588 F.3d 511 (7th Cir. 2009), 08-4135, United States v. Burnside

Docket Nº:08-4135.
Citation:588 F.3d 511
Opinion Judge:KANNE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brian L. BURNSIDE, Defendant-Appellant.
Attorney:Thomas A. Keith, Attorney, Office of the United Staes Attorney, Peoria, IL, Linda L. Mullen, Attorney (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee. Bruce Cowan, Attorney, Morton Grove, IL, James P. Hanlon, Attorney, Ryan M. Hurley, Attorney (argued), Bak...
Judge Panel:Before EASTERBROOK, Chief Judge, and KANNE and SYKES, Circuit Judges.
Case Date:December 04, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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588 F.3d 511 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Brian L. BURNSIDE, Defendant-Appellant.

No. 08-4135.

United States Court of Appeals, Seventh Circuit.

December 4, 2009

Argued Sept. 25, 2009.

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Thomas A. Keith, Attorney, Office of the United Staes Attorney, Peoria, IL, Linda L. Mullen, Attorney (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

Bruce Cowan, Attorney, Morton Grove, IL, James P. Hanlon, Attorney, Ryan M. Hurley, Attorney (argued), Baker & Daniels, Indianapolis, IN, Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, A. Brian Threlkeld, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and KANNE and SYKES, Circuit Judges.

KANNE, Circuit Judge.

While on parole for a cocaine distribution conviction and following months of police investigation, defendant Brian Burnside was arrested for possession of a controlled substance. In a search incident to his arrest, police found large amounts of crack cocaine on Burnside's person. Police then searched Burnside's residence where they recovered more crack cocaine, cocaine, a handgun, and more than $30,000 in cash. A federal grand jury charged

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Burnside in a one count indictment with possession of more than fifty grams of crack cocaine with the intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Burnside filed a motion to suppress evidence, arguing that the officers lacked probable cause for his arrest. He also argued that his unlawful arrest tainted both the evidence found incident to that arrest and the search warrant later obtained. The district court denied the motion. Burnside eventually pled guilty to the charge and was later sentenced. Burnside argues on appeal that the district court erroneously denied the motion to suppress. He also seeks to withdraw his guilty plea, arguing that the district court judge inappropriately participated in the plea colloquy. We find no merit to Burnside's claims, and we affirm.


Brian Burnside was a crack cocaine dealer. In July 2007, Peoria Police Officer Chad Batterham received information from two confidential informants pertaining to Burnside's drug activities. Both informants identified Burnside as a high-volume crack cocaine dealer. The first informant said that Burnside was a cocaine dealer in the Peoria area and that he was selling several kilograms of cocaine per month. The informant also provided a detailed description of Burnside's residence. The second informant knew Burnside by his street-name, Shorty Bank Roll. Because of Officer Batterham's personal knowledge and his police experience in Peoria, as well as a detailed physical description provided by the informant, he was confident Shorty Bank Roll was in fact Burnside. To further refine his identification, Officer Batterham asked the informant to select a photograph from a photo array of six men with similar characteristics. The informant chose the photograph of Burnside and identified him as Shorty Bank Roll.

Officer Batterham located the residence described by the two informants. He performed a check on the white Cadillac parked in the driveway. The car was registered to Terry Burnside, Brian Burnside's brother. In a records check on the residence, Officer Batterham discovered a police report of a prior burglary in which Terry Burnside stated that the house belonged to his brother, Brian. Finally, Officer Batterham ran a criminal history check on Burnside, which revealed that Burnside was currently on parole from a Minnesota conviction for distributing cocaine, and that he had five prior felony drug convictions.

In September, 2007, the Peoria Police Department's Vice and Narcotics Unit initiated surveillance of Burnside. Officers observed and followed Burnside as he left his home. Sergeant Bainter and Officer Miller conducted their observation from two separate unmarked police vehicles. Both officers saw a woman, DeEva Hallam, approach Burnside's vehicle, lean in for approximately thirty to forty seconds, and leave carrying a brown plastic grocery bag.

After Hallam left Burnside's vehicle, Officer Miller and Officer Manion 1 saw Hallam throw the bag in a nearby dumpster. Officer Miller then stopped Hallam and recovered the bag. Hallam explained that she received the bag from a friend who asked her to throw it away. Officer Miller smelled a cocaine hydrochloride odor on the bag, which also contained a kilogram

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wrapper, purple rubber gloves, wet paper towels, and soda cans. 2 Additionally, he discovered a rock of cocaine clutched in Hallam's hand.

Officer Miller informed Officer Batterham of these developments, who, in turn, alerted the team of officers following Burnside. When Officers Allenbaugh and Armentrout observed Burnside fail to signal a turn, they activated the lights on their police vehicle and attempted to pull Burnside over; however, Burnside began driving erratically, slowing down and then speeding up. It also appeared to the officers that Burnside was trying to call somebody on his cell phone. Eventually, the officers boxed in Burnside, who appeared to attempt to get out of the vehicle while it was still moving.

Believing Burnside was going to flee, officers pulled Burnside out of the car, forced him to the ground, and placed him in handcuffs. Burnside was arrested for possession of a controlled substance and for driving without a valid Illinois driver's license. While searching Burnside, Officer Allenbaugh observed an unusual " bulge" in Burnside's pants, which Burnside claimed was a hernia. Allenbaugh removed the object and found a large plastic bag containing several individual bags of crack cocaine.

Fearing Burnside had by cell phone instructed somebody at his residence to destroy any further evidence, officers returned to the house. After conducting a protective sweep during which no one was found, the officers sought and received a search warrant from a magistrate judge. The officers relied on all of the evidence received up to and through the arrest of Burnside as probable cause justification for the warrant.

Subsequently, the officers searched the house, seizing one half of a kilogram of crack cocaine, one full kilogram of cocaine, a handgun, and more than $30,000 in cash.

Burnside now argues that neither of the officers had a vantage point from which they could determine if Hallam had been carrying the bag prior to approaching Burnside's vehicle. Burnside further asserts that both he and Hallam told police that she had been carrying two cartons of cigarettes prior to approaching the vehicle, and that the two cartons were later found in Burnside's vehicle.

Burnside also argues that the police did not have probable cause to conduct a Terry stop and frisk, or, in the alternative, that they exceeded the permissible limits of the Terry stop by manipulating and removing the bulge in his pants.

Finally, Burnside argues that because officers lacked probable cause to conduct the Terry stop and frisk, any evidence found in the search of the residence thereafter was " fruit of the poisonous tree." He also argues that the officers' failure to include the protective search in the warrant application prohibits them from relying on the " good faith" exception to the exclusionary rule.


Burnside raises two issues on appeal. First, he argues that the district court erred when it denied his motion to suppress. Second, he argues that the district court's participation in the plea colloquy constitutes plain error. We discuss each argument in turn.

A. The Motion to Suppress

When reviewing the district court's denial of a motion to suppress, we

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review factual findings for clear error and legal questions de novo. United States v. Mosby, 541 F.3d 764, 767 (7th Cir.2008) ( citing United States v. Groves, 530 F.3d 506, 509 (7th Cir.2008); United States v. McIntire, 516 F.3d 576, 578-79 (7th Cir.2008)). Mixed questions of law and fact are reviewed de novo. United States v. Fiasche, 520 F.3d 694, 697 (7th Cir.2008). We accord special deference to the district court's credibility determinations because the...

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