*1 935 enough We review district court’s evi not to reverse the district court’s dentiary rulings, including evidentiary Moreover, matters con ruling. Detective custody Hughes chain at cerning physical ex testified trial the drugs hibits, appeared under the abuse of to be in substantially discretion the same Prieto, v. standard. United States condition as when 549 he received them from (7th Cir.2008). 513, Meyer. Officer Finding F.3d We will no error judge a trial district 1, not reverse unless the rec court’s decision to allow Exhibits 2, evidence, contains no evidence and 3 into ord on which the we decline Turner’s rationally request trial court could hаve to vacate based its his conviction. Tatum, v. United States decision. (7th Cir.2008). 584, III. Conclusion
F.3d before, As we have govern- stated Because we find that the district court call required every ment is witness did not commit allowing error in Block’s who handled an exhibit before that exhibit testimony at Turner’s trial and did not may be admitted into evidence: abuse its discretion in admitting into evi-
The standard for the admission of dence affirm exhib- Exhibits and we judgment its into evidence is that there must be a of the district court.
showing that physical being exhibit Affirmed. in substantially offered is the same con-
dition as when the crime was committed. dеtermination, this the dis-
trict court a “presumption reg- makes
ularity,” presuming that the custody
officials who had of the exhibits AMERICA, UNITED STATES of discharged properly. their duties Plaintiff-Appellee, chain custody perfect; need not be gaps go in the chain to the weight of the STOTLER, H. John Defendant-
evidence, admissibility. not its In addi- Appellant. tion, the government does not have to all possibilities exclude of tampering No. 08-4258. Instead, with the evidence. the govern- United States Appeals, Court of only ment need show that it took reason- Seventh Circuit. precautions able preserve original condition of the evidence. Argued Oct. 2009. Prieto, United States v. 549 F.3d 524- Deсided Jan. 2010. (7th Cir.2008) (citations quotation Rehearing Rehearing En Banc omitted). marks Denied March purchased Because the substances from custody Turner remained in official at all
times, the presumption regularity ap-
plies. presents Turner no case law to the
contrary, and we find no compelling reason away principle
to do with this in the con- laboratory
text of testing. Turner
speculates might that Hanson have tam- evidence,
pered speculation with the but *2 suppress
motion to evidence seized from a search of his truck and when allowed the 404(b) put some Rule evi- jury. dence before the We start with the *3 facts. in
Beginning law enforcement offi- Illinois, in Quincy, cers the area of information regarding Stotler’s involve- ment in the methamphet- manufacture of They amine. in knew 1999 he was convicted California of manufacturing Also, methamphetamine. in early responded officers to a report of shots fired at Stotler’s residence. After arriving home, at his officers observed several items known to be used in the metham- phetamine-making business: over 100 oven, pseudoephedrine pills hidden in an a scale, batteries, lithium acid, salt, sulfuric gallon and one of Coleman camping fuel. Bass, Timothy Attorney, A. argued, Of- They glass also found containing vials Attorney, Spring- fice of the United States methamphetamine residue.
field, IL, Plaintiff-Appellee. for information, With this law enforcement Laytin, argued,
Daniel E. Kirkland & tabbed Stotler as a meth-maker-dealer— LLP, IL, Chicago, Ellis for Defendants him. they kept eyes and their When Appellant. on, curtail, the heat is most people or at down, least slow their illegal activity. But SYKES, Before and EVANS Circuit to put Stotler decided another item in law SIMON, Judges, Judge.* and District growing enforcement’s basket of evidence against him. opted purchase He to EVANS, Judge. Circuit (the enough pseudoephedrine number one trial, jury a After short John Stotler was meth) ingredient necessary making for guilty attempted found on two counts: choke a horse. possession of а pseu- listed chemical— doephedrine prohibits intent to manufacture Illinois law a person pur- from —with methamphetamine, chasing violation of 21 more than a small amount pseu- 841(c)(1), §§ posses- doephedrine during any 30-day U.S.C. 846 and period addition, methamphetamine sion of with the intent a prescription. without feder- distribute, prohibited possessing any violation of 21 U.S.C. al law amount of 841(a)(1) (b)(1)(C). § pseudoephedrine He was sen- with the intent to use it tenced to a term of 110 making methamphetamine. comply months. On this for To law, argues that with state over-the-counter appeal, Stotler district distribu- court are pretrial pseudoephedrine required erred when denied his tors * Simon, Indiana, Philip sitting by designation. The Honorable P. United States Judge District Court for the Northern District was instruct- doephedrine pills. custom- Childress to individual their sales
document
includes a re-
and to contact
ed to sell the
This documentation
ers.
