U.S. v. Duguay

• Decision Date: 31 October 1996
• Docket Number: No. 95-1768,95-1768
• Citation: 93 F.3d 346
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher DUGUAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 346

93 F.3d 346

UNITED STATES of America, Plaintiff-Appellee, v. Christopher DUGUAY, Defendant-Appellant.

No. 95-1768.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 8, 1995.

Decided Aug. 15, 1996.

Rehearing Denied Oct. 31, 1996.

James Porter (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Charles M. Shaw, James J. Knappenberger (argued), Clayton, MO, for Defendant-Appellant.

Before KANNE and DIANE P. WOOD, Circuit Judges, and SKINNER, District Judge. ^*

SKINNER, District Judge.

Defendant-appellant Christopher Duguay appeals his conviction and sentence for one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count I), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count III). Duguay argues that the district court erred in denying his motion to suppress 533 grams of cocaine the police discovered during a search of the automobile in which he was a passenger. We vacate the conviction for possession with intent to distribute cocaine, and remand for a new trial. The defendant having offered no argument in support of his appeal from the gun charge, we affirm his conviction on Count III.

I. BACKGROUND

A. The Arrest and Search

On the evening of May 3, 1994, a joint federal, state, and local task force known as the "Violent Crimes Initiative" was conducting a "sweep" in and around the federally-funded housing projects on Dooley Avenue in Alton, Illinois. The projects had recently experienced a crime wave, and members of the task force were engaged in identifying nonresidents for prosecution under local trespassing ordinances. Although the police focused on pedestrians, the task force also operated a roadblock on Dooley Avenue to question motorists.

At approximately 9 p.m., United States Deputy Marshal Michael Rehg observed a blue Nissan Maxima turn into a parking lot approximately 50 feet before the Dooley Avenue road block. Rehg associated the vehicle with the defendant, whom Rehg had encountered Vaughn parked, locked the car, and activated the car alarm. As Vaughn and Duguay walked towards the apartments, Rehg and two other marshals approached the automobile and called upon Duguay to stop for questioning. Duguay and Vaughn proceeded towards the apartment. After several more exhortations to stop, during which time Duguay and Vaughn walked some distance from the car, Duguay turned around. Rehg cautioned Duguay to remove his hands from his pockets and indicated he was going to perform a pat down. After being spread against a different car, Duguay objected to the course of the frisk and struck Rehg with his elbow. After a brief altercation, Duguay was arrested for assault. The disturbance attracted a crowd of onlookers, including the defendant's brother William Cole.

in an investigation of the East St. Louis cocaine distributor Ronald Blake. Duguay was a passenger in the vehicle, which was driven by his girlfriend Gloria Vaughn, a resident of the Dooley Projects.

After Duguay was handcuffed, he told Vaughn not to surrender the car keys. Alton Police Detective Scott Waldrup informed Vaughn that he was going to impound the car and demanded the keys. After she refused to surrender the keys, Waldrup arrested Vaughn for obstruction of justice and reached into her pocket to obtain the keys. Within ten minutes of Duguay's arrest, Waldrup and Detective Alfred Adams unlocked the car and began to inventory its contents. After finding nothing of interest in the passenger area, Waldrup released the hatch to the back seat and found a substantial quantity of crack cocaine in the trunk. Subsequent lab analysis found this to be equivalent to 533 grams of cocaine.

Shortly after her arrest, Vaughn consented to let the Alton police search her apartment where a Tech 9 handgun was found lodged behind a sofa. Although fingerprint analysis was inconclusive, Duguay signed a statement (penned by an Alton Police Detective) admitting ownership of the car, the crack, and the gun shortly after being brought into the Alton police station. Duguay was charged in a three count indictment alleging possession with intent to distribute the cocaine found in the car, unlawful possession of a firearm by a felon, and possession with intent to distribute narcotics within 1,000 feet of a school, in violation of 21 U.S.C. § 860.

