U.S. v. Lewis
| Decision Date | 03 April 2019 |
| Docket Number | No. 17-3592,17-3592 |
| Citation | 920 F.3d 483 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arriba W. LEWIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Adam Ghrist, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff - Appellee.
Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant - Appellant.
Before Flaum, Ripple, and Manion, Circuit Judges.
Officer Sweeney pulled Arriba Lewis over for following too closely. Sweeney processed a warning while Lewis, who seemed unusually nervous, sat in the squad car. After learning Lewis was on federal supervised release for a cocaine conviction, Sweeney requested a drug-sniffing dog roughly 5 minutes into the stop.
About 10 minutes and 50 seconds after Lewis pulled over, Sweeney handed him a warning. About 10 seconds later, a drug-sniffing dog and its handler approached Lewis's car. The dog alerted. Sweeney searched Lewis's car and found heroin. Lewis was charged with possession with intent to distribute heroin. The district court denied his motion to suppress. He appeals, arguing the officer lacked lawful grounds to initiate the traffic stop and arguing the officer prolonged the stop without independent reasonable suspicion for the dog to sniff. But we disagree on both fronts, and affirm.
Officer Sweeney sat in an unmarked Ford SUV with an exterior spotlight in the median of Interstate 55 in McLean County, Illinois, watching traffic. He saw a man later identified as Arriba Lewis driving a Dodge Charger southbound in "a pack of vehicles traveling in close proximity to each other." He "was traveling right behind another vehicle in very close proximity," gripping the wheel at 10:00 and 2:00, and appearing to push himself behind the side pillar in a rigid posture.
Sweeney pursued Lewis. Sweeney testified he wanted "to see if I can observe a traffic violation and confirm [Lewis's] following distance which I initially saw." But first he passed Lewis to assist another officer. Sweeney's dashboard camera began recording after he passed Lewis because Sweeney triggered his emergency lights as he approached the other officer. Triggering these lights activated the dashcam, which was programed to capture footage beginning 1 minute earlier. After passing Lewis, Sweeney pulled over to the right shoulder behind the other officer. Video recorded by Sweeney's dashcam shows a truck followed by Lewis pass to the left of Sweeney. The other officer declined assistance, so Sweeney pulled out and accelerated. Several vehicles moved to the right lane to let him pass. He saw Lewis ahead in the left lane "at the preliminary stages of passing" a truck in the right lane. Then Lewis changed to the right lane behind the truck. As Lewis followed the truck, Sweeney calculated the time-distance. He activated a stopwatch function to record the time between the truck's rear passing a milepost and the Charger's front passing the same object. He clocked this at 1.2 seconds, meaning Lewis followed 1.2 seconds behind the truck according to this calculation. Lewis stayed close behind the truck for about 45 seconds despite the lack of traffic immediately behind him.
Sweeney pulled into the right lane. He testified he activated his emergency lights.1 He pulled Lewis over. Lewis stopped on the right shoulder, and Sweeney pulled behind him, at about 3 minutes, 41 seconds into the video. The video shows Lewis made a movement to his right inside his car seconds later. Sweeney walked to the Charger's passenger side and saw Lewis's hands trembling. At about 4 minutes into the video, Sweeney reached the front window.2 He made contact with Lewis and asked for his license. Sweeney said:
The reason I stopped you was your following-distance. You need to leave at least 3 seconds here in Illinois. You were less than 2 behind that semi. Ok. And that's why I originally pulled out on you back, way back there, too. You had another car you were following.3
Sweeney testified Lewis's hands trembled and his breathing seemed heavy and labored. Sweeney told Lewis he would just get a warning, not a ticket, and told him to sit in the squad car during preparation of the warning. After "hem-haw[ing]" and failing to exit his car expeditiously, when he finally began to exit he reached back in his car. Then he put his hands up as he walked. Sweeney said,
In the squad car, Sweeney typed information into a computer and talked with Lewis. The first step of completing the warning was ensuring, via computer, he had a valid license. Upon this check, the computer automatically showed he was on federal probation4 for a cocaine conviction. Sweeney testified the computer returned information based on the license within 1 minute of sitting in the squad car.
