United States v. Radford

39 F.4th 377

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher RADFORD, Defendant-Appellant.

No. 21-1715

United States Court of Appeals, Seventh Circuit.

Submitted January 20, 2022^*

Decided June 30, 2022

Jeffrey D. Preston, Assistant U.S. Attorney, Bob Wood, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Steven H. Wright, Attorney, University of Wisconsin, Law School, Madison, WI, for Defendant-Appellant.

Before Rovner, Brennan, and St. Eve, Circuit Judges.

Rovner, Circuit Judge.

Christopher Radford pled guilty to one count of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). As part of his plea agreement, he retained his right to appeal the denial of his motion to suppress in which he challenged a traffic stop and accompanying search of his person. We affirm.

I.

On November 19, 2018, the Drug Enforcement Agency ("DEA") was conducting surveillance on a suspected drug house in the vicinity of Indianapolis, Indiana. Detective John Maples, a fifteen-year veteran of the nearby Brownsburg Police Department and an officer for the United Drug Task Force, was assisting the DEA that day. As a member of the task force, Maples often conducted traffic stops to investigate drug trafficking on routes that passed through the Brownsburg area. Maples estimated that, throughout his career, he had conducted hundreds and perhaps thousands of traffic stops.

At approximately 2:15 p.m. on that day, Maples was monitoring traffic on Rockville Road when DEA agents at the surveillance site reported that a white Audi had just departed from the suspected drug house and was heading towards Rockville Road. Surveillance units followed the Audi and watched it enter and leave a strip mall parking lot without stopping to park. The car then proceeded onto Rockville Road and Maples began to monitor it for possible traffic violations. From his position in an LA Fitness parking lot on the north side of Rockville Road, Maples observed the Audi pass him at approximately 40 to 45 miles per hour, following the car in front of it by less than a car length. He decided to pull the driver of the Audi over for the infraction of following too closely, in violation of Ind. Code § 9-21-8-14. Maples pulled into traffic and once he was able to maneuver behind the Audi, he activated his flashing lights and followed the Audi into the parking lot of a PNC Bank. The Audi pulled into a parking spot at the bank and Maples stopped behind the Audi, blocking it from behind.

As Maples approached the Audi on the driver's side of the car, he noticed the driver making "quick and furtive movements with his hands" in the right side of the driver's seat. As the driver turned to exit the car, he appeared startled that Maples was standing at his door. When the driver, the defendant Christopher Radford, began to open the door, Maples pulled the door open from the outside and saw Radford reach for a cell phone. Maples directed him to place the phone on the dashboard and exit the vehicle. Radford did not initially comply but reached for a second phone. Maples again directed Radford to place the phones on the dashboard and exit the car. Radford then complied.

As Radford exited the car, he reached for his belt area and continued making quick movements with his hands while holding his left arm close to his body. After Radford reached towards his beltline with his left hand, Maples commenced a pat-down search which we will describe more completely below. During the search, Maples saw a vacuum-sealed plastic bag in Radford's left inner pocket that Maples believed contained heroin. With the assistance of another officer, Maples then handcuffed Radford and continued to search him, removing the bag from Radford's pocket. The officers then checked Radford's license status and whether he had any outstanding warrants. Minutes after Radford was taken into custody, Maples learned that there was an outstanding warrant for Radford's arrest based on charges for operating a vehicle after a lifetime suspension of his license. Maples also learned that Radford was listed as a habitual traffic violator,¹ and had a prior felony conviction related to narcotics. A brief inventory search of the Audi revealed a small caliber revolver in the cargo compartment of the driver's side door.

