In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1237
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRILL T. THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 10010—Joe Billy McDade, Judge.
____________
ARGUED DECEMBER 3, 2007—DECIDED JANUARY 7, 2008
____________
Before BAUER, EVANS, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Terrill
Thomas was under investigation by the Peoria police in
late 2005 for dealing heroin; on December 28, 2005, they
pulled over a van in which Thomas was a passenger. After
a struggle, Thomas was placed under arrest. A search of
Thomas produced an aluminum foil packet, currency, and
a handgun. A golf ball-sized ball of crack cocaine and
heroin was found between Thomas’s buttocks.
Thomas was charged in a four-count indictment for
(1) possession with intent to deliver more than five
grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B) (Count 1); (2) possession with intent to deliver
2 No. 07-1237
more than five grams of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) (Count 2); (3) possession of a
firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count 3); and (4) felon-in-
possession of a firearm, in violation of 18 U.S.C. § 922(g)
(Count 4).
Thomas filed a motion to suppress the evidence of the
search and the statements he made to the officers after
his arrest. The district court held an evidentiary hearing,
and on September 13, 2006, denied the motion in a
written opinion. Thomas then entered a conditional plea
of guilty to Counts 1 and 3, reserving the right to appeal
the denial of the motion to suppress. On January 26, 2007,
the district court sentenced him to a total of 180 months’
imprisonment. Thomas timely filed a notice of appeal
on February 1, 2007.
Thomas challenges the denial of his motion to sup-
press on three grounds: (1) the officer did not have rea-
sonable suspicion to perform a pat-down search during
the traffic stop; (2) the officer subjected him to an unrea-
sonable “body cavity” search; and (3) his statements
after his arrest were not sufficiently attenuated from the
taint of the illegal search.
We review a district court’s legal conclusions on a
motion to suppress de novo and factual findings for clear
error. United States v. Riley, 493 F.3d 803, 808 (7th Cir.
2007). We generally defer to the district court’s deter-
mination of credibility because, unlike our review of
transcripts, the district court had the opportunity to
listen to the testimony and observe the demeanor of
witnesses. United States v. Biggs, 491 F.3d 616, 621 (7th
Cir. 2007). Because we find that the officers were justi-
fied in performing the pat-down search, which was rea-
sonable and proper, we do not address Thomas’s third
argument about the statements he made to officers after
his arrest.
No. 07-1237 3
The suppression hearing brought out the following
facts: Between October and December of 2005, Thomas
was the subject of an ongoing police investigation in
which Thomas was suspected of being a heroin dealer,
based in part on information from a confidential infor-
mant. As part of the investigation, Peoria police made two
controlled buys of heroin that involved Thomas. Officer
Loren Marion, a member of the Special Investigations
Division Vice Narcotics Unit in the Peoria police depart-
ment, was present for one of those buys. The police also
learned that Thomas had been dealing drugs out of a blue
and tan conversion van with a certain license plate
number, and that there was a possibility that Thomas
carried a handgun when he made drug deliveries.
Officer Marion was on duty in an unmarked car on the
evening of December 28, 2005. Around 8:30 p.m., he
observed a van matching the description and license
plate of the van associated with Thomas’s drug traf-
ficking. Officer Marion requested over the police radio
that a marked police car stop the van. He followed the
van until Officer Aaron Watkins, who was on patrol in
the area, initiated the stop on the basis that the van’s
rear registration light was out. The van pulled over in
front of a high school.
Officer Watkins approached the van from the driver’s
side and began questioning the driver, Danita Murray,
who happened to be Thomas’s wife. Officer Marion ap-
proached from the passenger side and used his flash-
light to look inside the van through the front passenger
window. He observed Thomas, who was looking in the
direction of his wife, reach briefly into his left jacket
pocket with his right hand, without removing anything.
Officer Marion tapped on the window and asked Thomas
to exit the van. Officer Marion testified that he was
concerned, based on prior information, that Thomas
was armed and wanted to conduct a pat-down search
4 No. 07-1237
for weapons. Thomas initially refused, asking “why he
had to get out.” Officer Marion observed that Thomas
was shaking and sweating. He asked Thomas to get out of
the vehicle two more times before Thomas complied. When
Thomas got out, he began to walk between Officer Marion
and the van door, in a seeming attempt to get away from
the officer. Officer Marion grabbed Thomas’s right arm.1
Officer Marion, along with Officer Thomas Rusk, who
had arrived moments before to assist, testified that a
struggle ensued while they attempted to handcuff Thomas.
