U.S. v. Moore

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Coffey
• Citation: U.S. v. Moore, 375 F.3d 580 (7th Cir. 2004)
• Decision Date: 12 July 2004
• Docket Number: No. 02-2802.,02-2802.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald G. MOORE, Defendant-Appellant.

375 F.3d 580

UNITED STATES of America, Plaintiff-Appellee, v. Donald G. MOORE, Defendant-Appellant.

No. 02-2802.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 2003.

Decided July 12, 2004.

Timothy A. Bass (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee.

David T. Ballard (argued), Barnes & Thornburg, Chicago, IL, for Defendant-Appellant.

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

Donald Moore pleaded guilty to one count of possession of cocaine base (crack) with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), after the district court denied his motion to suppress crack seized by Springfield, Illinois, police officers when they searched Moore during a traffic stop of a taxicab in which Moore was a passenger. The district court found that Moore consented to the search. Moore's guilty plea was conditioned on allowing him to appeal the district court's denial of his motion to suppress, and that appeal is before us now. We affirm.

I. Background

On February 24, 2000, Springfield Police Detective Steve Welsh and Officer Dave Baxter were conducting surveillance of arriving passengers at the Amtrak station in Springfield, in response to information that drug couriers were transporting narcotics intended for distribution in the Springfield area via Amtrak trains. From their vantage point in the train station's observation room, both officers noticed Moore as he got off one of the trains and moved quickly towards the station. The officers' interest in Moore piqued when he looked into the observation room, saw Baxter's police uniform (Welsh was dressed in plain clothes), and "got kind of a surprised look on his face." The officers decided to question Moore, but before they could reach him Moore left the station and got into the backseat of a taxicab van. Both officers followed the cab, Baxter in his squad car and Welsh in an unmarked car. Baxter pulled the cab over after he saw the driver make two lane changes without signaling. Welsh joined the traffic stop in his car, and both Baxter and Welsh then exited their vehicles and approached the cab.

Baxter walked over to the driver, Larry Antle, explained the reason for the stop and asked Antle for his license, registration, and proof of insurance. Meanwhile, Welsh walked around to the passenger's side of the taxi, opened the van's sliding door, identified himself as a detective with the Springfield police department, and asked Moore if he could ask him a couple of questions. Moore said "yes." Welsh first asked Moore if he was traveling from Chicago. Moore said he was not, and that he was returning from Bloomington, Illinois, where he had been visiting a friend. Moore further explained that he used to live in Chicago, but for the past year had lived in Springfield with a girlfriend on "Bluebird Court." Welsh next asked Moore for identification, which Moore could not produce — he said he had an Illinois identification card, but did not have it with him.

After obtaining Antle's documents, Baxter walked over to the passenger's side of the cab where Welsh continued to question Moore. Welsh had Baxter write down the identifying information Moore supplied (Baxter had a notepad, Welsh did not). Moore told the officers that his name was "Brian Smith," he was 27 years old, his birthdate was December 21, 1973 (which would make him 26 at the time, not 27), and that he lived at 1654 Bluebird Court in Chicago (recall that Moore earlier claimed that he was living on an identically-named street in Springfield with his girlfriend). Moore also supplied a partial social security number.

With both Antle's and Moore's information in hand, Baxter returned to his squad car to run background checks on both of the cab's occupants. Welsh remained with Moore and asked him if he had any contraband. Moore replied that he did not. By this time, Baxter's background check of Moore revealed that Moore had given the officers false information about his identity. Baxter relayed these results to Welsh, and Welsh asked Moore to step out of the van. Moore complied.

Welsh then asked Moore if he would consent to a search. Moore said he would, and (voluntarily) raised his hands up and placed them on the van. During the subsequent search, Welsh felt a hard, square object in the pocket of Moore's denim jacket (Moore was wearing the denim jacket under a leather jacket). Based on his training and experience, Welsh suspected that the object he felt in Moore's jacket was crack. Welsh removed the object, and Moore fled. Both officers chased after Moore and found him hiding in a bathroom stall at a nearby hotel. The object indeed turned out to be crack (11 grams worth), and the officers arrested Moore, but let Antle (the driver) leave with a verbal warning.

