U.S.A. v. Swift & Taylor

• Citation: 220 F.3d 502
• Decision Date: 17 July 2000
• Docket Number: No. 00-1028,00-1028
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RICKY SWIFT and JOE LOUIS TAYLOR, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 502

220 F.3d 502 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RICKY SWIFT and JOE LOUIS TAYLOR, Defendants-Appellees.

No. 00-1028

In the United States Court of Appeals For the Seventh Circuit

Argued June 5, 2000

Decided July 17, 2000

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 399 CR 44--Robert L. Miller, Jr., Judge.

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Around 8:30 a.m. on September 2, 1999, two men robbed the First Source Bank in Osceola, Indiana, a few miles east of Mishawaka and its neighbor, South Bend. Within hours of the robbery, the police thought they had the bandits in their clutches. But their case hit the skids when the suspects (now the defendants), Ricky Swift and Joe Taylor, filed motions to suppress the evidence, which the district court granted. The court reasoned that the duo was arrested without probable cause. This determination led to the conclusion that all the evidence seized after the arrest had to be excluded as "fruit of the poisonous tree." The government appeals this decision.

The facts, which we will set out in some detail, are pretty much undisputed. Our standard of review is de novo. Ornelas v. United States, 517 U.S. 690 (1996); United States v. Finke, 85 F.3d 1275 (7th Cir. 1996). Here, then, are the facts.

Officer Richard Hurley of the Mishawaka police department heard the first of several calls about the robbery at 8:31 a.m. It was reported that two African-American men, armed and wearing dark, hooded clothing, beards (probably fake), and braids, robbed the bank and fled in a red Jeep Grand Cherokee bearing an Indiana license plate beginning with "71A." Officer Hurley and other officers set up a perimeter around the area to watch for a red Jeep. When that effort was unsuccessful, Robert Sherbun, a captain in Mishawaka's detective bureau, ordered Hurley to go to Hickory Village, an apartment complex about 9 miles from the bank, where he knew a red Jeep had been seen, one which he thought was associated with other robberies. Lieutenant George Haywood and Officer Steve Madison were also looking for the red Jeep Cherokee at Hickory Village. Once in the Hickory Village vicinity, a red, 4-door, 1991 Jeep Cherokee Sport bearing Indiana license number 71E1905, driven by an African-American male with another African- American man in the passenger seat, passed in front of Hurley. He radioed his observations to other officers at 9:53 a.m. (time is very important and this one, an hour and 23 minutes after the robbery, should be noted) and stopped the Jeep. Officers Haywood and Madison pulled in behind Hurley.

Officer Hurley asked for identification from the men in the Jeep; both produced drivers licenses. The driver's identification said he was Ricky Swift, and the passenger's license identified him as Joseph Taylor. Hurley radioed in the names. At the same time, he recalled that Swift was a suspect in some Mishawaka and South Bend robberies in the 1980's.

Hurley then asked Swift who owned the Jeep; Swift said it was his mother's. When Hurley asked Swift where he was coming from, Swift said he had been at Joe Taylor's house in Hickory Village. When Hurley observed that Taylor's drivers license did not give a Hickory Village address, Swift responded, "Well, we didn't do nothing, man."

Hurley asked Swift if the officers could search the Jeep, and Swift agreed. The officers asked the men to get out of the Jeep, and a pat-down for weapons came up dry. Hurley and Lieutenant Haywood then did a search in the Jeep, but they saw nothing they personally recognized as evidence of participation in the bank robbery, although, as it turns out, two items that looked innocent--but were very incriminating--were there.

Meanwhile, Captain Sherbun was at the bank. He learned the identities of the Jeep's occupants over the radio. And the names, Swift and Taylor, he said "kind of rang a bell" for he recalled that both were involved (he offered no other details on this and there were no convictions) in a series of restaurant robberies in which employees were tied up or put in a cooler. Importantly, from his investigation at the bank, he learned that the robbers had bound the employees with duct tape and placed them in a separate room during the robbery. He saw a similar pattern between the restaurant robberies (apparently some occurred a dozen years ago and one a little over a year ago) and the Osceola bank robbery. For that reason, at 10:02 a.m. (note the time again) Sherbun directed the officers at the Jeep to take Swift and Taylor to the Mishawaka police station. He informed the officers that he was on his way to where the Jeep had been stopped.