a
produce
the customer
by phone after
the deal went
quirement
officers
information
personal
provide
ID and
photo
then maintained surveil-
down. Officers
pseudoephed-
when
while wait-
lance of Childress’s residence
rine.
tо arrive.
ing
less-than-30-day period be-
During a
said,
arrived at
Just as Childress
May
pur-
April and
tween
place in a
appointed
time and
GMC
amount of
than the maximum
chased more
that afternoon. One officer
pickup truck
under Illinois
permitted
pseudoephedrine
*4
meeting
observed Stotler and Childress
19, 2006, he
April
Specifically,
law.
Shortly
talking
the residence.
and
outside
2,400 milligrams
pseu-
of
purchased
thereafter,
return to
officers saw Stotler
store,
a
and
from Wal-Mart
doephedrine
and start to leave. He was then
pickup
his
2,400
May
purchased
17 he
May
15 and
by officers within 100 feet of Chil-
stopped
2,880
pseu-
of
milligrams
milligrams
and
house.
dress’s
Walgreens
from two
stores.
doephedrine
truck,
getting
After
out of the
Stotler
Walgreens stores and Wal-Mart
by
put
directed
officers to
his hands
was
Quincy
in the
area.
were located
head,
An officer
above his
but he refused.
state
August
an Illinois
On
truck,
him
pinned
against
then
advised
for Stotler
judge issued an arrest warrant
warrant,
outstanding
him of the
arrest
and
an excessive
charging
possessing
him with
place
directed him to
his hands behind
pseudoephedrine.
of
The warrant
amount
again
back.
refused. He was then
Stotler
20, 2007.
outstanding
Aрril
as of
remained
ground
handcuffed.
forced to the
and
was in law enforce-
All this information
person,
a
of his
officers
During
search
Michael
chap
when a
named
ment’s basket
right
pocket
from his
front
seized $600
in the case.
got
Childress
involved
pocket. They
from his left front
also
a
April
acting
was
as
On
Childress
truck and
searched the cab of Stotler’s
for law enforcement of-
confidential source
baggie containing Hydroco-
plastic
seized a
that he
ficers. He advised an officer
(a
substance) from
done
controlled
that
contact with Stotler and
glove compartment. Officers
inside the
pseudoephedrine.
wanted to
the bed of the truck where
then searched
to tell
The officer instructed Childress
paint gun bearing
found a
(Childress)
1,500 pills
that he
gun
plastic
were two
initials.
Inside
price
at a
Later
available for sale
$600.
baggies containing approximately
grams
day,
officer that he
Childress told the
baggie con-
methamphetamine
and one
Stotler,
had talked with
who said he would
taining
as
powdery
a
substance labeled
Childress,
buy
According to
pills.
“cut,”
apparent
an
reference to a common
at
Stotler said he would be
Childress’s
nar-
used in the distribution of
substance
Quincy
following day
home in
to do the
Finally,
bag,
a small
cotics.
officers seized
time,
At that
lived some 35
deal.
gun, that contained
paint
located near the
Quincy.
miles outside of
digital
a
These events led to the
scale.
information,
this
officers made ar-
With
court.
charges against Stotler
federal
rangements
pseu-
to have Childress sell
a motion to
charged,
Once
Stotler filed
doephedrine
day,
The next
Stotler.
obtained from the
suppress
at his
the evidence
officers met with Childress
1,500
Following an
pseu-
pickuр
him
search of his
truck.
gave
residence
Belton,
evidentiary hearing,
magistrate judge
said,
Supreme
Court
a policeman
“when
has made a lawful
recommended
the motion be denied.
cus-
recommendation,
occupant
todial arrest of the
of an
judge
automo-
In his
conclud-
bile,
may,
contemporaneous
he
as a
inci-
search of the truck was valid
ed
arrest,
dent of that
search
passenger
cause at
based on the existence
compartment of that automobile.” 453
at
the time Stotler arrived Childress’s resi-
454, 460,
U.S.
69 L.Ed.2d
and, alternatively,
dence
thаt the evidence
(1981).
