In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2238
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ERRICK L. B ULLOCK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:09-cr-10-TLS—Theresa L. Springmann, Judge.
A RGUED S EPTEMBER 28, 2010—D ECIDED F EBRUARY 1, 2011
Before E ASTERBROOK , Chief Judge, and S YKES and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Derrick Bullock pleaded guilty
to possession with intent to distribute at least five grams
but less than fifty grams of cocaine base (“crack”) in
violation of 21 U.S.C. § 841(a)(1). His plea was condi-
tioned on his ability to appeal the district court’s denial
of his motion to suppress evidence of the crack that
led to his conviction. The events giving rise to Bullock’s
2 No. 10-2238
arrest began when Detective John Greenlee of the Fort
Wayne Police Department received an anonymous tip
that someone by the name of “Quick” was selling
cocaine from a residence on Euclid Street. Based on the
information provided by the tipster, Greenlee was able
to determine the address of the residence and that
“Quick” was Bullock. Greenlee began surveillance of the
residence and corroborated the tip by observing Bullock
leaving the residence on several occasions and engaging
in activity indicative of drug dealing. Armed with this
information, Greenlee obtained a warrant to search the
Euclid Street address.
Prior to execution of the warrant, during pre-raid
surveillance, Greenlee observed Bullock leaving the
residence in a vehicle driven by Sabrina Wilhelm, the
lessee of the residence. Greenlee was aware that
Wilhelm did not have a valid driver’s license, so he
instructed uniformed officers to stop the vehicle.
Officers made the stop, transported Bullock back to the
residence, and detained him in the squad car while
they executed the search warrant. Upon finding mari-
juana in plain view on the dining room table in the resi-
dence, along with sandwich baggies containing a small
amount of crack and a scale in another part of the resi-
dence, officers arrested Bullock for visiting a common
nuisance under Indiana Code § 35-48-4-13(a). Bullock was
taken to the police station where a search of his person
revealed sixteen individually wrapped baggies of crack.
On appeal, Bullock claims that the crack was obtained
as the result of an unlawful detention without reasonable
No. 10-2238 3
suspicion and subsequent unlawful arrest without proba-
ble cause in violation of the Fourth Amendment. The
district court disagreed and found that there was rea-
sonable suspicion to detain Bullock during the search,
relying on Michigan v. Summers, 452 U.S. 692 (1981), where
the Court held that police lawfully detained the
defendant (who was leaving his residence as officers
approached) while they executed a valid search warrant
of the residence. The district court further found that
probable cause existed to arrest Bullock for visiting a
common nuisance under Indiana law after officers
found marijuana in plain view and other evidence of
more widespread, continuous, and recurrent drug
activity within the residence. We affirm. Bullock’s deten-
tion was lawful under the principles set forth in Terry
v. Ohio, 392 U.S. 1 (1968), and for similar reasons was
justified under Summers. We also find that his sub-
sequent arrest was supported by probable cause.
I.
Detective Greenlee, who has been in the Vice and
Narcotics Division for eleven years, testified that on
November 3, 2008, he received an anonymous tip that
an individual using the name “Quick” was selling
narcotics out of a house on Euclid Street. The anon-
ymous caller had purportedly been to the house, had
spoken with “Quick” on several occasions, and was
aware that “Quick” was selling cocaine from that loca-
tion. The caller did not know the address of the
4 No. 10-2238
house, but he described it to Greenlee, informed him
what side of the street it was on, and that red and blue
chairs were out front.
Because neither Greenlee nor other officers had
worked with the caller before, Greenlee took efforts to
corroborate the caller’s information. Through the police
department’s computer system, Greenlee discovered
that “Quick” was Derrick Bullock; Greenlee also testified
that he had prior knowledge that a subject by the name
of Derrick Bullock used the nickname “Quick.” Greenlee
was also able to determine that the address of the
house described by the caller was 2815 Euclid Street in
Fort Wayne, Indiana.
Greenlee began surveilling the residence. Officers
later learned that the residence was leased by Sabrina
Wilhelm, but Bullock was the main target of their investi-
gation. Although disputed evidence was introduced
during the motion to suppress hearing, the district court
did not find that Bullock lived there with Wilhelm.
Rather, the two were dating and Bullock visited the
residence. Between November 21, 2008, and December 2,
2008, Greenlee observed Bullock leave the residence on
four occasions.
On November 21, 2008, Greenlee followed Bullock and
a female (who officers later learned was Wilhelm) after
they left the residence in a vehicle. Bullock was driving.
Officers stopped the vehicle and arrested Bullock (the
basis for the stop and arrest is not evident from the
record). During the stop, officers discovered that
Wilhelm’s driver’s license was suspended. Pursuant to a
No. 10-2238 5
search incident to arrest, officers found $500 on Bullock,
mostly in $20 denominations. Greenlee testified that
Bullock lied about his employment and that his investi-
gation indicated that Bullock was unemployed. Because
Bullock was unemployed and had a significant amount
of cash in small denominations, Greenlee, based on his
training and experience, believed that the money was
obtained from drug sales. No drugs were found during
the search.
Greenlee next observed Bullock leave the residence
sometime between November 21 and December 1. Because
he was helping with another investigation, Greenlee
was unable to follow Bullock on that occasion. On Decem-
ber 1, Greenlee again followed Bullock after observing
him leave the residence. Both times that Greenlee fol-
lowed Bullock—on November 21 and December 1—
Greenlee described Bullock’s activity as follows:
[T]he vehicle makes several short stops, some-
times meeting people as they were waiting on the
porch. The person would come off the porch, they
would turn into an alley. The person would get
in the back seat of the car, the person would be
in the car two to five minutes, and then get out
of the vehicle on foot, stop in the house and
the vehicle would leave.
The vehicle would pull up along a side street, the
person would approach it, be at the window for a
up to a minute, a very short period of time and
then walk away. The vehicle would leave again.
Greenlee did not see anything pass between Bullock and
the other individuals during these short stops. Based on
6 No. 10-2238
his experience and training, Greenlee testified that such
activity is indicative of drug dealing.
On December 2, 2008, officers obtained a search war-
rant for the Euclid Street address to search for evidence
of narcotics, which they proceeded to execute that
same day. Greenlee was responsible for the pre-raid
surveillance before execution of the warrant. The
search warrant was based on the anonymous tip
and Greenlee’s corroboration of that information.
During pre-raid surveillance, Greenlee observed Wil-
helm, her children, and Bullock leave the residence in
a vehicle; Wilhelm was driving. Greenlee was aware
from the November 21 stop that Wilhelm’s driver’s
license was suspended. Greenlee began following
the vehicle. Because he was not in uniform and had an
undercover vehicle with no lights or sirens, he radioed
other uniformed officers, who were positioned near the
residence as part of the search warrant team, to make
the stop. Uniformed officers Jean Gigli, Mark Deshaies,
and Angie Reed followed the vehicle and executed a
stop about ten to fifteen blocks from the residence (within
about three minutes of the car leaving the premises).
Greenlee waited for Wilhelm and Bullock to get out
of the car; he then returned to the residence to prepare
for execution of the warrant.
Greenlee instructed Gigli to place Bullock in custody
once he made the stop. Greenlee testified that his inten-
tion was to bring Bullock back to the residence during
execution of the search warrant. Gigli approached
Bullock on the passenger’s side of the vehicle and Reed
No. 10-2238 7
approached Wilhelm on the driver’s side. Bullock testified
that an officer pulled Wilhelm aside and said, “I have
a search warrant to search your house. Where [are] your
keys at?” Wilhelm reached in her purse and gave the
officer a key to the house. Greenlee was informed that a
key was obtained during the traffic stop, but was not
sure if it came from Bullock or Wilhelm. Officers used
the key to gain entry into the residence.
Either Reed or Deshaies asked if there were any drugs
in the house, and Wilhelm responded that there was
marijuana in the dining room. Greenlee testified that
“from things that Ms. Wilhelm had told us at the traffic
stop, [we] . . . wanted to keep a hold of [Bullock] to talk
to him further about drugs that were in the house that
she had told us about.” Bullock was handcuffed, patted
down, and placed in the back of Gigli’s squad car. Bullock
was advised that he was being detained for further in-
vestigation. The officers did not find drugs in the car or
on Bullock (at that time). About ten or twenty minutes
after the stop (the officers could not testify to exact
times, but gave approximations), Gigli transported
Bullock back to the residence, where he stayed in the
squad car. The search was underway. Wilhelm remained
at the scene of the traffic stop with her children until
their father could come get them.
During the search, officers found a lighter next to a
box that contained marijuana on a table located in a
central part of the house, a large ball of plastic baggies
that contained small amounts of crack cocaine, a gun in
the upstairs bedroom, and a digital scale. (Bullock
8 No. 10-2238
does not challenge the justification for the residence
search.) Greenlee did not testify where the baggies and
scale were found, but it appears, from the photographs
introduced at the hearing, that they were in a kitchen
cabinet. With respect to the marijuana, Greenlee testified
that “you could not have walked through the house
without seeing the drugs there in plain view, as the
photos depicted on the kitchen table.” (Some of the wit-
nesses described the table as a “kitchen” table and others
as a “dining room” table but they were all talking about
the same table in a central and open part of the house.)
Photographs taken during the search confirm that the
marijuana was in an open box on the table. Greenlee
opined, based on his experience and training, that the
items seized during the search were consistent with both
drug use and distribution. Bullock remained at the resi-
dence for about twenty minutes before he was transported
to the station and charged with visiting a common nui-
sance under Indiana Code § 35-48-4-13(a). Wilhelm was
charged with maintaining a common nuisance under
Indiana Code § 35-48-4-13(b).
After transporting Bullock to the police station, officers
conducted a strip search of Bullock and discovered
sixteen individually wrapped baggies of crack cocaine
concealed “in” his buttocks. (The record is not clear how
probing a search was required to locate the crack cocaine.
Obviously, the earlier pat-down did not reveal the drugs.
Bullock, however, does not complain about the conduct
of the station house search.) These drugs provided the
basis for the government’s indictment and Bullock’s
plea of guilty for knowingly possessing crack with
intent to distribute in violation of 21 U.S.C. § 841(a)(1).
No. 10-2238 9
II.
Bullock moved to suppress the crack found on him,
arguing that officers unlawfully detained him during
the search and lacked probable cause to arrest him.
After holding an evidentiary hearing, the district court
found Bullock’s detention lawful under Michigan v. Sum-
mers, 452 U.S. 692 (1981), even though he was a visi-
tor of the residence and was detained after leaving the
premises. The district court reasoned that Bullock was
pulled over a short distance from the residence and
was the subject of the officers’ investigation; thus, his
detention was based on the officers’ articulable and
individualized suspicion that Bullock was engaged in
criminal activity in connection with the residence. The
court also reasoned that upon discovering that a war-
rant had been issued, Bullock became a flight risk.
Further, the court found that there was probable cause
to arrest Bullock for visiting a common nuisance after
officers found marijuana in the residence in plain view,
along with baggies (containing a small amount of crack)
and a scale in another location. The court explained that
a common-sense view of the everyday realities of life
would suggest to police that Bullock was aware that
Wilhelm used drugs inside her home. Bullock appeals
these findings.
On a motion to suppress, we review questions of law
de novo and questions of fact for clear error. United States
v. Clinton, 591 F.3d 968, 971 (7th Cir. 2010), cert. denied,
131 S. Ct. 246 (Oct. 4, 2010). Where there are mixed ques-
tions of law and fact, our review is de novo. United States
10 No. 10-2238
v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). Under clear
error review, “we will not overturn the district court’s
factual findings unless left with a definite and firm con-
viction that the district court was mistaken.” Clinton, 591
F.3d at 971 (quotation omitted). We give special deference
to the district court’s credibility determinations. Burnside,
588 F.3d at 517.
A. Seizure of Bullock
Bullock does not dispute that the officers had probable
cause to stop Wilhelm for driving on a suspended license.
He argues, though, that after officers patted him down
and searched the vehicle, he should have been free to
leave the scene because they had no reasonable suspicion
to continue detaining him while they searched Wilhelm’s
residence. He had already left the premises of the search
and was not living at the residence, but was merely a
visitor. Accordingly, Bullock contends that his detention
was not proper under the principles set forth in Summers.
We disagree. Bullock’s approach overlooks the author-
ity that law enforcement had to detain him under Terry
based on information the police possessed at the time of
the stop. Bullock was the target of the officers’ investi-
gation and his association with the residence led to
a finding of probable cause for the search warrant.
Based on the information obtained from the anonymous
tipster and Greenlee’s subsequent investigation, officers
had an articulable basis for suspecting that Bullock was
engaged in drug activity from that residence. Further,
once Wilhelm informed officers that she had marijuana
No. 10-2238 11
in her dining room, they had reasonable suspicion to
believe that Bullock was visiting a common nuisance.
Officers, therefore, could detain Bullock during the
search warrant even though he was not living at the
Euclid Street address and had left the premises before
the search was underway. Further, when officers
stopped the vehicle, they reasonably informed Wilhelm
of the search warrant so they could obtain keys to the
residence. At that time, Bullock was made aware of the
warrant and officers had an interest in preventing
Bullock’s flight in the event incriminating evidence was
found during the search and in minimizing risk of harm
to the officers.
The length of detention—thirty to forty minutes—was
limited to the legitimate needs of the officers in conducting
further investigation. The manner of detention—being
handcuffed, placed in the back of a squad car, and trans-
ported to the residence—while undoubtedly intrusive,
was not unreasonable under these circumstances. Even
if the manner of detention was too intrusive, officers
were reasonable in detaining Bullock during the search,
and he would have inevitably been arrested (either at
the scene of the traffic stop or at the residence) after
officers located the contraband in the house. Bullock
does not dispute that after being arrested and taken
into custody, the crack on his person would have been
discovered.
For many of the same reasons, we find Bullock’s deten-
tion also justified under Summers. Given the facts known
to the officers at the time, they had the authority to
12 No. 10-2238
detain Bullock during execution of the search warrant;
he was the subject of the officers’ investigation, had just
left the premises, was pulled over as soon as reasonably
practicable, and once informed of the warrant, became
a flight risk and posed a potential danger to the officers
conducting the search. The detention of Bullock was
warranted because the additional intrusion caused
by detention was slight and the justifications were sub-
stantial.
1. Investigative Detention under Terry
The government argues that reasonable suspicion
under Terry existed to detain Bullock. We agree. “Al-
though an officer does not need probable cause to
conduct an investigatory stop, the brief detention must
be based on reasonable suspicion that the stopped indi-
vidual has or is about to commit a crime.” United States
v. Booker, 579 F.3d 835, 838 (7th Cir. 2009). When deter-
mining if seizure exceeds the bounds of Terry, the court
should ask: “(1) whether the police were aware of
specific and articulable facts giving rise to reasonable
suspicion; and (2) whether the degree of intrusion was
reasonably related to the known facts.” United States v.
Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994).
An investigatory stop is proper “if the officer making
the stop is ‘able to point to specific and articulable facts’
that give rise to a reasonable suspicion of criminal activ-
ity.” Id. at 1224 (quoting Terry, 392 U.S. at 21-22). “Reason-
able suspicion is a lower threshold than probable cause
and does not deal with hard certainties, but with proba-
No. 10-2238 13
bilities.” Booker, 579 F.3d at 839 (quotation omitted). It
“requires more than a hunch but less than probable
cause and considerably less than preponderance of the
evidence.” Gentry v. Sevier, 597 F.3d 838, 845 (7th Cir.
2010) (quotations omitted). Because “[r]easonable
suspicion is a less demanding standard than probable
cause[,] . . . [it] can arise from information that is less
reliable . . . .” Alabama v. White, 496 U.S. 325, 330 (1990).
The reasonableness of the stop is based on an objective
standard: “would the facts available to the officer at the
moment of the seizure or the search ‘warrant a man of
reasonable caution in the belief’ that the action taken
was appropriate?” Tilmon, 19 F.3d at 1224 (quoting
Terry, 392 U.S. at 22). “When determining whether an
officer had reasonable suspicion, courts examine the
totality of the circumstances known to the officer at the
time of the stop, including the experience of the officer
and the behavior and characteristics of the suspect.”
United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).
The officer’s subjective motivations for stopping and
detaining a suspect are not relevant to the reasonable-
ness inquiry. United States v. Barnett, 505 F.3d 637, 640
(7th Cir. 2007); see also United States v. Van Dreel, 155
F.3d 902, 905 (7th Cir. 1998) (subjective intentions play
no role in Fourth Amendment analysis).
The officers had reasonable suspicion of Bullock’s
criminal activity and could detain him briefly while they
investigated their suspicion, i.e., while they searched the
Euclid Street residence. Greenlee received an anonymous
tip that an individual using the name “Quick” was
14 No. 10-2238
selling narcotics out of a house on Euclid Street. The
anonymous caller had purportedly been to the house, had
spoken with “Quick”, and was aware that “Quick” was
selling cocaine from that location. The caller did not
know the address of the house, but described it to
Greenlee, informed him what side of the street it was on,
and that red and blue chairs were out front. The anony-
mous tip alone would not justify a Terry stop. See, e.g.,
Florida v. J.L., 529 U.S. 266, 270-71 (2000) (holding that
an anonymous tip, without more, was not sufficient to
justify an officer’s stop and frisk); see also United States v.
Robinson, 537 F.3d 798, 802 (7th Cir. 2008) (anonymous
sources are less reliable because officers “have no way
to hold the source responsible if the information turns
out to be fabricated”). However, an anonymous tip,
adequately corroborated, may provide sufficient indicia
of reliability to provide reasonable suspicion for an in-
vestigatory stop. J.L., 529 U.S. at 270.
After receiving the anonymous tip, Greenlee undertook
efforts to corroborate the caller’s information. Greenlee
identified “Quick” as Bullock through the police depart-
ment’s computer system, located the address of the
residence based on the caller’s description, observed
Bullock leave the residence on four occasions during
the course of eleven days, and observed Bullock on two
occasions engage in behavior consistent with a drug
courier or distributor upon leaving the residence. Spe-
cifically, Greenlee followed Bullock and observed him
engage in short stay visits at various residences; indi-
viduals would get into Bullock’s car for two to five
minutes or they would approach the vehicle’s window for
No. 10-2238 15
a short period (up to a minute) and then walk away. Based
on his training and experience, Greenlee testified that such
actions were indicative of drug dealing. See, e.g., Burnside,
588 F.3d at 518 (“In forming a reasonable belief that a
drug transaction occurred, [police] were permitted to
view the events through the prism of their training and
experience.”); United States v. Funches, 327 F.3d 582, 584,
586-87 (7th Cir. 2003) (Drug Enforcement Administration
(“DEA”) agents had probable cause to believe that drug
transaction had occurred based on their experience in
narcotics enforcement; agents observed the exchange
of shopping bags under circumstances they recognized
as having common characteristics of drug transactions).
On November 21, after observing these short-stay
visits, officers pulled over Bullock and, during a
search incident to arrest, found $500 on his person,
mostly in $20 denominations. Upon investigation,
Greenlee discovered that Bullock was unemployed.
Greenlee testified that based on his training and experi-
ence, he believed the cash found on Bullock was from
drug sales even though no drugs were found. “In forming
his suspicions, [Greenlee] was entitled to assess the
circumstances and the defendant[’s] behavior in light of
his experience as a police officer and his knowledge of
drug courier activity.” United States v. Finke, 85 F.3d 1275,
1280 (7th Cir. 1996). Although a wad of cash is not itself
suspicious, it becomes suspicious when found in the
“hands of a person who the police have good reason to
believe just received it in exchange for a delivery of
illegal drugs[.]” United States v. Cervantes, 19 F.3d 1151,
1153 (7th Cir. 1994).
16 No. 10-2238
Even though Greenlee did not observe drug-dealing
activity taking place at the residence, Bullock’s
suspicious activity upon leaving the residence on two
occasions, including the discovery of a relatively large
sum of money on Bullock, corroborated the anonymous
caller’s tip of drug-dealing activity. In fact, it was
Bullock’s association with the Euclid Street residence
that led to the search warrant. At the time of the stop,
officers had reasonable suspicion that Bullock was and
had been engaged in criminal activity and could detain
him for a brief period upon further investigation. See, e.g.,
United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995)
(finding reasonable suspicion where officers knew that
500 kilograms of cocaine was in garage, and they
observed defendant enter the garage, stay for ten
minutes and drive out); United States v. Chaidez, 919 F.2d
1193, 1199 (7th Cir. 1991) (reasonable suspicion existed
where agents received tip from reliable informant that
defendant was major heroin dealer, defendant’s name
came up in other drug investigations, and police
observed defendant driving evasively, engaging in brief
and furtive meetings, scurrying in and out of restaurants
known to be frequented by drug dealers, and carrying
a plastic bag used in the drug trade); see also United
States v. Sophie, 900 F.2d 1064, 1072-73 (7th Cir. 1990)
(finding higher standard of probable cause met where
officers observed known drug dealer make and receive
phone calls and a message on his pager before meeting
with defendant for about 30 seconds, during which time
they got inside defendant’s car and passed a tote bag
back and forth).
No. 10-2238 17
Bullock contends that for officers to detain him
pursuant to Terry there must be “a basis for believing
that the person is engaging (present tense) in criminal
activity or is about to be engaged (future tense) in criminal
activity.” Reply Br. 3. However, officers can stop and
detain a suspect for reasonable suspicion that the
suspect has engaged in a completed felony. United States
v. Hensley, 469 U.S. 221, 229 (1985) (“[I]f police have a
reasonable suspicion, grounded in specific and articulable
facts, that a person they encounter was involved in . . . a
completed felony, then a Terry stop may be made to
investigate that suspicion.”); Booker, 579 F.3d at 838-39
(reasonable suspicion existed to stop and detain
defendant who was suspected of having committed
battery).
While it is true that during the stop and pat-down
officers did not find evidence of ongoing criminal activity,
Wilhelm told them that she had marijuana in her
house in the dining room, providing further reasonable
suspicion to detain Bullock during the search. Bullock
had just left the residence and had been there on at
least three prior occasions. The officers could reasonably
suspect that he was aware of the marijuana. The officers
therefore had this information, along with their rea-
sonable suspicion that Bullock was a drug dealer and
had sold drugs on previous occasions upon leaving the
residence.1
1
In fact, a good argument could have been asserted that the
officers had probable cause to arrest Bullock for drug distribu-
(continued...)
18 No. 10-2238
We acknowledge that unlike in this case, the police in
Hensley had been unable to locate the suspect. 469 U.S.
at 229. But that difference does not lessen the govern-
ment’s strong interest in detaining Bullock to prevent
flight while they conducted their search. Further, Bullock’s
suspected drug-dealing activity was not completed in
the sense that he was engaging in ongoing criminal be-
havior that posed an ongoing threat to the public.
The next question is whether the degree of intrusion
was reasonably related to the known facts. “The reason-
ableness of the stop may depend, in part, on the extent of
the intrusion.” United States v. Ienco, 182 F.3d 517, 523 (7th
1
(...continued)
tion even before the stop based on the same information
officers used to obtain the search warrant for the residence.
Even though officers ultimately arrested Bullock for visiting
a common nuisance, not drug distribution, their “subjective
reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause.” Devenpeck
v. Alford, 543 U.S. 146, 153-56 (2004); see also United States
v. Tinnie, No. 09-4082, 2011 WL 135715, at *3 (7th Cir. Jan. 18,
2011) (stating that when judging the constitutionality of a
search or seizure, “we are not limited to what the stopping
officer says or to evidence of his subjective rationale”) (citation
omitted). Further, when Wilhelm admitted during the traffic
stop that she had marijuana in her dining room, the police may
have had probable cause to arrest Bullock for the common
nuisance violation. We do not address these issues though
because the government did not argue that there was probable
cause to justify the pre-search detention, and so, it has for-
feited that argument.
No. 10-2238 19
Cir. 1999). A Terry investigative stop is “a brief detention
which gives officers a chance to verify (or dispel) well-
founded suspicions that a person has been, is, or is about
to be engaged in criminal activity.” Vega, 72 F.3d at 515
(quotation omitted). “For an investigative stop based on
reasonable suspicion to pass constitutional muster, the
investigation following it must be reasonably related
in scope and duration to the circumstances that justified
the stop in the first instance so that it is a minimal
intrusion on the individual’s Fourth Amendment inter-
ests.” United States v. Robinson, 30 F.3d 774, 784 (7th Cir.
1994) (citing United States v. Sharpe, 470 U.S. 657, 685-86
(1985)). We use a sliding-scale approach when addressing
the reasonableness of an investigatory stop. Tilmon, 19
F.3d at 1226. “[S]tops too intrusive to be justified by
suspicion under Terry, but short of custodial arrest, are
reasonable when the degree of suspicion is adequate
in light of the degree and the duration of restraint.”
Chaidez, 919 F.2d at 1198. A Terry stop based on rea-
sonable suspicion can ripen into a de facto arrest that must
be based on probable cause if it continues too long or
becomes unreasonably intrusive. Robinson, 30 F.3d at 784.
The “detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop.”
Florida v. Royer, 460 U.S. 491, 500 (1983). There is no rigid
time limit placed on Terry stops; “common sense and
ordinary human experience must govern over rigid
criteria.” Sharpe, 470 U.S. at 685. When determining the
reasonableness of the length of detention, the court
should consider the law enforcement purposes to be
served by the stop, the time reasonably needed to effectu-
20 No. 10-2238
ate those purposes, and whether the police diligently
pursued their investigation. Id. at 685-87.
Before being taken to the police station, Bullock was
detained for thirty to forty minutes. The police diligently
pursued their investigation in executing the search war-
rant. Bullock was taken to the residence ten to twenty
minutes after the stop and when he arrived, the search
was underway. When the search was complete, officers
transported Bullock to the station. Nothing in the
record suggests that the officers unnecessarily pro-
longed the search or acted less than diligently. Bullock’s
detention while officers investigated his suspected
criminal activity was reasonable and justified under the
circumstances. See, e.g., Sharpe, 470 U.S. at 687 (twenty-
minute delay waiting for DEA agent to arrive and in-
vestigate was not unreasonable); United States v. Adamson,
441 F.3d 513, 521 (7th Cir. 2006) (twenty-five minute
delay reasonable to investigate whether defendant was
taking part in drug activity in hotel room given number
of subjects and their reluctance to reveal their names
and why they were at motel); Robinson, 30 F.3d at 784
(twenty-minute detention reasonable while officers ques-
tioned suspects about their identities and activities,
contacted other officers to inform them of the encounter,
and made a number of calls to verify co-defendant’s
identity); Vega, 72 F.3d at 515-16 (sixty-two minute delay
was reasonable given that defendant initially consented
to search of garage but then changed his mind and drug-
sniffing dog was called to examine the defendant’s car);
cf. United States v. Place, 462 U.S. 696, 709 (1983) (ninety-
minute detention of luggage while police arranged
No. 10-2238 21
for dog sniff was unreasonable where police did not
diligently pursue investigation); Ienco, 182 F.3d at 525
(thirty-minute detention in locked squad car was too
long where reasonable suspicion was weak and suspects
were not dangerous).
Whether Bullock’s seizure amounted to a de facto arrest
when he was handcuffed, placed in the squad car, and
transported to the residence is a closer question. Admit-
tedly, the facts here approach the outer boundaries of a
permissible Terry stop. “Subtle, and perhaps tenuous,
distinctions exist between a Terry stop, a Terry stop
rapidly evolving into an arrest and a de facto arrest.”
Tilmon, 19 F.3d at 1224. Police restraint may become
so intrusive that, while not technically an “arrest,” it
becomes “tantamount” to an arrest requiring probable
cause. Id. (citing Dunaway v. New York, 442 U.S. 200, 212-
16 (1979)). “Given the ‘endless variations in the facts
and circumstances,’ there is no ‘litmus-paper test for
determining when a seizure exceeds the bounds of an
investigative stop’ and becomes an arrest.” Id. (quoting
Royer, 460 U.S. at 506). The question is whether the
officer’s actions were reasonable under the circum-
stances and whether the surrounding circumstances
gave rise to a justifiable fear for personal safety on the
part of the officer. Jewett v. Anders, 521 F.3d 818, 824 (7th
Cir. 2008).
We have previously found that using handcuffs, placing
suspects in police cars, drawing weapons, and other
measures of force more traditionally associated with
arrests may be proper during an investigatory deten-
22 No. 10-2238
tion, depending on the circumstances. Tilmon, 19 F.3d at
1224-25, 1228; see also United States v. Shoals, 478 F.3d
850, 853 (7th Cir. 2007) (stating that police officers do not
convert Terry stop into full custodial arrest by drawing
their weapons or handcuffing the subject, particularly
where the situation is inherently dangerous); Chaidez,
919 F.2d at 1198-99 (detention did not turn into arrest
even though agents drew guns, took car keys, gave
Miranda warnings, took one defendant to police van to
sign consent-to-search form, and detained defendants
for ten to fifteen minutes during search of house; the
intrusion was less than that involved in an arrest).
Given that officers were conducting a search for drugs,
it was reasonable to place Bullock in handcuffs and in
the squad car for their safety while they pursued their
investigation. Even though officers patted down Bullock
and did not discover any weapons, the officers could take
precautions against potentially violent behavior. Drug
crimes are associated with dangerous and violent
behavior and warrant a higher degree of precaution.
United States v. Askew, 403 F.3d 496, 508 (7th Cir. 2005)
(“Drug arrests can warrant intrusive tactics because of
their inherent danger.”). Officers could reasonably believe
that Bullock was potentially dangerous and a flight
risk because of his awareness of the search warrant,
his association with the residence, and the officers’ rea-
sonable suspicion that he was involved in narcotics
distribution. His detention in the squad car was there-
fore reasonable.
This is not a case where officers attempted to exploit
the situation by asking Bullock questions or requesting
No. 10-2238 23
to search his belongings. Cf. Royer, 460 U.S. at 504-05
(holding legitimate law enforcement purposes which
justified detention in the first instance were not
furthered by removing suspect to small interrogation-
type room in an apparent effort to obtain his consent to
search his luggage). Rather, the restraints were used to
meet the officers’ legitimate interest in safety and
security while briefly investigating suspected drug activity.
Under the circumstances, Bullock’s short transport
back to the residence was also proper. Bullock had just
left the residence and was ten to fifteen blocks away at
the time of the traffic stop. It was logical to take him
back to the residence where other officers were per-
forming a search that could implicate him in criminal
activity. See, e.g., United States v. Yang, 286 F.3d 940, 950
(7th Cir. 2002) (transportation from airport tarmac to
international terminal did not transform stop for
suspected drug activity into arrest where it was of short
duration and necessary to confirm the officer’s suspicion
given that drug-testing equipment was at the customs
office); Vega, 72 F.3d at 515-16 (holding that defendant’s
stop was “not tantamount to an arrest” even though “the
officers drew their weapons, asked [defendant] to ac-
company them [back to the crime scene] in one of their
cars,” and kept him in “the officer’s vehicle for a little
over an hour” where officers had reasonable suspicion
that the defendant was involved in massive cocaine
importation conspiracy). In fact, returning Bullock to the
private residence he just left was less intrusive than
continuing to detain him roadside in public view. The
manner of seizure in this case was reasonable in light
of the circumstances.
24 No. 10-2238
Even assuming the manner of seizure was overly intru-
sive, the length of Bullock’s detention was reasonable
and the officers would have inevitably arrested him
after the residence search. As further discussed below,
once officers searched the house, they had probable cause
to arrest Bullock for visiting a common nuisance, at
which point they could take Bullock to the station and
search him.2 He would have been arrested and searched
even if merely detained at the traffic stop without re-
straints.
In United States v. Swift, 220 F.3d 502, 504 (7th Cir. 2000),
officers stopped the defendants in their vehicle and
seized them, having reasonable suspicion to believe they
just committed bank robbery. The officers contacted
Captain Sherbun who said the names of the suspects
“rang a bell” and believed they were involved in past
robberies that were carried out in a similar pattern. Id. at
504-05. Sherbun directed the officers to take the
defendants to the station where police confiscated a
pager that later led to evidence linking the defendants to
the robbery. Id. at 505. Shortly after the defendants were
taken to the station, Sherbun arrived at the scene of the
stop, looked inside the vehicle, and discovered items
connecting the defendants to the crime. Id.
We stated in Swift that when the defendants were taken
to the station they were under arrest, arguably without
2
As previously stated in footnote 1, the government chose not
to assert viable arguments that the police had probable cause
to arrest Bullock for drug distribution and visiting a com-
mon nuisance before they detained him.
No. 10-2238 25
probable cause. Id. at 508. The information the officers
had, though, provided a sufficient basis to continue
detaining the defendants until Sherbun showed up at the
scene of the stop. Probable cause was established once
Sherbun saw the incriminating evidence in the vehicle.
Id. We noted that at the time the defendants were taken
to the station, officers were continuing to investigate
the crime and if the defendants had been held at the
scene, they would have been lawfully detained for thirty-
two minutes under an investigatory stop. Id. at 509.
We reasoned that in some situations, “maintaining the
status quo while obtaining more information . . . might
be the most reasonable action to take.” Id. We deter-
mined that if the defendants had been detained at the
scene, the police would have inevitably seized the
pager. Therefore, “[t]he pager and the evidence to which
it led [were] not fruit of the poisonous tree” and should
not have been suppressed. Id. at 510; see also United States
v. Simms, 626 F.3d 966, 971 (7th Cir. 2010) (stating that
even if the police did not have probable cause to
search defendant’s car, defendant was about to
be arrested and jailed indefinitely, his car would
have eventually been impounded by the police and
subject to an inventory search, so the discovery of the
gun therein was inevitable).
We find the reasoning in Swift instructive here. Officers
could have detained Bullock at the scene of the traffic
stop to maintain the status quo while they continued
their brief investigation. They had the search warrant
in hand and within about ten minutes of the stop, the
26 No. 10-2238
search was underway. The length of Bullock’s detention
was reasonable and the officers acted diligently. If
Bullock had been detained at the scene without
restraints, instead of placed in the squad car and taken
to the residence, officers would still have found the
marijuana and evidence of drug-dealing activity, thereby
providing (if not bolstering) probable cause to arrest
Bullock. Once arrested, a search of his person would
have revealed the crack.
Accordingly, Bullock’s detention was reasonable
under Terry; officers acted diligently in searching the
residence to investigate their well-founded suspicions
of his criminal activity.
2. Detention during Execution of Warrant under
Summers
For many of the same reasons outlined above,
Bullock’s detention was also justified under Michigan
v. Summers, 452 U.S. 692 (1981). The Court in Summers
extended Terry beyond the “momentary, on-the-street
detention” to the detainment of a resident or occupant
who is on the premises while a search pursuant to a
warrant is conducted. Summers, 452 U.S. at 700-05. A
detention under Summers is analogous in certain respects
to a Terry stop. See United States v. Burns, 37 F.3d 276,
281 (7th Cir. 1995) (“While detention during the execu-
tion of a search warrant is not a traditional Terry stop, it
is sufficiently analogous for us to conclude that, in the
usual case, Miranda warnings are not required.”).
No. 10-2238 27
The Court in Summers held that officers executing a
search warrant for contraband have “the limited
authority to detain the occupants of the premises while
a proper search is conducted.” Summers, 452 U.S. at 705.
The detention of an occupant is warranted “because
the character of the additional intrusion caused by deten-
tion is slight and because the justifications for detention
are substantial.” Muehler v. Mena, 544 U.S. 93, 98 (2005)
(citing Summers, 452 U.S. at 701-05) (observing that
an “officer’s authority to detain incident to a search is
categorical”). The Court indicated three legitimate law
enforcement justifications for detention during execu-
tion of a search warrant: (1) to prevent flight in the
event incriminating evidence is discovered; (2) to
minimize the risk of harm to the officers; and (3) to facili-
tate the orderly completion of the search. Summers, 452
U.S. at 702-03.
In Summers, police officers were about to execute a
warrant to search a house for narcotics when they en-
countered the defendant descending the front steps. Id. at
693. The officers detained the defendant, who was the
resident of the premises, during the search. The Court
found that defendant’s detention in his home was “surely
less intrusive than the search itself[,]” because it “could
add only minimally to the public stigma associated
with the search . . . and would involve neither the incon-
venience nor the indignity associated with a compelled
visit to the police station.” Id. at 701-02. The Court
further reasoned that once “[a] judicial officer has deter-
mined that police have probable cause to believe that
someone in the home is committing a crime[,]” . . . “[t]he
28 No. 10-2238
connection of an occupant to that home gives the
police officer an easily identifiable and certain basis for
determining that suspicion of criminal activity justifies
a detention of that occupant.” Id. at 703-04.
We have extended the rationale of Summers to visitors
of a home. See United States v. Pace, 898 F.2d 1218, 1239 (7th
Cir. 1990) (reasoning that defendants’ connection as
visitors “to the condominium gave the officers ‘an easily
identifiable and certain basis’ ” for detaining them during
the search) (quoting Summers, 452 U.S. at 703-04); see
also United States v. Jennings, 544 F.3d 815, 818-19 (7th
Cir. 2008) (relying on Summers to find lawful the
brief detainment of defendant who had entered security
perimeter surrounding targeted apartment where
narcotics search was underway). The issue here is
whether the reasoning in Summers should be extended
to an individual who has left the residence before execu-
tion of the search warrant, is pulled over a few blocks
away, and is detained during the search. Under
the particular facts of this case, we find that it should.
Bullock’s detention was reasonable given his suspected
criminal activity in connection with the residence, his
risk of flight, and the potential danger he posed to
officers if not detained. He was detained for thirty or
forty minutes at a residence he had just left and had
visited on multiple occasions; the officers’ interests in
detaining him during the search were not outweighed
by this rather limited intrusion on his freedom.
Other circuits have extended Summers in similar cir-
cumstances. In United States v. Cochran, 939 F.2d 337, 338
No. 10-2238 29
(6th Cir. 1991), police officers went to the defendant’s
residence to execute a search warrant and observed the
defendant leaving the premises. Id. Officers did not
want to forcibly enter the premises knowing that there
was a guard dog inside. Id. Accordingly, the officers
stopped the defendant shortly after he exited the
premises and requested assistance in entering the
house. Id. The court, relying on Summers, found that his
detention was reasonable. Id. at 339. The court explained
that “Summers does not impose upon police a duty
based on geographic proximity (i.e., defendant must be
detained while still on his premises); rather, the focus is
upon police performance, that is, whether the police
detained defendant as soon as practicable after de-
parting from his residence.” Id.
The Fifth Circuit similarly extended Summers. In
United States v. Cavazos, 288 F.3d 706, 708 (5th Cir. 2002),
officers were conducting surveillance of a residence in
preparation of executing a search warrant. The defendant
and two others left the residence in a truck, pulled up
closely to the officers’ vehicle and peered inside. Id. The
truck drove away and the officers followed. Id. The
truck then made a U-turn, approached the officers, and
crossed over into the officers’ lane, creating a standoff.
Id. Both vehicles stopped, and the officers exited their
vehicle with guns drawn. Id. The officers took de-
fendant back to the residence and detained him
during the search. Id.
The court in Cavazos found the officers’ actions lawful
under Summers. Cavazos, 288 F.3d at 711. The defendant’s
30 No. 10-2238
connection to the residence gave officers an “ ‘easily
identifiable and certain basis for determining that suspi-
cion of criminal activity justifie[d] a detention of that
occupant.’ ” Cavazos, 288 F.3d at 711 (quoting Summers,
452 U.S. at 703-04). The officers also had reason to
believe that he was performing some type of counter-
surveillance when he drove the truck toward them in
a threatening manner. Id. “This conduct warranted the
belief that [the defendant] would have fled or alerted
the other occupants of the residence about the agents
nearby if he were released immediately after the stop
and frisk.” Id. The court noted that while “[t]he
proximity between an occupant of a residence and the
residence itself may be relevant in deciding whether to
apply Summers, . . . it is by no means controlling.” Id. at 712.
Other circuits have declined to extend Summers to a
resident or occupant who has left the residence to be
searched. In United States v. Sherrill, 27 F.3d 344, 345 (8th
Cir. 1994), officers obtained a search warrant based on
reliable information that defendant was dealing drugs
from his residence. Id. Before execution of the warrant,
the defendant left the premises and officers stopped him
a block away, informed him that they had the warrant,
and detained him during the search. Id. Officers hand-
cuffed him, read him his rights, and took him back to the
residence. Id. at 345-46. The court found that Summers did
not apply because the defendant had already left the
premises, so “the intrusiveness of the officers’ stop and
detention on the street was much greater.” Id. at 346.
Further, although the defendant helped the officers
conduct the search, when they stopped defendant, they
No. 10-2238 31
did not have any interest in preventing flight or mini-
mizing the search’s risk because the defendant had left
the area and was unaware of the warrant. Id.
In United States v. Edwards, 103 F.3d 90, 91 (10th Cir.
1996), police prepared to execute a search warrant of a
suspected “drug house.” The defendant, an ex-convict in
a drug rehabilitation program, was a frequent visitor
of the house. Before the search, police observed the de-
fendant leave the house. They pulled him over,
suspecting that the vehicle contained drugs and that
he might be armed and dangerous. Id. The defendant
was detained street-side for forty-five minutes, during
which time officers drew their guns and handcuffed
him. Id. The officers did not find contraband or drugs
on him or in the vehicle, but he did have keys to the
house. Id. at 91-92. The forty-five minute detention, the
court found, was unreasonable because by the conclu-
sion of the search of the house, the officers no longer
possessed the “reasonable suspicion” that initially
justified the stop. Id. at 93. The court also declined to
extend Summers because prior to the stop the defendant
was unaware that a warrant was being executed so he
had no reason to flee. Id. at 94. Further, the defendant
did not pose a risk of harm to the officers and his de-
tention played no part in facilitating the orderly com-
pletion of the search. Id.
Unlike in Sherrill and Edwards, the particular facts of this
case warrant extension of Summers. The officers had
probable cause to pull Wilhelm over for driving on a
suspended license. Although they pulled her over ten to
32 No. 10-2238
fifteen blocks from the residence, Greenlee testified that
he had to radio uniformed officers to make the stop and
there is nothing to suggest that the vehicle was not
pulled over as soon as practicable. During the stop,
officers reasonably informed Wilhelm of the search war-
rant, at which point Bullock became aware of the war-
rant. Once aware of the warrant, he became a flight risk
and a potential risk to the officers’ safety in executing
the warrant given his suspected illegal association with
the residence. See Summers, 452 U.S. at 702 (recognizing
the execution of a warrant to search for drugs “may
give rise to sudden violence or frantic efforts to
conceal or destroy evidence”).
Bullock’s detention was not unreasonably prolonged.
He was at the traffic stop scene for ten to twenty minutes
before he was taken to the residence and by the time
he returned to the residence, the search was under-
way. See, e.g., Muehler, 544 U.S. at 100 (finding two- to
three-hour detainment of occupant in handcuffs rea-
sonable while police searched premises because such
restraints did not outweigh government’s continuing
safety interests). Officers did not exploit the detention by
trying to obtain additional evidence from Bullock during
execution of the search warrant. See Summers, 452 U.S. at
701 (stating that detaining an occupant during execution
of a search warrant is “not likely to be exploited by the
officer or unduly prolonged in order to gain more infor-
mation, because the information the officers seek
normally will be obtained through the search and not
through the detention”); see also Pace, 898 F.2d at 1239
(finding detention of visitors in home during execution
No. 10-2238 33
of search warrant reasonable in part because the police
did not exploit the detentions to obtain information
or search them except for performing a pat-down).
Further, the use of handcuffs was reasonable. “Inherent
in Summers’ authorization to detain an occupant of the
place to be searched is the authority to use reasonable
force to effectuate the detention.” Muehler, 544 U.S. at
98-99. While a roadside detention followed by hand-
cuffs and placement in a squad car certainly carries
more stigma than a detention in one’s home, the facts
in this case warranted the additional intrusions for the
limited time to execute the search warrant.
B. Probable Cause to Arrest
After execution of the search warrant, officers arrested
Bullock for visiting a common nuisance under Indiana
Code § 35-48-4-13(a). Bullock contends that officers did
not have probable cause to arrest him for this crime
because there was nothing to indicate he was aware of
the marijuana in the dining room or that drugs had been
used at the residence on multiple occasions. The gov-
ernment responds that there was probable cause to
arrest Bullock for visiting a common nuisance.3
3
As previously noted, the government confined its justification
for the arrest to the common nuisance charge about which
Bullock complains. What both parties apparently fail to recog-
nize is that under our Supreme Court’s holding in Devenpeck
(continued...)
34 No. 10-2238
A determination of probable cause is based on prob-
abilities and “does not require evidence sufficient to
support a conviction, nor even evidence demonstrating
that it is more likely than not that the suspect committed
3
(...continued)
v. Alford, 543 U.S. 146, 153-56 (2004), the Fourth Amendment
reasonableness inquiry is not driven by the police’s sub-
jective reasons for arresting an individual.
Although officers stated that they arrested Bullock for
visiting a common nuisance, they had probable cause to arrest
him for drug distribution, possibly before, but certainly after,
execution of the search warrant. “[A]n arrest is reasonable
under the Fourth Amendment so long as there is probable
cause to believe that some criminal offense has been or is
being committed, even if it is not the crime with which the
officers initially charge the suspect.” Fox v. Hayes, 600 F.3d
819, 837 (7th Cir. 2010) (citing Devenpeck, 543 U.S. at 153-56).
In Devenpeck, the Supreme Court rejected “[t]he rule that the
offense establishing probable cause must be ‘closely related’ to,
and based on the same conduct as, the offense identified by
the arresting officer at the time of arrest.” 543 U.S. at 153
(“[T]he fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate
the action taken as long as the circumstances, viewed objec-
tively, justify that action.”) (citations omitted). “[T]he issue
is whether a reasonable officer, with the same information
known . . . at the time, would have had probable cause to
arrest [the defendant] for any offense.” Williams v. Rodriquez,
509 F.3d 392, 399 (7th Cir. 2007) (emphasis added). But we
will limit our analysis to the common nuisance charge be-
cause the government chose to defend the arrest on that basis.
No. 10-2238 35
a crime.” Funches, 327 F.3d at 586 (quoting United States
v. Carrillo, 269 F.3d 761, 766 (7th Cir. 2001)). As such,
“standards such as proof beyond a reasonable doubt or
by a preponderance of the evidence, useful in formal
trials, have no place in the [probable-cause] decision.”
Illinois v. Gates, 462 U.S. 213, 235 (1983). To find probable
cause, there need only be a probability or a substantial
chance that criminal activity exists. Purvis v. Oest, 614
F.3d 713, 722-23 (7th Cir. 2010).
Probable cause is a “commonsense, nontechnical con-
ception that deal[s] with the factual and practical con-
siderations of everyday life on which reasonable and
prudent men, not legal technicians, act.” Ornelas v. United
States, 517 U.S. 690, 695 (1996) (quotations omitted). In
determining whether suspicious circumstances rise to
the level of probable cause, officers are entitled to draw
reasonable inferences based on their training and ex-
perience. Funches, 327 F.3d at 586.
“A police officer’s probable cause determination depends
on the elements of the applicable criminal statute.” Stokes
v. Bd. of Educ. of the City of Chicago, 599 F.3d 617, 622
(7th Cir. 2010). After being detained at the residence,
officers arrested Bullock for violating Indiana’s common
nuisance statute, which makes it a Class B misdemeanor
for any person to “knowingly or intentionally visit[ ] a
building, structure, vehicle, or other place that is used
by any person to unlawfully use a controlled substance.”
Ind. Code § 35-48-4-13(a). To convict a person of this
offense, the state must prove that the defendant knew
the residence was used for the unlawful use of con-
36 No. 10-2238
trolled substances. Bass v. State, 517 N.E.2d 1238, 1239-40
(Ind. Ct. App. 1988) (per curiam). The state must also
prove that the residence has been used for the unlawful use
of controlled substances on more than one occasion. Id.
Indiana courts have found insufficient evidence to
convict a defendant of visiting a common nuisance
where drugs were not in plain view of the defendant. See
id. (holding that the state did not introduce sufficient
evidence to establish defendants knew residence was
used for unlawful use of controlled substances because
there was nothing to show that drugs were visible from
defendants’ viewpoint even though officers found drug
paraphernalia—a bong with residue containing hashish
and marijuana—on table next to where they were sit-
ting); see also Braster v. State, 596 N.E.2d 278, 279 (Ind. Ct.
App. 1992) (stating that court “cannot assume from the
evidence presented at trial that defendant knew that a
controlled substance was being used at the residence”;
there was no evidence that paraphernalia was found in
kitchen where defendant was present or within his
plain view).
Conversely, where drugs are in plain view of the defen-
dant, courts have found sufficient evidence to show that
the defendant had knowledge of drug use. Hale v. State,
785 N.E.2d 641, 643 (Ind. Ct. App. 2003) (“We cannot
say that [defendant], who was sitting within plain view
of the shoebox full of marijuana did not have knowl-
edge that [the] residence was being used for the
unlawful use of a controlled substance.”); see also Zuniga v.
State, 815 N.E.2d 197, 200 (Ind. Ct. App. 2004) (sufficient
evidence existed to show knowledge of drug use where
No. 10-2238 37
defendant stepped inside garage; detectives smelled
burnt marijuana in there; and detectives found smoking
devices, rolling papers, a rolling machine, residue of
marijuana and blunt cigars in garage).
As noted, the statute also requires a showing of drug
use on more than one occasion. Hale, 785 N.E.2d at 643
(quoting Bass v. State, 512 N.E.2d 460, 464 (Ind. Ct. App.
1987)). “[T]he term ‘common nuisance’ as used within
the statute . . . requires proof of a continuous or recurrent
violation.” Id. The court in Traylor v. State, 817 N.E.2d
611, 620 (Ind. Ct. App. 2004), held that the residence
defendant visited was a “common nuisance” where
officers found a briefcase containing baggies of metham-
phetamine and a glass pipe used for the consumption of
methamphetamine, and found glass pipes, some with
burnt residue, in other parts of the residence. There was
also evidence that the defendant was producing, pre-
paring, and processing methamphetamine within the
residence. The court held that “it was reasonable for the
jury to infer from the evidence . . . that the . . . . residence
was used more than once for the consumption of meth-
amphetamine.” Id.
The above cases discuss what evidence is needed to
support a conviction for visiting a common nuisance. As
stated, the government need only show that officers had
probable cause to make an arrest, which requires only a
probability or a substantial chance that criminal activity
exists, not a showing of proof beyond a reasonable doubt.
Based on all the facts known to the officers at the time,
we conclude that they had probable cause to arrest
38 No. 10-2238
Bullock for visiting a common nuisance. On the day of
the search, officers found marijuana in a box in plain
view on the dining room table and a lighter next to the
marijuana, leading to the inference that it had been
smoked inside. Greenlee testified that “you could not
have walked through the house without seeing the
drugs there in plain view.” Bullock had just left the resi-
dence and had been inside on multiple occasions.
During the search, officers also found a large ball of
plastic baggies that contained a small amount of crack
cocaine and a scale in another location. Greenlee opined,
based on his experience and training, that the items
seized during the search were consistent with both drug
distribution and (more importantly, with respect to the
common nuisance charge) use. Bullock does not assert
that the search was invalid. The discovery of these items
corroborated the tipster’s information of drug activity
within the residence.
As the district court found, a common-sense view of
the everyday realities of life would lead officers to rea-
sonably believe that Bullock was aware that drug use
had occurred inside the residence, and there was evi-
dence that it occurred on more than one occasion.
While the officers could not have been certain that
Bullock was aware of the marijuana in the dining room
or the other evidence of drug activity found in the resi-
dence, they had probable cause to believe so based on
Bullock’s presence in the house that day and his prior
association with the residence that led officers to ob-
tain a search warrant for the premises.
No. 10-2238 39
Accordingly, for the reasons stated, the judgment of
the district court is A FFIRMED.
2-1-11