636 F.3d 845 (7th Cir. 2011), 09-4089, United States v. Slone

Docket Nº:09-4089.
Citation:636 F.3d 845
Opinion Judge:FLAUM, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roger D. SLONE, Defendant-Appellant.
Attorney:Jennifer S. Chang-Adiga (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee. Andrea E. Gambino (argued), Attorney, Gambino & Associates, Chicago, IL, for Defendant-Appellant.
Judge Panel:Before CUDAHY, FLAUM, and KANNE, Circuit Judges.
Case Date:February 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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636 F.3d 845 (7th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,


Roger D. SLONE, Defendant-Appellant.

No. 09-4089.

United States Court of Appeals, Seventh Circuit.

February 22, 2011

Argued Nov. 2, 2010.

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Jennifer S. Chang-Adiga (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Andrea E. Gambino (argued), Attorney, Gambino & Associates, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Roger D. Slone was arrested during an operation in which law enforcement worked their way down the drug-supply food chain. An undercover agent with the Drug Enforcement Administration (" DEA" ) drove a tractor-trailer filled with marijuana to an Indiana warehouse; law enforcement then took into custody those who received drugs from the shipment. Slone was arrested for conducting countersurveillance or security for a vehicle into which 500 kilograms of the drugs had been offloaded. He was subsequently convicted of conspiracy to distribute marijuana and sentenced to 120 months in prison. On appeal, Slone maintains that police lacked probable cause to arrest him. Even if true, that would not be sufficient to overturn his conviction. Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.2010). However, if police lacked probable cause to arrest him, then the exclusionary rule should have applied and led the district court to suppress self-incriminating post-arrest statements that Slone made to a federal agent, as well as evidence that was found in Slone's vehicle. He argues as much and likewise contends that evidence from his vehicle should have been suppressed under the Supreme Court's decision in Arizona v. Gant, ___U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Neither argument is persuasive, however, and we affirm the judgment of conviction.

I. Background

Neither Slone nor the government takes issue with the district court's deferentially-reviewed factual findings. Therefore, we take the underlying facts primarily from that court's ruling on Slone's motion to suppress, filling in a few gaps as needed. In early 2009, DEA agents in Merrillville, Indiana, received word that a drug-world figure named Arechiga unwittingly asked

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undercover DEA agents to help him transport about 1,000 pounds of marijuana from Texas to two locations in Indiana. The DEA obliged. At the time when the drugs left Texas, however, Arechiga did not disclose the specific locations where the drugs were to be delivered (and he never disclosed the identity of the recipients). Of course, the agents retained a notable leg up in the operation— an undercover agent at the wheel of the tractor-trailer used to transport the drugs. Other federal agents followed the shipment as it made the trip to Indiana.

On February 1, 2009, the day before Slone's arrest, Arechiga called the undercover agent-cum-driver. Arechiga directed the driver to take the tractor-trailer to Lafayette the next morning and then call for further instructions. The driver, still being followed by other federal agents, drove to Lafayette. The drop-off point for the drugs remained unknown. After directing the tractor-trailer to an initial meeting point, Arechiga told the driver to follow a pickup truck with hunting stickers in the window and then called to tell the driver to break off and continue following an " orange-ish" Monte Carlo instead. (Given that the driver was an undercover agent, every twist, turn, and change of plans was relayed by the driver to one of the federal agents. That agent spread word among the rest of the surveillance team.)

The Monte Carlo guided the tractor-trailer to a warehouse, and the undercover agent backed the cargo-laden transport into one of the bays. Agents set up surveillance around the location. The driver surreptitiously communicated to the surveillance team that about 500 kilograms of marijuana was being offloaded into a blue Ford Explorer inside the warehouse. About five to ten minutes later, the tractor trailer left the warehouse (presumably en route to the next dropoff). Immediately thereafter, at least one of the agents observed the blue Explorer leave the warehouse and alerted two other agents— named Walker and Patrick— that the vehicle was headed their way. Walker and Patrick, positioned around the corner from the warehouse, made ready to follow.

