer admitted that he did not smell marijuana or
    notice drug paraphernalia, or deem the defendant’s behavior suspicious. 
    Id.
     at 280-
    81. Here, in contrast, the district court found that Officer Fillingham did not delay
    writing the ticket as a way of prolonging the stop, and, as we have said, the court’s
    finding on this point is not clearly erroneous. In relying on Cox, Cooks simply
    refuses to acknowledge this critical distinction between the facts of the two cases.1
    1
    In connection with this argument, Cooks contends that we should
    reconsider our en banc holding in United States v. Childs, 
    277 F.3d 947
     (7th Cir.
    (continued...)
    No. 03-4035                                                                     Page 6
    That leaves Cooks’s final contention about the value of the dog’s alert. Cooks
    contends that, even if the dog sniff was itself permissible under the Fourth
    Amendment, the dog’s positive alert still did not give rise to probable cause because,
    by his calculation, the dog’s accuracy rate was only 43%. (Cooks has abandoned his
    assertion that Officer Neaver coached the dog to alert.) The government responds
    that, because drug-detection dogs often alert to drug residue, the only relevant
    question is whether Hondo was certified.
    Although we agree with the district court that there may be problems with
    the manner in which the defendant evaluated Hondo’s reliability, we see no reason
    to explore the question further in this case. As the district court recognized, Officer
    Fillingham did not need to rely on Hondo’s alert in order to search the passenger
    compartment for weapons; Cooks’s furtive movements before Officer Neaver even
    arrived were enough to justify that intrusion into the car. Police may order a driver
    out of his car during a lawful traffic stop without any level of suspicion.
    Pennsylvania v. Mimms, 
    434 U.S. 106
    , 111 n.6 (1977) (per curiam); Muriel, 
    418 F.3d at 726
    . And where police have reasonable suspicion to believe an occupant of the
    car is hiding or accessing a weapon, they may conduct a protective search of the
    passenger compartment so long as the search is “limited to those areas in which a
    weapon may be placed or hidden.” Arnold, 
    388 F.3d at
    239 (citing Michigan v.
    Long, 
    463 U.S. 1032
    , 1049 (1983)). Here, the district court properly concluded that
    Cooks’s “truly unusual,” videotaped movements during the traffic stop gave
    Fillingham ample reason to suspect that he was hiding or accessing a weapon.
    Cooks suggests that the officer’s suspicion could not have been reasonable because
    he did not take quicker action—he did not draw his gun, call for back-up, or conduct
    a pat-down as soon as he saw Cooks moving around—but there is no requirement
    that police officers utilize every available procedure immediately or at all.
    See United States v. Price, 
    184 F.3d 637
    , 641 n.2 (7th Cir. 1999) (rejecting
    defendant’s argument that because the officer did not draw his gun, he did not
    think the suspects were armed).
    1
    (...continued)
    2005) (en banc), that stops for traffic violations should be evaluated as noncustodial
    “arrests” rather than investigatory stops made pursuant to Terry v. Ohio, 
    392 U.S. 1
    (1968). Cooks apparently believes that the stop of his car would be deemed
    unreasonable if analyzed under Terry. The logic eludes us. Cooks was speeding,
    and even he admits that the stop was permissible under the Fourth Amendment, at
    least initially. Calling the encounter a “Terry stop” instead of an “arrest” changes
    nothing. The speeding offense was still unresolved when the drug dog alerted, so
    Cooks would not have been free to leave no matter what label we attach to the
    traffic stop.
    No. 03-4035                                                         Page 7
    Accordingly, the judgment of the district court is AFFIRMED.