U.S. v. Denney

• Decision Date: 27 August 1985
• Docket Number: No. 84-2855,84-2855
• Citation: 771 F.2d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Loren Richard DENNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 318

771 F.2d 318

UNITED STATES of America, Plaintiff-Appellee, v. Loren Richard DENNEY, Defendant-Appellant.

No. 84-2855.

United States Court of Appeals Seventh Circuit.

Argued Feb. 22, 1985.

Decided Aug. 27, 1985.

Belle T. Choate, Indianapolis, Ind., for plaintiff-appellee.

John Jarvey, U.S. Atty's. Office, Indianapolis, Ind., for defendant-appellant.

Before CUDAHY, ESCHBACH, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

Defendant Loren Richard Denney appeals from a judgment of conviction entered in October 19, 1984, after he pleaded guilty to a one-count indictment for possession with intent to distribute approximately twenty-one pounds of marijuana in violation of Title 21, United States Code, Section 841(a)(1). With the Government's consent and the district court's approval, the defendant entered a plea of guilty to that count while reserving the right to appeal from the district court's adverse ruling in a pretrial suppression hearing denying his motion to exclude the marijuana from the evidence. ¹ The only issue raised by the defendant in this appeal is whether or not the district court erred in denying his motion to suppress the marijuana seized during a search of the interior of his vehicle incident to a Terry investigative detention. For the reasons discussed below, we affirm.

Pursuant to a search warrant issued by a United States Magistrate in the Southern District of Indiana, special agents of the Drug Enforcement Administration and police officers from the Indiana Police Department and the Indiana State Police conducted a search on April 16, 1984 at the residence of Francis Leon Denney at Rural Route 2, Box 331, Worthington, Indiana. Based upon the investigations by undercover agents, the officers had reasonable basis to believe that persons at the location of the search would have access to firearms, some of which were believed to be automatic weapons. The officers equipped themselves properly; some of them wore bullet-proof vests underneath the raid jackets. ² During the search of the premises, the officers found several firearms, including a rifle, two shotguns and a revolver.

At approximately 5:00 p.m. when the officers were about to conclude the search, a white-over-brown Ford Bronco pick-up truck moved down the gravel road leading to the premises at high speed. The officers observed that the truck was going between 45 and 50 miles per hour. As the truck approached the premises, it skidded to a halt and came near several officers. Because the identity of the driver was not known to the officers at that time and because of the manner in which the truck approached the premises, Special Agent Thomas Chown identified himself as such and, with his gun drawn, ordered the driver to raise his hands and to exit the truck. The driver did not heed Agent Chown's command. After a second order to the driver to exit the truck, the driver made a motion toward the center of the truck. Agent Chown interpreted this motion by the driver as consistent with that of reaching for a weapon. At this point, the officers, with their guns drawn and pointed at the driver, approached the truck, opened the doors on both sides and physically removed the driver from the truck. The driver identified himself as Loren Richard Denney, while the officers frisked him for contraband and weapons. ³ One of the officers who opened the door on the passenger side said he smelled the odor of marijuana. The officer, without disturbing any items within the truck, then made a cursory observation of its interior to look for weapons. He saw a large box wrapped in opaque black plastic sheet with silver duct tape around it lying on the center console between the front driver and passenger seats. Unique symbols and weight units appeared on the box. Based upon his training and experience as a narcotics officer, together with the strong odor of marijuana emanating from within the truck, the officer formed a reasonable belief that the box contained marijuana. The officers placed the defendant under arrest for violation of the controlled substance act and read him his Miranda rights.

The officers seized the box but did not open it until they brought it with the defendant to the Drug Enforcement Administration Office in Indianapolis. ⁴ At the office, some of the special agents asked the defendant for his consent to open the box seized from his truck. The agents told him that they would apply for a search warrant if the defendant refused to give his consent. The defendant assented to the search request and signed the consent form. When the agents opened the box, they found approximately 21 pounds of marijuana. The marijuana was the subject matter of the suppression motion which the district court denied. The district court found that the brief investigatory detention was reasonable and in conformity with the law, and that the immediate detection of the odor of marijuana during a protective search of the interior of the truck for weapons following the brief detention gave rise to probable cause for the seizure of the box and the arrest of the defendant. The district court also concluded that the consent given for the search of the box was legitimate, upon the finding that the defendant "was capable of giving knowing and voluntary consent" to the search request by the special agents.

The defendant asserts two reasons why the seizure of the box containing the marijuana violated his Fourth Amendment rights. The defendant challenges the district court's findings that the officers had reasonable suspicion supported by articulable facts which would justify an investigative detention. If the detention was unlawful, the defendant contends that the marijuana discovered during the confrontation should therefore have been suppressed. The defendant also contends that his consent to the search request was tainted because it was given subsequent to an unlawful detention and was obtained by coercion.

The Constitution of the United States does not forbid all searches and seizures, but only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669, 1675 (1960). Warrantless searches are generally considered unreasonable unless they fall within a few specific established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). The exception we find applicable here is based on the principle, first announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), of a line of Supreme Court cases which authorizes a police officer in appropriate circumstances to conduct a protective search for weapons incident to a valid investigative detention. See also Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In Terry v. Ohio, supra, the Supreme Court explored the constitutional limitations which the Fourth Amendment places upon the warrantless accosting of individuals by police officers. The Court held that even in the absence of probable cause a police officer may stop an individual briefly to investigate the circumstances which provoke his suspicion, provided that the police officer is "able to point to specific and articulable facts which, taken with rational inferences from those facts," give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity. 392 U.S. at 21, 88 S.Ct. at 1879, 20 L.Ed.2d at 905-906. Such investigative stops based on articulable suspicion are permissible because "(t)he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972). In determining whether an officer's suspicion was reasonable, the "totality of the circumstances" must be taken into consideration, United States v. Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 694, 66 L.Ed.2d at 629, and "due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience" as a police officer. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 66 L.Ed.2d at 909. If there is a reasonable and objective basis that will justify an investigative detention, the officer may use reasonable force to effect the detention. Michigan v. Summers, supra, 452 U.S. at 698 & n. 7, 101 S.Ct. at 2592 & n. 7, 69 L.Ed.2d at 347 & n. 7.

Although the holding in Terry was limited to a pat-down search of a person for concealed weapons, Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911, the Court has recently stated in Michigan v. Long, supra, that the rationale discussed in Terry needed "not be read as restricting the preventative search to the person of the detained suspect." 103 S.Ct. at 3479, 77 L.Ed.2d at 1218. The Court observed that historical facts have shown investigative detentions involving suspects in vehicles at the roadsides are especially dangerous to the police officers. Long, 103 S.Ct. at 3480 & n. 13, 77 L.Ed.2d at 1219 & n. 13. See also Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54...