The substance in the vacuum-sealed plastic bag turned out to be fentanyl rather than heroin, and Radford was charged with possession with intent to deliver a controlled substance, in violation of 21 U.S.C. § 841(a)(1). Radford moved to suppress the evidence obtained at the traffic stop. He contended that, on the day he was stopped, he was driving under the speed limit, was operating his vehicle in a safe manner and did not commit any traffic violations. In an affidavit that accompanied his motion to suppress, he averred that he never followed any vehicle by less than a car length. Radford also asserted in his motion that the officer's view would have been obstructed by businesses and a tree line given his claimed position in an LA Fitness parking lot on Rockville Road. He also pointed out that there were no traffic violations recorded during any part of Maples' video of the incident. Radford argued that the stop and subsequent search both violated the Fourth Amendment because he had not committed any traffic violation and because Maples' search of his person was not justified by any exigent circumstances, except those created by Maples' own actions.

The government responded that a hearing was necessary in order for the court to make a credibility determination between Radford's version of the incident and that of Detective Maples, who had also provided affidavits describing the circumstances of the stop. The government argued that the evidence would show that the officer had probable cause to stop the Audi for following too closely, and that Maples had a reasonable suspicion that Radford was armed based on the reports of other officers and on Radford's actions during the stop. The government also contended that the controlled substance was properly seized because it was in plain view in Radford's pocket during the frisk and the incriminating nature of the package was immediately apparent to the experienced officer. Radford filed no reply to the government's brief.

The court subsequently held a hearing at which both Maples and Radford testified. Maples explained that he had moved into the exit lane of the LA Fitness parking lot on being notified by the officers surveilling the drug house that the white Audi was approaching. Maples affirmed that a photograph of the scene represented an accurate picture of the placement of his car in the exit lane, close to and facing Rockville Road when the white Audi passed him, making plain that he had a clear and unobstructed sight line to traffic on Rockville Road. Maples testified that prior to the stop, he had been informed that the white Audi had driven evasively, and entered and exited a parking lot without stopping or parking. In his experience, this was a tactic practiced by persons in the drug trade to check if anyone is following them, contributing to his suspicions about the driver of the Audi.

Maples testified that he saw the Audi traveling approximately 40 to 45 miles per hour, and less than a car length away from the car in front of it at the time it passed his position. He testified that a safe distance is approximately one car length for every ten miles per hour of speed, so that at 40 to 45 miles per hour, the Audi should have allowed four to five car lengths behind the vehicle it trailed. Maples decided to stop the car for following too closely under Ind. Code § 9-21-8-14, which would allow him to determine whether the driver was properly licensed, whether the vehicle was properly licensed and whether there were any outstanding warrants on the driver.

Maples explained that on the day of the stop, he was using a new video system that he had not previously employed. The system was designed to begin recording when the officer activates the police car's flashing lights, which Maples did not do until he was on Rockville Road and positioned behind the white Audi, after he observed the infraction. The system then kept a recording from one minute prior to activation of the lights and continued recording going forward. Maples also explained his escalating concern with Radford's movements from the moment he approached the car until Radford was handcuffed. Among the factors that raised his level of concern for safety, he testified that Radford first appeared startled to see the officer, that Radford did not put down his phone when directed to do so, and that he then reached for a second phone. Maples explained that this indicated to him that Radford might have something on the phone that he wished to conceal. Once out of the car, Radford moved his hands towards his beltline, an area where a gun might be stowed, and held his left arm tightly close to his body, leading Maples to be concerned that Radford had a weapon hidden on the left side.

Maples testified that during the search, Radford turned towards him in such a way that his jacket fell open, and Maples looked directly down into the jacket where he saw a vacuum-sealed plastic bag containing what he believed to be heroin based on his law enforcement training and experience. He testified that vacuum sealing is used for dealer-sized quantities of certain drugs, including heroin. Maples confirmed that he did not manipulate the jacket in any way to see the bag, but rather that the jacket fell open through Radford's movements during the search. He described the package as "sticking out of an inside pocket on the left side" of the jacket.

Radford testified that he first drove east on Rockville Road and through a parking lot without stopping because he was looking for a Chinese restaurant. When he did not see one, he left the lot and proceeded west on...