United States v. Bentley, 13–2995.

• Decision Date: 28 July 2015
• Docket Number: No. 13–2995.,13–2995.
• Citation: 795 F.3d 630
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry BENTLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

795 F.3d 630

UNITED STATES of America, Plaintiff–Appellee

v.Larry BENTLEY, Defendant–Appellant.

No. 13–2995.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 2014.

Decided July 28, 2015.

Rehearing En Banc Denied Sept. 24, 2015.

John Michael Pellettieri, Department of Justice, Washington, DC, Greggory R. Walters, Office of the United States Attorney, Peoria, IL, for Plaintiff–Appellee.

Beau B. Brindley, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and FLAUM and MANION, Circuit Judges.

Opinion

WOOD, Chief Judge.

A great many police departments rely on trained dogs to detect hidden drugs (or other substances, including explosives, blood, and human remains). Nagging questions remain, however, about the accuracy of the dog's performance, especially when a dog's alert provides the sole basis for a finding of probable cause to search or arrest someone.

In Larry Bentley's case, a police officer initiated a traffic stop after observing Bentley's vehicle cross into another lane on an Illinois highway without signaling. After stopping Bentley, the officer decided to call for a drug-detection dog named Lex. Once on the scene, Lex alerted, and the officers found close to 15 kilograms of cocaine in the vehicle.

But what if Lex alerts every time he is called upon? The fact that drugs are (or are not) found would have nothing to do with his behavior. That, in essence, is what Bentley is arguing here. The evidence Bentley was able to gather suggests that Lex is lucky the Canine Training Institute doesn't calculate class rank. If it did, Lex would have been at the bottom of his class. Nevertheless, in light of the Supreme Court's decision in Florida v. Harris, ––– U.S. ––––, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013), which addressed the use of drug-detection dogs, we conclude that the district judge did not err when he decided that Lex's alert, along with the other evidence relating to the stop, was sufficient to support probable cause. Bentley's other two challenges based on the traffic stop and his alleged lack of knowledge of the cocaine in the vehicle also fail. We thus affirm his conviction.

I

On October 14, 2010, Aaron Veerman, an officer with the Bloomington (Illinois) Police Department, ran a license check on a Chrysler Pacifica he observed at a Circle K convenience store. Veerman learned that the car was registered to Tonya Smith of Kankakee, Illinois, but that Smith's driver's license had expired 18 years earlier. Officer Veerman followed the car onto I–55 and stayed with it until the driver committed a lane violation. At that point, he signaled for the car to pull over. When it did, he learned that Tonya Smith was not driving the car; Larry Bentley was. Veerman explained to Bentley that he had seen the car commit lane violations and wanted to make sure he was all right. Bentley first informed Veerman that he was driving from Chicago to his home in St. Louis and that Smith was his girlfriend. He then fumbled, said that Smith lived with him in St. Louis, and then changed his story again and said that she actually lived in Kankakee, but often stayed with him in Missouri. Bentley handed over a valid driver's license and some documents (including proof of insurance) from the glove compartment. Another officer, Nikolai Jones, arrived during this exchange and with a flashlight observed a spare tire in the back seat of the car. The two officers spoke and then radioed for a drug-detection dog.

Officer Justin Shively responded and brought Lex, a trained drug dog, to the scene. Bentley agreed to get out of the car and to allow the officers to search him while Lex was sniffing. The officers found $1,699 in cash in Bentley's pockets—far more than the “couple hundred” to which Bentley had admitted. The officers also found a cell phone, nine money orders for a total of $5,600, and a wallet that contained three more money orders adding up to $900. Meanwhile, Lex alerted to drugs in the car. Sure enough, officers found nearly 15 kilograms of cocaine in a trap compartment.

Bentley was later charged by a federal grand jury with possession with intent to distribute more than five kilograms of cocaine. 21 U.S.C. § 841(a)(1). After an evidentiary hearing, the district court denied Bentley's motion to suppress. It found that Officer Veerman had both probable cause and reasonable suspicion to stop Bentley, because even though the officer did not see who the driver was, the officer knew that the owner of the vehicle did not have a valid license and the officer observed a lane violation. The court also found that Lex was reliable enough as a drug-detection dog to establish probable cause. At the conclusion of the trial, the jury convicted Bentley. The district court denied Bentley's Rule 29 motion for a judgment of acquittal and sentenced him to 240 months, followed by 10 years of supervised release. This timely appeal followed.