Gant backed off a bit from
during
seized
a search of the cab of the
“[pjolice may
Belton and held that
search a
truck as incident to the defendant’s arrest
vehicle incident
occupant’s
to a recent
ar-
provided probable cause to search the bed
only
rest
if the
reaching
arrestee is within
of the truck.
passenger compartment
distance of the
at
judge
The district
adopted
magis-
the time of the search or it is reasonable to
judge’s
trate
recommendation and denied
believe
vehicle contains еvidence of the
the motion. Her
disagreement with
—
-,
offense
arrest.”
magistrate
was that she
concluded
S.Ct.
probable cause existed to search the truck
*5
Gant,
In
thing
police
knew
away
when Stotler drove
from Childress’s
about the
defendant when
him
saw
residence,
initially
not when he
arrived on
driving his car
that
suspend-
was
he had a
the scene.
ed driver’s license.
stopped,
He was
ar-
rested,
vehicle,
removed from his
hand-
relies, for
part,
the most
cuffed, and locked in the back seat of a
—Gant,
U.S.-,
Arizona v.
129 S.Ct.
prowler. And then
police
searched his
1710,
(2009),
2006 state warrant. did, undoubtedly the evidence would have that offi- detract from the fact doesn’t Obviously, a little later. been discovered him cers also had cause to arrest probable custody, going with Stotler in he was not (and truck) in engaging what search his in get to be allowed to and drive certainly illegal pseu- looked like an away. obviously, arresting Also offi That Childress doephedrine transaction. have allowed the truck to cers would not search, reported, later after the arrest and just after Stotler was sit on the street go planned that the down as deal didn’t done, away. they carted What would have because wanted to check out the Stotler likelihood, impound in all was the truck in a ingredients at Wal-Mart be- away. inventory An and have it towed them, followed; coughing up naturally fore doesn’t have search would inevitably that existed. evidence would have been dis- dilute the cause suppres- discovery, Stotler's Concerning our dis- decided 13 months inevitable after senting colleague government was denied and 10 months notes that the sion motion after by jury) point a it didn't "made record on this in the dis- he was convicted no enough. give to be able to use its need an extra reason trict court.” True But due, against Stotler dur- certainly full arsenal of evidence its could have (recall ing proceedings. reasonably that Gant was future believed 404(b) said, store, get Stotler That we move to showed and Flesner covered. purchases matter. made individual of pseu- doephedrine and walked out of the store with the Back in a detective separately. Iowa, office re County, sheriffs Scott representative to a call from a sponded 404(b) was the This evidence the Iowa, in con Target Davenport, store a jury judge allowed hear. The rule a cerning just purchased a man who had evidence of provides prior acts is ad pseudoephedrine. amount of large “motive, in prove opportunity, missible to given a description detective tent, preparation, plan, knowledge, identi subsequently and his car. man Officers ty, accident,” or of mistake or but absence in Walgreens parking the car a located not to a in prove defendant’s character Davenport. Cheryl Flesner was lot order he acted in conformity to show with in the car. The detective entered alone offense. charged apply We a four-part and observed the store 404(b) whether test to decide Rule evi pseudoephedrine. boxes of two properly dence was admitted and find will car, returned to his and he and thеn no error if: drove to another store Walgreens Flesner (1) the evidence directed es- toward there, Davenport. Fles Upon arrival a matter in tablishing issue other than re entered the store and ner propensity defendant’s commit to the car outside. She returned mained (2) charged; the crime the evidence Flesner a minutes later. Stotler and few shows that the other act is similar store. Walgreens traveled to a third then enough enough and close be time to while time Stotler entered store This (3) issue; the matter in relevant to detective waited outside. The Flеsner support evidence is sufficient to jury and again Stotler into the store followed the defendant finding committed him boxes of purchase two observed (4) act; and the similar the evidence has After left pseudoephedrine. probative substantially value that is not state and headed toward the Illinois store *7 by danger the outweighed prej- of unfair line, stop officers a initiated traffic udice. search the obtained Stotler’s consent to 550, v. Vargas, United 552 F.3d 554 States car. (7th Cir.2008). And we think it’s not even car, During the search officers of the clearly the question: a close Iowa evidence area, map a which Davenport seized of the passed test. It was for admissible Walgreens the location of highlighted bearing might whatever have on a cru- just Stotler and visited. stores Flesner had cial issue in this case—Stotler’s intent addition, notebook In officers seized a 20, April 2007. two other which contained addresses of reasons, the judgment For these of Finally, stores. officers seized Walgreens district is Affirmed. court packages pseudoephedrine, numerous of receipts for purchase, approximately their SYKES, Judge, dissenting. Circuit (totaling approx- pills pseudoephedrine 514 imately grams), agree my colleagues 30.6 which had I some of with when April packaging, removed from the an John Stotler’s was searched on been batteries, 20, 2007, law of lithium and a Illinois enforcement had rea- eight-pack a A se- son to he was meth-maker-deal- smoking-pipe purse. from Flesner’s believe video, curity the Tar- er. But that alone doesn’t validate later retrieved from 942 to As And is no reason be- the Fourth Amendment. searched. there under
