In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2382
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERRANCE A. M C C AULEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:08-cr-00151-bbc-1—Barbara B. Crabb, Judge.
A RGUED N OVEMBER 3, 2010—D ECIDED O CTOBER 6, 2011
Before E ASTERBROOK, Chief Judge, and W ILLIAMS,
Circuit Judge, and P ALLMEYER, District Judge.
P ALLMEYER, District Judge. When police arrested
Terrance A. McCauley on an assault charge, they found
crack cocaine secreted in his pants leg. McCauley moved
to suppress the drug evidence, but the district court
The Honorable Rebecca R. Pallmeyer, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 10-2382
denied the motion and, after accepting McCauley’s condi-
tional guilty plea, sentenced McCauley to the mandatory
minimum five-year term. On appeal, McCauley argues
that his arrest was not supported by probable cause
and that the district court erred in concluding that the
use of a baseball bat in the assault justified enhancing
his sentence for use of a weapon. We are satisfied that
probable cause existed for McCauley’s arrest and that
the weapons enhancement was appropriate. We there-
fore affirm his conviction and sentence.
I.
At about 7 p.m. on September 11, 2008, Willie Aikens
drove her boyfriend, David Neeley, to an apartment in
the High Ridge Trail area of Fitchburg, Wisconsin, to
pay $40 to a man he knew as “Twin.” Neeley entered the
apartment and paid his debt, but Twin exacted a penalty
for Neeley’s delay in paying him: Twin began punching
Neeley, and after another man grabbed Neeley and held
him by the neck, Twin beat him with a baseball bat.
Neeley ran out of the apartment about 20 minutes after
he had entered, got into the car with Aikens, and told
her “they jumped on me.”
Aikens and Neeley spent several hours driving
around, debating what to do; we presume he preferred
not to draw attention to his dealings with Twin (Aikens
later reported she believed the $40 was a drug debt).
Eventually, however, Aikens brought Neeley to St. Mary’s
Hospital, where, at about 12:30 a.m., he was interviewed
by Officer Matthew Wiza. Wiza observed a large bruise
No. 10-2382 3
on top of Neeley’s head, a bruised knee, and a cut lip.
Though he did not know the precise address, Neeley gave
Wiza directions to the apartment where he had been
assaulted. Neeley described Twin as black, six feet tall,
medium build, with collar-length braided hair, clothed in
a blue tank top and blue jeans, and wearing an electronic
monitoring bracelet on his ankle. Neeley described the
other man as black, between 5-feet and 5-feet-4-inches,
with a medium build of around 125 pounds, and
braided, collar-length hair.
Wiza contacted his sergeant, who advised him that
the man he described as “Twin” might be an individual
on electronic monitoring named Mica Johnson, and
provided Wiza with an address for Johnson.1 Wiza, accom-
panied by two other officers, drove to Johnson’s residence,
arriving between 1:30 and 2:30 a.m. on September 12.
The directions Neeley had provided proved accurate,
matching the route police took once they had Johnson’s
address in hand. On his arrival, Wiza went to the front
door, where he heard some sort of social gathering
inside. He knocked on the door for a few minutes, until
it was opened by a man about 5-feet to 5-feet-4-inches
tall, with a slender build and collar-length braided hair.
That man turned out to be McCauley. Wiza believed
1
Mica Johnson was ultimately identified as Micah Richardson.
Based on the record, it appears that at the time of these
events police did not know he was actually named Richardson,
and had contact information for an individual on electronic
monitoring named Johnson. It is not clear when or under
what circumstances his actual identity was ascertained.
4 No. 10-2382
McCauley to be the same person Neeley described as
having restrained him while Twin hit him with the bat.
Wiza told McCauley he wanted to talk to him, but
McCauley shut the door and locked it. Wiza continued
to knock on the door, until a man matching the descrip-
tion of Twin opened the door. The man asked what
Wiza wanted. “I think you know why I’m here,” Wiza
replied. The man shut the door, locked it, and turned
off the lights.
