United States v. Rivers

121 F.3d 1043, 1997 U.S. App. LEXIS 19271, 1997 WL 420730
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 1997
DocketNo. 97-1421
StatusPublished
Cited by25 cases

This text of 121 F.3d 1043 (United States v. Rivers) 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. Rivers, 121 F.3d 1043, 1997 U.S. App. LEXIS 19271, 1997 WL 420730 (7th Cir. 1997).

Opinion

FLAUM, Circuit Judge.

Reggie Rivers challenges the district court’s determination that a pat-down search which resulted in his arrest for possession of cocaine with intent to distribute did not violate his Fourth Amendment rights. We affirm.

I.

Reggie Rivers was the passenger in a car driven by Felton Bush, who was wanted on an outstanding arrest warrant for domestic battery. Peoria police officers Timothy Moore and John Couve were surveilling Bush’s home in an attempt to secure a search warrant for evidence that Bush was dealing crack cocaine (actually, they had already gotten one warrant, but it had expired), and when they saw Bush and Rivers leaving in the car they decided to arrest Bush on the outstanding warrant. The officers, driving an unmarked vehicle, followed Bush’s car into a shopping center parking lot, pulled in front of it, and approached the car with their guns drawn. Bush was removed from the car and arrested. When Moore searched Bush, he found plastic bags containing cocaine base and powder cocaine in his pockets.

During the arrest and search Couve had been covering Rivers. After Moore placed Bush into the police car, he asked Rivers to exit the car. Moore then performed a pat-down search, during which he felt a lump in Rivers’s pocket. Believing it was a lump of crack cocaine, he asked Rivers what it was, and Rivers told him it was money. Moore repeatedly asked Rivers what the lump was, and each time Rivers answered money. Finally, Moore arrested Rivers, then pulled from Rivers’s pocket a plastic bag containing nearly an ounce of crack cocaine. Rivers also had $42 in cash and a small amount of powder cocaine in his pocket.

Rivers moved the district court to suppress evidence of the crack; the district court granted the motion on the grounds that the record did not show that there was something unique about crack cocaine that would have allowed Moore to identify it immediately, and thus Moore’s search exceeded the boundaries of the “plain feel” doctrine established by Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The government moved for reconsideration, identifying Moore’s testimony that crack cocaine has a distinctive feel (asymmetrical, with different size lumps and different angled edges) and that he had felt crack cocaine in pants pockets approximately twenty times. In light of this evidence the district court vacated its earlier ruling and denied Rivers’s motion to suppress.

Rivers entered into a plea agreement and pleaded guilty to possession of crack cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), after reserving his right to appeal the district court’s refusal to suppress the evidence of the crack cocaine. He now appeals that decision. We review legal determinations of reasonable suspicion or probable cause de novo, but questions of fact for clear error. United States v. Stribling, 94 F.3d 321, 323 (7th Cir.1996) (citing Ornelas v. United States, — U.S. -, -, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

II.

On appeal, Rivers makes two arguments: (1) that the officers did not have sufficient [1045]*1045reasonable suspicion to engage him in a Terry stop; and (2) that the extent of the pat-down search was invalid in light of Dickerson.

A.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officers may temporarily stop a person to investigate whether the person has recently committed or is about to commit a crime. To justify the stop, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. During a Terry stop, an officer with “reason to believe he is dealing with an armed and dangerous individual” may conduct a non-invasive pat-down search of a detainee to ensure for his own safety and that of others nearby that the detainee does not possess a weapon. Id. at 27, 88 S.Ct. at 1883. “A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.” Id. at 25-26, 88 S.Ct. at 1882.

Rivers argues that Moore and Couve had no reasonable or articulable suspicion that Rivers was involved in criminal activity and thus it was a violation of Rivers’s Fourth Amendment rights for Moore to ask him to exit the car and to search him. Before arguing the question on the merits, the government counters by pointing to Rivers’s plea agreement and asserting that he did not reserve the right to appeal this issue.

The plea agreement provides:

Pursuant to Federal Rule of Criminal Procedure 11(a)(2), the defendant reserves the right to seek review of the Court’s order denying the defendant’s motion to suppress the evidence seized from his person on May 7, 1996. Specifically, the defendant reserves the right to appeal the Court’s order that Peoria Police Department Officer Moore, did not violate the defendant’s constitutional rights when he removed the crack cocaine from the defendant’s pants pocket on May 7,1996.
Although a close question, we conclude that this language — particularly the first sentence — is general enough to allow Rivers to argue in this court the propriety of the Terry stop, especially given that the issue was argued in precisely this manner before the district court during the hearing on the motion to suppress.

Having overcome that hurdle, though, Rivers’s argument does not advance much farther. The Supreme Court recently ruled that police officers may ask passengers to step out of a vehicle during a Terry stop. Maryland v. Wilson, — U.S. -, -, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997). There is no doubt that the officers had the right to make the original stop and arrest Bush, and consequently Rivers had no right to remain in the car. Further, Terry requires only that “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27, 88 S.Ct. at 1883. Of course, the court must keep in mind that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). Under these circumstances, however, where a suspected drug dealer had been arrested in the middle of a shopping center parking lot, where police would legitimately want to ask Rivers a few questions, if only to determine whether he was competent to take charge of Bush’s vehicle, and where, as Moore testified, drug dealers are often accompanied by armed guards, it was reasonable for him to ensure that Rivers had no weapons. United States v. Menard, 95 F.3d 9

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Bluebook (online)
121 F.3d 1043, 1997 U.S. App. LEXIS 19271, 1997 WL 420730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rivers-ca7-1997.