U.S. v. Griffin, 96-3931

• Decision Date: 30 July 1998
• Docket Number: No. 96-3931,96-3931
• Citation: 150 F.3d 778
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 778

150 F.3d 778

UNITED STATES of America, Plaintiff-Appellee, v. Michael GRIFFIN, Defendant-Appellant.

No. 96-3931.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 1997.

Decided July 30, 1998.

Jerome N. Krulewitch, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Steven Chanenson (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Peter J. Vilkelis (argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, COFFEY, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

After a bench trial, Michael Griffin was convicted of one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal, Griffin challenges the district court's denial of a motion to suppress, the sufficiency of the evidence, a two-level enhancement under Sentencing Guideline § 2D1.1(b)(1) for possession of a dangerous weapon, the district court's refusal to reduce his sentence for his allegedly having played a minor role in a drug conspiracy under Sentencing Guideline § 3B1.2, and the district court's calculation of the criminal history category.

I. FACTUAL BACKGROUND

As part of an ongoing investigation into the murder of a drug trafficker, Kenneth Williams, various reliable witnesses informed Chicago Police Detective Michael Bobko, a veteran detective with over twenty years of experience enforcing narcotics laws, about an individual known as Mr. Deton, who might have information concerning the murder. On April 13, 1996, Detective Bobko and other officers were assigned to conduct a surveillance of the interior and exterior of a clothing store called "Boutique Chicago" because Mr. Deton had an ownership interest in the store. Although the officers did not locate the party in question, they did observe Michael Griffin, an employee at Boutique Chicago, depart from the clothing store premises, drive a green Yukon, which is a large jeep-like vehicle, and eventually return to the store. Around 2:00 p.m. on April 13, the detectives observed two Hispanic men arrive. As one store employee walked the men to the back of Boutique Chicago, another employee physically ushered a customer out of the store and locked the front door.

Shortly thereafter, the two Hispanic men exited with Griffin. At this time, Griffin directed them in the direction of his Yukon, handing one of the men a key. The man drove away in Griffin's vehicle. Based on the information that he had combined with his experience with narcotics investigations, including the information that the source of drugs for the murdered drug trafficker was a Hispanic male, Detective Bobko believed that the Hispanic male might be procuring narcotics for Griffin. Accordingly, the detectives followed Griffin's vehicle to a nearby neighborhood in Chicago. They lost sight of the Yukon momentarily, but shortly thereafter discovered it parked against a fence in an alley. The detectives observed the driver load a large, tan box into the vehicle's cargo space.

After the Hispanic male left the premises, Detective Bobko testified that the Hispanic male drove a circuitous route, which included driving completely around the block from where he started during this time. The driver kept looking in the rear view mirror. The driver pulled the Yukon to one side and let other cars pass, and also drove the Yukon into an alley. Detective Bobko concluded at this time that the Hispanic male was conducting counter surveillance, so the detectives, not wanting to arouse the man's suspicions, returned to Boutique Chicago. Approximately ten minutes later, the same Hispanic male arrived near Boutique Chicago, but suddenly hit the brakes, turned left, and went four store fronts away from Boutique Chicago before parking, even though there were parking places directly in front of the store. He exited his vehicle, looked over his shoulders, walked toward a closed store, eventually entered Boutique Chicago, and walked to the back of the store with Griffin and his father, the store's owner. The actions of the remaining employee in the store gave the appearance of acting as a "look out." The two Hispanics who had arrived earlier left the store, laughing, and shortly thereafter, slapping palms.

