In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3955
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERMARCUS R OBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:08-CR-74—Theresa L. Springmann, Judge.
A RGUED M AY 25, 2010—D ECIDED A UGUST 10, 2010
Before F LAUM, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Riding around in a car with
cocaine in one’s pocket is not, generally speaking, a
good idea, given the myriad reasons why the police
might legitimately stop the vehicle. A stop based on a
traffic violation is what tripped up Jermarcus Robinson
on the afternoon of June 16, 2008. Robinson was a pas-
senger in the car driven by his friend David Robinson
(no relation) that day. (We refer to the defendant as
2 No. 09-3955
Robinson and to his friend as David Robinson.) One
thing led to another after Officer Shane Pulver ordered
the car to pull over, and before long, the police found
a plastic bag with 54 grams of crack cocaine gripped
between Robinson’s buttocks. This prosecution for pos-
session with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) followed. The only question on appeal is
whether there is some reason for suppressing the drugs
Robinson was trying to hide. We conclude, as did the
district court, that the answer is no, and thus that the
conviction should stand.
I
We take our account of the facts from the district court’s
opinion on Robinson’s motion to suppress, supple-
menting where helpful with information from the
squad car’s video of the stop. On the day in question,
Officer Pulver, who had been with the Fort Wayne, Indi-
ana, Police Department for four years, was on patrol
around 3:00 in the afternoon. As he approached the
intersection of Eckart and Abbott Streets, he spotted a
dark-colored Ford Taurus. The driver gave him a
strange look as the car passed by, prompting Pulver to
check the license plate. The check reminded him that he
knew David Robinson, the driver, and also that David
Robinson was a habitual traffic violator who did not
have a driver’s license.
Pulver decided to follow up on that information
and signaled the car to pull over. Around that time,
he activated the car’s video recording device. The fol-
No. 09-3955 3
lowing timeline continues the story; the times given
reflect the 24-hour clock used by the police equipment:
14:58:58: Pulver initiates contact.
14:59:57: Pulver asks Robinson to put his hands on
the roof of the car, because when Pulver peers into the
car, he notices that Robinson (who was squirming
around oddly) had a folded pocket knife visible
in his front left pocket. Pulver takes the knife; he
notices that the knife has an off-white residue on it.
15:00:04: Two women (Robinson’s sister Velma and
his girlfriend Sunny Thompson) drive up and park in
front of David Robinson’s car; they get out of their
car and begin walking toward Pulver and Robinson.
15:00:37: Pulver begins a pat-down search of Robinson.
Robinson straightens out and tightens his muscles.
During this initial search, Pulver gets what he later
describes as a quick, brief feel of something hard
near Robinson’s backside, but then he “loses it.” He
later says that he did not at that time know what the
object was but that he thought it was not a weapon.
15:01:12: Officer Franceus joins Pulver at the scene.
15:01:40: Pulver interrupts his pat-down of Robinson.
Robinson walks over to the rear of the car with
Franceus, and Pulver begins searching the car. Pulver
also speaks briefly to Velma and Sunny.
15:02:20: The two women walk back to their own car.
15:02:36: As Pulver searches the car, he spots a small
CD-case-style digital scale that also has visible white
4 No. 09-3955
residue on it, tucked between the passenger seat
and the center console. Pulver then handcuffs Robin-
son and continues with his pat-down, in part to
follow up on the hard object he had already detected.
15:03:33: Pulver detects a hard object wedged in Robin-
son’s buttocks.
15:03:43: Pulver spins Robinson around onto the
hood of the police car. With Franceus, he restrains
Robinson and moves him to the ground.
15:04:06: Velma starts yelling at Pulver and returning
to David Robinson’s car.
15:04:28: Pulver handcuffs Velma.
15:05:50: Donning latex gloves, Pulver pulls a bag of
crack from Robinson’s clenched buttocks; the bag
breaks a bit as Pulver tosses it onto the car, spilling
a small amount of the contents.
Several things are notable about this sequence. First is
how quickly it unfolded. Less than seven minutes elapsed
from the time when Pulver initiated contact to the
time when he pulled the baggie with cocaine away from
Robinson. Second is the fact that the two officers were
attempting to secure the scene at the same time as Velma
and Sunny were intervening. Third is the way that the
evidence of illegal activity accumulated.
Looking at the totality of the circumstances, the
district court drew several conclusions. First, the court
found that the initial search of Robinson was a search
incident to an arrest that was justified by probable cause
No. 09-3955 5
to believe that Robinson had committed the felony of
possession of narcotics. Second, and in the alternative,
the court decided that from the outset Robinson posed
enough of a threat to officer safety—largely because of the
pocket knife that Pulver saw in plain view—that a pat-
down was justified, see Terry v. Ohio, 392 U.S. 1 (1968).
Once Pulver felt the hard object during the initial pat-
down, he was entitled to return to Robinson after he
checked out the car to confirm that the hard object con-
cealed on Robinson was not a weapon. Third, the court
found that the vehicle search was authorized under
the Supreme Court’s decision in Arizona v. Gant, 129
S. Ct. 1710 (2009). Finally, it held that the last part of
Pulver’s search of Robinson was not a strip search and
that the removal of the illegal drugs from his buttock
area was justified.
Having lost his motion to suppress, Robinson entered
into a conditional plea agreement on August 18, 2009.
Later he was sentenced to 120 months in prison, to be
followed by five years of supervised release. His appeal
is limited to the issues surrounding the motion to sup-
press. (He has abandoned any claim that this was an
impermissible strip search, and so we do not address
that argument.)