search us, are at least comes there that his truck contain evidence this case lieve would affirming the denial arrest, impediments three the crime of which occurred a of legal, suppression motion—one short, of Stotler’s in year April-May earlier factual, procedural.1 and one one Gant justification has one for eliminated search; police this were not authorized First, legal landscape on vehicle the truck incident to to search Stotler’s time of changed has since the searches arrest. deci- trial. The Court’s Supreme Stotler’s — Gant, U.S.-, in Arizona 129 sion justification The alternative for (2009), has S.Ct. there was cause to search—that for the primary justification removed truck contained evi- believe Stotler’s of Stotler’s truck.2 Gant rejected a search supported not simply dence of a is crime— Belton, York v. New reading of broad record, by portion or by the at least of L.Ed.2d 768 the record which the has (1981), which of a vehicle under a search police relied. It is true that the had some occupant the arrest a recent incident to of background information about Stotler that permissible. applied to generally As him as identified a meth-maker-dealer. vehicles, thе ex- search-incident-to-arrest They were aware of his 1999 California As ception significantly is now narrowed. manufacturing methamphet- conviction for note, Gant held that my colleagues They amine. also knew that materials may incident to a search a vehicle “[p]olice used to meth had been manufacture found only if the arres- occupant’s arrest recent in January at his residence 2006 and that pas- reaching is within distance tee purchased he had amounts excessive of senger compartment at the time of (a pseudoephedrinе “precurser” meth it is to believe the search or reasonable nomenclature) narcotics-investigation contains the offense of vehicle evidence of information, April-May 2006. This howev- Gant, at 1723. arrest.” S.Ct. er, time; severely is attenuated Here, the district ev- court held—and meth-making in the first half activities eryone agrees was arrested —that can be a component small August for on the 2006 state warrant equation probable-cause search overbuying pseudoephedrine during the year truck a later. pertinent More what April May months of enforcement law knew about Stotler’s ac- 1,500 attempting pseu- tivities in or around when doephedrine from Michael Childress place, the search took and what saw *8 April up- 2007. The court district during the controlled transaction between primarily the search of held Stotler and Childress on that date. And permissible because it was incident to his important point, on this more the evidence the 2006 That arrest on warrant. basis falls short. longer the search is no valid. Stotler was from the therefore was The record in removed scene and reflects reaching passen- working not within distance of the Childress was with law enforce- compartment truck was ger exposure when his ment to reduce on his own his my agree colleagues applies with 1. I that Stotler's 2. Gant here it was because decided 404(b) while this case was evidentiary argument on direct review. on Rule based Griffith Kentucky, meritless. L.Ed.2d 649 arranged He to sell arrested whether or not the charges. meth-related transaction 1,500 pseudoephedrine pills for the completed. this was What means as a The price transaction $600. factual matter is that there is no evidence in occur at Childress’s home was set to to establish that the officers had reason to Illinois, Quincy, p.m. April at 5 planned actually believe transaction supplied and law-enforcement officers occurred. This in turn means there is no 1,500 pseudoephedrine with the Childress factual basis for finding probable cause to controlled pills purposes sale. believe Stotler’s truck would contain evi- were labeled Sudafed Sinus dence of a crime. All we know is that Nighttime large pills Plus Pain Relief — truck, in got empty-hand- back his 10-pill packs in blister and con- packaged ed, after a brief conversаtion with Chil- kitchen-sized, white, plastic within a tained dress, leave, and when he started to offi- (admitted bag as Exhibit 18AAat garbage immediately cers blocked his exit and trial). bulky package in put Childress this in to moved arrest him. He was searched truck, parked which was the drive- possession