U.S. v. Foxworth

• Decision Date: 27 October 1993
• Docket Number: No. 92-2710,92-2710
• Citation: 8 F.3d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mitchell FOXWORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 540

8 F.3d 540

UNITED STATES of America, Plaintiff-Appellee, v. Mitchell FOXWORTH, Defendant-Appellant.

No. 92-2710.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1993.

Decided Oct. 27, 1993.

Lawrence Beaumont (argued), Office of the U.S. Atty., Danville, IL, for plaintiff-appellee.

Brian Silverman (argued), Champaign, IL and Kevin E. Milner, Law Offices of Kevin E. Milner, Chicago, IL, for defendant-appellant.

Before CUDAHY, MANION and TIMBERS, ^* Circuit Judges.

MANION, Circuit Judge.

The United States of America ("government") charged Mitchell Foxworth under 21 U.S.C. § 841 with one count of possessing 489 grams of cocaine with the intent to distribute. Foxworth moved to suppress the cocaine. The district court denied the motion. Foxworth pleaded guilty, reserving the right to appeal the district court's denial of his motion. We affirm the district court in all respects.

I. Background

Before Foxworth's arrest, the police had been investigating him sporadically over two years. The week before his arrest, the investigation intensified. On January 2, 1992, Scott Swan and John Murphy, both Champaign, Illinois police officers, went to the Super 8 Motel in Champaign. They had received information that two cars (a gray Chevrolet and a blue Monte Carlo) located in the parking lot contained cocaine. After observing the two cars, the officers secured a search warrant for a residence in Urbana, Illinois. (The connection between the two cars and the residence is not clear from the record.) During their search of the residence, they uncovered four ounces of crack cocaine. At the search scene, they separately interviewed Alvin Ervin and Kevin Cooper, both of whom described how they had purchased cocaine from Foxworth at the Super 8 Motel in Champaign. After agreeing on a price, Foxworth sent an associate from the motel room to a car in the parking lot to obtain the drugs from the trunk. They described Foxworth as being "really cautious" in his drug transactions.

On January 5, 1992, Officer Swan received a call from the desk clerk of the Thrift Hotel in Urbana. The desk clerk informed Swan about suspicious activity occurring in a room rented to someone the police knew as one of Foxworth's associates. Officer Swan and a few other officers placed the Thrift Hotel under surveillance. They saw Foxworth drive away from the hotel. Later, Swan observed a man go from the hotel room to a blue Monte Carlo and place something in its trunk. The blue Monte Carlo was parked next to a gray Chevrolet; the cars were the same ones parked at the Super 8 Motel in Champaign on January 2. The police obtained a search warrant for the Monte Carlo, in which they found three ounces of crack cocaine and drug paraphernalia.

On January 8, 1992, the day of Foxworth's arrest, Cray Butler, a reliable police informant, telephoned Officer Swan from a room in the Motel 6 in Kankakee, Illinois. Foxworth was to arrive later that day to make a drug deal with another person. Butler told Swan that the same gray Chevrolet was in the parking lot with a quarter kilogram of cocaine in the trunk. Swan and approximately nine other officers arrived at the Motel 6 and placed it under surveillance. Swan then telephoned Butler who gave a detailed description of the anticipated drug transaction and procedure. Butler said the drugs were still in the gray Chevrolet. Butler told Swan that after Foxworth completed negotiating a price with his buyer, Foxworth would drive to the motel in a yellow Cadillac with out-of-state license plates. Foxworth would send one of his associates to the trunk of the gray car to get the cocaine and bring it back to the room. In the room, Foxworth and his associates would bag the cocaine into smaller amounts. The cocaine would either remain in the room or be returned to the gray Chevrolet.

A short time later, Swan and the officers noticed a yellow Cadillac with Arizona plates arrive at the motel. Foxworth and two others exited the car and went into the motel room occupied by Butler. Shortly thereafter, a man left the room, went to the gray Chevrolet, got something from its trunk, and returned to the room. Another man later came out of the room and placed something into the trunk of the gray car. Two men in a black Ford Mustang then arrived at the motel parking lot and went into the room occupied by Foxworth and the others. One of Foxworth's associates left the room and opened the hood of the yellow Cadillac.

