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Date: 04-08-2019
Case Style:
United States of America v. Deandre Cherry
Case Number: 17-3018
Judge: Rovner
Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)
Plaintiff's Attorney: Matthew Burke
Defendant's Attorney: Beau B. Brindley, Andrea Elizabeth Gambino, Joshua Jack Jones, Timothy Joseph Witczak
Description:
Deandre Cherry’s heroin customers
had been complaining about the poor quality of his supply,
so on a rainy night in May 2012, he drove into a parking lot in
Markham, Illinois hoping to exchange his inventory of lowquality
heroin for a better supply of cocaine that his supplier
had just picked up at O’Hare airport. Unbeknownst to
Cherry, however, his supplier had just been arrested picking
up the cocaine and, since his hopes were for a better deal for
2 No. 17‐3018
himself, decided to cooperate and help the Drug Enforcement
Agency (DEA) agents ensnare another dealer down the line.
Instead of the exchange, Cherry was arrested mid‐deal and
eventually sentenced to 240 months’ imprisonment. Cherry
appeals, claiming the agents lacked probable cause to arrest
him and search his vehicle. He also claims they failed to preserve
exculpatory evidence. We affirm the holding of the district
court in all respects.
I.
In the course of an investigation into cocaine importation
from Mexico to Chicago, DEA agents arrested a man who was
attempting to take possession of twenty‐six kilograms of cocaine
near Chicago’s O’Hare airport. During an interview after
that arrest, the man told Drug Enforcement Agency (DEA)
agents that he was scheduled to deliver thirteen kilograms of
cocaine to a man he called “Mo” that night. “Mo” was later
identified as Cherry. According to the arrested man, Cherry
was a high‐ranking member of the Black P Stone street gang
in Chicago who distributed many kilograms of cocaine each
month. The arrested man agreed to become a confidential informant
for the DEA and help the agents execute a sting operation.
The confidential informant told the agents that, through
prior conversations, he and Cherry had agreed that the informant
would drive the cocaine to a residence in Harvey, Illinois,
that Cherry would meet him there, take custody of the
cocaine, and then a few hours later another member of
Cherry’s organization would pay the informant for the cocaine.
The confidential informant provided agents with
Cherry’s cell phone number and a physical description: an
No. 17‐3018 3
average height black man, weighing about 200 pounds, and
driving a white Mercedes SUV.
The agents formulated a plan for a sting operation in
which the confidential informant would drive his own car to
meet Cherry with sham cocaine concealed in the car’s drughiding
trap compartment. Under the plan, the informant
would signal the agents by stepping out of the car once he and
Cherry had engaged in a conversation about the exchange of
the cocaine. For their own safety, the agents had the confidential
informant change the meeting spot to a parking lot further
away from gang activity. They then outfitted the informant
with hidden audio and video recording equipment, and
searched and inventoried the informant’s vehicle (as is the
protocol for such operations).
At around 7:50 p.m. on May 31, 2012, the confidential informant
placed a recorded call to Cherry. The informant told
Cherry that he was approximately ten minutes away from the
agreed upon meeting place in Harvey, and Cherry responded
that he would meet him there. A few minutes later the confidential
informant, under direction of the agents, called
Cherry and changed the rendezvous spot to a parking lot in
nearby Markham, Illinois. Shortly thereafter, a 2012 white
Mercedes SUV (later determined to be registered to Cherry)
entered the nearly empty parking lot, circled the lot, and then
parked next to the confidential informant.1
In a conversation that was recorded, but not monitored in
real time by agents, the confidential informant told Cherry
1 The testimony of the agents was inconsistent as to whether Cherry
parked directly next to the informant’s car, one parking spot away, or oneand‐
a‐half parking spots away. We find this discrepancy to be immaterial.
4 No. 17‐3018
that “it” (meaning the thirteen kilograms of cocaine) was in
the “spot”—the hidden compartment in the back of the car.
Once Cherry responded affirmatively that he wanted to see
the drugs, the informant opened the compartment and then
exited the car—the pre‐arranged signal to law enforcement.
Cherry did not handle nor take physical possession of the
drugs.
The district court credited the testimony of the DEA
agents at the scene who testified that as they approached the
car and Cherry saw them, he dashed the short distance between
the informant’s car and his SUV, opened the front door
of the SUV, and attempted to get in. One agent testified that
Cherry opened the door and “tried to get into the vehicle as
we jumped on him so— … [h]e had his hand and his arm got
into it, but we pulled him back out.” Tr. 11/27/12 at 77 (R. 58).
