United States v. Stewart

• Decision Date: 05 September 2018
• Docket Number: No. 16-4105,16-4105
• Citation: 902 F.3d 664
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

902 F.3d 664

UNITED STATES of America, Plaintiff-Appellee,

v.Daniel STEWART, Defendant-Appellant.

No. 16-4105

United States Court of Appeals, Seventh Circuit.

ARGUED MARCH 30, 2018

DECIDED SEPTEMBER 5, 2018

Rehearing En Banc Denied October 26, 2018

Michelle P. Brady, Attorney, Office of the United States Attorney, Indianapolis, for Plaintiff–Appellee.

Barry Levenstam, Attorney, Daniel Thomas Fenske, Attorney, Nathaniel Kenneth Wackman, Attorney, Jenner & Block LLP, Chicago, for Defendant–Appellant.

Before Easterbrook and Rovner, Circuit Judges, and Gilbert, District Judge.^*

Rovner, Circuit Judge.

Daniel Stewart was convicted of drug trafficking, firearms offenses, and money laundering, primarily based on evidence gathered as a result of a traffic stop and a subsequent confession. We affirm the district court's denial of Stewart's motion to suppress the traffic stop evidence and the confession, and we reject Stewart's additional claims on appeal.

I.

On January 20, 2015, Detectives Jeff Sequin and Ryan VanOeveren were surveilling the home of Daniel Stewart. Stewart was not the main focus of their investigation. For months, Indianapolis police had been trying to gather evidence about a large-scale cocaine supplier ultimately identified as Geraldo Colon. In May 2014, with the assistance of the federal Drug Enforcement Agency, they arrested three Arizona-based couriers who were bringing drugs into Indianapolis. One of those couriers, Juan Lizarraga, began cooperating with the investigators and provided information that led the officers to a major customer of Colon. Lizarraga did not know the customer by name but he knew the apartment complex where the customer lived, and he had seen Colon deliver drugs to the customer at that apartment complex and also at Colon's furniture store. Lizarraga offered the officers a general physical description of the customer.

Over a period of several months, officers surveilled Colon's furniture store. During that time, they twice observed Stewart visit the store, once on October 23, 2014, and once on December 16, 2014. On each occasion, Stewart stayed only a short time and made no purchase. Through further investigation, the officers identified Stewart and learned that he lived in the apartment complex pointed out by Lizarraga. Stewart had a criminal record that included felony drug offenses. In early January 2015, believing that Stewart was the customer identified by Lizarraga, they began to surveil Stewart in an attempt to connect him to Colon's drug trafficking.

In the early evening of January 20, 2015, Detectives VanOeveren and Sequin followed Stewart's white Volkswagen from his apartment complex to a Shell gas station. After Stewart pulled up to a pump, another man exited a grey car that was parked at the station, and walked over to the passenger side of Stewart's car. The man got into Stewart's car and closed the door. A few minutes later, the man exited Stewart's car and immediately left the station in the grey car. Stewart then got out of his Volkswagen and pumped gas. Although they could not see through Stewart's tinted windows from their vantage point some eighty yards away, based on their many years of experience investigating drug crimes, VanOeveren and Sequin believed that they had just witnessed a drug sale at the gas station.

They decided to watch Stewart's car for traffic violations and to attempt a traffic stop. Because they were in plain clothes and unmarked cars, they called Detective Brady Ball to the scene in his squad car. Detective Ball specialized in drug interdiction stops, and he traveled with Josie, a dog who had been trained to detect the scent of illegal drugs. Detective Ball testified that he arrived in the area in time to see Stewart fail to stop at a red light when he made a right turn, the same violation observed by the other detectives.¹ Detective Ball activated his lights and Stewart pulled over in the parking lot of a Speedway gas station.

