In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4089
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OGER D. S LONE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:09 CR 00038-RL-APR-4—Rudy Lozano, Judge.
A RGUED N OVEMBER 2, 2010—D ECIDED F EBRUARY 22, 2011
Before C UDAHY, F LAUM, and K ANNE, Circuit Judges.
F LAUM, Circuit Judge. Roger D. Slone was arrested
during an operation in which law enforcement worked
their way down the drug-supply food chain. An under-
cover agent with the Drug Enforcement Administration
(“DEA”) drove a tractor-trailer filled with marijuana to
an Indiana warehouse; law enforcement then took into
custody those who received drugs from the shipment.
Slone was arrested for conducting countersurveillance
or security for a vehicle into which 500 kilograms of
2 No. 09-4089
the drugs had been offloaded. He was subsequently
convicted of conspiracy to distribute marijuana and
sentenced to 120 months in prison. On appeal, Slone
maintains that police lacked probable cause to arrest
him. Even if true, that would not be sufficient to over-
turn his conviction. Evans v. Poskon, 603 F.3d 362, 364
(7th Cir. 2010). However, if police lacked probable cause
to arrest him, then the exclusionary rule should have
applied and led the district court to suppress self-incrim-
inating post-arrest statements that Slone made to a
federal agent, as well as evidence that was found in
Slone’s vehicle. He argues as much and likewise con-
tends that evidence from his vehicle should have been
suppressed under the Supreme Court’s decision in
Arizona v. Gant, 129 S. Ct. 1710 (2009). Neither argument
is persuasive, however, and we affirm the judgment of
conviction.
I. Background
Neither Slone nor the government takes issue with the
district court’s deferentially-reviewed factual findings.
Therefore, we take the underlying facts primarily from
that court’s ruling on Slone’s motion to suppress, filling
in a few gaps as needed. In early 2009, DEA agents in
Merrillville, Indiana, received word that a drug-world
figure named Arechiga unwittingly asked undercover
DEA agents to help him transport about 1,000 pounds
of marijuana from Texas to two locations in Indiana.
The DEA obliged. At the time when the drugs left Texas,
however, Arechiga did not disclose the specific locations
No. 09-4089 3
where the drugs were to be delivered (and he never
disclosed the identity of the recipients). Of course, the
agents retained a notable leg up in the operation—an
undercover agent at the wheel of the tractor-trailer used
to transport the drugs. Other federal agents followed
the shipment as it made the trip to Indiana.
On February 1, 2009, the day before Slone’s arrest,
Arechiga called the undercover agent-cum-driver.
Arechiga directed the driver to take the tractor-trailer to
Lafayette the next morning and then call for further
instructions. The driver, still being followed by other
federal agents, drove to Lafayette. The drop-off point
for the drugs remained unknown. After directing the
tractor-trailer to an initial meeting point, Arechiga told
the driver to follow a pickup truck with hunting stickers
in the window and then called to tell the driver to break
off and continue following an “orange-ish” Monte Carlo
instead. (Given that the driver was an undercover agent,
every twist, turn, and change of plans was relayed by
the driver to one of the federal agents. That agent
spread word among the rest of the surveillance team.)
The Monte Carlo guided the tractor-trailer to a ware-
house, and the undercover agent backed the cargo-laden
transport into one of the bays. Agents set up surveillance
around the location. The driver surreptitiously communi-
cated to the surveillance team that about 500 kilograms
of marijuana was being offloaded into a blue Ford
Explorer inside the warehouse. About five to ten
minutes later, the tractor trailer left the warehouse (pre-
sumably en route to the next dropoff). Immediately
4 No. 09-4089
thereafter, at least one of the agents observed the blue
Explorer leave the warehouse and alerted two other
agents—named Walker and Patrick—that the vehicle
was headed their way. Walker and Patrick, positioned
around the corner from the warehouse, made ready to
follow.
After the Explorer passed Walker and Patrick’s location,
however, a red Dodge truck pulled out of a nearby lot.
Slone was a the wheel of the Dodge truck, which pulled
up close behind the Explorer. Agents Walker and Patrick
turned the two-car caravan into a threesome, pulling
behind the Dodge truck in their unmarked car. For ap-
proximately the next 20 minutes, the Dodge truck stayed
within one vehicle-length of the Explorer while federal
agents followed. Twenty minutes on a highway might
not be all that unlikely, but the route was not a straight
shot. Multiple turns on at least three roads were in-
volved, including a multi-lane highway (where relative
positions among vehicles are more likely to change) and
two county roads—the latter of which we are told lies
“out in the middle of nowhere.” The two vehicles were
essentially stuck together the entire way.