As one agent subdued Cherry and placed him under arrest,
a second agent quickly looked into the Mercedes to make
sure no one else was hiding in the vehicle. A third agent went
through the motions of arresting the confidential informant to
protect him as an informant, and after doing so returned to
the Mercedes where, along with two other agents, he saw,
through the open door, a black messenger‐type satchel with
the flap open and clear plastic bags containing what looked to
be heroin or cocaine. Cherry testified at the suppression hearing
that the drugs were not, in fact, in plain sight, but that they
were in a black plastic bag contained within the closed and
locked satchel, and the cash was also concealed in a black
plastic bag stuffed under the driver’s seat. Later testing confirmed
that the satchel held baggies containing 348.1 grams of
heroin and 13.7 grams of cocaine base (crack). Agents also
found $19,495 in cash in the SUV. Eventually Chicago Police
No. 17‐3018 5
Officer and DEA task force officer Jose Castaneda photographed
the car and the satchel, taking photographs of the
satchel both open and closed, the cash, and other items in the
car. All of the photographs had the same time stamp—8:48
p.m. Officer Castanada testified that he could not recall the
order in which he took the photographs and could not say
whether the satchel was open or closed when Cherry was arrested.
2
After agents read Cherry his Miranda rights, Cherry
agreed to talk to one of the agents and told him that three
weeks earlier the confidential informant, who he knew as “Fat
Man” fronted him half of a kilogram of heroin for $31,500, but
the heroin was not of good quality and his customers were
complaining. On the night he was arrested, Cherry was bringing
approximately 300 grams of heroin back to the confidential
informant to exchange for an equivalent amount of cocaine.
The government charged Cherry with possession with
intent to distribute more than 100 grams of heroin, in violation
of 21 U.S.C. § 841(a)(1).
Cherry filed two motions to suppress the evidence before
trial. In the first motion he claimed that the agents lacked
probable cause to arrest him. In the second motion he argued
that the agents had no authority to search his bag within the
vehicle as the drugs were not in plain view. Following a November
27, 2012 suppression hearing in which the court heard
from Cherry and from four DEA agents, the district court
2 From this point forward we will refer to all law enforcement officers collectively
as “agents” unless specifically noted otherwise. Technically, Officer
Castaneda was employed as a City of Chicago police officer and assigned
to the DEA as a task force officer.
6 No. 17‐3018
found that the agents had probable cause to arrest Cherry and
that the subsequent search of the vehicle was lawful as the
drugs were in plain sight. In the alternative, the district court
held that the narcotics inevitably would have been discovered
after Cherry’s arrest, subsequent to an inventory search of his
vehicle.
Cherry twice moved to reconsider the district court decision,
arguing, on September 8, 2014, that a new Seventh Circuit
decision indicated that a court must have more corroboration
from an informant’s tip and that an enhanced version
of the recording from the confidential informant’s body camera
did not support an agreement by Cherry to accept the cocaine.
The district court rejected both arguments.
Almost two years after the suppression hearing, on
September 8, 2014, Cherry filed another motion—this time
seeking to inspect the camera used to photograph the satchel
and the metadata associated with the photographs in order to
determine in what order the photographs were taken.
Because Castaneda took all of the photographs of the satchel,
both open and closed, within the same minute (and the time
stamp did not reveal seconds), the court and parties could not
determine in what order the agent took the photographs.
Cherry’s counsel argued that the data sought would reveal
the order in which the pictures were taken, and thus would
uncover the truth about whether the drugs had been in plain
sight in an open bag, or not visible in a closed bag when the
agents arrived at the vehicle. After a search, however, the
government determined that neither the camera nor any
metadata was available because Agent Castaneda took the
photographs with a personal camera which he subsequently
sold at a yard sale in the summer of 2013. Cherry filed a
No. 17‐3018 7
renewed motion to reconsider, arguing that because the
government failed to retain the metadata from the camera, the
court should be precluded from relying on the photographs
in making its probable cause determination. After the trial,
Cherry also filed a motion to dismiss the indictment on the
basis of an alleged Brady violation—that is, that the
government failed to preserve the exculpatory evidence of the
photographic metadata from the camera. The district court
rejected this argument as well, noting that Cherry had failed
to demonstrate any bad faith on the government’s part, that
the court had already found that the heroin was in plain view,
and inevitably the drugs would have been discovered during
an inventory search.
The case proceeded to trial where the jury convicted
Cherry of the single count of the superseding indictment. After
trial, Cherry filed another motion in which he repeated his
pre‐trial arguments. The district court found no reason to alter
its rulings. Cherry was sentenced to 240 months’ imprisonment,
and now appeals. In this court he again argues that his
arrest was not supported by probable cause and that the district
court erred by refusing to suppress the evidence obtained
during the warrantless search of his vehicle. He also argues
that the district court erred by determining that the government
did not violate Brady v. Maryland, 373 U.S. 83 (1963)
when it failed to preserve the potentially exculpatory
metadata associated with the photographs of the evidence.