Officer Bobko testified that he never lost sight of the sports vehicle for more than a few seconds for the rest of the afternoon. Several hours later when the store closed around 7:00 p.m., Griffin drove off followed by the officers. Within a few minutes, Griffin exited the expressway after looking at the officers' unmarked police car in the Yukon's side view mirror and pulled over to a curb in a no-parking area without the officers signaling him to do so. Detective Bobko pulled up behind him, exited the unmarked police car, and approached Griffin's driver's side window. The police officers were in civilian clothes, and as Detective Bobko approached the sports vehicle, he displayed no weapons and identified himself as a police officer. He told Griffin that he and his partner were conducting a narcotics investigation, and that they were interested in his Yukon. Griffin replied that it was his car. Detective Bobko then asked Griffin to get out of his car. Griffin complied, looking very nervous, breathing rapidly, trembling, and having difficulty speaking. Bobko asked Griffin if he was the only person who had driven his vehicle that day and Griffin replied "yes," but stopped mid-sentence and changed his answer to "no." He explained that during the day he was away from the store for awhile and when he returned he was told that someone else had used his vehicle. Griffin, possibly conveniently, could not remember who used his vehicle or who told him it had been used.

Detective Bobko asked Griffin to provide proof of the vehicle's ownership, as well as personal identification for himself, such as his driver's license. Griffin complied with both requests. Detective Bobko told Griffin that he was not under arrest and advised him that he was free to leave. Griffin replied that he understood. The detective told Griffin that he and his partner had information that there might be narcotics in his Yukon. Detective Bobko asked Griffin if he thought that anyone could have put narcotics in his vehicle that day, to which Griffin responded "yes." Detective Bobko's next statement and question was, "If you think there might be drugs in your car and you have no involvement, would you allow us a look?" The detective explained that they could only search his vehicle with his consent and, if he refused to give consent, they would apply for a search warrant. Griffin responded that he did not want the officers to search the vehicle. Detective Bobko advised Griffin that he could leave, but based on what they knew, the officers were going to detain his vehicle long enough to get a police dog to do an external scent check.

The detective explained the police dog scent check procedure to Griffin and advised Griffin that if he wished, he was free to witness the procedure. Detective Bobko also explained that if the dog did alert and Griffin did not consent to a search of his vehicle, they would temporarily retain the vehicle and make an application for a search warrant. Griffin replied that he did not want to leave. However, a few minutes thereafter he changed his mind and departed, getting into a cab and leaving the scene without either retrieving his driver's license or the vehicle registration certificate from the police officers. The encounter between Detective Bobko and Griffin lasted about five minutes.

About twenty minutes later, the police search dog and his handler arrived and proceeded with the scent check. The dog went to the cargo door seam on the right side of the vehicle and gave a strong alert. The vehicle at this time was towed to police headquarters and placed in a police garage within fifteen minutes of the scent check. Detective Bobko obtained a search warrant within approximately six hours. He then searched the vehicle. The officers found a large, tan box in the middle of the rear cargo space which they had seen the Hispanic male place in Griffin's Yukon earlier in the day. Detective Bobko, armed with the search warrant, opened the box and found ten plastic wrapped compressed packages filled with what appeared to be cocaine, as well as a cardboard box with a small electronic digital gram scale. They also uncovered a briefcase on the floor of the front passenger side of Griffin's Yukon which contained a loaded .45 caliber semi-automatic pistol, a cellular phone, and two safety deposit box keys. While searching the briefcase, the officers discovered some personal property and financial documents reflecting Griffin's name.

Two days after his initial apprehension and the search of his vehicle, Griffin was arrested and charged with knowingly and intentionally possessing with intent to distribute 9,965 grams of a mixture containing cocaine with an approximated street value of $1,250,000, in violation of 21 U.S.C. § 841(a)(1). He entered a plea of not guilty and thereafter filed a motion with the court to suppress the cocaine and other items of evidence recovered in his vehicle, contending that the officers were without reasonable, articulable suspicion to detain him. The trial court denied the motion. After the filing of a jury waiver, the trial judge conducted a bench trial and found Griffin guilty of the crime charged and proceeded to sentence him to 168 months' imprisonment and five years' supervised release.

II. ANALYSIS

A. INVESTIGATORY STOP

Griffin asserts that Detective Bobko and the other officers were without reasonable, articulable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to detain him. On appeal, we review the trial court's legal determinations of reasonable suspicion de novo and factual questions for clear error. Ornelas v. United States, 517 U.S. 690, 699, 116...