197 F.3d 241 (7th Cir. 1999), 98-2302, United States v. Thornton

Docket Nº:98-2302, 98-3209, 98-3210 & 98-3235
Citation:197 F.3d 241
Case Date:November 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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197 F.3d 241 (7th Cir. 1999)




Nos. 98-2302, 98-3209, 98-3210 & 98-3235

In the United States Court of Appeals, For the Seventh Circuit

November 18, 1999

Argued September 9, 1999

Rehearing Denied Nov. 18, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. IP 97-CR-0063-02, 03, 10, 11-M/F--Larry J. McKinney, Judge.

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Before COFFEY, KANNE, and EVANS, Circuit Judges.

TERENCE T.EVANS, Circuit Judge.

Major federal drug cases these days follow a fairly familiar pattern. They are centered in big cities, and they usually involve a wide-ranging drug distribution network that has been operating for several years. The drug of choice is invariably cocaine, often in its most addictive form as crack. When charges are filed in these cases the first count always alleges the existence of a conspiracy to possess cocaine with intent to distribute. The typical case has a dozen or more defendants (many with multiple and often creative nicknames), and other counts in the indictment specifically charge some of them with individual acts of possession of cocaine with intent to distribute at various times and places. Often, additional charges against selected defendants are lodged alleging various weapons violations--carrying a firearm during a drug trafficking crime is a staple--or acts of money laundering.

When these cases arrive in court they follow a predictable pattern. Some of the defendants jump ship, make deals with the government, and become principal witnesses against those defendants who do not elect "to cooperate." "Cooperating" defendants usually do not receive a complete pass; instead they are permitted to wrap up their cases on more favorable terms based on their acceptance of responsibility under the federal sentencing guidelines and a motion for a downward departure based on the assistance given to the government. Other defendants, without cooperation agreements, nevertheless see the handwriting on the wall and plead guilty in an attempt to lessen their penalties. The few defendants left standing after all this activity go to trial before juries, and most are convicted on the major conspiracy count and many of the satellite counts as well. The jury verdicts or the guilty pleas are usually followed by long sentences under the guidelines. Then comes the inevitable appeal. The appeals in these cases raise issues that we see time and time again. The usual issues concern things like perceived flaws in the jury instructions--a convicted defendant, for example, will argue that the district judge erred in failing to give a requested "multiple conspiracy" instruction--and claims of error in the admission of evidence.

The facts in this case and the issues raised on appeal are typical of the usual federal drug conspiracy prosecution we have just described. The case involves a 20-count indictment against 14 defendants which grew out of a conspiracy to distribute cocaine in the cities of Indianapolis and Chicago. Today we consider the appeals of three defendants who went to trial and were convicted and one who pled guilty, conditionally, so he could raise on appeal the legality of a search that produced incriminating evidence against him. The search issue is the most interesting of the questions presented, and we take it up first.

Gordon Thornton and a passenger were parked, 3 to 4 feet from the curb, in a no parking zone in what police say is a "high-crime" area of Chicago in the early afternoon of February 17, 1997. Chicago police officers Dale Willingham and Larry Gade spotted the illegally parked vehicle and stopped. As the officers approached on foot Thornton got out of the car, carrying a hand-held device that was broadcasting

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police radio communications. At the time, Officer Willingham thought the device was a police scanner; it turned out to be a walkie-talkie. As Thornton stood near the open driver's side door of the car, Willingham patted down Thornton for weapons. During the patdown Willingham observed on the rear floor of the car a package wrapped in tan tape that was 2 inches thick, 4 inches wide, and 8 inches long. Suspecting that the package was a kilogram of cocaine, Willingham pulled back a piece of tape and discovered that the package contained a white powdery substance that tests later verified was indeed cocaine. The officers arrested and handcuffed Thornton and the passenger, Terry Galmore. Officer Gade searched the interior of the car and found cell phones, pagers, a second walkie-talkie, and a bionic ear that enables a person wearing a headset to hear conversations as far as a block away. Willingham opened the trunk and found a briefcase lined with Styrofoam to hold in place a machine pistol. His suspicions by now thoroughly aroused, Willingham searched the interior of the Buick Regal more carefully and uncovered two hidden compartments that contained 2 loaded semi-automatic pistols and 13 additional 1-kilogram packages of cocaine.

