United States v. Ellis

70 F. App'x 884
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 30, 2003
DocketNo. 02-1015
StatusPublished

This text of 70 F. App'x 884 (United States v. Ellis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ellis, 70 F. App'x 884 (7th Cir. 2003).

Opinion

[885]*885ORDER

Eddie Ellis was convicted of participation in a drug conspiracy and sentenced to 210 months in prison. He raises two issues on appeal. First, he challenges the district court’s denial of his motion to suppress evidence, arguing that the traffic stop that led to his conviction was unsupported by either probable cause or reasonable suspicion. Second, he challenges the district court’s refusal to grant him a downward departure at sentencing, arguing that the court failed to recognize its authority to depart on the basis of unjustified disparity among the sentences of co-defendants. For the reasons given below, we affirm Ellis’s conviction and sentence.

I

The facts surrounding Ellis’s arrest are relatively involved. The local police had received a tip from the FBI that a dark-colored duffel bag containing marijuana had been brought into a two-story residence at 1815 12th Avenue in Rockford, Illinois. The FBI had followed the bag to that location after conducting a controlled sale of marijuana earlier that morning and had enlisted the help of local authorities to recover the marijuana and perform whatever arrests might be necessary.

Once the surveillance arrangements were in place, a local police detective, Brian Skaggs, observed Ellis and two companions (Randy Kennedy and Christopher Lamon) drive up to the residence. Ellis was in a Dodge Intrepid, and the other two were in an Oldsmobile Intrigue. Skaggs watched as Kennedy and Lamon met a fourth man (Gilbert Frometa) and entered the building with him. Ellis stayed behind, got out of his car and looked around. A few minutes later, Kennedy and Lamon emerged from the building with Frometa. Kennedy was carrying a dark-colored duffel bag with red and green stripes, which he placed in the trunk of the Intrigue. Handing a smaller duffel bag to Frometa, the original three then swapped cars: Kennedy drove away in the Intrepid with Lamon, while Ellis left in the Intrigue. Frometa departed in his own car a few minutes later.

A uniformed officer was directed to stop both the Intrepid and the Intrigue, which he did. Shortly thereafter, two other police officials, Deputy Chief Dominic Asparro and Captain Richard McMahon, arrived on the scene. Asparro helped the uniformed officer remove Kennedy and Lamon from their vehicle and handcuff them, while McMahon removed Ellis from his vehicle and asked him whether he had any drugs or weapons in the car. According to both McMahon and Asparro, Ellis told McMahon that the car was not his, and that he could “look around.” The duffel bag was found in the trunk, containing not marijuana as expected, but four kilograms of cocaine. It was therefore a different duffel bag from the one the officers expected to find — the one that the FBI agents had seen being taken into the house. In fact, there appears to have been no relation (other than the location) between the two transactions that had taken place that morning.

Before his jury trial, Ellis moved to suppress the evidence resulting from that search. In his motion, he asserted that the police had neither probable cause nor reasonable suspicion to stop his vehicle, and that in any event he had not consented to the search of that vehicle. The district court held a hearing at which testimony was taken from Detective Skaggs, Deputy Chief Asparro, Captain McMahon, and two FBI agents. Although Ellis raised the probable cause and consent issues in his motion, he did not develop these arguments at the hearing, where the discussion was focused entirely on whether the police had reasonable suspicion.

[886]*886The court concluded that the police had the necessary reasonable suspicion to justify the stop of Ellis’s vehicle: the local police “were aware that there was a federal FBI investigation, a big drug sting taking place, and they were told that there would be drugs, marijuana, to be exact, in some dark duffle [sic] or gym bag at a certain house____ So we have the dark bags going into the house, and we have a dark bag coming out of the house that ends up in the vehicle being driven by the Defendant.”

On appeal, Ellis argues that the stop of his vehicle was a full-blown arrest. He notes that by the time he was questioned about the contents of his vehicle, he had already been removed from the car and had seen his two colleagues placed in handcuffs. He also notes that the record is silent about the manner in which the stop was actually carried out. He insists that because the circumstances surrounding the search resembled an arrest more than an investigatory stop, the police were required to show not just reasonable suspicion but probable cause.

It appears, however, that Ellis has forfeited this argument by not developing it in the district court. Arguments not raised and developed in the district court are forfeited on appeal. See United States v. Brumley, 217 F.3d 905, 909-10 (7th Cir.2000). Although Ellis’s motion to suppress raised the issue of probable cause, his argument at the hearing addressed only the question of reasonable suspicion, and the district court was never asked to decide whether the stop amounted to an arrest. Naturally, this also means that the government never had a chance to place evidence in the record that might have supported a probable cause finding. Ellis therefore forfeited any argument that the stop of his car amounted to an arrest, and we review it only for plain error. See id. at 909.

There is no bright line between an arrest and an investigatory stop, but among the relevant factors are the “officer’s intent, impression conveyed, length of stop, questions asked, [and] search made.” United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir.1988). The intent of the Rockford police is not clear from the record, but the impression conveyed when Ellis saw his colleagues handcuffed was arguably that he too was being arrested. On the other hand, even an officer’s approaching a suspect with gun drawn and pointed does not by itself turn an investigatory stop into an arrest. See id. at 967-68. Without more detailed information about the length of the stop, the questions initially asked, and the actual impression conveyed, we cannot conclude that the district court’s analysis of the situation as an investigatory stop was plainly erroneous.

Ellis also argues that he did not voluntarily consent to the search of his vehicle after the stop. But although he raised this issue as well in his motion to suppress, he presented no evidence or argument at the hearing to counter the government’s claim (backed by police testimony) that he did in fact consent. This argument therefore is likewise forfeited, and subject only to plain-error review. Because Ellis has identified no evidence that calls into question the voluntariness of his consent, he cannot prevail under that standard. See United States v. Clarke, 227 F.3d 874, 881 (7th Cir.2000) (no plain error where inadequate evidence was presented to rebut a finding of consent to a search).

Ellis is thus left with his argument that the police lacked reasonable suspicion. A determination of reasonable suspicion is based on the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

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Related

United States v. Sokolow
490 U.S. 1 (Supreme Court, 1989)
Koon v. United States
518 U.S. 81 (Supreme Court, 1996)
United States v. Aida Serna-Barreto
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127 F.3d 545 (Seventh Circuit, 1996)
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United States v. Brian K. McMutuary and Dante A. Grier
217 F.3d 477 (Seventh Circuit, 2000)
United States v. Bob Brumley
217 F.3d 905 (Seventh Circuit, 2000)
United States v. Osmund Clarke
227 F.3d 874 (Seventh Circuit, 2000)
United States v. Kenneth R. Lenoir
318 F.3d 725 (Seventh Circuit, 2003)

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70 F. App'x 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ellis-ca7-2003.