729 F.3d 655 (7th Cir. 2013), 13-1256, United States v. Howard

Docket Nº:13-1256
Citation:729 F.3d 655
Opinion Judge:Hamilton, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIUS R. HOWARD, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rita M. Rumbelow, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI. For DARIUS R. HOWARD, Defendant - Appellant: William R. Jones, Attorney, JONES LAW FIRM, Madison, WI.
Judge Panel:Before EASTERBROOK, Chief Judge, and WILLIAMS and HAMILTON, Circuit Judges.
Case Date:August 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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729 F.3d 655 (7th Cir. 2013)



DARIUS R. HOWARD, Defendant-Appellant

No. 13-1256

United States Court of Appeals, Seventh Circuit

August 30, 2013

Argued: May 28, 2013.

As Amended October 4, 2013.

Appeal from the United States District Court for the Western District of Wisconsin. No. 12-CR-83-BBC -- Barbara B. Crabb, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rita M. Rumbelow, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI.

For DARIUS R. HOWARD, Defendant - Appellant: William R. Jones, Attorney, JONES LAW FIRM, Madison, WI.

Before EASTERBROOK, Chief Judge, and WILLIAMS and HAMILTON, Circuit Judges.


Hamilton, Circuit Judge.

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Appellant Darius Howard pled guilty to unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), but he reserved his right to appeal the district court's denial of his motion to suppress evidence. On appeal Howard challenges both the denial of his motion to suppress and his sentence.

We affirm both the denial of the motion to suppress and the sentence. The police had sufficient reason to stop Howard briefly in the course of making a potentially dangerous arrest of Howard's associate on suspicion of violent, armed crimes. Once Howard was stopped, the discovery of the drugs in his pocket became inevitable. Police officers noticed that he and his associates had bloodstains on their clothes. The police then quickly found a gun wrapped in a bloody shirt in their vehicle. Within moments, Howard and his associates were identified as suspects in a very recent armed robbery and were arrested. Because we affirm the drug conviction, Howard's challenge to the Sentencing Guideline calculation on his firearm conviction is moot. His below-guideline sentence on the drug charge was reasonable.

I. The Motion to Suppress

A. Factual and Procedural Background

Police Detective Matthew Wiza was staking out a parking lot looking for Marcus

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Johnson in Fitchburg, Wisconsin, when a van known to be associated with Johnson arrived. Detective Wiza had probable cause to arrest Johnson for pistol-whipping a man at a bar one week earlier. Johnson was also a suspect in a recent shooting. As the van parked, Detective Wiza radioed for backup and drove toward the van.

Johnson exited the vehicle with another man, later identified as Christopher Carthans, and walked toward an apartment building. Detective Wiza exited his vehicle and drew his gun, believing that Johnson could be armed and dangerous. When Wiza was 15 to 20 feet from Johnson, he was surprised when two more men, defendant Darius Howard and Ari Williams, exited the same van.1 Until that moment, Detective Wiza had believed that only two men had been in the van. He suddenly felt that he was " kind of in a bad situation because I was in between two groups of individuals and I was outnumbered." Detective Wiza turned his gun toward Howard and Williams, who were closer to him, and ordered all four men to the ground to control the situation until other officers arrived.

Officer Mike O'Keefe arrived on the scene moments later. He approached Johnson and Carthans while Wiza kept his attention on Howard and Williams. Officer O'Keefe proceeded to arrest Johnson. Johnson, however, made it difficult for O'Keefe to handcuff him. Carthans took advantage of this distraction and fled the scene. (He was later captured.) After successfully arresting Johnson, Officer O'Keefe searched him incident to arrest and found 11 grams of cocaine in a sandwich bag in his pocket. He also noticed that Johnson had bloodstains on his jeans and shoes. Officer O'Keefe then secured Johnson in his patrol car.

As Officer O'Keefe was arresting Johnson, Detective Wiza continued to detain Howard and Williams. Wiza testified that Howard had complied with his commands, was not acting " suspiciously in any way," and was not " making any [furtive] movements." Additionally, Carthans had not yet fled at this point. Nevertheless, Detective Wiza decided to place Howard in handcuffs and frisk him for weapons for the officers' safety. Because Detective Wiza had only one pair of handcuffs, he frisked Howard with only one hand, keeping his gun trained on Williams with the other.