Several minutes later, two men in a blue Ford Fiesta arrived at the motel. The passenger got out of the car and went into the room, while the driver drove the car around the parking lot. When the passenger returned, he got back into the Fiesta, and they both drove across the street to a restaurant and went inside. A few minutes later, one of the men walked back to the motel and entered the room. He soon left the room and returned to the restaurant, and he and the other man drove the Fiesta back to the motel. One removed something from the trunk of the car, and they went into the room.

The police next observed three men leave the motel room and walk to the yellow Cadillac. They appeared to be doing some work under the hood of the vehicle. One of the men ran from the Cadillac back to the room. Within minutes, he ran back to the car. At that point, the police determined the group was about to leave and moved in to make the arrests. They had no warrant. They detained the three men outside, knocked on the door of the room, announced their presence, and rushed in. After arresting Foxworth, the police asked him whether he had the keys to the gray Chevrolet. He said no. The police then asked whether they could have his keys to try and unlock the car. He said that he "didn't care." The police took the keys, opened the trunk, and found 489 grams of cocaine. No other drugs were found in the motel room, on the suspects, or in the cars belonging to those arrested.

Foxworth moved the district court to suppress the cocaine seized from the trunk of the gray Chevrolet. After listening to the testimony and argument at the suppression hearing, the court denied the motion. Foxworth then entered into a conditional plea of guilty, reserving the right to appeal the court's ruling on his motion. The court sentenced Foxworth to ten years in prison and six years supervised release. Foxworth timely appealed.

II. Analysis

We have jurisdiction, 28 U.S.C. § 1291, to consider the three points Foxworth raises on appeal: (1) whether the police had probable cause to arrest him without a warrant; (2) whether exigent circumstances existed to permit the police officers' warrantless entry into his motel room; and (3) whether the police had probable cause to conduct the warrantless search of the gray Chevrolet.

In reviewing a district court's decision to deny a motion to suppress, "[w]e give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses." United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990). We will disturb a district court's ruling only if we find it clearly erroneous. United States v. Spears, 965 F.2d 262, 269 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992).

A. Warrantless Arrest

In his first point on appeal, Foxworth contends that the police lacked probable cause to arrest him without a warrant. He claims the evidence demonstrates that the police had only a bare suspicion that he was involved in criminal activity. That, he maintains, is insufficient to justify his arrest.

The determination of probable cause involves "a practical, common-sense decision whether, given all the circumstances set forth ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Although probable cause cannot be based on mere suspicion, it need not reach the level of a virtual certainty. See id. at 244 n. 13, 103 S.Ct. at 2335 n. 13; United States v. Burrell, 963 F.2d 976, 986 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992). In short, "[p]olice officers have probable cause to make an arrest where 'the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.' " United States v. Levy, 990 F.2d 971, 973 (7th Cir.1993) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)).

Based on the totality of the circumstances, we agree with the district court that the police officers had probable cause to arrest Foxworth. The police had more than a mere suspicion that Foxworth was involved in criminal activity. The police learned from Alvin Ervin, Kevin Cooper, and Cray Butler the method Foxworth followed in selling drugs: He would have a car, containing drugs, parked in a motel parking lot; after reaching an agreement with his buyer, Foxworth would send an associate out to the car to retrieve the drugs. During their surveillance of the Motel 6 on January 8, 1992, the police observed Foxworth follow his standard procedure. Moreover, as Butler had informed the police, a gray Chevrolet would be parked in the parking lot, which it was; this was the same car Officer Swan had seen on two earlier occasions parked next to the blue Monte Carlo, in which the police later found drugs. According to Butler, the gray Chevrolet contained cocaine. Butler also told the police that Foxworth would arrive in a yellow Cadillac with out-of-state license plates. Foxworth so arrived.

Other suspicious events also took place, which only added to the police officers' reasonable belief that Foxworth was involved in a drug deal. Soon after Foxworth's associate obtained something (presumably drugs) from the trunk of...