United States of America v. Devon M. Howard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2412
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
D EVON M. HOWARD,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14‐cr‐99 — J. P. Stadtmueller, Judge.
____________________
A RGUED FEBRUARY 8, 2018 — D ECIDED FEBRUARY 26, 2018
____________________
Before FLAUM, EASTERBROOK , and MANION, Circuit Judges.
FLAUM, Circuit Judge. In April 2014, a Verizon store in the
Milwaukee area was robbed. Prior to the robbery, witnesses
in the store noticed a Mercedes sitting in the parking lot for
an extended time. Just before the robber entered through the
store’s rear door, the Mercedes drove to the back of the store.
As the robber fled, the Mercedes sped away at a high speed.
Police stopped the Mercedes and arrested its occupants, in‐
cluding defendant. He moved to suppress evidence obtained

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2 No. 17‐2412
after his arrest, arguing police lacked probable cause. The dis‐
trict court denied that motion. We affirm.
I. Background
On April 4, 2014, a Verizon store located in Hartford, Wis‐
consin was robbed. Hartford Police Department (HPD) Ser‐
geant Timothy Hayes conducted the investigation. He spoke
with two eyewitnesses: Eric Safranski, a Verizon employee,
and Marshall Retler, a customer. According to the witnesses,
the robber, later identified as Londell King, entered through
the rear of the store, threw a black duffle bag on the ground,
and demanded cell phones. When his demands were not im‐
mediately met, King pulled out a pistol. After Safranski pro‐
vided cell phones from the store’s inventory, the robber ran
out the back door of the store.
Both witnesses noticed a suspicious Mercedes in the Veri‐
zon store’s parking lot in the moments preceding and follow‐
ing the robbery. In Sergeant Hayes’s words:
They had said that shortly before the robbery
took place there was a tan Mercedes that was in
front of the store with two subjects inside; and
they appeared—in their opinion [to be] watch‐
ing them, watching the store. The individuals in
the car did not go into any of the stores. They
simply stayed and watched the store. After do‐
ing this for a few minutes, the Mercedes drove
to the rear of the building out of their sight. And
shortly after [the Mercedes] went back there, the
individual came up and robbed the store. …
[A]fter the store was robbed, the witnesses said
the Mercedes came in there [sic]—their own

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No. 17‐2412 3
words—flying from the back—one said zoomed
at a high rate of speed … . [Safranski] said that
he did not believe that the robber would have
been able to get in this vehicle with the direction
that he was running in. And he also made the
comment to me at one point that he thought that
this vehicle was some sort of decoy, getting the
attention away from the actual robber [and]
where he was going after he committed the rob‐
bery.
Neither Safranski nor Retler could say for certain whether the
robber arrived at the store in the Mercedes.
Based on his experience, training, and the eyewitness tes‐
timony about the Mercedes’s actions, Sergeant Hayes con‐
cluded the “vehicle … wanted to draw attention to itself” and
“was used as a decoy to get law enforcement and witnesses to
follow it … while the individual who actually did the robbery
was able to basically run out and get away in another vehi‐
cle.” In short, Hayes believed the two individuals in the Mer‐
cedes “were involved” as “an accessory” to the robbery.
Safranski provided Sergeant Hayes the Mercedes’s license
plate number, and Retler told Hayes that the Mercedes had
tape on the driver’s side front bumper. Hayes relayed that in‐
formation to HPD dispatch, which put out a notice that the
Mercedes was involved in “an armed robbery in progress.”
Soon thereafter, a police officer from a neighboring village
saw the Mercedes. After advising HPD, he stopped the vehi‐
cle at HPD’s request.
The driver of the Mercedes was Naqur Bean; the passen‐
ger was defendant Devon Howard. The occupants did not