Detective Ball recorded the audio of his encounter with Stewart and so the trial court had a detailed, time-indexed account of everything that was said during the stop.² At the suppression hearing, Detective Ball supplemented this recording with his personal observations and recollection. Detective Ball explained to Stewart the reason for the stop and asked for routine information such as license and registration. Stewart seemed unusually nervous, fidgeting with his wallet and taking several deep breaths as he complied with Ball's requests. Because the car was registered to a business named "Eleete Image, Inc." and because Stewart's address was different from that on the registration, Ball asked for clarification. Ball also asked questions related to officer safety such as whether Stewart had any guns or knives in the car or on his person. Stewart denied having any weapons. Ball asked Stewart to exit the car and sit on the bumper. He noted that Stewart's tinted windows were "borderline" illegal and asked if Stewart had ever been arrested. Stewart responded that he had been arrested on drug charges "a long time ago." Ball asked for consent to search the car and Stewart declined. Ball noticed a bulge in Stewart's pocket and asked him what it was. Stewart replied that it was $700 in cash. Ball then returned to his squad car to run the license and registration information as well as a check for outstanding warrants. Seconds later, Ball was back out of his car, again asking Stewart to sit on the bumper. Five minutes had elapsed at this point in the stop.

Moments after returning to the squad car, Ball radioed a request for backup. He explained that he was on an interdiction stop and wanted to run his dog around the car. He requested that officers arrive as quickly as possible. It appears from the audio recording that Ball continued to work on the traffic violation as he waited for a response to his request for backup, but an estimate of the time attributed to calling for backup would be at most seventy-five seconds.³

As he waited for backup to arrive, Detective Ball continued the process of checking the license and registration, running a check for outstanding warrants, and beginning to write the ticket. Approximately thirteen minutes into the stop, while Detective Ball was still completing tasks related to writing the ticket, the backup officers arrived. For approximately forty-five seconds, Detective Ball spoke to the backup officers, explaining to one officer how to complete the electronic ticket-writing process (which was apparently new), and asking the other officer to keep a watch over Stewart. Ball then removed Josie from his car and walked her around Stewart's car. On her second pass around the Volkswagen, Josie alerted to the driver's side door. The entire process of Josie exiting the squad car, sniffing, and then alerting took one minute and forty-five seconds. The backup officer was still working on the ticket when Josie alerted. Detective Ball offered further advice on completing the ticket, and then approached Stewart.

He explained to Stewart that Josie had alerted to the odor of illegal drugs, and he handcuffed Stewart, clarifying that he was not under arrest. Detective Ball explained at the suppression hearing that he felt this was necessary for officer safety based on the description of the suspected gas station drug transaction, Josie's alert, and the background information that he had learned about Stewart prior to making the stop. Believing he now had probable cause to search the car, he began to inspect the interior of Stewart's Volkswagen. See Florida v. Harris , 568 U.S. 237, 246–47, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (certification of a dog by a bona fide organization after testing the dog's reliability in a controlled setting or successful completion of a recent training program that evaluated the dog's proficiency in locating drugs creates a rebuttable presumption that the dog's alert provides probable cause to search). Almost immediately, Detective Ball found a handgun in the center console area, within reach of the driver's seat. Knowing that Stewart was a convicted felon, he now had probable cause for an arrest. See 18 U.S.C. § 922(g)(1). He placed Stewart under arrest and gave him Miranda warnings. He then continued his search of the car. Although he found no drugs in the passenger compartment of the car, he found a bag in the trunk containing approximately 102 grams of crack cocaine, 250 grams of powder cocaine, 241 grams of heroin, 19 grams of methamphetamine, and a digital scale. He also found $7,420 in cash. The purported $700 in Stewart's pocket turned out to be $1,904, for a total of $9,324 in cash.

Detective Ball approached Stewart again and said, "That's a lot of drugs, bud. You want to talk to a detective?" Stewart appeared to shake his head to indicate "no." Ball clarified, "You do not want to talk to a detective? Well, you understand I gotta have one come out." Stewart replied, "Can you put me in the car? It's kind of cold out."⁴ Ball said, "Yes, they're going to talk to you regardless so you'll get in the car at that point. I have a dog in my car." Ball then radioed for narcotics officers to come to the scene. We will discuss that call and the subsequent interchange between Ball and Stewart more completely below when we address Stewart's motion to suppress his confession. Eventually Stewart was placed in the car of the narcotics officers when they arrived on the scene.

VanOeveren and Sequin were the officers who arrived to transport Stewart. VanOeveren reminded Stewart of his Miranda rights and asked if Stewart wanted to talk about the gun, narcotics and cash found in his car. Stewart first tried to talk the detectives into releasing him for a short period, promising to meet them later to assist them in their investigation. The officers declined and gave Stewart two options: come with the detectives to the police station to discuss his situation or go straight to the Marion County Jail...