II.
1. Probable cause to arrest
The main crux of Cherry’s defense is that the DEA agents
had so little reliable information either from the confidential
8 No. 17‐3018
informant or from their own investigations that they could
not have had probable cause either to arrest him or to search
his vehicle. In pursuit of this defense, shortly after his original
indictment, Cherry filed a motion to suppress the evidence
obtained from his allegedly illegal arrest and the subsequent
search of his SUV. The district court, however, denied his motion
to suppress. When considering a district court’s denial of
a motion to suppress, we review findings of fact for clear error
and questions of law de novo. United States v. Velazquez, 906
F.3d 554, 557 (7th Cir. 2018). We will not overturn a district
court’s credibility finding unless we find clear error. United
States v. Jones, 900 F.3d 440, 449 (7th Cir. 2018). Cherry also
filed post‐trial motions under Federal Rule of Criminal Procedure
29(a) and (c), repeating these arguments and challenging
the sufficiency of the evidence that the government relied
upon to establish probable cause. R. 177, 196. When a defendant
challenges the sufficiency of the government’s evidence in
a Rule 29 motion for a judgment of acquittal, as Cherry did
below, we review de novo, viewing the evidence in the light
most favorable to the government. United States v. Cruse, 805
F.3d 795, 811 (7th Cir. 2015). We must affirm if any rational
trier of fact could have found the elements of the crime beyond
a reasonable doubt. Id. We have often said that “after a
guilty verdict, a defendant seeking a judgment of acquittal
faces a ‘nearly insurmountable hurdle.’” United States v. Jones,
713 F.3d 336, 339 (7th Cir. 2013) (citing United States v. Moore,
115 F.3d 1348, 1363 (7th Cir. 1997)). Yet even under the relatively
easier standard of review of the motion to dismiss, we
find the DEA agents had probable cause to arrest Cherry.
Cherry’s claims require us to go back to the core of the
Fourth Amendment. The Fourth Amendment to the Constitution
prohibits unreasonable searches and seizures, including
No. 17‐3018 9
arrests made without either a warrant or probable cause. U.S.
Const. Amend. IV. A police officer has probable cause to
make an arrest if a reasonable person, knowing all of the facts
and circumstances known to this officer, would believe that
the individual in question has committed or is committing a
crime. Seiser v. City of Chicago, 762 F.3d 647, 654 (7th Cir. 2014).
There is no checklist that can determine probable cause, particularly
when evaluating probable cause based on an informant’s
tip.
[P]robable cause is a fluid concept—turning on
the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced
to a neat set of legal rules. Informants’
tips doubtless come in many shapes and sizes
from many different types of persons. … Informants’
tips, like all other clues and evidence
coming to a policeman on the scene may vary
greatly in their value and reliability. Rigid legal
rules are ill‐suited to an area of such diversity.
One simple rule will not cover every situation.
Illinois v. Gates, 462 U.S. 213, 232 (1983) (internal citations
omitted). And, as the general standards of review remind us,
when we look at the value and reliability of any particular tip,
we give deference to the district court’s determinations of the
facts (and inferences therefrom) that feed into the finding of
probable cause and review the legal determination of probable
cause de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996). When reviewing probable cause in the case where an
informant has provided a tip, therefore, we look at the totality
of the circumstances, noting that “a deficiency in one may be
compensated for, in determining the overall reliability of a tip,
10 No. 17‐3018
by a strong showing as to the other, or by some other indicia
of reliability.” Gates, 462 U.S. at 233. For this reason, direct
comparisons of indicia of probable cause from one informant
case to the next can be difficult.
Despite the inability to reduce the analysis to a neat set of
rules, the Supreme Court has mentioned factors that might go
into the decision‐making hopper, while warning against any
temptation to be confined to a rigid test. Gates, 462 U.S. at 234–
35. Those factors include an informant’s past reliability, her
reputation for honesty, the basis of her knowledge, and her
potential motive. Id. In United States v. Searcy, a case which
involved a warrant application to a magistrate judge, our
court, like the Supreme Court, stressed the importance of considering
the totality of the circumstances, but noted that a
magistrate might consider: “first, the degree to which the informant
acquired knowledge of the events through firsthand
observation; second, the detail and specificity of the information
provided by the informant; third, the interval between
the date of the events and a police officer’s application for the
search warrant; and fourth, the extent to which law enforcement
corroborated the informant’s statements.” United States
v. Searcy, 664 F.3d 1119, 1122 (7th Cir. 2011).
