United States v. Freeman

• Decision Date: 21 August 2012
• Docket Number: No. 11–2658.,11–2658.
• Citation: 691 F.3d 893
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tyron D. FREEMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

691 F.3d 893

UNITED STATES of America, Plaintiff–Appellee,

v.Tyron D. FREEMAN, Defendant–Appellant.

No. 11–2658.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2012.

Decided Aug. 21, 2012.

Jason M. Bohm, Joseph H. Hartzler (argued), Attorneys, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Anthony J. Masciopinto (argued), Attorney, Kulwin, Masciopinto & Kulwin, Chicago, IL, for Defendant–Appellant.

Before ROVNER, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge.

Tyron Freeman and Brent Garner were caught in a sting operation set up by narcotics officers in Springfield, Illinois, using a couple of known drug associates working as cooperating informants. Freeman and Garner showed up at the appointed time and place for the undercover drug transaction in a minivan matching the description given by one of the informants. They remained at the scene for only a few minutes, however. As they drove away, the police initiated a traffic stop. A search of the two men and the van did not turn up any drugs, but the police arrested them anyway. When Freeman was booked into the jail, he was strip-searched and found with a bag of crack cocaine concealed between his buttocks. He was convicted by a jury of possession of crack cocaine with intent to distribute and sentenced as a career drug offender to 30 years in prison.

On appeal Freeman challenges his arrest and the strip search at the jail, and also argues that his 30–year sentence is unreasonable. We reject these arguments and affirm. The police had credible information about Freeman's drug-trafficking habits from the cooperating informants, and his activities just prior to his arrest coincided perfectly with the details of the undercover operation, thus supplying probable cause to arrest despite the fact that no drugs were found in the search during the stop. And based on his criminal history, the specific grounds for his arrest, and his uncomfortable fidgeting in his seat while awaiting booking, there was adequate justification for a strip search before admitting him to the jail. Finally, Freeman's sentence, though lengthy, was at the bottom of the properly calculated guidelines range, and he has not given us any good reason to find it unreasonable.

I. Background

In May 2008 a confidential informant told Springfield Police Officer Tammy Baehr about two drug dealers—“Big D” and “Worm”—who drove around town in a silver minivan. The informant said he had traveled to Chicago with Big D on four occasions and that Big D had a habit of concealing drugs between his buttocks when he thought he might be stopped by police. The informant also said Big D was a diabetic and had recently been in the hospital because “[h]is leg was rotting off.” Further investigation identified “Big D” as Tyron Freeman and “Worm” as Brent Garner.

Two months later, Springfield police arrested Terance Carter, another area drug dealer. In an attempt to obtain leniency, Carter offered to help the police with undercover transactions targeting other drug dealers, including one he knew only as “Banks.” On July 24, 2008, at the direction of Officer James Cordery, Carter called Banks to arrange a drug purchase. A man with a raspy voice answered. (Carter later told Officer Cordery that he thought Banks was trying to disguise his voice because he did not normally talk that way.) Carter asked to buy six “eightballs”—six 3.5–gram quantities of crack cocaine—and suggested that they meet at a local liquor store to complete the transaction. The man with the raspy voice agreed, but the sale did not occur as planned because the seller did not show up at the meeting place.

Four days later, on July 28, 2008, Carter called Banks again and asked to purchase the same amount of crack. The raspy-voiced man answered, and this time he suggested that they rendezvous at the Sav–A–Lot store. Carter agreed. Officer Baehr and a DEA agent set up surveillance outside the store. The parking lot was relatively empty, with only about five unoccupied cars. Twenty minutes after the first call, under the direction of Officer Cordery and DEA agents, Carter redialed Banks's phone and claimed to be waiting inside the store. The raspy-voiced man answered and said he would be there in two minutes.

Officer Baehr soon noticed a silver minivan pull into the lot and park near the store's door. She could see two black occupants in the van, one behind the wheel and the other sitting in the front passenger seat. The two occupants did not get out of the van. At Officer Cordery's direction, Carter called Banks's number again. The raspy-voiced man answered and said he was by the door. The silver minivan idled in front of the entrance for a few more minutes and then abruptly pulled out of the lot. Neither occupant had stepped out of the van.

