United States v. Sands

• Citation: 815 F.3d 1057
• Decision Date: 04 November 2015
• Docket Number: No. 14–3409.,14–3409.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ottriez SANDS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

815 F.3d 1057

UNITED STATES of America, Plaintiff–Appellee,

v.Ottriez SANDS, Defendant–Appellant.

No. 14–3409.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 2015.

Decided Nov. 4, 2015.

Barry Jonas, Assistant U.S. Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Ottriez Sands, Manchester, KY, pro se.

Robert K. Crowe, Attorney, Law Office of Robert K. Crowe, Evanston, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.

Defendant-appellant, Ottriez Sands ("Sands"), was found guilty by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Sands appeals the district court's order denying his motion to quash his arrest and suppress the evidence derived therefrom. He claims the search and seizure violated his Fourth Amendment rights. Sands also argues that the district court erred in prohibiting him from making a particular argument to the jury during closing argument. We agree with the district court's rulings and affirm its judgment.

I. BACKGROUND

In January 2012, Officer Perry Williams of the Chicago Police Department received information from a registered confidential informant that an individual whom the informant personally knew was selling narcotics out of a gold-colored car. On February 3, 2012, the informant told Officer Williams that the suspect was actively selling narcotics out of a gold-colored Toyota Camry with tinted windows in the area of 71st and Paxton. The informant gave Officer Williams the license plate number of the Camry and a physical description of the suspect.

Based on that information, Officer Williams drove to the area of 71st and Paxton and saw Sands seated in the driver's seat of a gold-colored Toyota Camry parked at 7102 South Paxton. Officer Williams parked his car about 30 feet away from the Camry on the south side of 71st Street and facing in the opposite direction of the Camry to conduct surveillance. From his position, Officer Williams turned around and looked over his shoulder to see the Camry and observe Sands.

While Officer Williams was conducting surveillance, Chicago Police Department Officers Kevin Kilroy, Matthew Darling, and Nathan Gadzik were nearby in a second vehicle. Their enforcement vehicle was parked in an area away from 71st and Paxton, out of sight of Sands's Camry. They were an enforcement team ready to perform an investigation or an arrest as needed by Officer Williams. The officers in the enforcement vehicle could not see Sands's Camry and were not conducting surveillance of it.

About fifteen minutes later, Officer Williams saw Sands engage in a hand-to-hand transaction through the driver's side window of the Camry with another individual, later identified by police as Katon Hunter. Based on his training and experience, Officer Williams believed the hand-to-hand transaction was a narcotics transaction. He informed the enforcement officers via radio that a narcotics transaction had occurred and ordered them to arrest Sands. After receiving this information from Officer Williams, Officer Kilroy drove the enforcement vehicle from its hidden location down Paxton, against one-way traffic, and parked the enforcement vehicle at an angle to, and approximately two or three feet from, the front bumper of the Camry. Officer Kilroy saw Sands sitting in the driver's seat of the Camry.

Officer Kilroy testified that he saw Katon Hunter get out of the Camry from the front passenger seat and run into the nearby Family Dollar store. Officer Darling testified that as they drove toward the Camry, he saw a person standing outside the passenger side of the Camry, who also went into the Family Dollar store.

All three officers left the enforcement vehicle; Officer Gadzik pursued Katon Hunter into the Family Dollar store, Officer Darling walked over to a red Monte Carlo parked in the area as a safety precaution, and Officer Kilroy approached the Camry. As he was walking towards the Camry, Officer Kilroy saw Sands through the Camry windshield holding a firearm in his right hand. He then saw Sands move the firearm to the open center console. Officer Kilroy drew his firearm and ordered Sands to get out of the Camry. Sands did not immediately comply, and Officer Kilroy had to open the car door and remove Sands from the vehicle. Officer Kilroy patted Sands down to ensure that he had no weapons and passed Sands to another officer at the scene.

Officer Kilroy entered the Camry to locate the firearm that he had seen Sands holding. When he opened the center console it appeared empty, but he located Sands's firearm, containing live ammunition, and 10 to 15 bags of marijuana under a false floor in the center console.

A grand jury returned an indictment charging Sands with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1). Prior to trial, Sands moved to quash his arrest and suppress evidence found in the Camry, arguing that both the search and seizure violated his Fourth Amendment rights. The district court denied Sands's motion.

