818 F.3d 289 (7th Cir. 2016), 14-2019, United States v. Hill

Docket Nº:14-2019
Citation:818 F.3d 289
Opinion Judge:Wood, Chief Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WAYNE HILL, Defendant-Appellant
Attorney:For United States of America, Plaintiff - Appellee: Christopher V. Parente, Attorney, Office of The United States Attorney, Chicago, IL. For Wayne B. Hill, Defendant - Appellant: Beau B. Brindley, Attorney, Law Offices of Beau B. Brindley, Chicago, IL.
Judge Panel:Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
Case Date:March 21, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Hill walked into a Naperville Illinois Credit Union, pointed a pistol at the teller, and ordered her to give him money. Hill escaped with a bag containing about $134,000 and a dye pack. As Hill fled, it stained most of the cash red. Days later, Hill drove to a Milwaukee casino and fed dye-stained bills into a slot machine without playing the game. He cashed out, receiving vouchers for the money... (see full summary)

 
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818 F.3d 289 (7th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WAYNE HILL, Defendant-Appellant

No. 14-2019

United States Court of Appeals, Seventh Circuit

March 21, 2016

Argued September 25, 2015

Page 290

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 850-1 -- Sharon Johnson Coleman, Judge.

For United States of America, Plaintiff - Appellee: Christopher V. Parente, Attorney, Office of The United States Attorney, Chicago, IL.

For Wayne B. Hill, Defendant - Appellant: Beau B. Brindley, Attorney, Law Offices of Beau B. Brindley, Chicago, IL.

Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

OPINION

Page 291

Wood, Chief Judge

They say the house always wins. Wayne Hill found out the hard way that if you have robbed a bank, that adage applies even if your trip to the casino was just to get change. Hill was caught attempting to launder a large amount of dye-stained currency, still in bank bands, by stuffing the bills into a slot machine at the Horseshoe Casino in Hammond, Indiana. He was ultimately convicted of bank robbery, money laundering, and transportation of stolen funds.

Hill filed pretrial motions to suppress his arrest, the contents of his bags, and his statements at the time he was caught. He also filed a motion in limine seeking to exclude expert testimony under Federal Rule of Evidence 702 about historical analysis of cellular telephone sites. Hill appeals the district court's denials of all four motions. Because the district court properly resolved each one, we affirm its judgment.

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I

On November 19, 2011, Hill walked into the Illiana Financial Credit Union in Naperville, Illinois, pointed a pistol at the teller, and ordered her to give him money. While Hill threatened repeatedly to shoot her, another teller handed over roughly $134,000 in cash. Hill fled the scene with a bag full of stacks of wrapped bills.

At that moment, Hill might have thought he was home free. But there was something he did not know: one of the tellers had managed to toss a dye pack into the bag along with the cash. As Hill fled from the bank, it exploded, staining most of his haul a telltale red. Three days later, Hill sought to remedy that problem. He drove to the Potawatomi Hotel and Casino in Milwaukee, Wisconsin, where he sat down in front of a slot machine and fed dye-stained bills into it without playing the game. Instead, he cashed out, receiving vouchers in the amount of money he had put into the machine. After repeating this maneuver on a number of machines, he redeemed the vouchers for unstained currency. He managed to rid himself of $6,650 in stained bills that night.

On November 26, 2011, Hill tried to repeat his moneylaundering gambit. He strolled into the Horseshoe Casino in Hammond, Indiana, with a backpack and a Santa hat filled with thousands of dollars of dye-stained bills. He sat down in front of a slot machine and began feeding it cash. But this time, a slot attendant noticed what he was doing and thought it strange. The slot attendant told Daniel Faulkner, a casino security employee, that there was a guest at a slot machine with a bag containing a large amount of money. He also told Faulkner that the money had red dye on it and that the guest was sticking the money into the machine and cashing it out without playing the slots.

Faulkner called over the radio, and Monaye Perry, another casino security employee, responded. By the time Perry arrived, Hill had told a casino employee that one of his bills had gotten stuck in the machine, and a slot attendant had opened the machine to recover it. Faulkner told Perry what Hill had been doing. Faulkner's report made Perry suspicious, because it was very unusual for a guest to be cashing out of the machine without playing, not to mention for the money to be stained red. Perry questioned Hill briefly. She noted that he seemed nervous and hesitant and that he was short with his responses. Perry then contacted Eugene Kasper, her shift manager. As she did so, Hill abandoned the slot machines and moved to the casino's cash-out area.