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4 No. 17‐2412
match Sergeant Hayes’s description of the suspected robber,
and police found no evidence in the Mercedes suggesting in‐
volvement in the robbery. However, because Hayes believed
the Mercedes acted as a decoy, he ordered Bean and Howard
to be arrested and driven to HPD headquarters.
At headquarters, police separately interrogated both sus‐
pects. Bean initially declined to speak. Howard at first denied
any participation in the robbery, but later admitted his in‐
volvement over the course of a five‐hour interrogation. 1 How‐
ard told police that Bean drove him to the store because he
did not have a valid driver’s license. He also identified King
as the robber. After Howard confessed, he spoke with Bean
for ten‐to‐fifteen seconds. At that point, Bean was willing to
speak with police, and she implicated herself and Howard by
stating they acted as lookouts. After Howard and Bean’s state‐
ments, the police arrested King. He confirmed Howard and
Bean assisted with the Verizon robbery, and also said they
were involved with prior robberies. The next day, police exe‐
cuted a search warrant of Howard’s home and found evi‐
dence linking him to other cell phone store robberies. Addi‐
tionally, Howard spoke with police from jail and admitted
that he had sold stolen cell phones on the internet.
On April 22, 2014, Howard and King were indicted for un‐
lawfully taking and attempting to take wireless phones in in‐
terstate commerce by means of actual and threatened force,
violence, and fear of injury, in violation of 18 U.S.C. §§ 1951
1 Howard also gave HPD consent to search the Mercedes and his cell
phone (which HPD found left in the Mercedes); he signed consent forms
authorizing both searches. On Howard’s phone, police found text mes‐
sages that were indicative of buying and selling cell phones.

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No. 17‐2412 5
and 1952. They were also charged with using and carrying a
firearm during and in relation to a crime of violence, in viola‐
tion of 18 U.S.C. §§ 924(c)(1)(A)(ii), (2). On April 23, Howard
entered a plea of not guilty. On May 12, Howard moved to
suppress the evidence linking him to the robberies, including
“police obtained statements, cellular telephone data, and
other physical evidence,” arguing that it was obtained as a re‐
sult of an unlawful warrantless arrest without probable cause.
After an evidentiary hearing, Magistrate Judge Patricia J.
Gorence recommended the district court deny Howard’s mo‐
tion. Judge Gorence determined police lacked probable cause,
but held they would have inevitably discovered the chal‐
lenged evidence. Both parties objected. After the district court
held a second evidentiary hearing, Judge Charles N. Clevert
determined police did have probable cause to arrest Howard
because “the officers had sufficient reasonable trustworthy in‐
formation to cause a prudent person to believe that Howard
and Bean were aiding and abetting the armed robbery.” Al‐
ternatively, Judge Clevert held that even if the arrest was im‐
proper, the evidence would have been inevitably discovered.
This appeal followed.2
II. Discussion
“We review a district court’s denial of a suppression mo‐
tion under a dual standard of review: legal conclusions are
reviewed de novo, while factual findings are reviewed for
clear error.” United States v. Kelly, 772 F.3d 1072, 1077 (7th Cir.
2 On March 31, 2017, Howard pled guilty. On June 28, he was sen‐
tenced to 114 months in prison and five years of supervised release. Pur‐
suant to his plea agreement, Howard reserved his right to appeal the de‐
nial of his motion to suppress.

