U.S. v. Green, No. 96-2408

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, Chief Judge, and COFFEY and MANION; MANION
Citation111 F.3d 515
PartiesUNITED STATES of America, Plaintiff-Appellee, v. David Lee GREEN, Defendant-Appellant.
Docket NumberNo. 96-2408
Decision Date03 June 1997

Page 515

111 F.3d 515
UNITED STATES of America, Plaintiff-Appellee,
v.
David Lee GREEN, Defendant-Appellant.
No. 96-2408.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 12, 1996.
Decided April 14, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied June 3, 1997.

Page 517

Lawrence Beaumont, argued, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Neill Schurter, argued, Rantoul, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

David Green was convicted of possession of crack cocaine with intent to distribute, and possession of a firearm by a felon. Green appeals, asserting that the district court erred in denying his motion to suppress evidence of these crimes obtained during an automobile search, and that it erred in sentencing him. While we conclude that Green was illegally stopped, the taint from that illegal seizure dissipated prior to the automobile search because of intervening circumstances, namely the arrest of the car's other occupant, David's brother Avery Green, on an outstanding warrant. Because the taint had dissipated, the evidence obtained during the search of the auto was admissible as a search incident to the arrest. The district court also properly sentenced David Green. Accordingly, we affirm.

I. Background

At about 9:00 p.m. on July 2, 1995, Sergeant Murphy and Officer Walker of the Champaign, Illinois Police Department were on patrol. The officers noticed a blue Chevrolet driving in front of them. Officer Walker told Sergeant Murphy that the same car had been parked on the road in front of Mark Williams' residence the night before. The officers knew that Mark Williams was wanted on a federal warrant for being a felon in possession of firearms. Thinking that the Chevrolet's occupants might include Williams, or know Williams' whereabouts, the officers followed the Chevrolet as it turned a corner. After turning, the Chevrolet made a U-turn, turned abruptly onto another street, and then turned immediately into a driveway. The officers followed, pulling their car across the driveway, blocking in the Chevrolet.

By the time the officers had stopped, the Chevrolet's driver was walking toward the house. Sergeant Murphy exited the police car and, while approaching the driver, yelled that he needed to speak with him for a second. The driver stopped; Sergeant Murphy then asked for some identification which the driver produced identifying himself as David Green. In the meantime, Officer Walker obtained the identification of the passenger who was still in the car and who, as it turned out, was David's brother Avery Green. The officers returned to the squad car and entered the information in their computer to determine the validity of the drivers' licenses, as well as to check for any outstanding warrants. Within five minutes the computer revealed an outstanding warrant for Avery Green. Supplied with this information, the officers arrested Avery. According to Sergeant Murphy, David Green then agreed to let Murphy search the vehicle; David Green denies that he gave Murphy permission to look in the car. During the search, Murphy discovered crack cocaine in a shopping bag on the floor in front of the driver's seat, and a gun in a gym bag on the floor on the passenger's side. The officers then arrested David Green.

A grand jury indicted David Green, charging him with one count of possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); one count of using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). David pleaded not guilty and filed a motion to suppress the gun and the cocaine, arguing that they were obtained in violation of his fourth amendment rights. The district court denied David's motion to suppress, and the case proceeded to trial. The court entered a judgment of acquittal on count two, using and carrying a firearm in relation to a drug trafficking crime, based on

Page 518

Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). A jury convicted Green on the remaining two counts. Green was sentenced to 135 months on count one, and 120 months on count three, to be served concurrently. Green appeals.

II. Analysis

On appeal Green asserts that the district court erred in denying his motion to suppress the gun and the crack cocaine seized during the police officers' July 2, 1995 search of the Chevrolet. Green also argues that the district court erred in sentencing him based on the Sentencing Guidelines which apply to crack cocaine, instead of cocaine hydrochloride, and in enhancing his sentence for the possession of a firearm in relation to a drug offense.

A. Motion to Suppress

Green moved to suppress the evidence obtained during the search of the automobile he was driving. The district court denied Green's motion, concluding that the officers conducted a legitimate investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that "[s]ince less than five minutes elapsed while the police discovered the arrest warrant, the duration of the stop is reasonable for a Terry stop." The district court reasoned that because the police had probable cause to arrest Avery, they were entitled to search the passenger compartment of the car incident to the arrest and therefore it was irrelevant whether Green had consented to the search as the officers claim, or had not, as Green claims. Given that the stop and search were both lawful, the district court concluded that the evidence obtained during the search was admissible.

"In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo. United States v. Trevino, 60 F.3d 333, 336 (7th Cir.1995). We review factual findings for clear error, ... United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994)." United States v. Liss, 103 F.3d 617, 620 (7th Cir.1997). "We review district court determinations of reasonable suspicion and probable cause de novo." United States v. Finke, 85 F.3d 1275, 1278 (7th Cir.1996) (citing Ornelas v. United States, --- U.S. ----, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Green argues that while the officers were justified in stopping his car to ascertain whether Mark Williams was present, because the officers quickly recognized that neither the defendant nor his passenger was Mark Williams they were required to let them go immediately. Thus, Green reasons, the officers violated the Fourth Amendment by continuing to detain them in order to run a computer search for outstanding warrants.