After the Explorer passed Walker and Patrick's location, however, a red Dodge truck pulled out of a nearby lot. Slone was a the wheel of the Dodge truck, which pulled up close behind the Explorer. Agents Walker and Patrick turned the two-car caravan into a threesome, pulling behind the Dodge truck in their unmarked car. For approximately the next 20 minutes, the Dodge truck stayed within one vehicle-length of the Explorer while federal agents followed. Twenty minutes on a highway might not be all that unlikely, but the route was not a straight shot. Multiple turns on at least three roads were involved, including a multi-lane highway (where relative positions among vehicles are more likely to change) and two county roads— the latter of which we are told lies " out in the middle of nowhere." The two vehicles were essentially stuck together the entire way.

While the agents followed, the passenger in the Dodge truck folded down the visor even though the sky was overcast. The passenger then continually checked the vanity mirror and passenger-side mirror while talking on his cell phone. Agent Walker testified that, based on his training and experience, the factual picture made it appear that the Dodge truck was conducting countersurveillance or security for the marijuana contained in the Explorer.

The agents decided to stop both the Dodge truck and the Explorer and arrest the vehicles' occupants, which they did in coordination with the Indiana State Police. Agent Walker took Slone into custody after Slone attempted to flee. Law enforcement

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officers then searched Slone's vehicle, which yielded $17,000 in cash and a mobile telephone (the " vehicle evidence" ). Slone was transported to Porter County Jail. He had not been read Miranda warnings at that point, but Slone started a conversation during the trip. He asked one of the agents what federal court proceedings entailed. The brief response caused Slone to say, " I shouldn't have done this." He explained that he had been denied public assistance and needed to make ends meet. Warring, it seems, with the consequences of his actions versus their perceived morality, he also expressed his opinion that marijuana does not harm anyone.

Slone was charged in a one-count indictment with conspiring to distribute 100 kilograms or more of marijuana, in violation of Sections 841(a)(1) and 846 of Title 21, United States Code. The case proceeded to trial after Slone unsuccessfully moved to suppress the evidence against him. A guilty verdict followed a short jury trial, and Slone was sentenced to a term of 120 months in prison. He seeks a new trial based on the denial of the motion to suppress evidence.

II. Discussion

Slone maintains that he is entitled to a new trial because the district court should have suppressed the self-incriminating statements and the vehicle evidence as fruits of a poisonous tree— namely, his arrest without probable cause. He also argues that the search of his vehicle incident to his arrest was unlawful under Arizona v. Gant. When reviewing a district court's denial of a motion to suppress evidence, we review factual findings for clear error, but decide issues of law without deference to the proceedings below. United States v. Lee, 618 F.3d 667, 673 (7th Cir.2010). We conclude that the district court appropriately denied Slone's motion to suppress.

The plain language of the Fourth Amendment to the United States Constitution prevents unreasonable searches and seizures and provides that " no warrants shall issue, but upon probable cause." U.S. CONST. amend. IV. The text of the amendment does not actually require police to obtain a warrant prior to conducting a search or seizure, but that is how the amendment has been interpreted. United States v. Garcia, 474 F.3d 994, 996 (7th Cir.2007). There are a small number of established exceptions to the warrant requirement, however. For example, police may arrest someone outside of the home when they have probable cause to believe that a suspect has committed, is committing, or is about to commit an offense. E.g., Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Likewise, police may conduct a warrantless search of a vehicle, including " a search of any container that might conceal the object of the search," when they have probable cause to believe that the vehicle contains contraband. Florida v. White, 526 U.S. 559, 569 n. 3, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999). In both situations, a warrantless search or seizure is reasonable and therefore constitutional.

Generally, a warrantless search or seizure in the absence of probable cause is unreasonable. See, e.g., Doe v. Heck, 327 F.3d 492, 513 (7th Cir.2003) (warrantless searches may be upheld only if they fall " within one of the few specifically established and well delineated exceptions to the Fourth Amendment's warrant and probable cause requirements" ) (quotation marks omitted). And when police conduct an unreasonable search or seizure,...

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