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6 No. 17‐2412
2014). Still, a court reviewing probable cause determinations
should “give due weight to inferences drawn … by resident
judges and local law enforcement officers.” Ornelas v. United
States, 517 U.S. 690, 699 (1996). This is because “[a] trial judge
views the facts of a particular case in light of the distinctive
features and events of the community; likewise, a police of‐
ficer views the facts through the lens of his police experience
and expertise.” Id. Thus, we “should give due weight to a trial
court’s finding that [an] officer was credible and the inference
[of probable cause] was reasonable.” Id. at 700.
The Fourth Amendment protects against “unreasonable
searches and seizures.” U.S. Const. amend. IV. “[A]n officer
may make a warrantless arrest consistent with the Fourth
Amendment if there is ‘probable cause to believe that a crime
has been committed.’” United States v. Daniels, 803 F.3d 335,
354 (7th Cir. 2015) (quoting Washington v. Haupert, 481 F.3d
543, 547 (7th Cir. 2007)). “Police officers possess probable
cause to arrest when ‘the facts and circumstances within their
knowledge and of which they have reasonably trustworthy
information are sufficient to warrant a prudent person in be‐
lieving that the suspect has committed an offense.’” Williams
v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007) (quoting Mustafa
v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)); see also
United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003)
(“The determination of whether probable cause exists in a
given situation involves examining the totality of the circum‐
stances in a common sense manner.”). Probable cause does
not require an actual showing of criminal activity, or even that
“the existence of criminal activity is more likely true than
not”; instead, probable cause merely requires that a “‘proba‐
bility or substantial chance of criminal activity exists.’” Har‐
ney v. City of Chicago, 702 F.3d 916, 922 (7th Cir. 2012) (quoting

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No. 17‐2412 7
Mucha v. Vill. of Oak Brook, 650 F.3d 1053, 1056–57 (7th Cir.
2011)).
In evaluating whether an officer has probable cause, we do
not consider “the facts as an omniscient observer would per‐
ceive them,” but instead, “as they would have appeared to a
reasonable person in the position of the arresting officer.” Wil‐
liams, 509 F.3d at 398–99 (quoting Mustafa, 442 F.3d at 547). In
making a probable cause determination, “a police officer may
draw inferences based on his own experience,” Ornelas, 517
U.S. at 700, as well as rely upon information provided by a
credible eyewitness. Hart v. Mannina, 798 F.3d 578, 587 (7th
Cir. 2015). Moreover, under the “collective knowledge doc‐
trine, … [t]he police who actually make the arrest need not
personally know all the facts that constitute probable cause if
they reasonably are acting at the direction of another officer
or police agency.” United States v. Parra, 402 F.3d 752, 764 (7th
Cir. 2005) (second alteration in original) (quoting Tangwall v.
Stuckey, 135 F.3d 510, 517 (7th Cir. 1998)). “[T]he arrest is
proper so long as the knowledge of the officer directing the
arrest, or the collective knowledge of the agency he works for,
is sufficient to constitute probable cause.” Id. (quoting
Tangwall, 135 F.3d at 517).
Here, the police possessed probable cause to arrest How‐
ard. As the district court held, based on the totality of circum‐
stances and the witnesses’ statements to Sergeant Hayes, a
reasonably prudent officer would believe the occupants of the
Mercedes “were acting in conjunction with the armed robber
as a decoy or in some other aiding and abetting manner.”
To be sure, “mere proximity to suspected criminal activity
does not, without more, generate probable cause.” United
States v. Richards, 719 F.3d 746, 757 (7th Cir. 2013). “[I]n order

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8 No. 17‐2412
to find probable cause based on association with persons en‐
gaging in criminal activity, some additional circumstances
from which it is reasonable to infer participation in a criminal
enterprise must be shown.” United States v. Burrell, 963 F.2d
976, 986 (7th Cir. 1992) (quoting United States v. Hillison, 733
F.2d 692, 697 (9th Cir. 1984)). Thus, we have previously found
no probable cause where a defendant was arrested “princi‐
pally because he carried a bag down a gangway previously
used in a suspicious transaction and furtively looked
around.” United States v. Ingrao, 897 F.2d 860, 866 (7th Cir.
1990). In Ingrao, we concluded the defendant could have been
“an innocent acquaintance …, or a resident or visitor of an‐
other house, or a salesman, or someone merely walking down
the street.” Id. at 864.
Here, in contrast, the Mercedes’s conduct cannot be con‐
fused with innocent behavior. While it is true that police did
not know the occupants of the Mercedes were involved in the
robbery, the circumstances were such that an officer could rea‐
sonably infer their participation. Specifically, the Mercedes
committed three separate suspicious acts. First, it sat in the
parking lot in front of the store for an unnatural period of time
prior to the robbery.3 Second, it drove to the back of the store
just before the robber entered the store’s rear door. And third,
after the robbery, as the robber ran past the Mercedes, it
“zoomed [away] at a high rate of speed.”
Standing alone, any one of those facts may not give rise to
probable cause. But together, they provide ample support for
3 Indeed, the untrained eyewitnesses found the Mercedes’s conduct in
the parking lot so suspicious that Safranski remembered the Mercedes’s
license plate and Retler observed tape on the car’s bumper.