Anonymous tips, of course, require more corroboration
then those where the honesty, motivation, and reliability of
the informant can be assessed. Gates, 462 U.S. at 244–46; Adams
v. Williams, 407 U.S. 143, 147 (1972) (“Some tips, completely
lacking in indicia of reliability, would either warrant
no police response or require further investigation before a
forcible stop of a suspect would be authorized.”). The ability
of an informant to predict future actions of others with specificity
is one indicator of reliability. Gates, 462 U.S. at 245–46.
No. 17‐3018 11
When a suspect engages in the behaviors and actions that an
informant has predicted, “[t]hat is exactly the type of corroboration
that counts.” United States v. Oliva, 385 F.3d 1111, 1114
(7th Cir. 2004). See also, Alabama v. White, 496 U.S. 325, 332
(1990) (“What was important was the caller’s ability to predict
respondent’s future behavior, because it demonstrated inside
information.”) (emphasis in original); United States v. Navarro,
90 F.3d 1245, 1254 (7th Cir. 1996) (“because the surveillance
preceding the stop corroborated the information from the informant,
the law enforcement officers had probable cause for
both the arrest and search.”). But see United States v. Lopez, 907
F.3d 472, 483 (7th Cir. 2018) (informant who later disappeared
was not reliable and “[t]he officers’ observations that day [of
the arrest] did not corroborate, even roughly, the informant’s
story.”) Moreover, because the “Fourth Amendment, balances
the nature and quality of the intrusion on personal security
against the importance of the governmental interests
alleged to justify the intrusion … [a] stop to investigate an already
completed crime does not necessarily promote the interest
of crime prevention as directly as a stop to investigate
suspected ongoing criminal activity.” United States v. Hensley,
469 U.S. 221, 228 (1985).
In this case, the informant did not have a long (or any) history
of cooperating with law enforcement, and had not been
known to them for long, but he was not an anonymous tipster.
He had agreed to cooperate with law enforcement after being
arrested earlier that day picking up a very large quantity of
cocaine at the airport—more cocaine than anyone could use
for personal consumption. The confidential informant provided
significant incriminating information including that he
had a pre‐arranged plan to deliver thirteen kilograms of cocaine
to Cherry. The informant also told the agents that
12 No. 17‐3018
Cherry was a member of the Black P Stone gang in Chicago
and regularly trafficked in drugs. The informant then predicted
to the DEA agents that Cherry, an African‐American
man, who he knew as “Mo” and who was of average height
and weighed about 200 pounds would be arriving at a particular
parking lot in Markham, Illinois at a particular time, and
was known to drive a white Mercedes SUV. The phone calls
between Cherry and the informant corroborated some of this
information—Cherry appeared to agree to follow the informant’s
instructions given in the phone calls. The agents were
able to corroborate more of this information when a man,
meeting the informant’s description, arrived in the predicted
place at the predicted time, driving the make, model, and
color of vehicle that the informant said he would be driving.
Cherry’s own behavior added to their confidence when he arrived
at the agreed‐upon parking lot, circled the parking lot
as though assessing the safety and privacy of the situation,
and then parked next to the confidential informant’s car. He
exited his own car and got into the front passenger seat of the
informant’s car. Law enforcement agents instructed the informant
to signal them after having a certain conversation
with Cherry and showing him the sham cocaine in the hidden
compartment. The informant subsequently gave the agents
the signal indicating that he had completed the prerequisite
tasks. As the agents announced themselves, Cherry made initial
moves to flee either by running toward or taking steps
toward his vehicle.
The confidential informant was not an anonymous tipster
and continued to cooperate with the agents after his arrest
and throughout the sting operation—following all of the
agents’ commands and instructions. His earlier arrest meant
that he had motivation to help the agents in order to receive
No. 17‐3018 13
leniency in his own case. We recognize that this can be a double
edge sword—it gives informants motivation to assist law
enforcement officers, but perhaps also gives them motivation
to assist law enforcement without regard to the accuracy of
the information. In any event, we have noted that the fact that
a desire for leniency motivates an informant does not make
the information he provides inherently unreliable. United
States v. Mitten, 592 F.3d 767, 774 (7th Cir. 2010). And in fact,
our court has noted that informant tips that involve inculpatory
statements add great weight to an assessment of probable
cause to arrest. United States v. Brown, 366 F.3d 456, 459
(7th Cir. 2004) (also noting that “several circuits have held that
such statements are so presumptively reliable that they may
support a probable cause determination even if uncorroborated.”).
It is true that there is always a risk that an informant
is setting up an innocent rival or enemy, but this is less of a
risk when the informant is known and trying to lessen his
own sentence. Surely the informant knew that he would not
have engendered the good will of the agents had Cherry arrived
and stated on the recorded wire that he had just come
to meet the informant for pizza. See United States v. Olson, 408
F.3d 366, 371 (7th Cir. 2005) (“A motive to curry favor, however,
does not necessarily render an informant unreliable. Indeed,
even informants ‘attempting to strike a bargain with the
police have a strong incentive to provide accurate and specific
information rather than false information about a defendant’s
illegal activity.’”) (quoting U.S. v. Koerth, 312 F.3d 862, 870
(2002)) (cleaned up).