B. Proceedings Below

At the hearing to suppress the crack on August 19, 1994, Duguay argued (1) that the police were not legitimately present at the Dooley Housing Projects, (2) that the initial stop was in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3) that the arrest was without probable cause, and (4) that the impoundment and subsequent inventory search of the automobile were illegal. After hearing testimony from Deputy Rehg, Detective Waldrup, and fifteen other witnesses (the relevant testimony of whom is summarized below), the district judge denied each of Duguay's claims. After a three day jury trial during which Duguay renewed his motion to suppress, and moved for an acquittal at the end of the presentation of evidence, he was convicted of the distribution of cocaine and possession of weapons counts. He was found not guilty of possession with intent to distribute within 1,000 feet of a school (Count II). Accordingly, on the basis of two prior felony drug trafficking convictions, Duguay was sentenced to life imprisonment without the possibility of parole under the career offender provision. U.S.S.G. § 4B1.1(A). Duguay was also sentenced to a ten-year concurrent sentence on the felon-in-possession count.

II. ANALYSIS

A. Standard of Review

The sole issue Duguay has raised on appeal is that the crack cocaine in his car was seized in contravention of the Fourth Amendment. We review the district court's findings of fact for clear error. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). A finding is clearly erroneous when, after comprehensive review of the evidence, this court is left with "the definite and firm conviction that a mistake has been made." United

States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994). We give "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, at ----, 116 S.Ct. at 1663. We review questions of law and mixed questions of law and fact de novo. Ornelas, at ----, 116 S.Ct. at 1663. In reviewing a suppression motion, we may consider evidence introduced both at the pre-trial suppression hearing and at the trial itself. Tilmon, at 1224.

B. The Investigative Stop

Duguay's first contention is that the police lacked sufficient justification to stop him for questioning. Both parties have classified this action as an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The government does not contend that there was probable cause. Terry requires that in order to stop a person for investigative purposes, a law enforcement official must be "able to point to specific and articulable facts" that give rise to a reasonable suspicion of criminal activity. Terry, at 21-22, 88 S.Ct. at 1879-81. Under circuit precedent:

[T]he reasonableness of an investigatory stop may be determined by examining: (1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts.

Tilmon at 1224. The inquiry on appeal must focus on "the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion." Ornelas, at ----, 116 S.Ct. at 1661.

At the suppression hearing, Deputy Rehg identified four facts which led him to stop Duguay. First, Rehg believed that Duguay's automobile had pulled into the Dooley parking lot to avoid the police roadblock. Second, Rehg knew Duguay to be associated with Ronald Blake's narcotics distribution ring in East St. Louis. Third, Rehg believed that Duguay had sold crack cocaine to undercover police officers in the past. Finally, Rehg knew that Duguay resided in a different housing project and was trespassing.

At oral argument, Duguay suggested that several of the articulated bases of suspicion were insufficient to justify an investigative stop. Taken separately, several of Rehg's reasons strike us as problematic. In particular, we are troubled by the government's suggestion in its brief that the stop was warranted because Duguay was about to enter a high crime housing project where he was not a resident. See, e.g., Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) ("The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct."). We would similarly be wary if Deputy Rehg decided to stop Duguay for investigation solely on the basis of his criminal reputation, or presumed association with unsavory cohorts. Our unease is amplified because Rehg knew that there were no outstanding warrants for Duguay's arrest, suggesting his alleged misdeeds had not been deemed sufficiently well-established to merit application for an arrest warrant.

Despite our qualms about components of the articulated suspicion, this particularized method of analysis misses the mark. Reasonable suspicion is to be determined in light of the totality of the circumstances. See, e.g., United States v. Packer, 15 F.3d 654, 658 (7th Cir.1994); United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989). While Deputy Rehg's reliance on Duguay's suspected trespassing, nefarious associates, prior drug trafficking, and presence in a crime-ridden district might have...