and found in of $600 —six home. arrived at the way of his purchase price bills—which was the for the time, driveway, into the appointed pulled 1,500 pseudoephedrine pills. All sug- this got out of his truck. and gests that the officers had reason to be- gap where there’s a the evi- Here’s planned lieve the transaction did not in Although enforcement had the dence. law occur, opposite.3 fact rather than the surveillance, none of the offi- scene under My colleagues have concluded that “the suppres- who at the cers testified —either judge district was correct when she found any hearing sion or at trial —saw transac- probable cause existed to search the it Nothing changed tion occur. hands. As truck because it was reasonable to believe out, only turns two of the surveillance of, very contained evidence at the Sergeant Patrick Frazier offiсers— least, attempt possess an Agent posi- Knox —were in a materials Special Seth all, anything they (pseudoephedrine) tion to see at testi- needed for Maj. saw a brief conversation meth.” I op. disagree. fied at 940. First all, at between Stotler and Childress the back judge the district did not find there Nothing of Stotler’s truck. more. probable was cause to believe the truck attempt contained evidence of an pos- fact, McElfresh, Matt Deputy Sheriff meth-making sess materials. She entered apparently charge oper- of this who generic finding that therе was ation, at po- the outset instructed the cause to believe the truck would contain at the to arrest personnel lice scene Stot- specifying evidence of a crime without August ler on the 2006 warrant as soon as suppose what crime she had in I mind. we driveway. he started to leave Childress’s can infer that it an attempt was either or a regardless This was instruction what completed pseudoephedrine pos- crime of transpired between Stotler and Childress. session, but the record doesn’t establish important it was not whether the offi- So *9 cause aсtually happened probable cers could see what to believe the truck be- two; going tween the Stotler was to would contain evidence of either. be out, my colleagues point pills 3. As after Stotler ed because Stotler was not sure the were go his truck and wanted to a Wal-Mart was arrested the search of had usable to to ingredients begun, explained to the officers that check their before Childress complet- purchase. the transaction had not fact been 944
First,
appreciate
police
it is hard
how there could
I
neither the
nor
to see
Gant;
prosecutors
their
anticipated
truck
cause to believe Stotler’s
probable
be
(as
in the field
conduct
and in the district
my
crime if
contain evidence of a
would
obviously
by
pre-
court was
informed
conclude)
an
that crime was
colleagues
I
vailing
reading
broad
Belton. But
of
To
possess
to
attempt
pseudoephedrine.
together
justi-
cobble
cannot
an alternative
obvious,
an
if the crime was
state
fication for this search
on what the
based
attempt
possess pseudoephedrine,
government
given
My colleagues
has
us.
hands;
drugs
changed
as
means
never
fails, may
that if all
affirm
suggest
else
we
such,
no
that the
there is
reason to believe
inevitable-discovery
on the
doctrine.
based
be
truck.
drugs would
found in Stotler’s
they say,
likely,
It is
Stotler’s
support
the record is
And
insufficient
impounded
would have been
after his ar-
cause to
truck would
probable
believe the
and an inventory
rest
search would have
completed
evidence of a
act of
contain
“naturally
Maj. op.
followed.”
at 940. Per-
possession
there
pseudoephedrine
because
government
But the
haps so.
has never
had
suggesting
is no evidence
the officers
argued
admitting the evidence from
pseu-
reason to believe the transfer of
permissible
this search was
on inev-
based
bag
doephedrine actually occurred.
discovery.
It
government’s
itable
visible;
large
if it
highly
prove
burden to
of this doc-
elements
actually changed
hands and been
trine,
Williams,
Nix. v.
467 U.S.
truck,
placed
the surveillance
2501,
(1984);
104 S.Ct.
Supreme intervening Court’s decision
Gant, that basis for longer the search is no independent
valid. An justification for the
search is therefore required, and the rec- simply
ord doesn’t it. supply government Agent developed Neither has raised it. testi- Knox offered brief good-faith exception exclusionary mony to the rule about information he had from a confi- Leon, as a basis to affirm. See United States dential informant named David Mann about meth-dealing Stotler's activities in the month 2007, just a few weeks before the search of Stotler’s truck. The district court suppression- 5. There is some testimony, gov- evidence in the did mention this and the hearing might record that appeal have bolstered ernment did not raise as either it on support affirming case cause had the or additional alternative *10 America,
UNITED STATES
Plaintiff-Appellee, Everly
Rex I. HATFIELD Hatfield,
K. Defendants-
Appellants. 09-1705,
Nos. 09-1849. Appeals,
United States Court
Seventh Circuit.
Argued Nov. 2009.
Decided Jan. suppression mo- tion.
the court’s denial of Stotler's