As we have just noted, there is no formula for determining
the requisite degree of reliability of an informant’s tip that
will provide probable cause to arrest. Other cases can give us
guide posts. And so, for example, we might look to United
14 No. 17‐3018
States v. Freeman, 691 F.3d 893 (7th Cir. 2012), where the police
had analogous facts from an informant about a similar prearranged
drug deal. In Freeman, an arrested drug dealer
agreed to assist the police in a sting. He telephoned a raspyvoiced
man who agreed to meet him and sell him crack at a
Sav‐A‐Lot parking lot. At the agreed upon time, a minivan
pulled into the nearly empty parking lot and waited by the
door of the store. The informant called the defendant who responded
that he was waiting by that same door. The van,
however, suddenly pulled out of the lot. After the van failed
to engage a turn signal, police officers initiated a traffic stop
and encountered a raspy‐voiced man. A dog alerted to the
scent of drugs, giving the police probable cause to search the
van, but when they did, they found no drugs. The officers
asked the informant to redial the number he had just used to
set up the drug deal, and when he did, the call came through
on a cell phone located in the armrest on the passenger‐side
door of the van. The men were arrested and, during a strip
search at the jail, officers found crack cocaine hidden in the
man’s buttocks. The district court found that “[t]he police had
credible information about Freeman’s drug‐trafficking habits
from the cooperating informants, and his activities just prior
to his arrest coincided perfectly with the details of the undercover
operation, thus supplying probable cause to arrest despite
the fact that no drugs were found in the search during
the stop.” Id. at 896. The police watched the silver van pull
into the parking lot, the van matched the description given by
an earlier informant, it arrived at the time that the drug dealer
on the phone said it would, and then the drug dealer on the
phone stated that he was parked just outside a Sav‐A‐Lot
store, right where the van was parked. Id. at 899–900. When
pulled over, the passenger met physical descriptions given by
No. 17‐3018 15
previous informants and the phone number used to arrange
the transaction rang a phone located within the silver van.
Just as in this case, the police had little independent corroboration
other than the informants’ accurate descriptions and
his ability to predict the defendant’s actions. This, the court
held, was sufficient to establish probable cause. Id. at 896.
Cherry argues that this case is not like Freeman, because in
Freeman the police were monitoring the calls in real‐time and
knew that the defendant had agreed to sell crack to an
informant at the precise location where he then appeared. But
the agents in this case likewise knew that Cherry planned to
meet the informant in the parking lot to participate in a drug
deal. It is true that they did not listen to the phone calls in real
time, but during the first call the officers were present with
the informant. Tr. 11/26/12 at 23 (R. 58 at 23). In Freeman, our
court noted that “the police on the scene had plenty of
information to give them probable cause to believe that [the
defendant] had committed the crime,” including the fact that
the events unfolded just as the informant had said they
would—a raspy‐voiced man arrived at a pre‐arranged
location at the pre‐arranged time in a vehicle he was known
to drive.” Freeman, 691 F.3d at 899–900. Sometimes having a
drug buyer appear on the scene precisely when expected is
sufficient to supply probable cause for an arrest. See United
States v. Colon, 549 F.3d 565, 567 (7th Cir. 2008). In Colon the
court upheld the finding of probable cause where one drug
dealer telephoned another to tell him that a man would be
arriving at a particular house in fifteen minutes to purchase
drugs, and the police arrested that man as he left the house.
Id. In this case the agents had far more: they had a man who
matched the predicted description, arriving in a vehicle that
matched descriptions of the drug dealer’s vehicle, at the
16 No. 17‐3018
predicted place and time. They had the informant’s
confirmatory signal, and the defendant’s preliminary attempt
to flee.3
It is true that the facts in this case are not the same as they
were in Freeman. No two cases ever are. But Freeman emphasizes
the value to law enforcement of an informant’s
knowledge when the events the informant predicted come to
light in the manner the informant forecasted, particularly
when those events would not have been known to the general
public. See Freeman, 691 F.3d at 899–900; White, 496 U.S. at 332
(noting that an informant’s predictions gain some degree of
reliability when the police see the events unfold as the informant
predicted, particularly when it demonstrates inside information
of which the general public would not be aware). Of
course, there is always a risk that a confidential informant has
ulterior motives and is leading law enforcement astray. Probable
cause, however, does not require certainty in an informant’s
tip, just sufficient probability. Seiser, 762 F.3d at 654. In
Brown, 366 F.3d at 460–61, for example, our court found sufficient
probable cause to arrest despite a small risk that the informant
“had simply spotted [the defendant] while fleeing
from the bank and then falsely implicated him in the bank
robbery.” Id. at 460–61. In that case a bank robber caught in
the act described the getaway car awaiting him, the exact
3 Although flight cannot, on its own, provide probable cause to arrest, the
determination of probable cause depends on a totality of circumstances
that may take into account “commonsense judgments and inferences
about human behavior,” including unprovoked flight. Illinois v. Wardlow,
528 U.S. 119, 125 (2000) (explaining that a “refusal to cooperate, without
more, does not furnish the minimal level of objective justification needed
for a detention or seizure,” but unprovoked flight could factor into reasonable
suspicion) (internal citations omitted).
