U.S. v. Baskin, 04-2698.

• Citation: 401 F.3d 788
• Decision Date: 17 March 2005
• Docket Number: No. 04-2698.,04-2698.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dustin C. BASKIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

401 F.3d 788

UNITED STATES of America, Plaintiff-Appellee, v. Dustin C. BASKIN, Defendant-Appellant.

No. 04-2698.

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2004.

Decided March 17, 2005.

Robert A. Anderson (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Norman D. Singleton (argued), New Auburn, WI, for Defendant-Appellant.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.

Defendant-Appellant Dustin C. Baskin was indicted for possession of equipment, chemicals, and materials with reasonable cause to believe they would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6), and for manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Baskin moved to suppress his statements to police and evidence that was seized as a result of an investigative stop of the car in which he was a passenger, but his motion was denied. Baskin then entered a conditional plea of guilty, pursuant to FED R. CRIM. P. 11(a)(2), and was sentenced to fifteen months' imprisonment and three years' supervised release. Baskin appealed the denial of his motion to suppress. We affirm.

I. Background

Glen Hills County Park is a hilly and heavily wooded area in rural eastern St. Croix County, Wisconsin, pocketed with caves. On September 22, 2003, hikers in the park contacted the County Sheriff's Department to report suspicious equipment in one of the caves. Deputies who responded identified the equipment as paraphernalia associated with methamphetamine production. Since such sites can be toxic and volatile, the area was cordoned off and monitored until a specialist could arrive to inspect and dismantle the equipment. Deputies watched the site in two-hour shifts on the evening of September 22 and the morning of September 23.

Deputy Sheriff Brandie Uhan, a five-year veteran of the force with expertise in drug investigation, took the 2:00 a.m. to 4:00 a.m. shift. Uhan parked her marked squad car along a dark and isolated stretch of Rural Route 4 ("RR4"), a narrow, dirt road that provides access to the park. She waited there, within close proximity to the cave, with her engine and car lights turned off.

At 3:17 a.m., vehicle lights approached. This was the first car to come by in over five hours; none had passed since the start of Uhan's shift and she had learned from the officer on the prior shift that no vehicles had driven by since 10:00 p.m. The car approached at 10 to 15 miles per hour, a speed which Uhan considered to be suspiciously slow. Because it was so dark out and the road so narrow, Uhan feared the approaching vehicle might run into her squad car. Uhan turned on her lights, whereupon the approaching car immediately accelerated and sped past Uhan and the cave.

This made Uhan even more suspicious, so she performed a Y-turn and pursued the accelerating vehicle down the dirt road. She had to travel at 40 to 50 miles per hour to catch up. She followed the car for half a mile to where RR4 intersects with County Road W, a paved and wider road, and signaled for the driver to pull over. The car came to a stop, and Uhan approached. Justin Johnson was in the driver's seat of the car, and Baskin was riding in the passenger's seat. Johnson explained to Uhan that they had come from "the Farm" in Emerald, Wisconsin, and were on their way out to the 128 Restaurant. Being familiar with both locations, Uhan recognized that the two had taken a very indirect route between those points. Uhan noticed immediately that Johnson appeared intoxicated, as his eyes were bloodshot and speech slurred. She also observed that Baskin appeared nervous, at one point pulling out a cigarette, placing it behind his ear, forgetting it was there, and pulling out a second one to smoke. Uhan shined a flashlight into the backseat, where she noticed two hose clamps and a broken light bulb, which she knew were evidence of methamphetamine production and use.

Uhan left both men in their car and returned with their driver's licenses to her vehicle to run past dispatch. As she walked to her squad car, Uhan glanced back and observed both men reaching beneath their seats and into the back seat, and saw Baskin fumbling with the handle of his door. Concerned, Uhan re-approached the driver's side of the car and saw a baseball bat next to Johnson that had not been there before. When asked about the bat, Johnson replied that it was "no big deal" and set it in the back seat. Uhan also noticed that Baskin had his fists clenched near his stomach. Uhan ordered Baskin to open his hands, which he did, revealing eight small, plastic packets containing a white residue. Uhan knew that such packets were commonly used for storing methamphetamine.

At that point, several deputies arrived, and the two men were removed from the car and detained for investigation. Uhan then searched the car, finding more small, plastic packets and a glass plate with a dusting of white residue. Uhan also noticed that attached to the key ring in the car's ignition was a red cap similar to those used to cap tanks of anhydrous ammonia which she knew was used for methamphetamine production. The two men were thereupon arrested for possession of drug paraphernalia.

A federal grand jury returned an indictment charging Baskin and Johnson with one count of possessing equipment, chemicals, and materials with reasonable cause to believe they would be used to manufacture methamphetamine, and one count of manufacturing methamphetamine. Baskin moved to suppress the evidence that was seized in connection with his arrest. Following an evidentiary hearing, the magistrate judge recommended that the district court deny the motion. In its recommendation, the magistrate judge acknowledged that while "timing and location of a slow-moving car probably do not rise above the level of a hunch ... adding evidence of flight tips the balance in favor of the stop." The district court adopted the magistrate judge's recommendation and denied Baskin's motion, explaining that its decision was based upon timing, location, and the fact that "when Deputy Uhan turned on her headlights, the car accelerated quickly." Baskin appealed the court's decision.

II. Discussion

In considering a district court's denial of a motion to suppress, we review its legal conclusions de novo and its findings of fact for clear error. United States v. McGee, 280 F.3d 803, 805 (7th Cir.2002).

The Fourth Amendment protects people from unreasonable searches and seizures. See U.S. CONST. amend. IV. However, a brief, investigatory stop that demands only a limited intrusion into an individual's privacy is permitted under the Constitution when it is based upon "specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). So, police can conduct a so-called Terry stop if they have reasonable suspicion, supported by articulable facts, that criminal activity is afoot. United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000). Reasonable suspicion amounts to something less than probable cause but more than a hunch. Id. The officer's decision to make the Terry stop must have been justified at its inception, and the stop must have been reasonably related in scope to the circumstances known to the officer at the time of the stop. United States v. Quinn, 83 F.3d 917, 921 (7th Cir.1996). These circumstances might include the behavior and characteristics of the person detained, as well as the experience of the officer. United States v. Odum, 72 F.3d 1279, 1284 (7th Cir.1995). Ultimately, a court's determination of reasonable suspicion "must be based on common-sensical judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

Both parties agree that a defendant's mere presence in an area of expected criminal activity does not in and of itself justify an investigatory stop. Wardlow, 528 U.S. at 124, 120 S.Ct. 673. However, location remains relevant to our analysis, especially when combined with unprovoked flight from the police. Id. In Wardlow, the defendant was standing against a building in an area known for drug trafficking when a police squad car pulled up as it patrolled the area. The defendant fled upon spotting the police, but they caught up with him. The police conducted a brief pat-down of the defendant, which revealed a handgun. The defendant claimed that the investigatory stop violated his Fourth...