After placing Johnson in his patrol car, Officer O'Keefe came to help Detective Wiza. As he approached Howard and Williams, Officer O'Keefe noticed that both, like Johnson, had blood on their clothing. O'Keefe hand cuffed Williams and then frisked both Williams and Howard for weapons. He believed a weapons frisk was necessary " [b]ecause of the incident that had occurred, because of the high-risk stop and because of the circumstances that were taking place at our contact." The district court found as a fact that when Officer O'Keefe frisked Howard, he did not know that Detective Wiza had already given Howard a brief, one-handed frisk. (Howard contends that the district court's factual determination was an error. As explained below, this disputed point does not matter.)

Officer O'Keefe's frisk of Howard was more thorough. While moving his hand over Howard's pocket, O'Keefe felt what he believed to be a sandwich bag. O'Keefe testified that he suspected there were drugs in the bag because he had found a

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sandwich bag with drugs in Johnson's pocket moments earlier. O'Keefe tested this suspicion by squeezing the object between his fingers until he felt a hard substance. He then reached into Howard's pocket and pulled out a sandwich bag that contained half an ounce of cocaine.

At that moment, Howard and Williams were both hand cuffed, Johnson was hand cuffed and in the patrol car, and Carthans was still at large. Detective Wiza beganto investigate the reason all the men had blood on their clothes. He briefly searched the van and found a baseball bat and a gun wrapped in a bloody shirt.2 Soon after, City of Madison police arrived and said that the men were suspects in an armed robbery that had occurred in Madison less than an hour earlier. (Howard later told the police that he used the shirt to wipe the robbery victim's blood off the gun at Johnson's request. This was the basis for Howard's federal conviction for possession of a firearm.) Howard, Williams, and Carthans were arrested by Madison police for the armed robbery.

Howard was also charged in federal court with the firearm and drug offenses, and he moved to suppress the cocaine and the statements he made to the police following his arrest. He argued that his detention and the second frisk that found the drugs violated the Fourth Amendment because the police had no basis to stop and frisk him. The district judge referred the matter to a magistrate judge to conduct a suppression hearing. The magistrate judge concluded that both the stop and the frisk were reasonable measures to protect the police officers during an unexpectedly chaotic encounter. See United States v. Howard, 12-CR-83-BBC, 2012 WL 5389673 (W.D. Wis. Oct. 22, 2012). Howard objected to the report. The district judge reviewed the motion and reached the same result. Howard then pled guilty but reserved his right to appeal the suppression ruling.

We review the district court's legal conclusions de novo and its factual determinations for clear error. United States v. Clinton, 591 F.3d 968, 971 (7th Cir. 2010). Under clear error review, " we will not overturn the district court's factual findings unless we are left with a definite and firm conviction that the district court was mistaken." Id. (quotation omitted). We review de novo mixed questions of law and fact, such as whether the stop and frisk were constitutional. United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009).

We consider separately whether first the stop and then the frisk were constitutional. See Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999). We affirm the denial of the motion to suppress because (1) the Terry stop of Howard was reasonable, and (2) regardless of whether the frisk was constitutional at the moment it occurred, the evidence Howard seeks to suppress inevitably would have been discovered lawfully and independently of any arguable constitutional violation. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Marrocco, 578 F.3d 627, 637-38 (7th Cir. 2009). We begin with the stop of Howard.

B. The Terry Stop

The Fourth Amendment guarantees " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... ."

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Generally, a seizure is " 'reasonable' only if based on probable cause." See Bailey v. United States, 133 S.Ct. 1031, 1037, 185 L.Ed.2d 19 (2013), quoting Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Supreme Court has long recognized, however, that police may briefly stop people on reasonable suspicion that is less than probable cause. To determine whether such intrusions are constitutional, courts balance the intrusion on personal liberty with the governmental interest in making the seizure. See Terry, 392 U.S. at 20-21; see also Bailey, 133 S.Ct. at 1037 (recognizing line of cases holding police intrusions based on less than probable cause lawful where " the intrusion on the citizen's privacy was so much less severe than that involved in a traditional arrest that the opposing interests in crime prevention and detection and in the police officer's safety could support the seizure as reasonable" ) (quotations omitted).

Applying this interest-balancing approach to the question of reasonableness, the Supreme Court has recognized limited situations at the scene of police activity in which it may be reasonable for police to detain...

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