While the agents followed, the passenger in the Dodge
truck folded down the visor even though the sky was
overcast. The passenger then continually checked the
vanity mirror and passenger-side mirror while talking
on his cell phone. Agent Walker testified that, based
on his training and experience, the factual picture
made it appear that the Dodge truck was conducting
countersurveillance or security for the marijuana con-
tained in the Explorer.
No. 09-4089 5
The agents decided to stop both the Dodge truck and
the Explorer and arrest the vehicles’ occupants, which
they did in coordination with the Indiana State Police.
Agent Walker took Slone into custody after Slone at-
tempted to flee. Law enforcement officers then searched
Slone’s vehicle, which yielded $17,000 in cash and a
mobile telephone (the “vehicle evidence”). Slone was
transported to Porter County Jail. He had not been
read Miranda warnings at that point, but Slone started
a conversation during the trip. He asked one of the
agents what federal court proceedings entailed. The
brief response caused Slone to say, “I shouldn’t have
done this.” He explained that he had been denied public
assistance and needed to make ends meet. Warring, it
seems, with the consequences of his actions versus their
perceived morality, he also expressed his opinion that
marijuana does not harm anyone.
Slone was charged in a one-count indictment with
conspiring to distribute 100 kilograms or more of mari-
juana, in violation of Sections 841(a)(1) and 846 of
Title 21, United States Code. The case proceeded to
trial after Slone unsuccessfully moved to suppress the
evidence against him. A guilty verdict followed a short
jury trial, and Slone was sentenced to a term of
120 months in prison. He seeks a new trial based on
the denial of the motion to suppress evidence.
II. Discussion
Slone maintains that he is entitled to a new trial
because the district court should have suppressed the
6 No. 09-4089
self-incriminating statements and the vehicle evidence
as fruits of a poisonous tree—namely, his arrest without
probable cause. He also argues that the search of his
vehicle incident to his arrest was unlawful under Arizona
v. Gant. When reviewing a district court’s denial of a
motion to suppress evidence, we review factual findings
for clear error, but decide issues of law without deference
to the proceedings below. United States v. Lee, 618 F.3d
667, 673 (7th Cir. 2010). We conclude that the district
court appropriately denied Slone’s motion to suppress.
The plain language of the Fourth Amendment to the
United States Constitution prevents unreasonable
searches and seizures and provides that “no warrants
shall issue, but upon probable cause.” U.S. C ONST.
amend IV. The text of the amendment does not actually
require police to obtain a warrant prior to conducting
a search or seizure, but that is how the amendment has
been interpreted. United States v. Garcia, 474 F.3d 994, 996
(7th Cir. 2007). There are a small number of established
exceptions to the warrant requirement, however. For
example, police may arrest someone outside of the
home when they have probable cause to believe that a
suspect has committed, is committing, or is about to
commit an offense. E.g., Gerstein v. Pugh, 420 U.S. 103, 111
(1975). Likewise, police may conduct a warrantless
search of a vehicle, including “a search of any container
that might conceal the object of the search,” when they
have probable cause to believe that the vehicle contains
contraband. Florida v. White, 526 U.S. 559, 569 n.3 (1999).
In both situations, a warrantless search or seizure is
reasonable and therefore constitutional.
No. 09-4089 7
Generally, a warrantless search or seizure in the
absence of probable cause is unreasonable. See, e.g., Doe
v. Heck, 327 F.3d 492, 513 (7th Cir. 2003) (warrantless
searches may be upheld only if they fall “within one of
the few specifically established and well delineated
exceptions to the Fourth Amendment’s warrant and
probable cause requirements”) (quotation marks omit-
ted). And when police conduct an unreasonable search
or seizure, the exclusionary rule usually vindicates the
Fourth Amendment’s protections by kicking out the
unlawfully obtained evidence. United States v. McGraw,
571 F.3d 624, 628 (7th Cir. 2009). “Evidence which is
obtained as a result of an illegal arrest is fruit of the
poisonous tree and it must be excluded unless the gov-
ernment can show that it was obtained as a result not of
the illegality, but rather ‘by means sufficiently distin-
guishable to be purged of the primary taint.’ ” United
States v. Swift, 220 F.3d 502, 507 (7th Cir. 2000) (quoting
Wong Sun v. United States, 371 U.S. 471 (1963)). Against
that general backdrop, we turn to the parties’ principal
arguments.
