U.S. v. Biggs

• Decision Date: 14 June 2007
• Docket Number: No. 05-4613.,05-4613.
• Citation: 491 F.3d 616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin BIGGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

491 F.3d 616

UNITED STATES of America, Plaintiff-Appellee, v. Calvin BIGGS, Defendant-Appellant.

No. 05-4613.

United States Court of Appeals, Seventh Circuit.

Argued March 27, 2007.

Decided June 14, 2007.

Benjamin F. Langner (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kevin L. Schriener (argued), Schriener Law, Clayton, MO, for Defendant-Appellant.

Before MANION, KANNE, and WOOD, Circuit Judges.

MANION, Circuit Judge.

A jury convicted Calvin Biggs of possession with intent to distribute crack cocaine and possession of a firearm as a convicted felon. The district court sentenced Biggs to 360 months of imprisonment. Biggs appeals, claiming that the drugs and guns at issue should have been suppressed because he was arrested without probable cause and because his subsequent consent to search was involuntary. He also challenges the jury's viewing of an exhibit during deliberations and the reasonableness of his sentence. We affirm Biggs's convictions and sentence.

I.

On the night of April 13, 2004, officers from the Chicago Police Department arrested Calvin Biggs. The parties present conflicting versions of what happened that night. We begin with the government's version, which a magistrate judge found to be credible and which the district court adopted. According to Officer Patrick Thelan, who testified at an evidentiary hearing, an anonymous source informed him that a heavyset black man in a cream-colored sweater was selling drugs at a particular intersection. Within twenty minutes of receiving this information, Officer Thelan and his partner Sergeant Michael Stack drove by the intersection in an unmarked police vehicle and observed a man on the corner fitting the description provided by the tipster. The officers drove around the block to a vacant lot from where they could observe the man without being seen. From a distance of approximately fifty to seventy-five feet, both officers watched with binoculars. Over the course of about fifteen minutes, the man received currency from three different individuals and handed each something from the rear of his pants. The officers left their vantage point after the third suspected drug transaction, returned to their vehicle, drove back around the block, and parked the vehicle to approach Biggs. Biggs fled when he saw the officers approach. The officers pursued him into a nearby basement apartment. As Biggs entered the apartment, the officers saw him remove a plastic bag from his pants and throw it to the floor. Sergeant Stack recovered the bag, which subsequent testing revealed contained 2.3 grams of crack cocaine, and placed Biggs under arrest.

The officers escorted Biggs to their vehicle and alerted him to his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Biggs then told the officers that he could not go back to jail because he had to take care of his daughter. Biggs offered to get the officers some guns in exchange for his release. The officers responded to Biggs's offer with questions about the guns, asking their type and location and whether any dogs were at the location. The officers never told Biggs that they would release him in exchange for the guns; instead, they continued to ask questions. They drove Biggs to a parking lot of an abandoned candy factory, where at least two other officers were present. Approximately twenty-five minutes after the officers took Biggs into custody, he signed a consent to search form for the first floor of 4844 W. Huron, the place where Biggs said the guns were stored. Another officer arrived to transport Biggs to jail for booking. Biggs informed that officer of his belief that he should be released because he gave up some guns, but that officer simply confirmed that the guns were Biggs's own weapons. Officer Thelan and the other officers then drove about two miles to the residence, where they recovered two guns and a bag containing what testing later determined to be 110.3 grams of crack cocaine.

Biggs's account of the evening's events differs substantially. He testified, along with three other witnesses, to the following version. Two women from the neighborhood were walking around the block and talking that night. They saw Biggs enter a basement apartment. Biggs had gone to the apartment to visit a sick friend, Arthur Weems, who subsequently died. Another man, Emrick Burks, was also present inside the apartment. The women were still on the block a little while later when an officer approached them and ordered them to empty their pockets and shake out their bras. While this encounter transpired, Biggs exited the basement apartment. The officer then shifted his focus away from the women and went to the basement apartment. The officer met Biggs at the door as he was leaving and pushed him back into the apartment. The officer's partner then ran by the women, asked where his partner went, and was directed to the basement apartment, which he also entered.

