U.S. v. Norris
| Decision Date | 05 May 2011 |
| Docket Number | No. 10–1612.,10–1612. |
| Citation | 640 F.3d 295 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.John L. NORRIS, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Matthew J. Rinka (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.Karen L. Blouin (argued), Rathje & Woodward, Wheaton, IL, for Defendant–Appellant.Before RIPPLE, EVANS and SYKES, Circuit Judges.RIPPLE, Circuit Judge.
John L. Norris was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). He initially pleaded not guilty to the charge, but, after his motion to suppress evidence was denied, he entered a conditional plea of guilty. Mr. Norris now appeals the district court's ruling on his motion to suppress. Because the officers were acting pursuant to a valid warrant and in a reasonable manner, we affirm the judgment of the district court.
On October 23, 2007, Officer Dale Young of the Indianapolis Metropolitan Police Department sought a search warrant for the home of Mr. Norris at 2826 West 10th Street, Indianapolis, Indiana. The warrant was supported by Officer Young's affidavit, which described a series of drug-related activities involving Mr. Norris and taking place at or near his residence. The affidavit recited that a reliable confidential informant had been to Mr. Norris's residence two times in the week prior to October 23; during those visits, the confidential informant both had seen cocaine in Mr. Norris's possession and had been told by Mr. Norris that he had cocaine for sale. Approximately six weeks before October 23, another reliable confidential informant had carried out a controlled purchase of cocaine from Mr. Norris. Officer Young further stated in his affidavit that he personally had conducted surveillance near Mr. Norris's residence during the week prior to October 23 and had observed the following:
I have observed B/M Johnny Norris, approximately 45 years old, 200lbs. at the residence and interacting through car windows with the occupants and walk up pedestrians in a manner consistent with narcotics trafficking. Specifically, very short conversations, hand to hand exchanges of objects, and constant attempts to observe all directions as these exchanges occur. Other people acting as lookouts for 2826 W. 10th St. were walking the area attempting to detect police activit[i]es.
R.24, Ex. 1 at 2. A Marion County Superior Court judge signed the warrant. The warrant authorized the search of the residence at 2826 West 10th Street and “the person of a B/M Johnny Norris” for cocaine and other evidence “indicat [ing] a violation or a conspiracy to violate the Indiana Controlled Substances Act.” Id.
On October 25, a group of ten police officers, including Officer Young, went to the 10th Street residence to execute the warrant. When the officers arrived at the location, Mr. Norris was walking away from his back door. He proceeded down the steps, which were outside the fence that enclosed his backyard and led to the public sidewalk, where two of Mr. Norris's acquaintances were waiting. Mr. Norris never reached the public sidewalk, but instead stopped at the last step leading to the sidewalk. At that point, the police exited the van. 1
It is unclear whether Mr. Norris saw the police first or whether he was alerted to their presence by his female acquaintance, who said, “Police,” when she saw the officers approaching. Regardless of the method by which Mr. Norris learned of the officers' approach, Mr. Norris turned away from the officers, hunched over and placed his hands in front of him near his pockets. As Mr. Norris was beginning to walk back up the steps, the police ordered him to stop; he did not comply. Instead, Mr. Norris proceeded up two steps and threw a crumpled paper bag into the air; the bag landed on the sidewalk.2 After throwing the bag, Mr. Norris returned his hands to his front waistband area, out of view of the officers. The police again instructed Mr. Norris to stop and to show his hands; when Mr. Norris failed to do so, Officer Young used his taser.
When the taser stopped cycling, Mr. Norris rolled onto his side. He yelled, “Police, police,” and attempted to grab the leg of one of the officers who was going past him to enter the house. As Mr. Norris reached for the officer, Officer Young observed a small, silver Derringer pistol on the ground under Mr. Norris.
Mr. Norris was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). Mr. Norris filed a motion to suppress evidence and a request for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Although the motion maintained that the warrant was “stale” at the time of its execution and was insufficient on its face, the bulk of Mr. Norris's submission was devoted to the argument that “Officer Young intentionally, or with reckless disregard for the truth, included false information and omitted material facts in the affidavit, and that said false information and omitted material facts affected the probable cause determination.” R.24 at 3–4.
The district court held a hearing, during which both Officer Young and Mr. Norris testified. At the conclusion of the hearing, the court issued an oral ruling denying the motion. The district court found that, when the police arrived at the residence to execute the search warrant, Mr. Norris was “well outside the house, apparently leaving the house, ... [and] carrying a bag small enough to be held in one hand in a somewhat crumpled fashion.” R.40 at 116. Mr. Norris was heading toward a man and a woman, both standing on the public sidewalk. At that point, the woman recognized the police, and the police ordered everyone “to stop so that the situation could be brought under control.” Id. at 117.
