United States of America v. Mark A. Reed

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3662
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ARK A. R EED ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 562—Rebecca R. Pallmeyer, Judge.
____________
A RGUED S EPTEMBER 26, 2005—D ECIDED A PRIL 7, 2006
____________
Before E ASTERBROOK , R IPPLE , and R OVNER, Circuit
Judges.
R OVNER , Circuit Judge. Mark Reed entered a conditional
guilty plea to conspiracy to distribute in excess of 50
kilograms of marijuana in violation of 21 U.S.C. §§ 846,
841(a)(1). In that plea, Reed reserved the right to appeal
the district court’s denial of his motion to suppress which
had sought to exclude incriminating statements he made to
law enforcement authorities. This is his second appeal to
this court on that issue. The first resulted in a remand to
the district court for it to determine when he was arrested,
whether the officers possessed probable cause at the time of
that arrest and, if not, whether the confession was suffi-

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2 No. 04-3662
ciently attenuated from that illegal arrest, applying the
proper factors. See United States v. Reed, 349 F.3d 457 (7th
Cir. 2003) (Reed I).
The facts underlying the criminal case are set forth in
Reed I, and will be repeated only as is necessary to under-
stand the legal issues before us in this case and to incorpo-
rate the findings by the district court on remand. Reed was
one of three persons in a pickup truck that was towing a
horse trailer on Interstate 57 when Illinois State Trooper
C.G. Fifeld stopped the truck for speeding. The horse trailer
contained two horses and was heavily padlocked. Fifeld
determined that the driver of the truck, Alfonso Garnica,
was driving with a suspended license. Garnica was ar-
rested, but allowed to immediately post a $100 cash bond
and was released at the scene. In the meantime, Fifeld ran
background checks on Reed and the other passenger (and
truck owner) Thomas Martin, to determine if either of them
was permitted to drive the truck. In the course of that
check, Fifeld learned that both men possessed valid driver’s
licenses but also had prior arrests for drug activity. Al-
though Reed disputes that Fifeld actually knew of the drug
arrests, the transcript supports the district court’s determi-
nation that he learned of those arrests at the time of the
background checks.
Fifeld talked with Martin, Garnica and Reed during the
course of the stop. The district court apparently credited
Officer Fifeld’s testimony as to the statements made by the
three men during that time. Because the men produced
driver’s licenses from Wisconsin, Texas and Indiana, Fifeld
asked them what they were doing in Illinois. Martin stated
that he was in Illinois to buy horses, but neither Martin nor
Garnica could tell him where they had acquired the horses
or who had provided them. Reed, on the other hand,
responded that Martin had traveled to Illinois to finalize a
divorce, and that he accompanied Martin because Martin
had suffered health problems recently. After Martin moved

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No. 04-3662 3
into the driver’s seat to depart, Fifeld asked him whether
there were any guns, drugs or money in the truck, which
Martin denied. Martin then consented to a search of the
vehicle. At approximately 4:00 p.m., the officers searching
the vehicle found two bundles of cash wrapped in pink
cellophane, totaling $93,981. The bundles were located in
the gooseneck of the horse trailer, under the hay for the
horses and beneath plywood boards. When confronted with
the discovery, Martin stated that the cash represented the
proceeds of an inheritance. The men were then transported
to the police station.
In light of the substantial evidence indicating that Reed
would not have felt free to refuse to accompany the officers
to police headquarters and end the interrogation, the
district court assumed that Reed was under arrest as of
that point in time. The sole question, then, is whether the
district court properly held that the officers had probable
cause at that time to effectuate an arrest.
Probable cause exists if an officer reasonably believes, in
light of the facts known to her at the time, that a suspect
had committed or was committing an offense. United States
v. Carrillo, 269 F.3d 761, 766 (7th Cir. 2001). It is a fluid
concept that relies on the common-sense judgment of the
officers based on the totality of the circumstances. United
States v. Breit, 429 F.3d 725, 728 (7th Cir. 2005). In deter-
mining whether suspicious circumstances rise to the level
of probable cause, officers are entitled to draw reasonable
inferences based on their training and experience. Id.;
Carrillo, 269 F.3d at 766.
It matters not that the officers were apparently correct,
by Reed’s own admission, in their belief that Reed was not
an innocent bystander. There are undoubtedly situations in
which the passenger is not so involved. But this is not a
post hoc determination. Subsequent evidence of guilt cannot
validate the probable cause determination, nor can evidence