Biggs and Burks then testified that the officers ordered them and Weems to the ground, handcuffed them, and searched the apartment. Six other officers entered the apartment during the search, but four of them left after learning that the situation was under control. The search turned up the 2.3 grams of crack cocaine. The officers then escorted Biggs to their vehicle and told Biggs that this amount of drugs was negligible, and allegedly promised to make the drugs disappear if Biggs would provide them with a gun. The officers drove Biggs to the abandoned candy factory parking lot where Biggs negotiated with the four officers for approximately fifteen minutes. The officers allegedly threatened to get a search warrant for the residence and arrest everyone in the house, including his mother and girlfriend, if Biggs did not consent to the search. Biggs then signed the consent to search form without reading it. Much to his surprise, he was not released, but was instead taken to jail.

A grand jury indicted Biggs for possession with intent to distribute crack cocaine and possession of two firearms as a convicted felon. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). Biggs moved to suppress the evidence of the guns and drugs and to quash his arrest. He based his claim on a lack of probable cause and on an involuntary consent to search. After an evidentiary hearing, a magistrate judge found that Biggs's version of events lacked credibility and denied the motions in a written recommendation that the district court accepted and adopted. Biggs proceeded to trial. During deliberations, the jury requested to view the 2.3 grams of cocaine that had been found at the apartment. Biggs objected to the viewing. The court overruled the objection and returned the jury to the jury box. There she permitted the jurors to examine the drugs by having the exhibit passed among the jurors. The jury subsequently convicted Biggs on both counts and the district court sentenced him to 360 months of imprisonment. Biggs appeals both his convictions and sentence.

II.

On appeal, Biggs first argues that the officers lacked probable cause or reasonable suspicion for the initial confrontation and arrest at the apartment. Based on that, he claims the district court should have suppressed the evidence gleaned from this encounter. In considering whether evidence should be suppressed, we review the district court's legal conclusions de novo and factual findings for clear error. United States v. Breland, 356 F.3d 787, 791 (7th Cir.2004) (citation omitted). To determine if the circumstances warrant suppression, we must examine the validity of the arrest. To arrest Biggs without a warrant, the officers "`must have probable cause, under the totality of the circumstances, to reasonably believe that a particular individual has committed a crime.'" United States v. Oliva, 385 F.3d 1111, 1114 (7th Cir.2004) (quoting United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir.1995)). "In order to have probable cause for an arrest, law enforcement agents must reasonably believe, in light of the facts and circumstances within their knowledge at the time of the arrest, that the suspect had committed or was committing an offense." Payne v. Pauley, 337 F.3d 767, 776 (7th Cir.2003) (citation omitted).

The magistrate judge, in findings that were accepted and adopted by the district court over Biggs's objections, found Officer Thelan's testimony credible. According to Officer Thelan's version of events, the officers received an anonymous tip describing a man who was selling drugs at a particular intersection. The officers corroborated this tip when they saw a man matching the informant's description engage in three suspected drug transactions. When the officers approached him he fled to a nearby apartment dwelling. They caught him and arrested him. Under this scenario the officers had probable cause for the arrest. See United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir.2003) (finding that a statement implicating the defendant, his presence at a crime scene, and his flight is sufficient for probable cause).

Biggs responds that crediting Thelan's testimony was clear error. We generally defer to the district court's determination of credibility because, unlike our review of transcripts, the district court "had the opportunity to listen to testimony and observe the demeanor of witnesses at the suppression hearing." United States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006) (citation omitted). Since the district court adopted the credibility determinations of the magistrate judge, we review the magistrate judge's findings for clear error. United States v. Gillaum, 372 F.3d 848, 854 (7th Cir.2004) ("This deference is equally applicable where credibility determinations have been made by a magistrate judge and the report and recommendation of the magistrate judge have been adopted by the district court."). Although we review for clear error,...