Thomas continued to resist, and Officer Marion told
Thomas that he would be tasered if he did not stop strug-
gling. Thomas stopped struggling, and Officer Marion
arrested him for resisting arrest.
Pursuant to the arrest, Officer Marion conducted an
initial pat-down search of Thomas, and found an alumi-
num foil packet (similar to heroin packaging), currency,
and a handgun in his waistband. When he discovered the
handgun, Officer Marion walked with Thomas to his
unmarked car, where the officer secured the gun. Officer
Marion then walked Thomas over to Officer Rusk’s car
to resume the pat-down search. As Officer Marion con-
tinued to pat-down Thomas’s outer clothes, he felt a
bulge between Thomas’s buttocks. Officer Marion testi-
fied that, based on his experience as a narcotics officer,
it was common for individuals to hide drugs between
their buttocks. Officer Marion put on a pair of rubber
gloves, inserted his hand inside Thomas’s pants and
underwear, and retrieved a golf ball-sized ball of crack
cocaine and heroin from between Thomas’s buttocks.
Officer Marion testified that he may have “loosened”
1
The district court noted that there was conflicting testimony
as to whether Thomas exited the van unassisted or whether
Officer Marion grabbed Thomas’s jacket and pulled him out.
No. 07-1237 5
Thomas’s belt but he did not remove Thomas’s belt or his
pants, nor did he insert his finger into Thomas’s body
cavity to remove the drugs. Thomas was then taken to
the police station, where he made incriminating state-
ments to the officers.
Thomas and Murray also testified at the suppression
hearing. According to Murray, she was driving the van
with Thomas in the passenger seat, when she was
pulled over and told by the officer that her rear registra-
tion light was out. She heard the other officers order
Thomas out, and saw the officers pull him from the van.
Murray testified that she did not hear or see any strug-
gle between Thomas and the officers. Some time later,
she saw a handcuffed Thomas standing at a squad car
behind the car in which she was sitting, and according
to Murray, Thomas’s pants were down between his but-
tocks and his knees.
Thomas testified that Officer Marion told him to get
out of the car twice, and when Thomas asked for a reason,
the officer opened the door, grabbed Thomas, and pulled
him out of the car. According to Thomas, although he
may have “tensed up” when the officers grabbed him, he
did not struggle. Thomas testified that during the pat-
down search, Officer Marion felt his genital area, then
stood behind Thomas and pulled his pants down to his
knees. Thomas said Officer Marion then reached into
Thomas’s underwear, inserted the tip of his finger into
Thomas’s anus, and pulled an item from between his
buttocks.
The district court denied the motion to suppress. The
court found that Officer Marion properly had Thomas
leave the van to conduct a pat-down search under Terry v.
Ohio, based on his knowledge of Thomas’s drug trafficking
activities and the possibility that Thomas might be
armed. The court also found that Thomas attempted to
6 No. 07-1237
walk away from Officer Marion when he finally got out of
the van, and that a struggle took place between the
officers and Thomas, leading to Thomas being cuffed
and arrested for resisting arrest. This arrest authorized
Officer Marion to conduct the search incident to arrest.
Moreover, the court did not believe Thomas’s version of
the pat-down search that the officer inserted his finger
into Thomas’s anus. Rather, the court found that Officer
Marion conducted a pat-down of Thomas’s outer clothing,
felt a bulge between Thomas’s buttocks, “then inserted his
hand inside [Thomas’s] pants and his underwear and
retrieved a golf-ball-sized ball of crack cocaine and
heroin from between [his] buttocks.”
It is important to note that, on this appeal, Thomas
does not challenge the legality of the traffic stop, conceding
in his brief that “the police had sufficient reason to stop
the van for the traffic violation.” Moreover, Thomas
agrees that, “[b]ecause of the stop, officers could have
ordered Mr. Thomas out of the car.”
Because we find that Thomas was searched pursuant
to a lawful arrest for resisting arrest, it is irrelevant
whether the pat-down search was justified under Terry.
Searches incident to arrests are valid in order to find
weapons and to search for and seize any evidence on the
arrestee’s person in order to prevent concealment and to
preserve evidence for trial. United States v. Williams, 209
F.3d 940, 943 (7th Cir. 2000) (citing United States v.