Officer Baehr instructed uniformed officers on her surveillance team to follow and conduct a traffic stop. As the van drove away from the Sav–A–Lot, the driver failed to signal a turn. Officer John Shea initiated a stop about two blocks from the store. When Officer Baehr arrived at the scene, she heard the passenger—identified as Freeman—speaking with a “real raspy” voice. Another officer described Freeman's voice as “very rough and coarse, gravelly almost.” The driver—identified as Garner—spoke with a normal voice. Freeman had a walking cast on his leg.

The officers searched Freeman and Garner but found no drugs. A canine unit arrived, and the dog alerted when it circled the van. The officers then searched the van but again found no drugs. Carter, still with Officer Cordery and the DEA agents, was told to redial the number he had just used to set up the sting. He did so, and the call came through to a cell phone located in the armrest on the passenger-side door of the van, where Freeman had been sitting.

At this point the police officers had still not located any drugs, so Officer Baehr called a state prosecutor to discuss what to do. The prosecutor told her to arrest both men for attempted cocaine distribution. The officers placed Freeman and Garner under arrest and took them to the police station, and from there to the jail one block away. At the station one of the officers noticed that Freeman was visibly uncomfortable while seated; he “kept fidgeting and changing positions in the seat, back and forth from side to side.” During the booking process at the jail, Freeman was strip-searched and found to be concealing a bag containing 31.8 grams of crack cocaine between his buttocks.

Freeman was charged with possession with intent to distribute 28 or more grams of crack cocaine. See21 U.S.C. § 841(a)(1) & (b)(1)(B). The government later served notice that it would seek an enhanced sentence under 21 U.S.C. § 851 based on Freeman's prior drug offenses. Freeman moved to suppress the crack-cocaine evidence, arguing first that the police lacked probable cause to arrest, and second, that they lacked reasonable suspicion to conduct the strip search. The motion was heard by a magistrate judge, who credited the officers' testimony recounting the facts we have just described. Freeman did not testify. The magistrate judge concluded that both the arrest and the strip search were justified. He explained that at the time Freeman was arrested, the “officers had overheard the six phone calls placed by Carter, which ... clearly attempt to set up a drug transaction.” They had also observed the silver van and its occupants engage in behavior uniquely consistent with the planned drug sale. And once the officers stopped the van for traffic violations, they noticed that Freeman had a raspy voice, just like the man Carter had called to arrange the sale.

The magistrate judge further concluded that even if the foregoing facts “did not rise to the level of probable cause,” the information known to the officers “quickly blossomed to that level as the stop progressed.” By the time the officers arrested Freeman, they had two additional pieces of information: (1) the drug dog had alerted on the van; and (2) when Carter redialed the number he had been using to set up the sting, the call came through to a phone located on the front-passenger side of the van. The judge held that these facts, considered together, established probable cause to arrest Freeman for attempted distribution of cocaine.

With respect to the strip search at the jail, the magistrate judge explained that circuit precedent allows warrantless strip searches of pretrial detainees if jail officials have reasonable suspicion at the time of the search that the individual might be concealing contraband. See Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th Cir.1995). The judge concluded that in Freeman's case, there were many grounds for suspicion, including strong evidence connecting him to a narcotics-trafficking offense, the inability of the officers to find drugs at the scene of the stop, his known history of concealing drugs between his buttocks, and his obvious discomfort and suspicious fidgeting while seated at the police station.

The district court adopted the magistrate judge's recommendation and denied Freeman's motion to suppress. A jury found Freeman guilty, and at sentencing the district court classified Freeman as a career drug offender based on convictions in 1999 and 2005 for distributing narcotics. SeeU.S.S.G. § 4B1.1(b). With an offense level of 37 and a criminal history category of VI, Freeman's advisory guidelines range was 360 months to life with a mandatory minimum sentence of ten years. Freeman argued for a below-guidelines sentence primarily because his 2005 conviction involved less than one gram of cocaine. The judge rejected this argument, noting that this was Freeman's fifth drug-related conviction and third drug-trafficking crime:

In 1993, at the age of 17, the defendant was first convicted of possessing cocaine. Since then he has been convicted multiple times for serious drug offenses.

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