II
We begin with a number of points that Robinson does
not dispute. First, Officer Pulver’s initial stop of the
car was beyond reproach, because he had probable cause
to believe that David Robinson was driving without a
6 No. 09-3955
license in violation of Indiana law. Second, Robinson
concedes that Pulver was entitled to frisk him, even
though he was just a passenger in the vehicle. Third, he
admits that if the police were entitled to take into
account the digital scale that Pulver found during the
brief search of the car that he conducted, then there
would be at a minimum reasonable suspicion, and
perhaps even probable cause, for the final search of
Robinson that revealed the cocaine.
Robinson’s position is that the events we have
recounted above must be divided into three distinct
stages, and that the police should have released him
after Stage 1. During Stage 1, as he sees it, the police
were entitled to, and did, stop and frisk him. They
had seen his knife in plain view, and thus were
authorized by Terry to make sure that he had nothing
else in his possession that would endanger their safety.
See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993).
Stage 1 ended, however, when Officer Pulver found
nothing beyond the knife that he had spotted right
away. At that point Pulver decided to look again at the
car, signaling (Robinson says) that Robinson was no
longer a person of concern. Robinson takes the position
that he should have been free to leave then, and that
he would have gone off quietly with his sister. Stage 2,
the search of the car, was not authorized by Gant,
Robinson believes, because the police may perform
a search of the inside of a vehicle incident to arrest only
if the arrestee is close enough or if there is reason to
believe that the vehicle will contain evidence of the
offense leading to the arrest. Neither of those is true here,
No. 09-3955 7
Robinson argues: he was not arrested until after the
search of the car, and so the vehicle search was not
incident to his arrest; furthermore, there was no evidence
in the car that related to David Robinson’s offense of
driving without a license. Without the critical evidence
from the car, he concludes, Pulver would have had no
reason to return to Robinson and perform the intrusive
search during Stage 3 that turned up the cocaine. If,
however, Pulver was entitled to search the car, then
Robinson concedes that the additional evidence pro-
vided by the scale was enough (taken with the other
evidence the police already had) to support probable
cause to arrest him.
If these events had dragged out over a longer period,
then Robinson’s account might be more persuasive.
Similarly, we might be more inclined to see things his
way if Velma and Sunny had not been hovering just
steps away and becoming increasingly agitated. But
they were there, and this was a rapidly evolving situa-
tion. Critically, at the time Pulver stopped his initial frisk
of Robinson and turned to the car, another officer was
there who was able to (and did) keep an eye on Robinson.
The district court, to whose factual findings we owe
deference, was entitled to conclude that Pulver had
handed off responsibility for Robinson to his partner,
and to reject the hypothesis that Pulver had concluded
his frisk and was satisfied that Robinson had no weapon.
The government emphasizes, in its argument, the fact
that Robinson was not cooperating with Pulver’s initial
(Stage 1) frisk. Instead, he straightened up and tightened
8 No. 09-3955
his muscles in an effort to prevent the officer from de-
tecting the hidden baggie. In response to a question
from a member of the panel, Robinson’s lawyer
conceded that if a person had clenched his arms tightly
by his side during a frisk, that action would prevent
the officer from conducting an adequate initial search.
He had no answer to the question why clenching
another body part should be treated differently. The
government also stresses a number of other facts that
supported Pulver’s decision to continue his pat-down
of Robinson after he looked into the car: he had
detected some kind of hard object but had not had time
to identify it (even though he said that he thought it
was not a weapon); at least one of the car doors was
open and Velma and Sunny were nearby, and thus
there was a need for the officers to ensure that there
was nothing dangerous in the car; and Robinson (as well
as Velma) was physically larger than the police officers.
Whether an officer has a reasonable suspicion to sup-
port a Terry frisk is a “fact-specific” inquiry that looks
at the “totality of the circumstances” in light of “common
sense and practicality.” E.g., United States v. Adamson, 441
F.3d 513, 521 (7th Cir. 2006). The proper way to view
this encounter with the police, we conclude, is as a
single event, not two or three different stages. Pulver
was not finished with his Terry frisk at the time he
turned to the car; that is why he did not leave
Robinson free to go, but instead turned over the job of
watching Robinson to Franceus. As the timeline above
shows, only a minute or so elapsed between when
No. 09-3955 9
Pulver interrupted his pat-down of Robinson to take
another look at the car and when Pulver resumed the
frisk. A minute into the resumed frisk, Pulver found the
hard object between Robinson’s buttocks again and
took steps to retrieve it. By that time Robinson was
actively resisting Pulver’s efforts, Velma was yelling,
and Franceus was assisting Pulver. Three minutes into
the resumed frisk, Pulver pulled the bag of crack
away from Robinson and threw it onto the hood of the
squad car.
In our opinion, it is not necessary to rely on the fact
that Pulver spotted the scale in the car to justify his deci-
sion to resume searching Robinson. In addition, we see
no need to reach the government’s argument that the
cocaine would inevitably have been discovered. The
latter seems unlikely, if Pulver had been satisfied with
his initial frisk of Robinson and Robinson had then
walked off with Velma and Sunny. (In other words, there
is no need to speculate about Robinson’s ability to drive
off in David Robinson’s car, because he had another
ride standing by.) But Pulver was not satisfied with
his initial effort to pat down Robinson, and so he was
entitled to return to finish the job within the bounds
outlined in Terry. Finally, just because he indicated after
the fact that his initial impression was that the hard
object he felt for an instant during the first phase
was not a weapon, objectively speaking something hard
might have been harmful, and Pulver was entitled to
assure himself that his first impression was correct. See
United States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999).
10 No. 09-3955
For these reasons, we conclude that the district court
correctly refused to suppress the cocaine that the
officers pulled from Robinson’s person. We therefore
A FFIRM the judgment of the district court.
8-10-10