Moore was indicted on one count of possession with intent to distribute five or more grams of crack, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Moore initially pleaded not guilty and filed a motion to suppress the crack and any statements that he made during his arrest. Moore alleged: 1) that the officers exceeded the permissible scope of the traffic stop and illegally seized him when Baxter joined Welsh in questioning him instead of expeditiously completing the purpose of the traffic stop; and 2) that Welsh's search of his inner jacket pocket exceeded the scope of his consent to a "pat-down" search and was thus an illegal search that could not be justified by the "plain feel" doctrine. The government responded, and argued that Moore validly consented both to Welsh's initial questioning of him and to Welsh's subsequent search of his clothing, and that Moore gave the officers reasonable suspicion to detain him when he gave them false information about his identity.

The court referred Moore's motion to a magistrate judge, who recommended that the motion be denied after finding that: 1) the traffic stop was based on probable cause; 2) Baxter did not exceed the scope of the stop when he assisted Welsh in obtaining Moore's identifying information; 3) Moore consented both to Welsh's questioning and his subsequent search of Moore's clothing; and 4) Welsh's search would have been proper under the "plain feel" doctrine. The district court adopted the magistrate's report and recommendation in toto, and accordingly denied Moore's motion. Moore then changed his plea to guilty, but reserved his right to appeal the court's denial of his motion to suppress.

II. Issues

On appeal, Moore argues that the court erred in denying his motion to suppress because: 1) the officers exceeded the permissible scope of the traffic stop when they questioned him regarding matters unrelated to the purpose of the stop, thus constituting an illegal seizure; and 2) Welsh exceeded the scope of Moore's consent to a "pat-down" search when he reached inside Moore's inner jacket pocket.

III. Analysis

A. The Officers' Questioning of Moore

We first address Moore's argument that the officers exceeded the permissible scope of the traffic stop when they questioned him regarding matters unrelated to the purpose of the stop (and thus illegally seized him). As a preliminary matter, we note (and Moore does not dispute) that the officers had probable cause to stop the cab Moore was riding in when they observed its driver make two lane changes without signaling, violations of 625 ILCS 5/11-804. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (police may stop a vehicle when they have "probable cause to believe that a traffic violation has occurred"). Once the officers (legally) stopped the cab, Moore, as a passenger in the vehicle, became subject to the officers' custody and control "until their safety could be assured."¹ United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). And, incident to his status as a passenger of a vehicle involved in a traffic stop, Moore could be questioned by the officers without their questions being deemed a "seizure" for Fourth Amendment purposes (and thus perhaps requiring reasonable suspicion or probable cause to justify the questions being asked at all). Childs, 277 F.3d at 951; see also United States v. Thompson, 106 F.3d 794, 798 (7th Cir. 1997); United States v. Finke, 85 F.3d 1275, 1280-81 (7th Cir.1996); United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir.1993); United States v. Rivera, 906 F.2d 319, 322 (7th Cir.1990); United States v. Holt, 264 F.3d 1215, 1220-21 (10th Cir. 2001); United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993). Thus, clearly, Moore was not illegally seized when Welsh approached the passenger's side door of the cab and asked Moore if he would be willing to answer some questions.

There remains, however, the question of whether the officers' questioning of Moore, reasonable at its inception, nonetheless became unreasonable (and therefore requiring Fourth Amendment scrutiny) because the progressive questioning exceeded the "duration" or "scope" of the stop. Cf. Childs, 277 F.3d at 955-61 (Cudahy, J., concurring) (agreeing with the result on other grounds, but arguing that both "duration" and "scope" of questioning should be considered regardless of impetus for stop). But cf. id. at 952-53 (determining that an inquiry into the "duration" and "scope" of questioning not necessary when there was probable cause to arrest passenger for seatbelt violation before questioning started). But we need not address this question (or further parse out the rationale of Childs), for here Moore consented to answer further questions from Welsh,² and it is well settled that a consensual encounter between an individual and a law enforcement official does not trigger Fourth Amendment scrutiny, see United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, ...