The government moved in limine to preclude Sands from arguing to the jury that Katon Hunter was the one who placed the firearm into the center console of the Camry. After hearing the evidence presented during trial, the district court granted the government's motion. Although the district court precluded Sands from arguing to the jury that Katon Hunter was the one who placed the firearm in the center console, it allowed Sands to argue that the firearm was Katon Hunter's and not Sands. The case proceeded to the jury, which found Sands guilty.

II. DISCUSSION

A. Arrest and Search

We turn first to Sands's contention that the district court erred when it denied Sands's motion to quash his arrest and suppress evidence based on Fourth Amendment grounds. Sands argues that an arrest occurred at the moment when Officer Kilroy parked the enforcement vehicle in front of the Camry and that the arresting officer did not have probable cause at that time to arrest Sands. Sands further argues that Officer Kilroy's observations of Sands holding and placing the firearm into the center console of the Camry cannot be considered to support a probable cause determination, because those observations occurred after the impermissible seizure (the parking of the enforcement vehicle). Thus, Sands argues, those observations and the results of the search of the Camry should have been suppressed. We do not agree with Sands's contentions.

We review a district court's denial of a motion to suppress evidence under a dual standard: findings of fact are reviewed for clear error, while legal conclusions are reviewed de novo. United States v. Freeman, 691 F.3d 893, 899 (7th Cir.2012) (citation omitted). Credibility determinations made by the district court are clearly erroneous only if they are "completely without foundation." Id. (citation omitted). If the district court's factual findings are supported by the record, we will not substitute our judgment for that of the district court, nor disturb such findings. United States v. Packer, 15 F.3d 654, 656 (7th Cir.1994) ; United States v. Adebayo, 985 F.2d 1333, 1337 (7th Cir.1993).

In reviewing the factual findings in this case, we decline to disturb the district court's factual and credibility determinations. The district court observed the officers testify at the hearing on Sands's suppression motion and found them to be credible. Further, the district court's factual findings are amply supported by the record.

Preliminarily, we note that Sands has forfeited the discrete issue of whether an arrest occurred at the moment Officer Kilroy parked the enforcement vehicle in front of Sands's Camry. See, e.g., United States v. Kelly, 772 F.3d 1072, 1077–78 (7th Cir.2014) ; United States v. Murdock, 491 F.3d 694, 698 (7th Cir.2007).¹ Sands failed to raise this argument during his motion to suppress in the district court, and that forfeited the argument on appeal. Kelly, 772 F.3d at 1077–78. Because Sands has presented no good cause for the failure to preserve the argument for appeal, we are precluded from reviewing this discrete issue. Id.

Moreover, given the facts of this case, the parking of the enforcement vehicle without lights, siren, or guns drawn does not rise to the level of an arrest. See, e.g., United States v. Lechuga, 925 F.2d 1035, 1037, 1040–41 (7th Cir.1991) (two police vehicles "sandwiching" suspect's vehicle and forcing it to stop did not constitute arrest, and catalogue of police activity, including use of weapons, blocking in a vehicle, ordering suspect to lie on ground, use of handcuffs, not constituting arrest) (citations omitted). Further, an arrest occurs only once the suspect has submitted to law enforcement's show of authority. California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ; United States v. Griffin, 652 F.3d 793, 798 (7th Cir.2011). Here, Sands did not initially comply with Officer Kilroy's order to get out of the Camry. The seizure occurred when Officer Kilroy physically removed Sands from the Camry and had him physically detained.

Nevertheless, the issues of forfeiture and whether an arrest occurred at the time of the parking of the enforcement vehicle are obviated by the fact that we must still determine whether the search and arrest were supported by probable cause, as Sands challenges the district court's ruling on his motion to suppress evidence and quash the arrest. Because we continue with a de novo review of the legal issues, we purposefully address the issues of forfeiture and the parking of the enforcement vehicle only in passing in the interests of brevity.

A warrantless arrest is constitutionally permissible if supported by probable cause; probable cause for an arrest exists "if the totality of the facts and circumstances known to the officer at the time of the arrest would warrant a reasonable, prudent person in...