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No. 17‐2412 9
the officers’ belief that the Mercedes was likely involved in the
robbery as a look‐out or decoy.4 See, e.g., Burrell, 963 F.2d at
987 (finding probable cause where the defendant arrived to a
drug sale spot immediately after the known participant and
watched the known participant’s van and surrounding area
throughout the drug transaction); Richards, 719 F.3d at 755,
757–58 (holding that the fact “police had no evidence linking
[the defendant] to … the target of their sting … [did] not
lessen … probable cause” because the police saw the defend‐
ant’s vehicle throughout the drug transaction, and the vehicle
acted in a suspicious manner).
Indeed, we have previously found probable cause in a
similar scenario. In United States v. Schaafsma, a drug dealer
met an undercover officer at a restaurant; the dealer told the
officer he was purchasing the drugs for an individual waiting
in the parking lot and gestured “in the general direction” of a
Toyota where a man was sitting alone. 318 F.3d at 721. As the
undercover officer arrested the dealer, he informed other of‐
ficers that the Toyota was involved. At the moment of the ar‐
rest, the Toyota attempted to speed away “in a hurry,” but the
officers placed the driver under arrest. Id. We “ha[d] no trou‐
ble concluding that probable cause existed,” noting that the
car “tried to leave the lot … at a speed that a seasoned surveil‐
lance officer knew was faster than usual.” Id. at 722. We held
4 Howard’s argument that there was no probable cause because he did
not match the robber’s description and police found no indicia of the rob‐
bery in the Mercedes is unavailing. Based upon the Mercedes’s conduct at
the Verizon store, police had sufficient information amounting to probable
cause that Howard acted as a look‐out. Indeed, that no evidence was
found in the Mercedes is consistent with the theory that Howard acted as
a decoy.

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10 No. 17‐2412
that “[w]hile mere presence at the scene of a crime is not
enough to establish probable cause, … it is generally accepted
that ‘flight can be strong evidence of guilt.’” Id. (quoting
United States v. Lima, 819 F.2d 687, 689 (7th Cir. 1987)); see also
Coleman v. United States, 420 F.2d 616, 621 (D.C. Cir. 1969)
(“[T]he element of flight in a vehicle from the scene of the
crime may tip the scales in favor of probable cause.”).
It is true that in Schaafsma, the known drug dealer gestured
in the general area of the Toyota. Here, the connection be‐
tween the crime and the Mercedes is not as strong. Still, the
arresting officers knew about the Mercedes’s suspicious be‐
havior: the Mercedes was camped in front of the Verizon store
prior to the robbery, moved to the back of the store just before
the robber entered through the rear door, and like in
Schaafsma, sped off at a high rate of speed immediately after
the robbery.
In sum, contrary to Howard’s contention, this is not “a
classic ‘hunch’ case.” Based on the totality of the Mercedes’s
conduct, Sergeant Hayes reasonably concluded there was a
substantial chance the Mercedes and its occupants assisted in
carrying out a crime. Thus, police possessed probable cause
to make a warrantless arrest, and the district court properly
denied Howard’s motion to suppress.5
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of the
district court.
5 Because we conclude police had probable cause to make the war‐
rantless arrest, we need not address whether the challenged evidence
would have been inevitably discovered notwithstanding the arrest.

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