No. 17‐3018 17
location where it would be waiting, the color and make of the
car, the first letter of the license plate, and a name and description
of the driver. Id. at 457. When the police were able to verify
these details, “the entirety of [the informant’s] story, including
his statements about Mr. Brown’s role in the robberies,
assumed a high degree of reliability.” Id. at 460. It is
true that the informant in Brown, like the informant here,
could have been setting up an innocent person. As we noted,
however, probable cause does not require “hard certainties,”
only probabilities. Gates, 462 U.S. at 231 (citing United States v.
Cortez, 449 U.S. 411, 418 (1981)). Cherry argues that the informant’s
information in Brown was far more detailed and the
police were able to corroborate more of it. We do not think the
level of detail in these two cases is materially different in a
manner that affects probable cause.
Undoubtedly more certainty is better where a defendant’s
liberty is at stake, but we do not require incontrovertible evidence
for probable cause. Of course, it would have been better
had the agents done more independent corroboration; had
they been monitoring the conversations in real time (and certainly
the technology was so readily available, even in 2012,
that one wonders why it was not used); and if they had seen
Cherry take possession of the drugs. Because probable cause
is fact specific, it might happen that, in another case, a court
would require this sort of corroboration before finding probable
cause. We cannot conclude, however, that in this case
these deficiencies eviscerated probable cause. The DEA
agents had multiple pieces of detailed information from an
informant who was implicating himself in a drug deal—information
corroborated as the predictions came true. This was
sufficient probable cause to support the arrest of Cherry.
18 No. 17‐3018
2. Probable cause to search the vehicle
We also conclude that the DEA agents lawfully searched
Cherry’s vehicle, including the satchel, and lawfully seized
the narcotics. Like a warrantless arrest, a warrantless search
and seizure violates the Fourth Amendment unless it falls
within certain exceptions to the warrant requirement. Katz v.
United States, 389 U.S. 347, 357 (1967). “The ‘plain‐view’ doctrine
is often considered an exception to the general rule that
warrantless searches are presumptively unreasonable, but
this characterization overlooks the important difference between
searches and seizures. If an article is already in plain
view, neither its observation nor its seizure would involve
any invasion of privacy.” Horton v. California, 496 U.S. 128, 133
(1990). Under this plain view doctrine, a warrantless seizure
is justified if first, the law enforcement officer did not violate
the Fourth Amendment in arriving at the place from which
the evidence could be plainly viewed; second, the item was in
plain view; and third, its incriminating character was immediately
apparent. United States v. Contreras, 820 F.3d 255, 262
(7th Cir. 2016).
After hearing testimony from the agents and Cherry, the
court concluded that the drugs were in plain view after
Cherry opened the driver’s side door to his car while trying
to flee. We see no reason not to give deference to this credibility
and factual finding. As the district court concluded, the
agents’ testimony was substantially consistent: they arrested
the defendant after he opened the door to his SUV, and
through that open door they were able to see the messenger
bag with a plastic bag containing a substance the agents reasonably
suspected was illegal drugs. The district court concluded
that the agents’ version of events, was more likely true
No. 17‐3018 19
than Cherry’s, and that any minor discrepancies were immaterial.