Wiza was, in the words of the magistrate judge, “un-
daunted—and irritatingly tenacious.” He continued
knocking on the door for five to ten more minutes. At
this point, McCauley stepped outside of the apartment
with a woman and began walking away. Wiza im-
mediately handcuffed him and brought him toward the
squad car. Prior to placing McCauley in the car, Wiza
patted him down. Between the shin and thigh of
McCauley’s left leg, Wiza detected something that, he
later testified, “felt to me like a plastic baggie of crack
cocaine,” something Wiza was familiar with from five
previous instances in which he had encountered the
substance during pat-downs. Wiza pulled lightly at the
man’s pant leg and the bag—later determined to contain
crack cocaine and several pills of MDMA (ecstacy)—fell
to the ground.
McCauley moved to suppress the drug evidence, and
the magistrate judge conducted a hearing at which
Wiza testified. Magistrate Judge Crocker concluded
that the “confluence of physical description, timing
and propinquity [were] sufficient to establish probable
No. 10-2382 5
cause that McCauley was the man that held Neeley
during the beating.” United States v. McCauley, No. 08-cr-
151-bbc, 2010 WL 697286, at *6 (W.D. Wis. Feb. 25, 2010).
Having found probable cause to arrest existed before
McCauley was searched, Judge Crocker concluded that
the search incident to arrest did not run afoul of the
Fourth Amendment, even though it occurred prior to
McCauley’s formal arrest. Id. at *4.
McCauley objected to Judge Crocker’s ruling. He
did not challenge the conclusion that a search incident
to arrest was lawful, but argued that Wiza lacked
probable cause to arrest him. Judge Crabb agreed with
Judge Crocker, concluding that when Wiza returned to
the scene of the beating and encountered two individuals
who matched the descriptions Neeley provided, the
circumstances were “sufficient to warrant a prudent
person of reasonable caution in believing that defendant
had committed an offense.” McCauley, 2010 WL 697286,
at *1.
McCauley pleaded guilty to both counts of the indict-
ment against him, but reserved in writing the right to
appeal the district court’s ruling on suppression. (The
first count, not challenged here, was for distribution of
cocaine base on May 29, 2008.) On March 8, 2010, the
probation officer filed a pre-sentence investigative
report (“PSR”) recommending that McCauley not re-
ceive a two-level increase for possession of a dangerous
weapon (in this case, a baseball bat), because there
was “insufficient evidence” to support such an enhance-
ment. The PSR concluded that McCauley could satisfy all
6 No. 10-2382
of the criteria in U.S.S.G. § 5C1.2(a)(1)-(5), making him
eligible to escape the statutory minimum sentence pursu-
ant to the “safety valve.” 2 The PSR also recommended
his offense level be reduced by two pursuant to
§ 2D1.1(b)(11), which, in the 2010 version of the
guidelines, provides for a two-level decrease when the
criteria of the “safety valve” provision are met.
At McCauley’s sentencing hearing on May 28, 2010,
Micah Richardson took sole responsibility for Neeley’s
beating, testifying that McCauley did not participate, and
that, in fact, McCauley was upstairs in the bathroom for
the duration of the incident. Judge Crabb did not
believe Richardson, and opted to impose the enhance-
ment for use of a dangerous weapon:
I tend to agree with [the government] that Mr. Rich-
ardson’s testimony is incredible. When you put
it together with the fact that Mr. Neeley identified
Mr. McCauley, was able to pick his picture out of a
lineup when theoretically he never laid eyes on him
during the time that he was present at Mr. Richard-
son’s apartment, that coincidence just seems so com-
pletely improbable, along with the other evidence
that we have.
2
The “safety valve” provision, U.S.S.G. § 5C1.2, allows a court
to impose a sentence without regard to the statutory mandatory
minimum if five criteria are met, including, as relevant here,
that the offender must not have used violence, a credible
threat of violence, or a dangerous weapon in connection with
the offense; the offense must not have resulted in death or
serious injury to anyone. U.S.S.G. § 5C1.2(a)(1)-(5).
No. 10-2382 7
Finding McCauley was no longer eligible for the safety
valve, Judge Crabb imposed the mandatory minimum
sentence of 60 months. McCauley filed a notice of appeal
on June 7, 2010.
II.
Defendant brings this appeal from the final order
imposing his sentence pursuant to his conviction of a
federal crime for possession of cocaine base in violation
of 21 U.S.C. § 841. 28 U.S.C. §§ 1291, 1294; 18 U.S.C.
§ 3742(a). He challenges the district court’s denial of his
suppression motion, arguing that because Wiza had only
a “very basic description” of McCauley, the officer did
not have probable cause to arrest him, and therefore the
crack cocaine discovered during the search that occurred
immediately before his formal arrest should have been
suppressed.
Probable cause to arrest requires an arresting officer
to possess “knowledge from reasonably trustworthy
information” that would lead a prudent person to believe
that a suspect has committed a crime. United States v.
Villegas, 495 F.3d 761, 770 (7th Cir. 2007) (citation and
quotation omitted). “Whether a police officer acted on
probable cause is determined based on the common-sense
interpretations of reasonable police officers as to the
totality of the circumstances at the time of arrest.”
Id. (citation and quotation omitted). The district court
was satisfied that Wiza did have probable cause for
McCauley’s arrest. We review the court’s legal conclusions
de novo and its findings of fact for clear error. United States
8 No. 10-2382
v. Jackson, 598 F.3d 340, 344 (7th Cir. 2010) “A factual
finding is clearly erroneous only if, after considering all
the evidence, we cannot avoid or ignore a ‘definite and
firm conviction that a mistake has been made.’ ” United
States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009) (quota-
tion and citation omitted).
In arguing that there was no error here, the govern-
ment notes that McCauley and Johnson matched the
descriptions provided by Neeley and were found in the
apartment described by Neeley. McCauley responds
that, based on the description provided by Neeley and
the position advocated by the government, “all short
black males, near the High Ridge Trail location, would
be subject to arrest.” (Reply at 5.) He cites Ybarra v. Illinois,
444 U.S. 85 (1979), where police entered the Aurora Tap
Tavern with a search warrant based on suspicion that
the bartender was a heroin dealer, but then proceeded to
search all of the bar’s patrons. Among those patrons was
Ybarra, on whom the officers found a cigarette pack
containing heroin. In concluding that officers lacked
probable cause to search Ybarra, the Supreme Court
noted that Ybarra had done nothing suspicious while in
the bar. “[T]he agents knew nothing in particular about
Ybarra, except that he was present, along with several
other customers, in a public tavern at a time when the
police had reason to believe that the bartender would
have heroin for sale.” Id. at 91. “[A] person’s mere propin-
quity to others independently suspected of criminal
activity does not, without more, give rise to probable
cause to search that person.” Id. (citation omitted).
No. 10-2382 9
The circumstances of McCauley’s arrest are quite dif-
ferent from those at issue in Ybarra. Ybarra happened to
be on the premises when the police arrived to investigate
someone else. In this case, the police had specific infor-
mation about two individuals who had participated in
a specific crime, including the location where it occurred
and a description of the perpetrators. That information
pointed to McCauley. Unlike Ybarra, about whom the
police knew “nothing in particular,” Wiza knew that
a person at the apartment, matching McCauley’s descrip-
tion, had participated in a beating only hours ear-
lier. “Probable cause to arrest exists when a rea-
sonably cautious and prudent person would be justified
in believing that the individual to be arrested had com-
mitted . . . a crime.” United States v. Askew, 403 F.3d 496,
507 (7th Cir. 2005) (citation and quotation omitted).
Ybarra might be instructive if, because the apart-
ment Neeley described was known as a drug house,
Wiza had entered through some legitimate means (a
search warrant, consent, or observation of drugs in
plain sight), and then proceeded to indiscriminately
search everyone in the apartment. That is not what oc-
curred here.
McCauley points to a trio of older cases in which courts
found there was no probable cause to arrest based on a
bare-bones description and a location. In Gatlin v. United
States, 326 F.2d 666 (D.C. Cir. 1963), for example, the
D.C. Circuit Court concluded that Gatlin had been
arrested without probable cause when
[t]he only evidence on which the arrest was predicated
was the fact that there was a robbery, that one of the
10 No. 10-2382
robbers was a Negro wearing a trench coat, that a
Negro man fled from a taxi, and that Gatlin, a Negro
man, was observed walking down the street a mile
and a half from the robbery wearing a trench coat.
326 F.2d at 670-71. Such evidence was not enough, the
court held, to “justify deprivation of liberty.” Id. at 671. In
United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978),
the court found there was a reasonable basis for an in-
vestigative stop, but not an arrest, when the defendant
was found a block and a half from the scene of a
burglary, wearing the same haircut and similar clothing
to what the burglary suspect reportedly wore. The court
noted that “the description received over the police
radio fits many young people in that area of Washing-
ton,” id. at 1053, and that defendant Short was wearing
a “darker” or “reddish brown” jacket, not the “camel-
colored” jacket described in the police radio dispatch.
“Officer Carter obviously was looking for individuals
with a jacket of any arguable shade of brown. As such,
the description was not of itself probable cause for ar-
rest.” Id. at 1054 n.4. Finally, in United States v. Fisher,
702 F.2d 372 (2d Cir. 1983), police officers had arrested
Fisher in an area where they believed three bank robbers
to be. As in Short, the court concluded there was a basis
for an investigatory stop, but not an arrest, where the
arresting officer “had only the most general description
of the robbers that would have fit Fisher”—a tall, pos-
sibly slim, black male—and “nothing Fisher said or did
in response to questioning when he was stopped
provided probable cause for his arrest.” Id. at 377.
No. 10-2382 11
Gatlin, Fisher, and Short are readily distinguishable
from this case. In all three of those cases, the suspects
were apprehended in public areas, and none nearly
as close to the alleged crime scene as McCauley.
Wiza had a much more specific description of
Richardson, including the electronic monitoring brace-
let, than did the officers involved in the cases on which
McCauley relies. In addition to the fact that McCauley
matched the description of one of the two persons
involved in the attack on Neeley, Wiza knew that
McCauley had exited an apartment in which the other
suspect had been seen.
Both parties here identify Hill v. California, 401 U.S. 797
(1971), as an example of a case where probable cause
was found despite what turned out to be a case of
mistaken identification. Police in that case had received
detailed information about a suspect in an armed rob-
bery. When they went to that individual’s apartment
to arrest him, they encountered a man at that address
who acknowledged he was in the suspect’s apartment
but produced identification with a different name than
that of the suspect. Id. at 798-99. The police nevertheless
arrested the man who roughly resembled the suspect’s
description, and, among other things, “denied knowl-
edge of firearms in the apartment although a pistol and
loaded ammunition clip were in plain view in the room.”
Id. at 803-04 & n.6. Though police arrested the wrong
man, the arrest was supported by probable cause, and
the fruits of the search incident to that arrest were there-
fore admissible at defendant’s trial. The Supreme Court
affirmed the conviction, explaining that “sufficient proba-
12 No. 10-2382
bility, not certainty, is the touchstone of reasonableness
under the Fourth Amendment and on the record before
us the officers’ mistake was understandable and the
arrest a reasonable response to the situation facing
them at the time.” Id. at 804. In this case, as in Hill,
police responded to a location where they believed a
suspect to be, and arrested someone closely resembling
the description of the person they were pursuing.