Although the police were present to execute the warrant, the court determined that “[o]ther facts justified the police encounter to stop and make an investigatory inquiry of the defendant.” Id. Specifically, Officer Young knew that “the defendant was a prior convicted drug dealer, that he had recently been engaged in drug activity based on the information of confidential informants and had conducted himself in such a way that was visible to [Officer] Young when [Officer] Young was maintaining surveillance.” Id. According to the court:
That suggested that he was conducting drug activity on the side street to his residence as people would come and go. In fact, the defendant himself testified that was his activity. He said he did it in conjunction with paying off people who helped him, but maybe that was just part of it, because [Officer] Young said that he was conducting himself in such a way that based on his experience and expertise, it clearly suggested that the drug activity was going on between the defendant and passersby on foot and in the cars.
So [Officer] Young had this information when he confronted the defendant.
Id. at 117–18. The district court then went on to describe how Mr. Norris, when asked to stop, did not do so (as his confederates apparently did), but turned his back to the police and placed his hands where the police could not see them. After discarding the bag, Mr. Norris ignored another order by the police to stop and show his hands. Officer Young then employed his taser. The court expressed the belief that “the taser was a permissible step.” Id. at 119. Furthermore, the court determined that the discovery of the gun was caused by Mr. Norris's “crumpl[ing] under the effects of the taser.” Id. at 120.
The district court then turned to Mr. Norris's legal arguments:
[T]he defendant's legal theory has moved around a little bit here in terms of asserting a constitutional violation. Clearly started out as an allegation that the search warrant was false and was intentionally false on the basis of which legal permission was obtained to enter the premises. There is no evidence of that.
....
The real issue here is whether the Terry stop that occurred comported with the appropriate legal standards for such an encounter, and the Court finds that those standards have been complied with and that there is no constitutional violation, nor is there any violation of controlling precedent from the Seventh Circuit.
After his motion to suppress was denied, Mr. Norris entered a conditional plea of guilty. Following his sentencing, he timely appealed his conviction.
Mr. Norris does not directly attack the district court's determination that, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police had reasonable suspicion to stop him on October 25, 2007.3 Instead, Mr. Norris maintains that, when the police seized him and his weapon, 4 he was within the curtilage of his home. Mr. Norris further contends that the curtilage to one's home is treated as part of the residence for Fourth Amendment purposes. Because reasonable suspicion is not a sufficient basis for the police to invade a person's home, reasonable suspicion also cannot justify the police's seizure of his person, and weapon, within the curtilage of his home.
The Government argues in response that Mr. Norris was outside the curtilage of his home when the officers stopped him. Moreover, the Government continues, the court need not reach the issue of curtilage because, when the police stopped Mr. Norris, they were executing a valid warrant for the search of Mr. Norris's person and residence.5
Because we agree with the Government that the officers were acting pursuant to a valid warrant and in a reasonable manner, we do not need to address the question whether Mr. Norris was within the curtilage of his property when the seizure of his person occurred.
Before the district court, Mr. Norris claimed that the affidavit...
To continue reading
Request your trial
-
Thompson v. Vill. of Monee
...and, perhaps, to fortify himself or to escape before the officer employs reasonable means of incapacitation); cf. United States v. Norris, 640 F.3d 295, 303 (7th Cir.2011) (holding that an officer's single use of a taser was reasonable where used to subdue an arrestee who had failed to acce......
-
Abbott v. Sangamon Cnty.
...because plaintiff was kicking and flailing and continuing assaultive behavior as defendant was arresting her); United States v. Norris, 640 F.3d 295, 303 (7th Cir.2011) (use of taser on defendant was reasonable where defendant had “displayed an unwillingness to accede to reasonable police c......
-
Caldwell v. Klemz
...for officer who Tased a non-compliant suspect three times in an attempt to avoid a greater physical altercation); U.S. v. Norris, 640 F.3d 295, 303 (7th Cir. 2011) (officer's use of Taser to subdue a suspect was reasonable because the suspect had shown an "unwillingness to accede to reasona......
-
Pavey v. Conley
...by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”); United States v. Norris, 640 F.3d 295, 297 n. 1 (7th Cir.2011) (explaining that a credibility determination may be disturbed only if “completely without foundation”). Pavey's remainin......