A. Probable Cause and Slone’s Fruit-of-the-Poisonous-
Tree Argument
Slone argues that the exclusionary rule should apply
to his statements and to the vehicle evidence because
police lacked probable cause to arrest him. Probable
cause means that there are “facts and circumstances
within the officer’s knowledge that are sufficient to war-
rant a prudent person, or one of reasonable caution, in
8 No. 09-4089
believing, in the circumstances shown, that the suspect
has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The
standard, an effort to accommodate competing societal
values, Beck v. Ohio, 379 U.S. 89, 91 (1964), does not
require police to gather enough evidence to support a
conviction or even enough to demonstrate that it was
more likely than not that the suspect was engaged in
criminal activity. Wheeler v. Lawson, 539 F.3d 629, 634
(7th Cir. 2008). In evaluating whether probable cause
existed, a court “steps into the shoes of a reasonable
person in the position of the officer.”
According to Slone, the absence of key information
meant that police did not develop probable cause. Spe-
cifically, he notes that agents lacked prior knowledge
that Slone would be involved with the controlled
delivery of marijuana, the agents lacked knowledge of
inherently illegal activity committed by Slone, and the
agents did not know Slone’s identity until after he was
arrested. Of course, Slone’s identity itself is irrele-
vant—imagine that police observed a vicious beating. The
identity of the assailant would not furnish police with
more or less probable cause to make an arrest. More
fundamentally, Slone’s argument is flawed because it
focuses on what law enforcement did not know, rather
than what they did. One can always point out informa-
tional gaps, yet the probable cause inquiry asks what a
law enforcement officer knew rather than what he
did not. Cf. Mahoney v. Kesery, 976 F.2d 1054, 1057-58
(7th Cir. 1992) (the analysis is driven by what the
arresting officers knew, not what others knew).
No. 09-4089 9
In this case, police developed probable cause to believe
that Slone was part of a drug conspiracy because of the
extended, coordinated activity that law enforcement
observed. Here is what the agents knew: the Explorer
had just been loaded with 500 kilograms of marijuana.
Immediately after exiting the location where the ex-
change occurred, the Dodge truck linked up with the
Explorer, remaining approximately one vehicle-length
behind. That by itself would not be sufficient—the situa-
tion would be akin to an individual running into a bank
robber on the sidewalk immediately after a robbery; a
prudent police officer would not believe that the mere
proximity of the two individuals suggests a relation-
ship between them. See United States v. Ingrao, 897 F.2d
860, 861-63 (7th Cir. 1990). However, the Dodge truck
stayed behind the Explorer for twenty minutes, and as
more time passed it became increasingly likely that the
two cars were engaged in coordinated activity as the
cars entered a multi-lane highway, where cars often
change relative positions. And suspicion would only
grow as the cars left the highway and, over at least two
more turns, ended up in “the middle of nowhere.” As
Agent Walker testified at the suppression hearing, the
location was one where it would have been unlikely to
see two cars at the same time.
Knowing that there were drugs in the Explorer and
that the Dodge truck followed for an improbably long
duration, making a series of turns, to a remote place
would alone have furnished law enforcement with proba-
ble cause to suspect that the driver of the Dodge truck
was engaged in criminal activity. It also makes the case
10 No. 09-4089
readily and rightfully distinguishable from cases like
Ingrao, 897 F.2d at 861-63 (probable cause requires a
high degree of suspicion and the standard was not
met merely because the defendant was located close to
the same place at close to the same time as a suspected
drug figure, and there was no evidence of an associa-
tion between them). Slone argues, “If [these facts are]
enough to constitute probable cause, any citizen who
has the misfortune to be traveling behind a truck or car
that is being surveilled would be subject to stop, arrest,
and search.” But that pronouncement at once overstates
the implications of our decision and understates the
facts of this case. Taking the facts together, the practical
probabilities involved—“common-sense conclusions
about human behavior,” Illinois v. Gates, 462 U.S. 213, 231-
32—teach that the movements of the Explorer and
the Dodge truck were not likely the product of mis-
fortune or happenstance. Unlike in Ingrao, the co-
ordinated movements linked the defendants together.