R. 60 at 4–6. The district court did not believe Cherry’s
testimony that he hid the drugs at the bottom of the satchel,
below several car titles and then placed the satchel on the
floor of the front passenger side of the car. The district court
reasoned that a drug dealer coming to exchange drugs would
want to minimize his vulnerability and thus the time for the
exchange, and therefore would place the drugs where they
would be readily accessible. As we have noted, “we must accept
the district court’s credibility determination unless the
facts, as testified to by the police officers, were so unbelievable
that no reasonable factfinder could credit them.” Contreras,
820 F.3d at 263.
Cherry does not seem to dispute the prerequisites to the
plain view doctrine—that the agents were lawfully in the
parking lot and that the incriminating nature of the evidence
would have been readily apparent. Cherry argues instead that
his version of events is the one to be believed—the drugs were
hidden inside the satchel on the floor of the Mercedes where
the agents could not have seen them and the agents’ reports
to the contrary were inconsistent and thus unbelievable. We
can make short shrift of this argument. “A district court’s
credibility assessment based on live testimony will not be disturbed
unless it is completely without foundation.” Freeman,
691 F.3d at 900 (internal citations omitted).
Even if we were to perseverate on the inconsistencies in
the agents’ testimony, none makes it impossible that the
drugs were in plain view. At the suppression hearing, Agent
O’Reilly testified that Cherry “ran across the parking spot to
his vehicle” and opened the drivers’ side door, and had his
hand and arm inside the car when he was arrested. 11/27/12
20 No. 17‐3018
Tr. at 76–77, 95 (R. 58). Agent Brazao testified that although
he did not see who opened the door to the SUV, after he secured
the informant, he walked back to the SUV one minute
after the agents moved in to arrest Cherry, noticed the doors
were open, and saw a black satchel and drugs through the
open door. Id. at 14, 35–36, 48–49. Agent Crawford testified
that he did not see who initially opened the door, but when
he arrived at the SUV, the other agents had already arrested
Cherry and he was on the ground and the door was open. Id.
at 53–54, 56–61, 65–66. Crawford looked into the SUV to make
certain there were no other people in the SUV who might be
a threat to the agents and saw the satchel and drugs in plain
view. Id. Those agents testified consistently at trial. Tr. 6/28/16
a.m. at 193–202, 242–43 (R. 184); Tr. 6/28/16 p.m. at 296, 307–
08, 310–11 (R. 179). Cherry points accusatorily to Chicago police
officer Gamboa’s testimony. Officer Gamboa did not testify
at the suppression hearing, but he did testify at trial and
his testimony was less clear about the door. He testified that
Cherry “very quickly tried to get into his vehicle,” Tr. 6/28/16
at 390, 391 (R. 179) and that he was handcuffed outside of the
vehicle. Id. at 391. His testimony about whether the door to
the SUV was open or closed, however, was a bit equivocal.
Cherry hangs his hat on the fact that Officer Gamboa testified
at trial that the agents grabbed Cherry before he could open
his car. Gamboa’s testimony, however, was not as clear as
Cherry presents it to be:
Gamboa: He tried to go in the car. I tried not to
let him go in the car.
Q. And you grabbed him?
A. From the shoulders and his arm, yeah.
No. 17‐3018 21
Q. So he wasn’t in the car at the time that you
grabbed him?
A. No. He was trying to get into the car.
Q. Door was open?
A. Trying to open it, yeah.
Q. Oh, so the door—he hadn’t been able to—he
wasn’t successful in opening the door?
A. He didn’t get in. If he did open it, I wasn’t paying
attention. I was just trying to make sure he
didn’t get in.
Q. So you don’t recall whether it was open or
closed?
A. It wasnʹt open— he didnʹt get in. Letʹs put it that
way. He couldn’t get his foot in, so it wasn’t.
Q. Okay. So you donʹt think it was open?
A. No.
Id. at 391–92 (emphasis ours).
None of the testimony gives rise to an irreconcilable difference.
In fact, none of it is inherently inconsistent. Testimony
is not incredible as a matter of law
“only because the witness may have been impeached
by certain discrepancies in [her] story,
by prior inconsistent statements, or by the existence
of a motive to provide evidence favorable
to the government.” To find a witness’s testimony
to be incredible as a matter of law, it must
have been “physically impossible for the witness
to have observed that which he claims
22 No. 17‐3018
occurred, or impossible under the laws of nature
for the occurrence to have taken place at
all.”
Contreras, 820 F.3d at 264 (citing Freeman, 691 F.3d at 900 and
United States v. Taylor, 701 F.3d 1166, 1174 (7th Cir.2012)).
The district court certainly did not err by accepting the testimony
of the three agents who were clear on the matter that
the door was open allowing the agents to view the drugs in
plain view on the seat. This was particularly true after the
suppression hearing when the district court had only the testimony
of Agents Brazao, Crawford and O’Reilly to consider.
But this was also true even when the court reviewed the posttrial
motion for acquittal. We cannot say that no reasonable
jury could have concluded that the door was open and the
drugs in plain view. We see no reason to disturb the credibility
and factual findings of the district court on the motion to
suppress and certainly no reason to upset the jury’s conclusion.
In any event, even if the door to the Mercedes was closed,
there were two other avenues to admit the evidence. First, the
agents were entitled to open the door to conduct a limited
protective sweep in case there were other occupants who
were not visible through the tinted windows or hiding in the
rear seat. Traffic stops are dangerous for officers and the “legitimate
and weighty” interest in officer safety allows officers
to perform protective searches and frisks of other passengers.
Arizona v. Johnson, 555 U.S. 323, 331 (2009).
And finally, the district court was correct to hold, in the
alternative, that the drugs were admissible under the inevitable
discovery doctrine. As the Supreme Court has held, “[i]f
No. 17‐3018 23
the prosecution can establish by a preponderance of the evidence
that the information ultimately or inevitably would
have been discovered by lawful means … then the deterrence
rationale has so little basis that the evidence should be received.”
Nix v. Williams, 467 U.S. 431, 444 (1984). Once Cherry
had been arrested, the agents would have removed his car
from the parking lot and it would have been subject to an inventory
search, as is the usual protocol. As we noted before,
once a defendant is in custody, “the arresting officers would
not have allowed the truck to just sit on the street after” a defendant
has been taken away. United States v. Stotler, 591 F.3d
935, 940 (7th Cir. 2010). Agent Brazao confirmed this in his
testimony at the suppression hearing: “it was determined by
the case agents that we were not going to seize the vehicle,
and we didn’t want to leave it there in an open parking lot so
that someone would steal it or damage it. So we wanted to
secure it. So we asked Markham police can we secure it in
their parking lot until someone can come pick it up.”
Tr. 11/27/12 at 66 (R. 58). Although Cherry was arrested in a
private parking lot, it seems unlikely that a police department
would have allowed a car, potentially filled with drugs, to sit
in a parking lot indefinitely. The drugs, therefore, inevitably
would have been discovered during an inventory search.
3. Photographic metadata.
Finally, Cherry’s motion to dismiss the superseding indictment
and the motion for judgment of acquittal argued
that the government violated its affirmative duty to disclose
evidence favorable to him as required by the Supreme Court
in Brady v. Maryland, 373 U.S. 83 (1963). Brady requires that the
government disclose evidence materially favorable to the accused,
whether that evidence is impeachment evidence or
24 No. 17‐3018
exculpatory. Youngblood v. West Virginia, 547 U.S. 867, 869–70
(2006). Upon review of a motion to dismiss which alleges a
Brady violation, we look only to see if the district court abused
its discretion. United States v. King, 910 F.3d 320, 326 (7th Cir.
2018).
When a defendant alleges that the government failed to
preserve potentially exculpatory evidence, as Cherry has
done here, we apply the standard articulated in Arizona v.
Youngblood, 488 U.S. 51 (1988), which states that there is no
denial of due process “unless a criminal defendant can show
bad faith on the part of the police.” Youngblood, 488 U.S. at 58.
See also United States v. Fletcher, 634 F.3d 395, 407 (7th Cir.
2011), as amended (Feb. 23, 2011). In short, our precedent demands
that Cherry demonstrate: “(1) bad faith by the government,
(2) that the exculpatory nature of the evidence was apparent
before its destruction, and (3) that he could not obtain
the same evidence anywhere else.” Fletcher, 634 F.3d at 407
(citing United States v. Kimoto, 588 F.3d 464, 475 (7th Cir.
2009)). Bad faith, in turn, requires proof of an “‘official animus’
or a ‘conscious effort to suppress exculpatory evidence,’”
and necessarily turns on an official’s subjective
knowledge that the evidence in question had exculpatory
value at the time it was lost or destroyed.” United States v. Bell,
819 F.3d 310, 318 (7th Cir. 2016) (quoting Jones v.
McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992)).
In this case, the first two factors overlap. The district court
did not abuse its discretion in determining that the camera
was not sold in bad faith, in part because the exculpatory nature
would not have been obvious to the officer at the time the
camera was sold. Agent Castaneda sold the camera, which
was his personal property, at a garage sale in the summer of
No. 17‐3018 25
2013, months after the suppression hearing. During the suppression
hearing, the defense counsel asked Castaneda about
the order of the photographs but never sought to inspect the
camera or its metadata until almost two years after that hearing.
Cherry’s counsel was well aware of the existence of this
data, but at no point before or during the suppression hearing
did Cherry ask for the camera or the metadata. Nor did
Cherry ask the government to preserve the data. The district
court concluded that “[n]o evidence supports Defendant’s position
(nor is it likely) that after the motion to suppress, during
which metadata was not even mentioned, law enforcement
officers anticipated that such information would someday be
requested and intentionally destroyed it in order to deprive
Defendant of the evidence.” R. 106 at 4.
Moreover, as we noted above, the contents of the vehicle,
including the satchel and the drugs within it, would have
been discovered in a lawful inventory search once the agents
took custody of the vehicle. This makes any debate about the
order in which the photographs were taken and whether the
bag was opened or closed irrelevant.
Outcome: III.
For all the reasons asserted above, we AFFIRM the opinion
of the district court in all respects.
Plaintiff's Experts:
Defendant's Experts:
Comments: