USA v. Robinson
| Decision Date | 10 August 2010 |
| Docket Number | No. 09-3955.,09-3955. |
| Citation | 615 F.3d 804 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jermarcus ROBINSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Lesley J. Miller Lowery, argued, Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee.
Thomas N. O'Malley, argued, Indiana Federal Community Defenders, Inc, Fort Wayne, IN, for Defendant-Appellant.
Before FLAUM, ROVNER, and WOOD, Circuit Judges.
Riding around in a car with cocaine in one's pocket is not, generally speaking, a good idea, given the myriad reasons why the police might legitimately stop the vehicle. A stop based on a traffic violation is what tripped up Jermarcus Robinson on the afternoon of June 16, 2008. Robinson was a passenger in the car driven by his friend David Robinson (no relation) that day. (We refer to the defendant as Robinson and to his friend as David Robinson.) One thing led to another after Officer Shane Pulver ordered the car to pull over, and before long, the police found a plastic bag with 54 grams of crack cocaine gripped between Robinson's buttocks. This prosecution for possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1) followed. The only question on appeal is whether there is some reason for suppressing the drugs Robinson was trying to hide. We conclude, as did the district court, that the answer is no, and thus that the conviction should stand.
We take our account of the facts from the district court's opinion on Robinson's motion to suppress, supplementing where helpful with information from the squad car's video of the stop. On the day in question, Officer Pulver, who had been with the Fort Wayne, Indiana, Police Department for four years, was on patrol around 3:00 in the afternoon. As he approached the intersection of Eckart and Abbott Streets, he spotted a dark-colored Ford Taurus. The driver gave him a strange look as the car passed by, prompting Pulver to check the license plate. The check reminded him that he knew David Robinson, the driver, and also that David Robinson was a habitual traffic violator who did not have a driver's license.
Pulver decided to follow up on that information and signaled the car to pull over. Around that time, he activated the car's video recording device. The following timeline continues the story; the times given reflect the 24-hour clock used by the police equipment:
Robinson and continues with his pat-down, in part to follow up on the hard object he had already detected.
Several things are notable about this sequence. First is how quickly it unfolded. Less than seven minutes elapsed from the time when Pulver initiated contact to the time when he pulled the baggie with cocaine away from Robinson. Second is the fact that the two officers were attempting to secure the scene at the same time as Velma and Sunny were intervening. Third is the way that the evidence of illegal activity accumulated.
Looking at the totality of the circumstances, the district court drew several conclusions. First, the court found that the initial search of Robinson was a search incident to an arrest that was justified by probable cause to believe that Robinson had committed the felony of possession of narcotics. Second, and in the alternative, the court decided that from the outset Robinson posed enough of a threat to officer safety-largely because of the pocket knife that Pulver saw in plain view-that a pat-down was justified, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Once Pulver felt the hard object during the initial pat-down, he was entitled to return to Robinson after he checked out the car to confirm that the hard object concealed on Robinson was not a weapon. Third, the court found that the vehicle search was authorized under the Supreme Court's decision in Arizona v. Gant, ---U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Finally, it held that the last part of Pulver's search of Robinson was not a strip search and that the removal of the illegal drugs from his buttock area was justified.
Having lost his motion to suppress, Robinson entered into a conditional plea agreement on August 18, 2009. Later he was sentenced to 120 months in prison, to be followed by five years of supervised release. His appeal is limited to the issues surrounding the motion to suppress. (He has abandoned any claim that this was an impermissible strip search, and so we do not address that argument.)
We begin with a number of points that Robinson does not dispute. First, Officer Pulver's initial stop of the car was beyond reproach, because he had probable cause to believe that David Robinson was driving without a license in violation of Indiana law. Second, Robinson concedes that Pulver was entitled to frisk him, even though he was just a passenger in the vehicle. Third, he admits that if the police were...
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