In support of his position, Green cites United States v. McSwain, 29 F.3d 558, 560-61 (10th Cir.1994). In McSwain, a Utah highway trooper stopped a vehicle to determine the validity of its temporary registration sticker. As he approached the car, the officer examined the temporary sticker and determined that it was valid. After satisfying the suspicion which justified the stop, the officer continued the detention, asking for the driver's license and registration. The officer ran a background check on the driver, learned he had a suspended license and a prior record of drug and gun violations. The officer then returned to the car and questioned the driver, eventually gaining consent to search the vehicle. In searching the vehicle, the officer discovered a duffel bag which contained crack cocaine. The district court denied McSwain's motion to suppress, but the Tenth Circuit reversed, stating:

Trooper Avery stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle's temporary registration sticker. Once Trooper Avery approached the vehicle on foot and observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. Trooper Avery's further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification.

After concluding that the police illegally detained McSwain by exceeding the purpose of the Terry stop, the court considered the validity

Page 519

of the consent to search and concluded that based on the totality of the circumstances the consent to search was invalid. Similarly, here Green asserts that the officers exceeded the purpose of stopping the car-to determine if Williams was in the car--and thus the seizure was illegal and the evidence obtained tainted by that illegality.

The government responds that the officers originally stopped the Greens for two reasons: to determine if Mark Williams was present in the car, and to ask the passengers whether they knew of Williams' location. Thus, even though the officers recognized that Williams was not present, the government maintains that the officers still had grounds to detain the Greens in order to question them. Because one of the justifications for the stop remained, the government reasons that the officers were justified in running a computer search to determine if there were any outstanding warrants on the Greens. The government asserts that because this took less than five minutes and was a necessary safety precaution, it was allowed under Terry.

Case law supports the government's position that running a computer search for warrants during traffic stops is constitutional. Finke, 85 F.3d at 1279 (detention after traffic stop for results of criminal history check was valid given reasonable suspicion of drug activity); United States v. McRae, 81 F.3d 1528, 1535-36 n. 6 (10th Cir.1996) ("[Criminal history] checks are run largely to protect the officer. Considering the tragedy of the many officers who are shot during routine traffic stops each year, the almost simultaneous computer check of...

To continue reading

Request your trial
181 practice notes
  • U.S. v. Hudson, No. 04-5096.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 2005
    ...the clothes the suspect was wearing, and informed the police of the street where the suspect was walking); United States v. Green, 111 F.3d 515, 520 (7th Cir.), cert. denied, 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997) ("That on one occasion a car is parked on the street in front of......
  • People v. Rodriguez, No. B186661.
    • United States
    • California Court of Appeals
    • October 10, 2006
    ...133 P.3d 581; and see Brown v. Illinois, supra, 422 U.S. at pages 603-604, 95 S.Ct. 2254. 9. See for example U.S. v. Green (7th Cir.1997) 111 F.3d 515, 521 and cases cited; State v. Page (2004) 140 Idaho 841, 103 P.3d 454, 459 and cases 10. Brown v. Illinois, supra, 422 U.S. at page 603, 95......
  • U.S. v. Swindle, Docket No. 03-1773.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 11, 2005
    ...drove a Bonneville or even that the one Swindle drove was the one Foster-Brown had been seen near. Cf. United States v. Green, 111 F.3d 515, 520 (7th Cir.1997) ("That on one occasion a car is parked on the street in front of a house where a fugitive resides is insufficient to create reasona......
  • United States v. Gross, No. 08–4051.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 2011
    ...to the arrest must be suppressed.” Id. at 440. In our analysis, we considered two cases from the Seventh Circuit, United States v. Green, 111 F.3d 515, 520–23 (7th Cir.1997), and United States v. Johnson, 383 F.3d 538, 546 (7th Cir.2004). Although both Green and Johnson are cases in which t......
  • Request a trial to view additional results
182 cases
  • U.S. v. Hudson, No. 04-5096.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 2005
    ...the clothes the suspect was wearing, and informed the police of the street where the suspect was walking); United States v. Green, 111 F.3d 515, 520 (7th Cir.), cert. denied, 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997) ("That on one occasion a car is parked on the street in front of......
  • People v. Rodriguez, No. B186661.
    • United States
    • California Court of Appeals
    • October 10, 2006
    ...133 P.3d 581; and see Brown v. Illinois, supra, 422 U.S. at pages 603-604, 95 S.Ct. 2254. 9. See for example U.S. v. Green (7th Cir.1997) 111 F.3d 515, 521 and cases cited; State v. Page (2004) 140 Idaho 841, 103 P.3d 454, 459 and cases 10. Brown v. Illinois, supra, 422 U.S. at page 603, 95......
  • U.S. v. Swindle, Docket No. 03-1773.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 11, 2005
    ...drove a Bonneville or even that the one Swindle drove was the one Foster-Brown had been seen near. Cf. United States v. Green, 111 F.3d 515, 520 (7th Cir.1997) ("That on one occasion a car is parked on the street in front of a house where a fugitive resides is insufficient to create reasona......
  • United States v. Gross, No. 08–4051.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 2011
    ...to the arrest must be suppressed.” Id. at 440. In our analysis, we considered two cases from the Seventh Circuit, United States v. Green, 111 F.3d 515, 520–23 (7th Cir.1997), and United States v. Johnson, 383 F.3d 538, 546 (7th Cir.2004). Although both Green and Johnson are cases in which t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT