United States v. McCauley

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. Œ

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

Œ

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