II

Bentley offers three challenges to his conviction. He begins with the contention that the officer did not have reasonable suspicion to make the initial stop. Even if the stop survives scrutiny, he argues next that Lex's alert was not sufficiently reliable to support probable cause. Finally, he maintains that even if the stop and search were valid, the government failed to present sufficient evidence to establish his guilt beyond a reasonable doubt. We address his challenges in that order.

A

When a criminal defendant appeals the district court's denial of a motion to suppress, we review both legal conclusions and mixed questions of law and fact de novo. United States v. Henderson, 748 F.3d 788, 790 (7th Cir.2014). Vehicle stops are analyzed using the Fourth Amendment's reasonableness standard. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). We have recognized that it is a mistake to treat “all traffic stops identically.” United States v. Childs, 277 F.3d 947, 952 (7th Cir.2002) (en banc). Instead, we distinguish between stops based on reasonable suspicion and those based on probable cause. The latter are not subject to the scope and duration restrictions of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Childs, 277 F.3d at 952–53. While Bentley argues that the initial traffic stop was not justified by either probable cause or even a reasonable suspicion, he does not challenge the duration of the stop. As a result, we need consider only whether, under the totality of the circumstances, an officer would have had reasonable suspicion that Bentley had committed a lane violation.

Officer Veerman pulled Bentley over for violating 625 ILCS 5/11–709(a). That provision reads, “Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic ... (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” To establish probable cause for a violation of Section 11–709(a) (a petty offense under Illinois law, see 625 ILCS 5/16–104 ), “the officer must point to facts which support a reasonable belief that the defendant has deviated from his established lane of travel and that it was ‘practicable’ for him to have remained constant in his proper lane.” People v. Hackett, 361 Ill.Dec. 536, 971 N.E.2d 1058, 1066 (Ill.2012). Veerman testified that Bentley's car committed two lane violations, once on the curved on-ramp and later when he crossed the line dividing a new lane caused by another on-ramp. According to Bentley, both occurred on a curve in the road during or immediately after he merged onto the interstate highway.

The video the government offered at the suppression hearing supported Officer Veerman's testimony. It is hard to see from the video when Bentley's car supposedly crossed the line the first time, because there is a car between Officer Veerman's squad car and Bentley's. The video leaves no doubt, however, about the second infraction: it unmistakably captures Bentley's car crossing the fog line. That evidence, coupled with Veerman's testimony, is enough to support probable cause for the traffic stop. See, e.g., United States v. Hernandez–Rivas, 513 F.3d 753, 759 (7th Cir.2008) (“We have held improper lane usage is a legitimate reason for an investigatory stop.”). In the video, one can hear Officer Veerman say to Bentley, “The reason I'm stopping you is you drifted over into the side of the road a couple of times. You passed over the white line here. I'm just making sure you're all right.”

Bentley insists that the video is not so clear and thus does not reveal any violation of the traffic laws. He maintains that the wheels of his car only briefly touched the fog line, maybe crossing it momentarily, while he was driving in the dark and merging onto an interstate highway with faster vehicles passing him. But, especially for probable cause determinations, there is no rule excusing momentary slips. Hackett, 361 Ill.Dec. 536, 971 N.E.2d at 1065–66 ; see also People v. Geier, 407 Ill.App.3d 553, 348 Ill.Dec. 552, 944 N.E.2d 793, 799 (2011). Bentley is right that a car was starting to pass his, but the other car was not moving in such a way that would suggest Bentley was driving in adverse conditions and was unable safely to stay in his lane.

Alternatively, Bentley demands that this court interpret the term “practicable” in the statute as ambiguous and resolve the ambiguity in his favor. See City of Chi. v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). The problem with this argument is that there were no extenuating circumstances that made it difficult for Bentley to stay in his lane. His case is thus not like others in which courts have found extenuating circumstances. See United States v. Freeman, 209 F.3d 464, 466 (6th Cir.2000) (no probable cause to stop a large motor home crossing into an emergency lane once); United States v. Gregory, 79 F.3d...