Robinson, 414 U.S. 218, 234 (1973)). Where there is a
lawful custodial arrest, a full search of the person is not
only an exception to the warrant requirement of the
Fourth Amendment, but is also a reasonable search under
that Amendment. Id. The district court credited the
officers’ testimony when it found that Thomas’s “refusal
to exit the van in compliance with Officer Marion’s direc-
tions . . . leading to [Thomas’s] cuffing and arrest would
authorize the ensuing search of [Thomas] pursuant to
No. 07-1237 7
his arrest for ‘resisting’ a police officer.” The record
supports the contention that Thomas resisted the officers’
efforts to detain and cuff him. Thomas’s struggle with the
officers gave them probable cause to arrest him, thus
authorizing Officer Marion to conduct a pat-down search
pursuant to his arrest.
Nevertheless, we shall address the district court’s
alternative holding that Officer Marion was acting legally
when he conducted a pat-down search of Thomas under
Terry v. Ohio. Thomas argues that Officer Marion lacked
sufficient evidence to establish reasonable suspicion to
perform a pat-down search under Terry. Thomas fur-
ther contends that the information supplied by the confi-
dential informant was insufficient, in that the informant
did not provide information about a particular drug
delivery, or a specific time and place a delivery was to
occur. Thomas gives us no reason to question the
integrity or reliability of the confidential informant, nor
did he object to the testimony regarding the information
that the police had acquired during the investigation of
Thomas. “Informants’ tips, like all other clues and evidence
coming to a policeman on the scene, may vary greatly in
their value and reliability.” United States v. Rucker, 138
F.3d 697, 700 (7th Cir. 1998) (citing Adams v. Williams,
407 U.S. 143, 147 (1972)). Moreover, the police had been
conducting an investigation for two months prior to
Thomas’s arrest, verifying information about Thomas’s
drug activities and participating in buys where Thomas
was present.
During a Terry stop, a police officer may conduct a
pat-down search for weapons if the officer has specific
and articulable facts that support a suspicion that the
individual could be armed or presents a threat or danger
to the officer or others. Terry v. Ohio, 392 U.S. 1, 27
(1968); United States v. Shoals, 478 F.3d 850, 853 (7th Cir.
2007). Furthermore, a police officer may take reasonable
8 No. 07-1237
measures to determine whether a suspect is armed “[w]hen
the officer is justified in believing that the individual
whose suspicious behavior he is investigating at close
range is armed and presently dangerous to the officer or
to others.” Terry, 392 U.S. at 24. The officer need not
be certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that
of others might be in danger. United States v. Bernal, 28
F.3d 630, 632 (7th Cir. 1994) (citing Terry, 392 U.S. at 27).
Officer Marion could point to reasonable and articulable
facts to justify a pat-down search of Thomas under Terry,
and Officer Marion was aware of the possibility that
Thomas carried a weapon during his drug deliveries. That
suspicion was heightened when, as Officer Marion ap-
proached the van, he observed Thomas reach in and out
of his jacket pocket, a movement that could be inter-
preted by an officer as a retrieval of a weapon. Officer
Marion’s suspicions were reasonable in light of the totality
of the circumstances, thus satisfying Terry.
Next, Thomas argues that Officer Marion’s pat-down
“search of his anus in front of [the high school] on a lit,
residential street, as his wife watched, was unreasonable.”
Thomas equates the pat-down to an invasive and de-
meaning body cavity search, compounded by the fact that
it was performed in a public place. The short answer to
this is that the court rejected this testimony and we
respect that credibility finding.
The court credited the testimony of Officer Marion, who
testified that he ran his hands along Thomas’s outer
clothing when he felt a hard object between Thomas’s
buttocks. Officer Marion believed this object to be drugs,
based on his experience that individuals commonly conceal
drugs between their buttocks. Officer Marion put on
rubber gloves and retrieved the object. The record does not
No. 07-1237 9
support, and the district court declined to accept, Thomas’s
version of the event. We find no clear error in the facts
determined by the district court: that Thomas was never
forced to take off his pants, and that the search was not
invasive, but rather, was reasonable and justified, espe-
cially in light of Officer Marion’s previous discovery of
drugs and a weapon on Thomas’s person. We find that the
pat-down search incident to arrest was reasonable in
scope, manner and justification.
Finally, Thomas contends that his statements at the
police station should be suppressed because they were
not sufficiently attenuated from the original taint of the
illegal search. In finding the pat-down search of Thomas
was reasonable and proper, we decline to address this
argument.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-7-08