United States v. Thompson

• Decision Date: 22 November 2016
• Docket Number: No. 16-1105,16-1105
• Citation: 842 F.3d 1002
• Parties: United States of America, Plaintiff–Appellee, v. Edward Thompson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

842 F.3d 1002

United States of America, Plaintiff–Appellee,

v.Edward Thompson, Defendant–Appellant.

No. 16-1105

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2016

Decided November 22, 2016

Christopher V. Parente, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Carol A. Brook, John F. Murphy, Attorneys, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.

Before Bauer, Posner, and Manion, Circuit Judges.

Bauer, Circuit Judge.

Defendant–appellant, Edward Thompson, was indicted on one count of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the cocaine that was seized after he gave his consent for law enforcement to search his apartment. He argued that a series of Fourth Amendment violations led to the discovery of the contraband and that his consent was not voluntary. The district court denied Thompson's motion. We affirm.

I. BACKGROUND

The district court held a suppression hearing, during which it heard testimony from six witnesses. Thompson's account of the events differed in various respects from that of the law enforcement officers involved. In his written opinion denying Thompson's motion, Judge Shadur did not set forth all of his factual findings in great detail; he did however, make clear that his analysis was based on his determinations that "Thompson's version of the events is not at all believable" and that there is "no reason to credit" his testimony. The following is a synopsis of the relevant facts based on those determinations.

On March 6, 2013, a joint task force of the Drug Enforcement Agency and Chicago Police Department was conducting surveillance on the residence of Armando Soto in Cicero, Illinois, as part of an ongoing investigation into a drug trafficking organization. The agents (for the sake of ease, we refer to all law enforcement officials involved as "agents") received information that a man named Marvin Bausley would be arriving at Soto's house to pick up some or all of ten kilograms of cocaine. Shortly before noon, agents observed Bausley drive into the alley behind Soto's house and enter the garage. After approximately ten minutes, Bausley left the garage and, with agents following, drove to an apartment building in Chicago, Illinois.

Bausley parked on the street outside the building, and a man, later identified as Thompson, came out of the building wearing a backpack and entered Bausley's car. Bausley drove once around the block and again stopped outside the apartment building, at which time Thompson exited the car and reentered the building. The agents who saw Thompson go into the building communicated this to Special Agent David Reynolds, who was on the scene, but could not see Thompson. Agent Reynolds quickly entered the apartment building, but saw no one in the lobby. He recalled that an apartment at this address had been of interest in their ongoing investigation; he believed the relevant apartment number was 901. He saw that the elevator door was open so he rode it to the ninth floor.

When Agent Reynolds arrived on the ninth floor, he saw Thompson and a woman waiting for the elevator. Agent Reynolds had not seen Thompson earlier and did not recognize him as the man that had been in Bausley's car.

Agent Reynolds exited the elevator, and Thompson and the woman entered. As he looked around the ninth floor common area, other agents notified Agent Reynolds that the man who was in Bausley's car was now in the lobby. Thompson did not have the backpack he was wearing earlier. Agent Reynolds returned to the lobby, approached Thompson, and asked him if he lived in the building. Thompson said he did not and that he was only there to visit a friend on the fourth floor. Agent Reynolds then asked if Thompson had just been on the ninth floor, and again, Thompson said no.

Agent Reynolds told Thompson that he was not under arrest and that he was not required to speak to the agents. Agent Reynolds conducted a patdown to ensure that Thompson had no weapons. He found no weapons, but he retrieved Thompson's key ring. Agent Reynolds testified that he could not recall whether the keys were in Thompson's pocket or in his hand. The key ring held Thompson's apartment keys, as well as an electronic fob that was required for access to the building's elevators. Again, Agent Reynolds asked whether Thompson had just been on the ninth floor and whether Thompson lived in the building. Thompson again answered "no" to both questions.

At this point, Agent Reynolds asked Thompson if he would speak to the agents on the ninth floor, and Thompson agreed. Using the fob on the key ring, Agent Reynolds accessed the elevator, and Thompson and the agents went to the ninth floor. Thompson did not ask for his keys back at any point, and Agent Reynolds testified that Thompson was not handcuffed.