Swift and Taylor were transported to the police station in separate squad cars around 10:10 a.m. Taylor was taken to an interview room and Swift to a holding cell. Both men were required to leave their personal belongings--including Swift's pager--with the police.

Captain Sherbun arrived at the Jeep by 10:25 and looked inside by extending his head into the open front window. Two items caught his eye. Near the corner of the rear seat on the passenger side he saw wadded duct tape of the same color as the tape used to bind and confine the bank employees during the robbery. He also saw a headphone for a Walkman-type device; the headphone was without one of the foam cups that cover the earpieces. In the vault area of the First Source Bank that morning, Captain Sherbun had seen a round, nickel-sized, cup-shaped piece of black or grey sponge pad for a Walkman-like headphone. The ear- pad piece in the bank vault was a match for the Walkman earpiece in the jeep. These innocent- looking items, of course, had to be in view in the jeep when Hurley and Haywood looked in, but they had no reason to appreciate the significance of the items.

As to the critical facts on the issue before us, we could stop here, but we will add more details so the reader has a full picture of what was going on.

When FBI Special Agent Ronald Ryniak arrived at the scene of the Jeep stop around 11:00, he, too, saw duct tape on the rear seat, and he also recognized that it matched the tape he saw earlier at the bank. SA Ryniak began preparing an application for a search warrant for the Jeep. The warrant was issued later that evening.

At 10:47 a.m. the witness who saw the robbers drive away from the bank was brought to the Jeep. She told Sherbun that Swift's Jeep "was the same type vehicle" she saw leave the bank after the robbery.

Meanwhile, at the station, Lieutenant Robert Pawlowski called the county prosecutor's office and spoke with a deputy prosecutor, Laura Curliss, who suggested that Swift and Taylor be put in a lineup. Lieutenant Pawlowski then began the process of getting a lineup together.

South Bend police department investigator Eugene Eyester arrived at the Mishawaka police station after hearing that Swift and Taylor had been taken there. Eyester had been assigned the investigation of an armed robbery 3 days earlier at a restaurant/tavern in South Bend called The Landing, in which two African-American males wearing fake beards and wigs duct-taped the employees. Eyester was familiar with the names of Ricky Swift and Joe Taylor, Jr. and recalled that Swift was a suspect in previous armed robberies, including one of a Long John Silver's restaurant and one of a Ponderosa.

At the station, Swift was told that the police were investigating the First Source bank robbery and The Landing robbery. Swift said he didn't want to answer any questions and asked to talk to an attorney. He called his attorney sometime around 12:10 p.m., after which he agreed to participate in a lineup. Swift declined to sign a consent to search the Jeep. Taylor declined to answer any questions about the bank robbery.

Sometime around 2:00 p.m., the officers were ready to conduct lineups. The lineups took from 2:15 to 4:30. Eight First Source Bank employees and/or witnesses and two Landing employees viewed two lineups--one with Swift and the other with Taylor. None of the First Source Bank witnesses made identifications, but the two Landing witnesses identified Taylor, and one of the Landing witnesses said he was 75 percent sure that Swift was the other robber.

At one point in the afternoon, Swift's pager (located in a small pile of his personal effects which had been taken from him upon his arrival at the jail) started sounding. Officer Eyester silenced the signal and looked at the numbers recorded on the pager as incoming calls.

Swift's pager sounded again around 5:30. Officer Eyester wrote down the number, which belonged to a Gayle Richmond who lived in the Hickory Village apartments. Officers then went to Richmond's unit at Hickory Village. Richmond signed a consent form allowing a search of her apartment. And the police struck pay dirt, finding hundreds of thousands of dollars--some of the bills were still in First Source Bank wrappers--wigs, fake beards, and a handgun. The formal bank robbery charges against Swift and Taylor followed.

The Fourth Amendment protects "against unreasonable searches and seizures." See U.S. Const. Amend. IV. The amendment does not prevent all encounters between the police and citizens. It comes into play when a police officer uses physical force or a show of authority to restrain the liberty of a citizen. United States v. Odum, 72 F.3d 1279 (7th Cir. 1995). To make an arrest, a police officer needs probable cause to believe that a person has committed or is committing a crime. See, e.g., United States v. Johnson, 910 F.2d 1506 (7th Cir. 1990). Police are also allowed to make "Terry stops," which are investigatory stops limited in scope and executed through the least restrictive means reasonable. Terry v. Ohio, 392 U.S. 1 (1968). For an investigatory stop, police officers do not need probable cause. They need only have reasonable...