Notably, in each of the more recent cases that
McCauley cites, we found probable cause did support
the challenged arrests. In United States v. Carpenter, 342
F.3d 812 (7th Cir. 2003), we reviewed the arrest of an
individual wearing a “white designer jacket” with a “Karl
Kani” logo on it and “tiger-embellished jeans.” Id. at 814.
That police found an individual wearing these same
clothes “just six hours after a man wearing an identical
outfit robbed a bank . . . alone might have established
probable cause for his arrest.” Id. The government re-
sponds that while “[i]t may be true that other cases
have different or stronger evidence to support probable
cause to arrest, [ ] that does not mean that probable cause
was lacking in this case.” (Reply at 18.) We agree.
The fact that the description of the suspect’s clothing in
Carpenter was so specific does not mean that a less
specific description suggests a lack of probable cause to
arrest.
McCauley also cites Pasiewicz v. Lake County Forest
Preserve Dist., 270 F.3d 520, 522 (7th Cir. 2001), for
the proposition that this court requires more than a
“barebones physical description” before probable cause
No. 10-2382 13
to arrest will be found. In that case, two women who
had been out horseback riding in a forest preserve saw a
naked man on the trail. Id. at 522. Both described him
as around 6 feet, 240 pounds, bald, and in his fifties. Id.
The next day, one of the women believed she saw the
same man pull into a school parking lot. She was able
to ascertain the man’s name, phone number, and
address, which she passed along to police. Pasiewicz was
arrested for public indecency, but ultimately acquitted,3
and filed a § 1983 lawsuit against the Forest Preserve,
whose police had investigated the incident and arrested
him, alleging violations of the Fourth and Fourteenth
Amendments. Id. at 523. In reviewing the district court’s
grant of summary judgment for the defendant officers,
we explained that probable cause existed because
“[w]hen police officers obtain information from an eye-
witness or victim establishing the elements of a crime,
the information is almost always sufficient to provide
probable cause for an arrest in the absence of evidence
that the information, or the person providing it, is not
credible.” Id. at 524 (citations omitted). Pasiewicz “did not
match exactly the characteristics provided by the two
women, [but] he bore a fair resemblance.” Id. Pasiewicz
differs in many respects from the case at hand, but, con-
trary to McCauley’s assertions, it does not undermine a
3
Our opinion did not address all of the circumstances of the
acquittal, but we noted that there was no evidence of “lewd
conduct” and that Pasiewicz appeared to have an “airtight
alibi” that was never tested in state court because of the
directed verdict. Id. at 523.
14 No. 10-2382
finding of probable cause. Indeed, just as in Pasiewicz, the
police officer arrested the suspect on the strength of
eyewitness testimony. That Wiza was not given
McCauley’s name differentiates the situation, but does
not defeat probable cause. In either case, police were
justified in believing to a sufficient probability that the
individual they arrested was, in fact, the individual
they sought.
Viewing the “totality of the circumstances,” Judge Crabb
and Magistrate Judge Crocker did not err in finding
Wiza’s judgment consistent with that of a prudent police
officer.
III.
McCauley also appeals Judge Crabb’s imposition of a
sentence enhancement for use of a dangerous weapon in
connection with the offense of conviction pursuant to
U.S.S.G. § 2D1.1(b)(1). To support such an enhancement,
“the government bears the burden of proving by a pre-
ponderance of the evidence that a [weapon] was
possessed during the commission of the offense or
relevant conduct.” United States v. Womack, 496 F.3d 791,
797 (7th Cir. 2007) (citations and quotation omitted).
If the government makes such a showing, the bur-
den shifts to the defendant to show that “it is clearly
improbable that the weapon was connected with the
offense.” Id. (citation and quotation omitted); U.S.S.G.
§ 2D1.1, application n.3.
In reviewing the application of a sentence enhance-
ment, this court reviews the district judge’s factual
No. 10-2382 15
findings for clear error, and the application of those
findings to the Sentencing Guidelines de novo. Womack,
496 F.3d at 792. In determining whether clear error has
occurred, “[p]articular deference is given to credibility
determinations, which will not be disturbed unless ‘com-
pletely without foundation.’ ” United States v. Collins, 604
F.3d 481, 486 (7th Cir. 2010) (citation and quotation omit-
ted). As explained earlier, the district court’s finding is
clearly erroneous only if “we cannot avoid or ignore a
‘definite and firm conviction that a mistake has been
made.’ ” Jackson, 598 F.3d at 344 (citations and quotation
omitted).
In this case, the imposition of this enhancement did
have significant practical consequences for McCauley.
Had it not been imposed, he might well have qualified
for the “safety valve” provision of U.S.S.G. § 5C1.2(a)(1)-
(5), and potentially have been exempted from the 60-month
mandatory minimum sentence the court imposed. In
support of his challenge to the sentence enhancement,
McCauley notes Richardson’s testimony, at McCauley’s
sentencing hearing, that McCauley did not participate
in Neeley’s beating and was in an upstairs bathroom
for the duration of the beating.4 In several cases,
4
McCauley also urges that this enhancement was unwarranted
because, “even if we assume [McCauley] did possess the bat, it
has not been proven that it was possessed during the course
of offense of conviction.” (Pet.’s Br. at 27.) Beyond this
single sentence, however, McCauley’s opening brief made no
mention of this argument. A single sentence in an opening
(continued...)
16 No. 10-2382
McCauley contends, this court upheld a § 2D1.1 enhance-
ment where there was direct evidence to support a
finding that a weapon was used in connection with a
drug offense—evidence he contends was not present in
his case. United States v. Thomas, 294 F.3d 899, 906
(7th Cir. 2002) (affirming enhancement where drug para-
phernalia was found in car’s hidden compartment along
with a loaded handgun); United States v. Linnear, 40 F.3d
215, 219 (7th Cir. 1994) (key witness testified defendant
pulled a handgun on him while packaging cocaine);
United States v. Orozco, 576 F.3d 745, 752 (7th Cir. 2009)
(gun and ammunition found in same home as digital
scale with traces of cocaine residue).
In contrast, this court reversed a § 2D1.1 enhancement
where a knife was found in the van of a defendant
arrested after traveling from Minnesota to Chicago to
purchase cocaine. United States v. Franklin, 484 F.3d 912,
913 (7th Cir. 2007). The defendant there conceded that
he possessed the knife when arrested, but argued that it
was not connected to the offense. Instead, he asserted,
it was a pocketknife he kept in a “leather case” and used
for electrical work. Id. at 915. The district judge con-
cluded the knife was larger than defendant said it was
merely because the judge understood the knife had been
4
(...continued)
brief is not enough to preserve an argument, even if that
argument is expanded upon in a reply brief. Citizens Against
Ruining the Environment v. E.P.A., 535 F.3d 670, 675 (7th
Cir. 2008).
No. 10-2382 17
found in a “sheath” rather than a “case.” Id. This court
also noted that the police officers who stopped Franklin
and confiscated his cocaine “saw the knife, made note of
it, and did not confiscate it”—conduct that suggests
the officers themselves concluded the knife was not
relevant. Id.
McCauley has not argued here that the weapon was
unconnected to the offense of conviction (or has waived
any such argument). Rather, McCauley argues that he
did not participate in the alleged assault, and therefore
should not have been subject to the enhancement at
all. McCauley’s support for this argument is limited to
Richardson’s testimony, which Judge Crabb rejected.
She concluded that Neeley’s identification of McCauley
showed he had indeed seen McCauley during the
assault, and she did not find Richardson’s explanation
of events plausible. This court cannot say that the credi-
bility determination was clearly erroneous, nor that her
conclusion that the enhancement should apply con-
stituted clear error.
IV.
The district court’s ruling that McCauley’s arrest
was supported by probable cause is affirmed, as is
the application of a sentence enhancement for use of a
dangerous weapon in connection with the offense of
conviction.
10-6-11