Because Agent Reynolds believed that unit 901 was relevant to their investigation, the agents knocked on that door with guns drawn. The resident of that unit answered and agents ordered him to get on the floor, while they quickly swept his apartment. After approximately a minute, the agents realized this was the wrong unit and returned to the hallway.

Agent Reynolds then asked Thompson if he lived in unit 902, and Thompson said he did not. Agent Reynolds tried Thompson's key on the lock of 902 and the door opened. He then asked Thompson if there was anyone inside the apartment, and Thompson did not respond. Agent Reynolds and one other agent performed a sweep of the apartment, which lasted approximately 30 to 45 seconds, to ensure no one else was present. Finding no one in the apartment, the agents returned to the hallway. Agent Reynolds then asked Thompson if they could speak inside the apartment, and Thompson agreed.

Once inside, Agent Reynolds again told Thompson that he was not under arrest and that he did not have to talk to the agents. He then asked Thompson for consent to search the apartment. Agent Reynolds produced a written consent form and read it to Thompson. He handed it to Thompson to allow him to read it himself, and Thompson signed the form. Thompson then told the agents that there was a gun in the TV stand and that there were drugs and cash elsewhere in the apartment. The agents recovered the gun, a kilogram of cocaine, and $10,000 in cash. Thompson was not arrested that day and agreed to cooperate with the agents in their investigation moving forward. A number of days later, when Thompson stopped answering calls from the agents, he was arrested.

Thompson was charged with one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). Thompson filed a motion to suppress the evidence recovered at his apartment, as well as statements he made to the agents. The district court held a suppression hearing, after which it denied Thompson's motion. Thompson pleaded guilty, but preserved the right to appeal the denial of his motion to suppress, which he does now.

II. DISCUSSION

On appeal, Thompson argues that, before he provided consent to search his apartment, the DEA agents committed a series of Fourth Amendment violations. He argues that the evidence recovered was the fruit of those violations and, as such, it should have been suppressed. He also argues that his consent was not voluntary. The district court did not find that any constitutional violations occurred and held that Thompson's consent was knowing and voluntary. We review the district court's factual findings for clear error and its legal conclusions de novo . United States v. Bernitt , 392 F.3d 873, 876 (7th Cir. 2004). "In the context of a motion to suppress evidence, we give special deference to the district court's rulings due to the fact-specific nature of the proceeding." United States v. Griffin , 150 F.3d 778, 783 (7th Cir. 1998)(citing United States v. Stribling , 94 F.3d 321, 323 (7th Cir. 1996) ).

A. Initial Stop

Thompson first complains of his initial encounter with law enforcement. When he exited the elevator in the lobby, a number of agents stopped him. Thompson argues that this encounter constituted an unlawful seizure because the agents did not have reasonable suspicion to stop and question him. This argument is meritless. A law enforcement officer may briefly stop an individual for investigative purposes if the officer "has a reasonable suspicion supported by articulable facts that criminal activity is afoot." United States v. Ienco , 182 F.3d 517, 523 (7th Cir. 1999) (citing Terry v. Ohio , 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Here, the agents had ample reason to believe that Thompson was engaged in criminal activity. Minutes prior to the encounter in the lobby, the agents witnessed Thompson get into a car with Bausley, who they had reason to believe had just picked up a large amount of cocaine. They watched Thompson enter the car wearing a backpack, circle the block with Bausley, go back into the apartment building, and then return to the lobby without the backpack. These facts were more than sufficient for the agents to form a reasonable suspicion that Thompson was engaged in criminal activity, which justified their encounter with him in the lobby.

B. Agent Reynolds' Frisk

Thompson's next contention is that Agent Reynold's frisk of Thompson in the lobby was an unconstitutional search. An officer conducting a lawful Terry stop may not automatically frisk the subject of the stop. United States v. Williams , 731 F.3d 678, 686 (7th Cir. 2013) (citing Arizona v. Johnson , 555 U.S. 323, 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ). Such a frisk is lawful only when the officer has some...