U.S. v. Clark

Decision Date15 September 2011
Docket NumberNo. 10–2254.,10–2254.
Citation657 F.3d 578
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Kenneth CLARK, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Linda L. Mullen (argued), Attorney, Office of the United States Attorney, Rock Island, IL, Thomas A. Keith, Attorney, Office of the United States Attorney, Peoria, IL, for PlaintiffAppellee.Michael J. Finn, Attorney, Chicago, IL, for DefendantAppellant.Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.ROVNER, Circuit Judge.

Kenneth Clark was convicted after a jury trial of possessing crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). On appeal he argues that evidence related to the drugs found in his truck should have been suppressed and that he should have been permitted more latitude in cross-examining the government informant who exposed him as her supplier. But the police had probable cause when they searched Clark's truck and found the drugs after he pulled into the informant's driveway to make a scheduled delivery. And because Clark had ample opportunity to expose the informant's motives and biases on the stand, the district court did not abuse its discretion by forbidding him to inquire into salacious details about her personal life. We affirm the district court's judgment.

I.

Things fell apart for Clark when one of his customers turned on him. Mary McCormick was a dealer who had been buying crack and powder cocaine from Clark for about five months before she was arrested by police in Peoria, Illinois; a search of her house turned up almost 25 grams of crack, as well as scales, plastic baggies, and $1,400 in cash. The police offered to be lenient with McCormick if she would help them snare her supplier, and she quickly agreed. She said his name was Kenneth (she could not remember his last name) and described him as a black man with short hair who was in his 40s, stood about 5 feet 9 inches, and weighed around 260 pounds. He would drive down from Chicago to make deliveries a few times each month, she explained, always in the same red pickup truck. His route was consistent too: He would arrive in Peoria on westbound Interstate 74, exit at Knoxville Avenue, drive north about four miles, turn west on Northmoor Road, and then make a quick right to arrive at McCormick's house on Jayar Drive.

In fact, McCormick told the police, she was expecting her supplier to make a delivery that very week. As officers listened in, McCormick phoned Clark to arrange the details. Clark agreed to drive down to Peoria two days later with 10 ounces of cocaine. Sometime during this interlude McCormick learned Clark's last name and passed that information on to the officers. She also guessed that the red truck he was driving might be a Dodge Ram.

On the day of the delivery, McCormick kept in close contact with the police. In the early afternoon she called to say that she had just spoken with Clark. He had left Chicago and was traveling southbound on Interstate 55, she reported, in the same red pickup truck that he always drove. And he had confirmed that he planned to take his usual approach into Peoria. At 3:00 p.m. she phoned the police again to relay that Clark had just exited Interstate 55 and now was headed west on Interstate 74. About this same time, an officer who was stationed where the two highways meet, a little over 30 miles east of Peoria, caught a glimpse of a red pickup truck on westbound Interstate 74. With Clark's journey unfolding exactly as expected, the police back in Peoria started to prepare for his arrival: a canine unit was put on standby, ready to proceed to McCormick's house as soon as Clark showed up with the cocaine. Then, around 4:00 p.m., McCormick called the police a final time to tell them that Clark had made it to Peoria. He was running an errand at a Walgreens on Knoxville Avenue, she explained, but would be at her house shortly. Minutes later, an officer conducting surveillance at the intersection of Knoxville Avenue and Northmoor Road spotted a red pickup truck turn west in the direction of Jayar Drive. Additional officers were lying in wait at McCormick's house; within a few seconds they saw a red Ford pickup pull into McCormick's driveway, driven by a man who matched her description of her supplier.

The police approached the truck with guns drawn. After the driver identified himself as Kenneth Clark, the officers ordered him to step out of his vehicle. They conducted a quick pat-down search, put him in handcuffs, and placed him in the back seat of a squad car. Meanwhile, the canine unit had been summoned to the scene. No one seems to have a firm grasp on how long it took for the drug-sniffing dog to arrive; estimates range from 15 to 30 minutes. In any event, there is no suggestion that the police dallied. And once the canine unit got to McCormick's house, the pace quickened. On its first lap round the truck, the dog alerted at the driver's door; then, when officers let the dog inside the vehicle, the canine alerted again at the dashboard near the steering column. The police removed the dashboard panel to discover, squirreled away inside, a plastic bag containing 10 ounces of cocaine, just as Clark had promised. About 4 ounces of the total was crack.