What is more, the activity of Slone and his passen-
ger—constantly checking the mirrors and talking on his
mobile phone as he looked back at the unmarked car
behind them—only added to the reasonableness of the
agents’ suspicions. The fact that no individual act was
unlawful does not matter. If an officer had in every case
to observe an illegal act before effecting an arrest, the
test would be called certain cause, or more-likely-than-
not cause, two formulations that have been rejected. See
also United States v. Price, 888 F.2d 1206, 1208 (7th Cir.
1989) (probable cause requires “substantial chance” of
criminal activity) (quoting Gates, 462 U.S. at 244 n.13).
No. 09-4089 11
What matters is that based on the totality of the circum-
stances, United States v. Dismuke, 593 F.3d 582, 586 (7th
Cir. 2010), which included reasonable inferences based
on law enforcement experience, Gates, 462 U.S. at 232
(the facts should be understood in terms of how those
versed in law enforcement would have viewed them,
rather than “library analysis by scholars”); United States
v. Parra, 402 F.3d 753, 765 (7th Cir. 2005), a reasonable
person would have believed that Slone was helping to
transport 500 kilograms of marijuana for later distribution.
Although the conclusion we reach is necessarily case-
specific, the outcome comports with the Tenth Circuit’s
decision in United States v. Soto, 375 F.3d 1219 (10th
Cir. 2004), which like our case involved coordinated
activity between two vehicles, a blue truck and a white
truck. In Soto, the DEA negotiated a deal involving
the purchase of 2 kilograms of cocaine. One of the de-
fendants told an undercover agent that he would be
driving a white truck and would meet the undercover
agent at a gas station, where the transaction was to be
consummated. On the day of the deal, however, before
the white truck showed up, a previously unknown
blue truck arrived at the gas station. It circled the lot
slowly, then left. The white truck then showed up,
circled slowly, and stayed. At some point, the blue truck
returned to the vicinity and stayed, positioned so that
any occupants could observe the transaction. Before the
transaction was complete, the undercover agent got
into the white truck, which maneuvered near the blue
truck and then proceeded toward the location where
the drugs were being stored. The blue truck followed.
12 No. 09-4089
Both cars were stopped shortly thereafter. On these
facts, the Tenth Circuit concluded that police had
probable cause to arrest the occupant of the blue truck.
Id. at 1222-23 (rejecting the argument that the defendant
was arrested based solely on his presence at a gas
station and concluding that the connection between the
two vehicles became obvious as more time passed and
coordinated activities occurred).
The Soto case provides a useful comparison. The key
difference between the facts of this case and Soto’s case
is that the latter involved coordinated vehicular activity
that occurred for a shorter duration, but both prior to
and during a drug transaction. The analysis in both
cases, however, works much the same way: individually
innocuous acts added up to probable cause that the vehi-
cles’ occupants were acting in concert to traffic drugs.
See also United States v. Ocampo, 937 F.2d 485, 490 (9th
Cir. 1991) (“The fact that some . . . acts, if reviewed sepa-
rately, might be consistent with innocence is immate-
rial.”). In each case, the officers knew to a virtual
certainty that one vehicle’s occupants were involved in
drug trafficking. In Soto, the nearly identical move-
ments—slow circling of the lot—was odd given their
temporal proximity and the fact that the blue truck re-
turned to the vicinity and subsequently engaged in brief
coordinated movements. Temporal forces work against
Slone, too, and the activities were observed for a longer
duration. As more and more time passed and the
trucks remained in a caravan with one another, making
the same turns, taking them to the same spot in an
isolated location, police had more and more cause for
No. 09-4089 13
suspicion. Particularly when combined with the evi-
dence that Slone’s passenger was talking on his mobile
phone while eyeing the agents behind him, this does
not strike us as a close case.
Although the decision in Soto is the most closely analo-
gous case we have located, the outcome sits com-
fortably among the decisions of other circuits that have
considered the lawfulness of stops based on coordinated
vehicular activity—both those ruling that police acted
properly and those determining that they did not.
