United States of America v. MALCOLM CARPENTER and JAMAR JOE EVANS

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1623 & 02-1624
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
M ALCOLM C ARPENTER and J AMAR J OE E VANS ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 01 CR 86-1 & 01 CR 86-2—Charles R. Norgle, Sr., Judge.
____________
A RGUED J UNE 10, 2003—D ECIDED S EPTEMBER 5, 2003
____________
Before K ANNE , D IANE P. W OOD , and W ILLIAMS , Circuit
Judges.
K ANNE , Circuit Judge. Malcolm Carpenter and Jamar
Evans were convicted of armed robbery, 18 U.S.C. § 2113(a),
(d), and using a firearm in a crime of violence, 18 U.S.C. §
924(c)(1)(A), after the district court denied their joint
motion to suppress statements and physical evidence
obtained following their warrantless arrests. Carpenter and
Evans appeal, and we affirm.

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2 Nos. 02-1623 & 02-1624
HISTORY
At 3:30 in the afternoon on Wednesday, January 24, 2001,
off-duty Chicago Police Sergeant Narvell Lewis, Jr., noticed
three young black men in a light-colored Lincoln pull up in
front of a store at 11125 South Michigan Avenue. The men
caught Lewis’s eye because they “appeared to be looking
around to see if they were being observed.” Lewis watched
as one of the men, who turned out to be Evans, stepped out
of the car, “looked around the street as though he were
checking to see if he was being watched,” and then entered
the store. Thirty seconds later, a second man did the same:
he exited the car, “looked around as if he were checking
for surveillance,” and stepped inside the store. The second
man was later determined to be Antwan Timms. Sergeant
Lewis, believing the men might be casing the store, “took
a close look” at all three men and “carefully observed what
they were wearing.” Evans was short and wore dark cloth-
ing; Timms wore a white jacket with lettering that read
“Karl Kani” (a brand of clothing), a cream-colored baseball
cap, and “an unusual pair of jeans[ ] with a tiger emblem on
the left leg”; and the man who remained in the car (who
turned out to be Carpenter) wore a white leather jacket and
baseball cap. After watching Evans and Timms chat with
the store’s clerk, Lewis concluded that the men were not
planning a robbery and left the area.
Earlier that day, on the other side of town, three men of
similar description had robbed a bank branch inside a
grocery store at 6057 South Western Avenue. Sergeant
Lewis learned of the robbery two days later, on Friday,
January 26, when he read an article in the Chicago Daily
Defender. The article described the robbers as three slim
black men between 20 and 25 years old: the two who ap-
proached the bank tellers and demanded money wore dark
clothing (one was around 5'8", the other 5'5"), while the
third, who acted as a lookout, was around 5'5" and wore a
white leather “Karl Kani” brand jacket and blue jeans with

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Nos. 02-1623 & 02-1624 3
a tiger emblem on the left leg. Thinking the men he observ-
ed might have been the robbers, Sergeant Lewis consulted
the police report on the robbery. The report revealed that
the robbery occurred at around 9:30 a.m. on the same day
Sergeant Lewis had seen Carpenter, Evans, and Timms (not
on the following day, as the Defender article had reported)
and that the robbers were three black men with slender
builds between 19 and 20 years old. The report confirmed
that two of the robbers had approached the tellers and
obtained cash, which contained dye packs, and that both of
them wore dark clothing: one was approximately 5'8" and
130 pounds and wore a black leather jacket and a black
skull cap; the other was 5'4" and 140 pounds and wore a
grey jacket and pants and a red baseball cap. The third
robber—the lookout—was described as being 5'9" and
wearing a white leather jacket with the words “Car Canal”
on the back, blue jeans with a brown tiger on them, and a
baseball cap.
Sergeant Lewis, accompanied by other officers, then re-
turned to the area where he had seen the three men two
days earlier. When he spotted the men a second time, they
were not together: Evans and Timms walked toward each
other as if they were going to speak but instead passed each
other without stopping; Carpenter stood on a nearby street
corner. Moments later, however, Sergeant Lewis saw all
three men—Carpenter, Evans, and Timms—riding in the
light-colored Lincoln together. The three were arrested and
given Miranda warnings. All three men were 20 years old
at the time of the arrest. Carpenter, who is 5'9" and weighs
160 pounds, was carrying cash stained with red dye match-
ing that used in the bank’s dye packs. Evans is 5'2" and 125
pounds. Timms, who is 5'9" and 138 pounds, was again
wearing the white Karl Kani jacket. All three men gave
statements, and witnesses to the robbery identified Carpen-
ter and Evans in a lineup. Additional physical evidence was
later found at Carpenter’s house. Upon consideration of