Thornton's version of what took place is a bit different. He testified that he did not exit the car on his own but was ordered to get out by the officers, who moved in with their weapons drawn. He denied that there was a package on the rear floor of his car. He testified that the bionic ear was for listening to bird calls. And he testified that he knew the combination to the briefcase found in the trunk but did not own the briefcase and did not know who owned it.

Thornton says the district court should not have credited Willingham's testimony. Thornton says it would have been difficult for Willingham, while checking Thornton for weapons, to see past him through the open car door and spot the package on the rear floorboard. Thornton also emphasizes that the device Willingham originally testified was a police scanner monitoring police radio communications actually was a walkie-talkie incapable of direct monitoring.

Credibility determinations based on the plausibility of competing accounts are factual findings that are overturned on appeal only if clearly erroneous. United States v. Doe, 149 F.3d 634, 639 (7th Cir.), cert. denied, 119 S.Ct. 260 (1998). In a swearing contest, the trial judge's choice of whom to believe will not be rejected unless the judge credited exceedingly improbable testimony. United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990). Thornton testified that there was no package on the rear floorboard and introduced a demonstrative videotape purporting to show that the rear floorboard would not have been visible to the police officer. Willingham testified that he saw a package on the rear floorboard, and the government introduced photographs purporting to indicate that the rear floorboard would have been visible. Willingham originally testified that he confiscated two scanners that were monitoring the same police radio traffic that the officers were receiving on their radios. When informed that the devices were mere walkie-talkies incapable of monitoring a police frequency, the officer suggested that the walkie-talkies may have been receiving transmissions from a third walkie- talkie in the area that was placed next to a scanner.

So we have a pure credibility clash, and although a police officer's badge is no absolute guarantee of honesty, an officer's testimony is never inherently less believable than the testimony of a defendant facing a long prison term. On the basis of this record we cannot say that the district court clearly erred in finding Officer Willingham more credible than Thornton, whose testimony included such whoppers as claiming he did not know who owned the briefcase that just happened to be in his trunk and of which he mysteriously

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knew the combination and suggesting that the sophisticated listening equipment found in his car in a gritty Chicago neighborhood in mid-February was for birding. The district court did not credit exceedingly improbable testimony in believing that Willingham saw the package on the rear floorboard and in concluding that Thornton's walkie-talkies were indirectly monitoring police radio traffic.

Thornton argues that the evidence found in the car should have been suppressed because each step the police took violated his Fourth Amendment right to be secure against unreasonable searches and seizures. First, Thornton suggests that the police had no business approaching his car in the first place, because in Chicago a parking violation is a civil offense, not a crime. See Van Harken v. City of Chicago, 103 F.3d 1346, 1349-50 (7th Cir.), cert. denied, 520 U.S. 1241 (1997). To begin with, law enforcement officers may approach an individual on the street without any basis whatsoever. Florida v. Royer, 460 U.S. 491, 497 (1983); United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir. 1988). Furthermore, the Supreme Court ruled unanimously in Whren v. United States, 517 U.S. 806, 810 (1996), that police officers could stop a car if the officers had probable cause to believe that a civil traffic regulation was violated. If the police may approach someone on a public street for no reason, and if police may pull over a vehicle if there is probable cause that a civil traffic violation has been committed, then Willingham and his partner surely did not violate the Fourth Amendment by walking up to Thornton, who was sitting in a car that rested in a spot where it was violating one of Chicago's parking regulations.

Second, Thornton says the police...

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