Kasper arrived with company: Hammond Police Lieutenant Patrick McKechnie. McKechnie was moonlighting as a security officer at the casino. Perry relayed Faulkner's account to Kasper and McKechnie and noted that she had received the information from Faulkner himself. McKechnie and Kasper followed Hill to the cash-out area and confronted him. As Hill stood in line, McKechnie asked Hill why his greenbacks were red and where he had gotten the money. Hill did not respond to the first question, but in reply to the second he said that he had found the money while changing a tire near a lake.

McKechnie found Hill's story bizarre and suspicious. He knew from his law-enforcement experience that bank employees often attempt to hide red dye-packs among stolen money during robberies. He could see red dye-stained bills, still wrapped in bank bands, in Hill's hand. Surveillance footage shows Kasper examining stacks of cash wrapped in bank bands as several casino security personnel stand by. It then shows Hill being led away, along with his bag and Santa hat, to

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an interview room. In the interview room, Hill was questioned further and his bag was searched, revealing the remainder of the money.

Hill was indicted for money laundering, bank robbery, and transporting stolen money in interstate commerce in violation of 18 U.S.C. § § 1956(a)(1)(B)(i), 2113(a), (c), and (d), and 2314. Before trial, Hill filed motions to suppress his arrest, the search of his backpack and Santa hat, and his statements to McKechnie. He also filed a motion in limine seeking to exclude expert testimony regarding historical cell site analysis under Rule 702 of the Federal Rules of Evidence. The district court denied all four motions. A jury convicted Hill on April 7, 2014, and he was sentenced to 360 months' imprisonment. This appeal followed.

II

Hill argues that his statements in the cash-out area and the evidence seized incident to his arrest should have been suppressed because (1) Lieutenant McKechnie's initial conversation with Hill was an arrest for which McKechnie did not have probable cause; (2) if that encounter was not an arrest, McKechnie did not have adequate reasonable suspicion to perform an investigatory stop; and (3) McKechnie did not have probable cause to remove Hill to the interview room where the entirety of Hill's store of stolen cash was discovered. He also argues that the district court abused its discretion in admitting Agent Joseph Raschke's expert testimony regarding historical cell site analysis.

A

We look first at Hill's three motions to suppress. We review the district court's rulings under a dual standard: we apply the clear error standard to its factual determinations, with special deference to the district court's credibility determinations, United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir. 2009); we take a de novo approach to its conclusions of law. Id.

1

Hill contends that his initial encounter with McKechnie was an arrest, but we conclude that it was not. A seizure qualifies an arrest only if " a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 719 (7th Cir. 2013). This definition is somewhat circular. But it is clear that an arrest requires at minimum that the subject's " freedom of movement is terminated or restrained by intentionally applied physical force or submission to an assertion of authority." Id. (citing California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). Importantly, contrary to Hill's arguments, the inquiry is objective and " presupposes an innocent person." Id. (citing United States v. Drayton, 536 U.S. 194, 202, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002)).

It is hard to offer a crisp definition of what exactly constitutes an arrest. But courts have made clear that " a brief, on-the-spot stop on the street and a frisk for weapons" does not qualify. Dunaway v. New York, 442 U.S. 200, 209, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). McKechnie's interview with Hill was not even as intrusive as a stop-and-frisk. He made no " assertion of authority" and used no " physical force." Nor did his two questions contain any of the indicia of a traditional arrest, no matter the number of casino security personnel

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who were by then hanging around. At most, the interaction represented an investigatory stop. Indeed, the government maintains that it was consensual, and therefore did not even constitute a seizure under the Fourth Amendment. But we need not decide whether the interaction was consensual: even if it were not, McKechnie's questioning of Hill qualified as a valid investigatory stop.

An investigatory stop is valid when supported by " a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). A " reasonable, articulable suspicion" is less than probable cause; it requires only " a minimal level of objective justification." Id. In deciding whether the officer's suspicion was justified, the court must consider the " totality of the circumstances" surrounding the stop. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The officer may " draw on [his or her] own experience and specialized training to make inferences from and deductions about the cumulative...

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