652 F.3d 793 (7th Cir. 2011), 10-2028, United States v. Griffin

Docket Nº:10-2028.
Citation:652 F.3d 793
Opinion Judge:SYKES, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jadrion GRIFFIN, Defendant-Appellant.
Attorney:Bradley A. Blackington, Attorney, Office of the United States Attorney, Indianapolis, IN, Matthias D. Onderak (argued), Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee. Brian J. Paul (argued), Attorney, Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.
Judge Panel:Before SYKES, TINDER, and HAMILTON, Circuit Judges.
Case Date:July 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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652 F.3d 793 (7th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jadrion GRIFFIN, Defendant-Appellant.

No. 10-2028.

United States Court of Appeals, Seventh Circuit.

July 22, 2011

Argued Feb. 8, 2011.

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Bradley A. Blackington, Attorney, Office of the United States Attorney, Indianapolis, IN, Matthias D. Onderak (argued), Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.

Brian J. Paul (argued), Attorney, Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.

Before SYKES, TINDER, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge.

When two Indiana police officers attempted to stop a car matching the description of one reportedly involved in a road-rage incident, the driver Jadrion Griffin, initially showed signs of compliance. He then changed his mind and continued to drive, prompting a brief low-speed car chase. Griffin eventually pulled over, but not before leading the officers through a parking lot where he tossed a plastic bag containing 82 grams of crack into newly fallen snow.

Law-enforcement officers later obtained a federal warrant to search Griffin's home and there recovered additional crack cocaine and a loaded handgun. A federal grand jury indicted Griffin on a number of drug- and gun-related crimes. Griffin moved to suppress the evidence of the drugs recovered from the snowy parking lot. The district court denied the motion, and the government introduced the drug evidence at trial. The jury convicted Griffin

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of all but one of the counts charged. The court imposed a 360-month sentence.

On appeal Griffin claims he was illegally seized when he threw the crack in the snow and therefore the drug evidence should have been suppressed. He also raises two challenges to his sentence. He first claims that he should not have been sentenced as a career offender under section 4B1.1 of the sentencing guidelines because his prior conviction for vehicular flight under Indiana law is not a crime of violence. He also argues that he should be resentenced using the new crack-to-powder ratio prescribed by the Fair Sentencing Act of 2010 (" the FSA" ), Pub.L. No. 111-220, 124 Stat. 2372.

We affirm. Griffin was not " seized" for Fourth Amendment purposes when he discarded the crack in the parking lot during the low-speed police chase, so the drug evidence was properly admitted at trial. Griffin's sentencing challenges are foreclosed by our precedent and by the Supreme Court's recent decision in Sykes v. United States, --- U.S. ----, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011).

I. Background

Shortly after midnight on February 3, 2007, two Indiana State Excise Police officers patrolling in an unmarked squad car in Evansville, Indiana, received a dispatch alerting them to a possible road-rage incident nearby. The dispatch was prompted by a 911 call reporting that a black male driving a blue GMC Yukon had just thrown something at another vehicle. The unidentified caller reported that the driver was last seen traveling northbound on Fulton Avenue in Evansville. Not long after receiving this dispatch, the officers saw a blue Yukon traveling southbound on Fulton. They began following the Yukon, and although they did not observe any traffic violations or other signs of road rage, they decided to pull the vehicle over.

When the officers found a safe place to initiate the stop, they turned on their squad's emergency lights. The Yukon initially slowed and appeared to be pulling over, but then changed course and continued down the road. An Evansville police officer patrolling nearby heard a dispatch about the pursuit over his police radio and joined in the chase. The Evansville officer turned on his emergency lights and siren, but the Yukon continued to drive, passing through a red light in the process.

At some point the State Police officers turned on their siren as well. The Yukon still did not stop, so the officers activated their squad-car intercom and verbally commanded the driver to pull over. The Yukon made a few evasive maneuvers— turning into an alley and cutting through a parking lot covered in freshly fallen snow— before eventually complying. The pursuit lasted only about one minute. The officers later estimated that the Yukon traveled at 20 to 35 miles per hour during the chase.

After pulling over, Griffin got out of the Yukon and the officers arrested him for resisting law enforcement by vehicle and for several traffic offenses committed during the pursuit. They then searched the route Griffin had traveled during the chase. In the parking lot alongside the Yukon's fresh tire tracks in the snow, they found a plastic bag containing 82 grams of crack cocaine. Griffin was charged with felony drug offenses in Indiana state court and released on bond pending trial. Several months later, officers executed a federal search warrant at Griffin's home in Evansville. They recovered 26 grams of cocaine base, digital scales, a loaded .45-caliber handgun, a drug ledger, and $1,858 in cash.

A federal grand jury indicted Griffin based on the evidence recovered pursuant to the federal search warrant as well as the crack cocaine found in the snowy parking

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lot. The five-count indictment contained three drug charges pursuant to 21 U.S.C. § 841: conspiracy to distribute 50 or more grams of crack cocaine (Count I); possession with intent to distribute 50 or more grams of crack cocaine on the day of the low-speed car chase (Count II); and possession with intent to distribute five or more grams of crack cocaine on the day the search warrant was executed (Count III). The final two counts alleged violations of federal gun laws, specifically possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV), and unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count V).

Prior to trial Griffin moved to suppress the crack cocaine recovered from the parking lot immediately after the police pursuit. He claimed that this evidence should be excluded as the fruit of an illegal seizure because the State Police officers lacked reasonable suspicion to justify initiating the stop. The district court denied the motion.

A two-day jury trial ensued. The government introduced the drug evidence— including the 82 grams of crack recovered from the parking lot— over defense counsel's continuing objection. The jury convicted Griffin of all counts except Count IV, the charge of possessing a firearm in furtherance of a drug-trafficking crime.

At Griffin's sentencing hearing, the court calculated a guidelines base offense level of 34 after finding Griffin responsible for over 500 grams of crack cocaine in the course of the conspiracy. The court deducted two points based on its policy disagreement with the crack-to-powder disparity in the guidelines, but then determined that Griffin's prior convictions for battery with a deadly weapon and felony resisting law enforcement by vehicle qualified him as a career offender, which raised his offense level to 37. Based on this offense level and Griffin's criminal-history category of VI, the court calculated a guidelines range of 360 months to life. The court sentenced Griffin to concurrent terms of 360 months on Counts I and II, and 120 months on Counts III and V. Griffin appealed.

II. Discussion

Griffin makes three arguments on appeal. He first claims that the crack cocaine found in the snowy parking lot should have been suppressed as the fruit of an illegal seizure. He argues that he is entitled to a new trial because the improper admission of this evidence tainted his entire trial. His other arguments relate to his sentence. He claims that the district court erred when it found him to be a career offender under the sentencing guidelines by counting his Indiana conviction for vehicular flight as a crime of violence. Finally, Griffin maintains that he should be resentenced using the more lenient crack-to-powder ratio set forth in the FSA.

A. Griffin's Suppression Motion

Griffin argues that the crack cocaine found in...

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