About 2 minutes after Lewis pulled over, Sweeney asked where he was headed. Lewis said he was going to pick his son up. Sweeney asked where. Lewis said, "School ... St. Louis." Sweeney asked how old the son was. Lewis said, "26." He explained his son wanted to return to Chicago. Sweeney asked where the son went to school. Lewis replied his son worked in a warehouse. Lewis added his son "got into it" with his girlfriend. This exchange lasted slightly less than a minute. Sweeney thought the story seemed suspiciously inconsistent.
About 3.5 minutes after Lewis pulled over, he asked about the 3-second guideline Sweeney mentioned:
About 5 minutes after Lewis pulled over, Sweeney asked him what he does for work, and he said he drove a truck. Roughly 5 minutes after first making contact with Lewis at his window, Sweeney requested a drug-sniffing dog via a messaging system. Lewis concedes Sweeney requested the dog after hearing Lewis's answers regarding his travel plans and after learning via computer he had a prior drug conviction for which he was on supervised release.
About 6 minutes after Lewis pulled over, Sweeney said something was taking a minute to update. Then he asked Lewis how long his son had been in St. Louis, how often Lewis visited, and whether Lewis drove a truck "over the road." Sweeney testified Lewis's breathing continued to appear labored in the squad car, even after hearing he would only get a warning. Nearly 8 minutes after Lewis pulled over, Sweeney said Illinois barred the air freshener hanging from Lewis's mirror because it obstructed the view. Sweeney asked Lewis what part of St. Louis he was going to. Sweeney testified Lewis never asked if he was free to go.
Sweeney then said, "in correlation with our safety detail today ... we do have a canine dog working with us." Sweeney asked if Lewis was responsible for everything in the car. About 10 minutes after Lewis pulled over, Sweeney said, About 20 seconds later, the dashcam records the sound of the warning printing. Then Sweeney asked if Lewis was on probation. He responded in the affirmative. Nearly 11 minutes after Lewis pulled over, Sweeney said, 5 Sweeney gave the warning to Lewis, explained it, and said, "So you're going to St. Louis though." At the word "though," at about 14 minutes, 41 seconds into the video (about 10 seconds after giving the written warning) a dog appeared on the video and approached the rear passenger side of Lewis's car. Lewis con-firmed he was going to St. Louis. Sweeney said that was out-side Illinois. They talked about Lewis's probation and prior incarceration while the dog circled his car.
About 12 minutes after Lewis pulled over (about 1 minute, 18 seconds after Sweeney gave the written warning to Lewis, and about 1 minute, 8 seconds after the dog sniff began) the handler told Sweeney the sniff was positive. Sweeney searched Lewis's car and quickly found 208 grams of heroin.
Lewis was charged with possession with intent to distribute heroin. The district court denied his motion to suppress. He entered a conditional guilty plea. A career offender at criminal history category VI, he received a sentence of 20 years incarceration. He appeals the denial of suppression, raising two main issues.
First, he challenges the traffic stop's initiation. Second, he challenges the sniff's initiation. "We employ a mixed standard of review on motions to suppress, re-viewing the district court's factual determinations for clear error and de novo its ultimate determination about whether the police had sufficient grounds to stop or search the individual." United States v. Rodriguez-Escalera , 884 F.3d 661, 667 (7th Cir. 2018) (internal quotation marks omitted).
1. Law
Lewis argues Sweeney did not have legal grounds to start the traffic stop. If Lewis is right, then the court should have suppressed the heroin as fruit of the poisonous tree. The Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const. amend. IV. Whenever police stop a vehicle, the stop must meet the Fourth Amendment's reasonableness requirement. Delaware v. Prouse , 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). If a search or seizure violates the Fourth Amendment, a court will generally exclude resulting evidence. United States v. Wilbourn , 799 F.3d 900, 910 (7th Cir. 2015).
The district court determined probable cause justified...
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