Compare United States v. Medina-Gasca, 739 F.2d 1451, 1453-
54 (9th Cir. 1984) (reasonable suspicion which ripened
into probable cause in a case involving transportation
of illegal aliens, where police observed tandem driving
of heavily laden vans, the vans parked together, and the
vans made a U-turn together along a corridor known
for circumventing border checkpoints), and United States
v. Saenz, 578 F.2d 643, 647 (5th Cir. 1978) (stop was
lawful where, among other things, cars drove in tandem
for 70 miles and both had CB antennas), with United
States v. Robert L., 874 F.2d 701, 704 (9th Cir. 1989) (stop
based on tandem driving was improper where two
vehicles drove in tandem for approximately 1 kilometer).
See also United States v. Marin, 761 F.2d 426, 431-32 (7th
Cir. 1985) (circuitous driving, in the context of other
information known to law enforcement, sufficient to
support probable cause).
In sum, we agree with the district court that officers
had probable cause to stop Slone and arrest him. There-
fore, neither his post-arrest statements nor the vehicle
14 No. 09-4089
evidence can be suppressed as fruits of an unlawful
arrest. United States v. Shoals, 478 F.3d 850, 853 (7th Cir.
2007) (per curiam).
B. Search Incident to Arrest and Arizona v. Gant
Slone advances a second argument that would apply
only to the vehicle evidence that police recovered during
a search of the truck’s passenger compartment. He main-
tains that, under the Supreme Court’s decision in
Arizona v. Gant, the search of his vehicle was unconstitu-
tional. We respectfully disagree. Although Gant limits
the circumstances when officers may conduct a search of
a passenger compartment incident to a lawful arrest,
the search was lawful because it would have been rea-
sonable for officers to believe that they might find evi-
dence related to the crime for which Slone was arrested.
In Gant, the Court reminded lower courts that estab-
lished precedent “authorizes police to search a vehicle
incident to a recent occupant’s arrest only when the
arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the search.”
129 S. Ct. at 1719; see also New York v. Belton, 453 U.S.
454, 461 (1981) (announcing the holding whose
reach Gant clarified and explaining that officer safety
provides the underlying rationale for the search-incident-
to-arrest exception to the warrant requirement). Slone
argues that he was neither unsecured nor within
reaching distance of the passenger compartment when
the search was conducted and that, therefore, the vehicle
No. 09-4089 15
evidence must be suppressed. However, Slone fails to
grapple with the rest of the Court’s decision.
Critically, the Court held in Gant that police may
search the passenger compartment incident to arrest if a
third, standalone criterion is satisfied—although that
criterion had not been made clear by the Court’s prior
precedent. “[W]e also conclude that circumstances
unique to the vehicle context justify a search incident to
a lawful arrest when it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.”
Id. at 1719 (emphasis added). While a traffic arrest, for
example, will not often furnish the basis for a search, in
other cases the “offense of arrest” will supply a rea-
sonable basis for searching a car’s passenger compart-
ment. Id.; see also id. at 1723-24 (clearly stating the case
holding); United States v. Stotler, 591 F.3d 935, 939 (7th
Cir. 2010) (discussing the Court’s decision and its im-
plications).
In this case, it was reasonable to believe that evidence
related to the offense of arrest would be found in the
passenger compartment, because agents had arrested
Slone while he was in the process of conducting security
or countersurveillance operations in a drug trafficking
conspiracy. As the district court observed, officers “could
have reasonably expected to find money, cell phones,
maps, drawings, or other evidence linking the occupants
of the red Dodge pickup to the crime.” Slone’s argu-
ment that the district court erred because the enumerated
pieces of possible evidence “are not contraband, nor
necessarily evidence of any crime,” misperceives the
16 No. 09-4089
inquiry. The offense of arrest was conspiracy—evidence
that the parties were engaged in a joint venture was
what officers reasonably would have been seeking. See
United States v. Carrasco, 887 F.2d 794, 807-08 (7th Cir.
1989) (conspiracy, which requires proof of an agreement
to carry out illegal activity, may be proved by both
direct and circumstantial evidence). Indeed, circum-
stantial evidence of an agreement to engage in drug
trafficking activity is precisely what the officers found.
United States v. Harris, 585 F.3d 394, 400 (7th Cir. 2009)
(teaching that $8,900, an “exceedingly large quantity of
cash,” provided circumstantial evidence of involvement
in drug trafficking). Therefore, the search incident to
Slone’s arrest was reasonable, and the vehicle evidence
was properly admitted against him.
III. Conclusion
For the foregoing reasons we A FFIRM the judgment of
conviction.
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