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4 No. 04-3662
of innocence invalidate it. Prescience is not required of the
officers. Instead, courts must focus on the real world
situation as known to the officer at that time. The question
is whether they had a reasonable belief at the time.
Reed argues that the existence of a large sum of money,
and the manner of its concealment, cannot alone support a
finding of probable cause. That is the holding in a number
of cases and is not called into question here. See e.g., United
States v. $506,231 In U.S. Currency, 125 F.3d 442, 452 (7th
Cir, 1997) and cases cited therein. Reed’s conclusion that
the money is therefore irrelevant to the probable cause
determination, however, is untenable. In Maryland v.
Pringle, 540 U.S. 366 (2003), the Supreme Court addressed
a similar argument. In Pringle, drugs were found in the
backseat of a car, and $768 in currency was discovered in
the glove compartment. The appellate court had dismissed
the $768 as a factor in the probable cause determination
under the view that “ ‘[m]oney, without more, is innocuous.’”
Id. at 372 n.2, citing Maryland v. Pringle, 370 Md. 525, 546,
805 A.2d 1016, 1028 (2002). The Supreme Court, however,
held that the court erred in considering the money in
isolation rather than as a factor in the totality of the
circumstances. Id. Accordingly, although the existence of
the large amount of cash and its concealment in the
floorboards of the trailer does not alone establish probable
cause, it is a relevant circumstance that must be considered
along with all aspects of the situation confronting the
officers.
Taken as a whole, the circumstances were sufficient to
support a reasonable belief that Reed was involved in
criminal activity. At the time of the arrest, the officers knew
that the three men had traveled from outside the state, but
were evasive and contradictory as to the nature of their
trip. Reed indicated that the purpose of the trip was so that
Martin could finalize a divorce, but Martin indicated it was
to purchase horses. Despite the presence of the horses in

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No. 04-3662 5
the trailer, indicating that the purchase had been com-
pleted, they were unable to tell the officers where the
horses were acquired or from whom they were purchased.
The inconsistencies and vagueness of the stories would
cause a reasonable person to believe that they were inten-
tionally being evasive and deceptive about the nature of the
trip. Equally significant, there was no reason to believe that
the deception was limited to one person.
When asked whether there were guns, drugs, or large
sums of money in the vehicle, Martin denied it. If the
currency later discovered was truly the proceeds of inheri-
tance, there was no reason for him to lie in response to that
question. And the explanation was rendered more incredible
because no one had indicated that the purpose of the trip
was to collect an inheritance. Therefore, Martin’s explana-
tion required the officers to believe that he had previously
collected on an inheritance, and that he chose to store those
proceeds under plywood in a horse trailer and leave it there
even as he embarked on an out-of-state trip.
Moreover, the currency was concealed in a manner that
is typical for currency related to illegal drug transactions.
It is common for such currency to be wrapped in cellophane
so as to minimize the ability for a drug-sniffing dog to
detect the drug residue often found on such currency, and
to secrete it in a hidden area of a vehicle to escape detec-
tion. This does not mean that there cannot be an innocent
reason to conceal currency, such as to thwart would-be
thieves, but it is a relevant consideration in the totality of
the circumstances. United States v. Funches, 327 F.3d 582,
587 (7th Cir. 2003) (noting that the mere existence of
innocent explanations does not necessarily negate probable
cause, and finding that probable cause existed where many
circumstances of the situation made innocent explanations
unlikely and even implausible). In addition, the officers
knew that two of the travelers in the vehicle had prior drug

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6 No. 04-3662
arrests, which further supports the reasonableness of the
belief that the currency was the proceeds of illegal activity.
Reed asserts that the facts establish probable cause only
as to Martin, the owner of the vehicle, and not to him as a
passenger. For that argument, he relies on the Supreme
Court’s decision in Ybarra v. Illinois, 444 U.S. 85 (1979), in
which the Court held that officers executing a warrant on
a tavern lacked probable cause to search all patrons of that
tavern at the time. The Court rejected the notion that a
person’s “mere propinquity” to others independently
suspected of criminal activity would support probable cause
as to that person as well. Id. at 91. The Supreme Court’s
decision in Pringle, however, is more closely on point. In
Pringle, the Court considered whether police officers had
probable cause to arrest the front-seat passenger of a car in
which the officers found $768 in rolled-up cash in the glove
compartment and five glassine baggies of cocaine behind
the back-seat armrest. 504 U.S. at 368. The Court recog-
nized that the presence of a passenger in a vehicle is
different than that of a patron in a bar. “ ‘[A] car passen-
ger—unlike the unwitting tavern patron in Ybarra—will
often be engaged in a common enterprise with the driver,
and have the same interest in concealing the fruits of the
evidence of their wrongdoing.’ ” Id. at 373, quoting Wyoming
v. Houghton, 526 U.S. 295, 304-05 (1999). In Pringle, the
Court held that it was reasonable for the officer to infer a
common enterprise among the three occupants of the car.
The Court held that “[t]he quantity of drugs and cash in the
car indicated the likelihood of drug dealing, an enterprise
to which a dealer would be unlikely to admit an innocent
person with the potential to furnish evidence against him.”
540 U.S. at 373.
Although we lack the presence of drugs in the vehicle as
was the case in Pringle, the totality of the circumstances in
this case similarly leads to an inference of a common
enterprise to which an innocent person would not likely be

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No. 04-3662 7
admitted. This was not a quick trip to a grocery store in
which Reed was an unwitting passenger. This was a trip
out-of-state. It is less likely that an innocent person would
be allowed to accompany persons for such a trip. Moreover,
Reed’s own conduct furthered that inference of a common
enterprise, in that his response to the purpose of the trip
was also contradictory. His explanation that the purpose of
the trip was so that Martin could finalize his divorce was
inconsistent with Martin’s explanation, and he too provided
no explanation as to the origin of the horses. His prior drug
arrests did nothing to dispel the suspicion that he was
involved in a common enterprise to conceal the proceeds of
illegal activity. The evidence was sufficient to support a
finding of probable cause in this case, and therefore the
district court did not err in granting the motion to suppress.
The decision of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-06

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