NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 3, 2009*
Decided February 25, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09‐2007
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Indiana, Fort Wayne Division.
v.
No. 08 CR 12
JAMES L. GOVAN,
Defendant‐Appellant. Theresa L. Springmann, Judge.
O R D E R
James Govan pleaded guilty to possessing with the intent to distribute crack cocaine and
carrying a firearm during and in relation to a drug trafficking crime, but in doing so reserved
the right to appeal the district court’s denial of his motion to suppress the crack and gun.
Govan appeals, and we affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
Just before midnight on January 19, 2008, Officers Chris Drake and Doug Schwertfager
of the Indiana State Excise Police were on patrol across the street from a liquor store in Fort
Wayne, Indiana. From their unmarked vehicle and with the aid of binoculars, the officers
observed two males who appeared to be under the age of 21 walking along the well‐lit
sidewalk in front of the store. The men stopped, faced each other, and appeared to exchange
something. One of them, Marquel Marsh, then entered the liquor store, while the other man,
later identified as James Govan, stood behind a pay phone on the storefront beyond the store
clerk’s view. After a few minutes, Marsh exited the store and met Govan. The two faced each
other, made hand motions consistent with the exchange of an item, and resumed walking down
the sidewalk.
Although they did not see the items the young men exchanged, the officers suspected
that they had witnessed the furnishing of alcohol to a minor.** As the men began to cross the
street, the officers drove toward them and activated their vehicle’s emergency lights. The
officers exited the vehicle, identified themselves as law enforcement, and asked the men for
some form of identification. Neither had any. Officer Schwertfager dealt with Marsh and
verified his identity and age (20) through the Indiana Bureau of Motor Vehicles database.
Marsh informed Officer Schwertfager that he had purchased condoms at the liquor store and
showed him the condoms and a receipt. Meanwhile, Officer Drake dealt with Govan who, after
about five minutes of refusing to disclose his name, identified himself as Marcus Williams and
gave a birth date of March 17, 1985. Officer Drake was unable to locate a person by that name
and birth date in the Bureau of Motor Vehicles database. He then contacted Officer Chris
Hoffman of the Fort Wayne Police Department who ran the name and birth date through a local
database. Officer Hoffman was unable to locate a black male named Marcus Williams born on
March 17, 1985, in the local system; he did discover, however, that there was an active arrest
warrant for a black male who had that birth date—James Govan. Officer Hoffman relayed that
information to Officer Drake, accessed Govan’s photo by computer, and then informed Officer
Drake that Govan had a scar above his eye. Officer Drake asked Govan to remove his hat and
glasses. When the man complied, Officer Drake observed a scar above his left eye. Officer
Hoffman then arrived on the scene and confirmed that the man matched the computer photo
of James Govan. In order to be certain, Officer Hoffman asked the man for his social security
number. Officer Hoffman checked the number he was given against the number from the James
Govan entry in the local database and discovered that they matched except for two digits that
had been transposed. The officers then placed Govan under arrest based on the outstanding
warrant and for giving false information to police during the investigation of a crime. (Twenty
minutes had elapsed between the initiation of the stop and Govan’s arrest.) Officer Hoffman
searched Govan and discovered baggies of crack cocaine and marijuana. After Govan was
**
In Indiana, it is a misdemeanor for a person to furnish an alcoholic beverage to a
minor. Ind. Code § 7.1‐5‐7‐8(a). On the other side of the coin, it is also a misdemeanor for a
minor to knowingly possess an alcoholic beverage. Id. § 7.1‐5‐7‐7(a)(1).
transported to jail, Officer Hoffman searched him a second time and discovered a handgun in
his coat pocket.
A grand jury indicted Govan for possessing with the intent to distribute crack cocaine
(Count 1), being a felon in possession of a firearm (Count 2), and carrying a firearm during and
in relation to a drug trafficking crime (Count 3). Govan filed a motion to suppress the crack
and the gun, alleging they were the fruits of an unlawful investigatory stop. Following a
hearing, the district court denied the motion. Govan then pleaded guilty to Counts 1 and 3 of
the indictment pursuant to a conditional guilty plea wherein he reserved his right to appeal the
district court’s denial of his motion to suppress. The district court sentenced Govan to a term
of 33 months’ imprisonment on Count 1 and a consecutive term of 60 months’ imprisonment
on Count 3. Govan appeals the denial of his motion to suppress the crack and handgun.
On appeal, Govan argues that the crack cocaine and gun should have been suppressed
because their discovery resulted from the officers’ violation of his Fourth Amendment right to
be free from unreasonable seizures. Specifically, he contends that Officers Schwertfager and
Drake stopped him without reasonable suspicion that he was committing (or had committed)
a crime. And even if the stop was justified at its inception, says Govan, the duration of the stop
was unreasonable.
In reviewing a district court’s denial of a motion to suppress, we examine its conclusions
of law de novo and its factual findings for clear error, giving special deference to its credibility
determinations. United States v. Burnside, 588 F.3d 511, 516–17 (7th Cir. 2009). Govan does not
challenge the district court’s findings of fact and concomitant credibility determinations.
Hence, our review is limited to the district court’s legal conclusion that the stop comported with
the Fourth Amendment.
Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer can conduct an
investigatory stop of a suspect if he has a reasonable suspicion based on particular, articulable
facts that criminal activity is afoot. United States v. Hampton, 585 F.3d 1033, 1038 (7th Cir. 2009).
Whether an officer possessed reasonable suspicion is an objective inquiry based on the totality
of the circumstances known to the officer at the time of the stop. United States v. Hicks, 531 F.3d
555, 558 (7th Cir. 2008). The officer’s action must be justified at its inception and reasonably
related in scope to the circumstances that warranted the stop initially. Jewett v. Anders, 521 F.3d
818, 824 (7th Cir. 2008). The duration of the stop must be reasonable. United States v. Jackson,
300 F.3d 740, 746 (7th Cir. 2002).
Under Indiana law, it is a crime for a minor*** to knowingly possess an alcoholic
beverage. Ind. Code § 7.1‐5‐7‐7(a)(1). The observations of the experienced excise officers gave
***
A minor is a person less than 21 years of age. Ind. Code § 7.1‐1‐3‐25.
rise to a reasonable suspicion that Govan was a minor in possession of alcohol.**** Standing in
the well‐lit area near the liquor store, Govan appeared to be under the age of 21—he was in fact
only 22. It was almost midnight when the officers saw Govan exchange an item with Marsh.
While Marsh went inside the store, Govan stood behind a pay phone out of the store clerk’s
view, something a minor not wishing to arouse the suspicion of store personnel might do.
After Marsh had tarried a few minutes in the store, he came out and had a face‐to‐face
encounter with Govan; the two again appeared to exchange an item. The officers did not
actually see any items exchanged and the men’s hand movements were susceptible of an
innocent explanation, but given the circumstances it was reasonable for them to think that
Govan had supplied Marsh with money to buy alcohol and that Marsh had done so and
delivered it to him. See Illinois v. Wardlaw, 528 U.S. 119, 125–26 (2000) (Terry stops are
appropriate even where suspect’s conduct is ambiguous and subject to an innocent
explanation); United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008) (“While certain behavior
in isolation may have an innocent explanation, that same behavior, when viewed in the context
of other factors at play, may amount to reasonable suspicion.”). Hence, the officers had a
reasonable suspicion that Govan was a minor in possession of an alcoholic beverage.
Accordingly, at its inception the investigatory stop of Govan did not offend the Fourth
Amendment.
Govan argues that even if the stop were initially justified, the duration of the stop was
unreasonable because the officers continued to detain him after they discovered that Marsh was
20 years old and had purchased condoms in the liquor store. “There is no bright‐line rule as
to how long an investigative detention may last; instead we look to whether the police
diligently pursued a means of investigating that was likely to confirm or dispel quickly their
suspicions.” United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006). While Officer
Schwertfager was dealing with Marsh, Officer Drake attempted to learn Govan’s identity,
which is generally permissible during an otherwise valid stop. Hiibel v. Sixth Judicial Dist.
Court, 542 U.S. 177, 186 (2004) (observing that “it is well established that an officer may ask a
suspect to identify himself in the course of a Terry stop”). The fact that the officers learned that
Marsh was a minor did not dispel their reasonable suspicion that Govan was a minor in
possession of alcohol: Marsh still could have purchased alcohol in the store, perhaps with a
fake identification or none at all, and given it to Govan. And the condoms and receipt that
Marsh produced did not necessarily dispel their reasonable suspicion that Govan was a minor
in possession of alcohol: the apparent exchanges between Govan and Marsh before and after
Marsh’s visit in the store were still unexplained. Moreover, within five minutes of the stop,
Govan refused to reveal his name and then gave a false name that did not show up in the
Bureau of Motor Vehicles database. At that point, there was ample reason for Officer Drake
to be suspicious that Govan was wanted for another crime, see id., or had given him false
****
At the time, Officer Drake was an 11‐year veteran of the Indiana State Excise
Police. Officer Schwertfager had been on the job for two and a half years.
information during the investigation, which is itself a misdemeanor offense in Indiana, Ind.
Code § 35‐44‐2‐2(d)(1). The officers therefore had reasonable suspicion that Govan had
committed a separate offense, which provided additional grounds for extending the stop and
investigating further. They investigated the new suspicion by searching the local database.
After learning Govan might be wanted on an arrest warrant, they looked to see if he had a scar
above his eye and checked his social security number. All of these measures were aimed at
confirming or dispelling the officers’ suspicions raised by Govan’s conduct, and Govan’s
continued detention (for less than 15 minutes) while these steps were taken was reasonable.
See Cady v. Sheahan, 467 F.3d 1057, 1063 (7th Cir. 2006) (officers do not exceed the permissible
duration of a stop where the extension of the stop is attributable to the suspect’s evasive
conduct).
In sum, the stop was lawful both at its inception and in its duration and thus provides
no basis for excluding the crack and gun.***** Accordingly, the district court properly denied
Govan’s motion to suppress. We AFFIRM.
*****
Because the stop was at all times consistent with the Fourth Amendment, we need
not decide whether the outstanding arrest warrant might have been an intervening
circumstance sufficient to dissipate the taint of an illegal stop and thus avert suppression of
the crack cocaine and gun. See United States v. Green, 111 F.3d 515 (7th Cir. 1997).