After Clark was charged with violating section 841(a), he moved to suppress the cocaine found in his truck. The only argument he made in his written submission was that, when he arrived at McCormick's house, the Peoria police did not have probable cause either to detain him or to search his truck. The district court ruled otherwise, however, and at trial the drugs were, to no one's surprise, the centerpiece of the government's case.

But the government also presented testimony from McCormick, who told the jury about her history with Clark and how she had helped the police reel him in. Before trial, the district court had denied Clark's request to impeach McCormick with questions about her tumultuous history with a Carolyn Parker. Apparently the two had been lovers. But the relationship turned sour, to the point where Parker had obtained an order of protection from a state court. And as the parties buckled down to prepare for trial, McCormick was arrested for violating that order of protection; allegedly she had been placing salacious notes, accompanied by sex toys, on Parker's car. Clark's lawyer wanted to bring all this to the jury's attention. He proffered that one of the notes, which he had obtained from the police, included a frank discussion of the pair's predilection for using cocaine during sex, an admission, the lawyer insisted, that contradicted McCormick's grand-jury testimony that she did not use drugs at all. Plus, the lawyer urged, the arrest would call into question whether McCormick had breached her cooperation agreement with the government. And, finally, the lawyer offered that McCormick allegedly had told one of her friends that, if Parker had her arrested for violating the order of protection, she was going to lie to the police so that Parker would get hauled off to jail too. “What I'm interested in bringing out,” the lawyer promised the district court, “has nothing specifically to do with [McCormick's] sexual preferences or ... the facts of the allegations.”

To the government, though, this was all just a blatant attempt to inflame the jury. The district court likewise thought that information concerning McCormick's trouble with Parker would be irrelevant and “extremely prejudicial” and, accordingly, refused to let Clark ask any questions about the discord between the two. Nevertheless, the court did permit Clark's lawyer to question McCormick about her drug use and the terms of her deal with the government. And, indeed, during cross-examination the lawyer extracted an acknowledgment from McCormick that she was cooperating with the government only because she had been offered a term of probation for committing a drug offense that would otherwise expose her to as much as 30 years' imprisonment and that she had failed to tell her government handlers all that she knew about the Peoria drug scene, even though her cooperation agreement required her to be completely forthcoming. McCormick also conceded that, notwithstanding her grand-jury testimony, she and Parker had used cocaine during sex.

II.

Clark has hired a new lawyer to represent him on appeal and renews his argument that the drugs found in his pickup ought to have been suppressed. He insists that McCormick's information did not give the Peoria police probable cause to believe he was delivering drugs when he pulled his truck into her driveway. In his view, then, the police lacked the requisite legal basis on which to arrest him 1 or to search the interior of his truck. The gist of his argument is that McCormick could not have been considered a reliable source because she had never before worked with the police and in fact had some details wrong. For example, she said that he would be driving a red Dodge truck, although actually he drove a red Ford truck, plus she said that he weighed about 260 pounds, when really he weighed only 200 pounds. And what is more, he continues, the police did not bother to corroborate some important pieces of her account.

Picking holes in McCormick's story and attacking the officers' willingness to take her at her word might get Clark somewhere if McCormick was just an anonymous tipster or a peripheral player. See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); United States v. Harris, 464 F.3d 733, 740 (7th Cir.2006); United States v. Peck, 317 F.3d 754, 756 (7th Cir.2003); United States v. Koerth, 312 F.3d 862, 866–68 (7th Cir.2002). But McCormick was no ordinary informant; she bought large quantities of drugs directly from Clark on multiple occasions. Specific information from a person who has turned on her partner in crime and told the police about their...

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