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4 Nos. 02-1623 & 02-1624
the facts outlined above, in the form of the Defender article,
police report, and an affidavit from Sergeant Lewis, the dis-
trict court denied the suppression motion without an evi-
dentiary hearing.
ANALYSIS
Carpenter and Evans offer a two-part argument: they in-
sist that the only basis for Timms’s arrest was his clothing,
which was insufficient, and that their own arrests were
likewise without probable cause because they were based
solely on the fact that they were seen in Timms’s company.
Both propositions are incorrect.
First, this argument fails to give due weight to the fact
that Timms was wearing a distinctive outfit—the white
designer jacket and tiger-embellished jeans—just six hours
after a man wearing an identical outfit robbed a bank. In
these circumstances, Timms’s clothing alone might have
established probable cause for his arrest; Sergeant Lewis
described Timms’s pants in particular as “unusual,” and
Carpenter and Evans point to nothing in the record that re-
futes this characterization. Cf. Chambers v. Maroney, 399
U.S. 42, 44, 47-48 (1970) (probable cause to arrest men in
blue station wagon containing green sweater and trench
coat one hour after robbery where car and clothing matched
witnesses’ descriptions); United States v. Diggs, 522 F.2d
1310, 1314 (D.C. Cir. 1975) (probable cause to arrest men in
car containing denim jacket, trench coat, and rust-colored
briefcase shortly after robbery where clothing and briefcase
matched witnesses’ descriptions). But there was more:
Timms fit the police report’s description of the lookout’s age,
race, and height exactly, and he was seen in the company of
two men—Carpenter and Evans—who fit the general
description of the other two robbers just six hours after the
robbery occurred, and again two days later. See Pasiewicz
v. Lake County Forest Pres. Dist., 270 F.3d 520, 522, 524-25

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Nos. 02-1623 & 02-1624 5
(7th Cir. 2001) (probable cause to arrest suspect who bore
“fair resemblance” but “did not match exactly” witnesses’
descriptions as to age, height, weight, and hairstyle);
United States ex rel. Hollman v. Rundle, 461 F.2d 758, 759
(3d Cir. 1972) (probable cause to arrest suspect in two-man
robbery who matched physical description of first robber
“perfectly” and was accompanied by a man closely fitting
description of second robber). Cf. United States v. Scheets,
188 F.3d 829, 833, 837-38 (7th Cir. 1999) (reasonable
suspicion to detain suspect who matched robber’s descrip-
tion as to age, race, height, weight, hair color, facial hair,
limp, use of glasses and cane, and “cupped appearance” of
one hand). In addition, Timms and one of his companions
(Evans) appeared to be checking to see if they were being
watched. See, e.g., United States v. Odum, 72 F.3d 1279,
1285-86 (7th Cir. 1995); United States v. Foster, 939 F.2d
445, 450 (7th Cir. 1991); United States v. Sterling, 909 F.2d
1078, 1079, 1083-84 (7th Cir. 1990); United States v.
Jaramillo, 891 F.2d 620, 627 (7th Cir. 1989). All of these
facts amount to probable cause for Timms’s arrest. Indeed,
as we explained in an unpublished order dismissing
Timms’s appeal, United States v. Timms, No. 02-1310, 2003
WL 22017514 (7th Cir. Aug. 21, 2003), any argument that
police lacked probable cause to arrest Timms would be
frivolous.
Carpenter and Evans’s second premise—that only their
propinquity to Timms supported their arrests—is wrong
as well. While it is true, as Carpenter and Evans note, that
“a person’s mere propinquity to others independently sus-
pected of criminal activity does not, without more, give rise
to probable cause,” Ybarra v. Illinois, 444 U.S. 85, 91
(1979), that does not mean propinquity is irrelevant, see,
e.g., United States v. Chaidez, 919 F.2d 1193, 1200 (7th Cir.
1990). Here, Carpenter and Evans were spotted with a
likely suspect in a three-man robbery twice—once mere
hours after the robbery occurred—and on both occasions
they engaged in countersurveillance tactics: on Wednesday,

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6 Nos. 02-1623 & 02-1624
they scanned the area to see if they were being watched,
see, e.g., Odum, 72 F.3d at 1285-86; Foster, 939 F.2d at 450;
Sterling, 909 F.2d at 1079, 1083-84; Jaramillo, 891 F.2d at
627; on Friday, they separated on the street only to meet up
and drive away together moments later, see, e.g., Chaidez,
919 F.2d at 1200 (more than propinquity supported deten-
tion where suspects split up and met later as countersur-
veillance tactic). And there was more than just Carpenter
and Evans’s association with Timms; they themselves fit
the police report’s general description of the other two rob-
bers as to race, age, and other respects. Carpenter’s height
and dark clothing matched that of the 5'9" black-leather-
jacket-clad robber described in the report, while both Evans
(at 5'2") and the 5'4" robber described in the report were
unusually short. See Pasiewicz, 270 F.3d at 522, 524-25
(probable cause to arrest suspect who “resembl[ed]” but did
not exactly match witnesses’ descriptions as to age, height,
weight, and hairstyle); Hollman, 461 F.2d at 759 (probable
cause to arrest suspect who matched physical description
of bank robber). Finally, the fact that the clothing Carpen-
ter and Evans were wearing when Sergeant Lewis spotted
them several hours after the robbery did not more specifi-
cally match the police report’s description of the robbers’
clothing does not undermine probable cause. On the con-
trary, it is generally assumed that robbers will change their
clothes after the crime to avoid being recognized. See, e.g.,
United States v. Tilmon, 19 F.3d 1221, 1228 (7th Cir. 1994);
United States v. Jackson, 652 F.2d 244, 247 (2d Cir. 1981);
Brown v. United States, 365 F.2d 976, 978 (D.C. Cir. 1965).
Here, where Carpenter and Evans obtained cash containing
exploding dye packs, there is even more reason why they
might have changed their clothes after the robbery while
Timms, who merely stood watch and did not handle the
money, did not.

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Nos. 02-1623 & 02-1624 7
CONCLUSION
Because there was sufficient probable cause to arrest
Carpenter and Evans, their convictions are A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-5-03

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