United States of America v. John A. Peters, Iii

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3830
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN A. PETERS, III,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11-CR-00085-JMS-DML-1 — Jane E. Magnus-Stinson, Judge.
ARGUED APRIL 11, 2013 — DECIDED FEBRUARY 27, 2014
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. John A. Peters, III, pled guilty to one
count of conspiracy to possess with intent to distribute heroin,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. He reserved his
right to appeal the district court’s denial of his motion to
suppress evidence discovered during the search of a car in
which he was a passenger. We affirm.

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2 No. 12-3830
I.
On April 5, 2011, Peters was a passenger in a maroon
Toyota Scion on Interstate 70 in Indiana. The Scion was
traveling behind a white GMC Denali and both cars displayed
Ohio license plates. For reasons unrelated to this appeal, the
cars aroused the suspicion of Officer Chris Borgman, a Green-
field police officer assigned to a multi-jurisdictional task force
that patrolled Interstate 70 in Hancock and Marion Counties in
Indiana. Officer Borgman decided to follow the Denali and he
enlisted Deputy Nick Ernstes of the Hancock County Sheriff’s
Department to watch the Scion. Eventually, Officer Borgman
decided to pull over the Denali, which was found to contain
heroin and other evidence of drug trafficking. A passenger in
the Denali, Aaron Holmes, later filed a motion to suppress the
evidence found in that car. The district court discredited
Officer Borgman’s version of the events of that day as “too
improbable” and “not established by a preponderance of the
evidence,” and granted Holmes’ motion to suppress. We
therefore do not rely on Officer Borgman’s testimony in
assessing Peters’ claim and turn to Deputy Ernstes’ account of
the events.
After being alerted to the cars by Officer Borgman, Deputy
Ernstes approached the Scion and noticed that it was approxi-
mately fifty to seventy-five feet behind the Denali. The Scion
was traveling at approximately sixty to sixty-four miles per
hour. The combination of the high speed and short distance
allowed for less than two seconds’ braking time between the
vehicles, and Deputy Ernstes believed that the driver of the
Scion, Cordell Adams, was violating an Indiana statute by

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No. 12-3830 3
following too closely. See Ind. Code § 9-21-8-14. Deputy1
Ernstes decided to pull over the Scion. When the deputy
activated his emergency lights, Adams immediately pulled
over.
The deputy told Adams that he stopped the car because it
was following too closely and Adams apologized. Adams
denied that he was traveling with another vehicle, told the
deputy that he had left his license at home, and said that he
was driving only because his passenger, Peters, had become
too tired. Deputy Ernstes then approached the passenger side
of the vehicle to request identification and vehicle registration.
When Peters lowered the window, Deputy Ernstes smelled
burnt marijuana and saw small green particles that the deputy
believed to be marijuana on Peters’ clothing. Peters claimed
that the particles came from a cigar, but a closer look con-
firmed the deputy’s belief that the particles were marijuana.
Contrary to Adams’ claim that the Scion was not associated
with any other vehicle, Peters told the deputy that they were
traveling with the white Denali. Based on the marijuana smell,
Deputy Ernstes decided to search the Scion. In response to
questions, Peters told Deputy Ernstes that he had previously
been arrested for carrying a concealed weapon. For safety
reasons, the deputy decided to handcuff Peters and pat him
down. The deputy recovered a large amount of cash from
Peters’ pocket, totaling more than $2500. He then placed Peters
That statute provides: “A person who drives a motor vehicle may not1
follow another vehicle more closely than is reasonable and prudent, having
due regard for the speed of both vehicles, the time interval between
vehicles, and the condition of the highway.”

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4 No. 12-3830
in a patrol car and searched the Scion. He found a marijuana
stem in the front passenger area, and again encountered a
marijuana odor, this time in a sunglass storage compartment.
The storage compartment cover was cracked and had screws
that appeared not to be original factory equipment. The deputy
also found a cordless drill in the car. The drill contained a
sticky substance which was later found to match a substance
found on the screws of a panel concealing a kilogram of heroin
in the Denali.
Peters was then charged, along with Aaron Holmes, a
passenger in the Denali, with conspiracy to possess with intent
to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
846; and possession with intent to distribute heroin, in viola-
tion of 21 U.S.C. § 841(a)(1). Peters moved to suppress the
evidence seized in the stop of the Scion. The district court held2
a hearing to resolve disputes of fact regarding the traffic stop.
The court found that Deputy Ernstes had observed the Scion
traveling with less than two seconds of braking distance
behind the Denali. Indiana law provides that a driver “may not
follow another vehicle more closely than is reasonable and
prudent.” Ind. Code § 9-21-8-14. Citing our opinion in United
States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005), the court
concluded that probable cause existed to believe that a driver
followed another too closely under Indiana law when fewer
He also joined Holmes’ motion to suppress the evidence seized in the stop
2
of the Denali. The district court concluded that Peters lacked the ability to
challenge the seizure of evidence in the other car as a “mere passenger in
a convoy,” and Peters does not challenge that conclusion on appeal. We
therefore will not address the issue of Peters’ ability to challenge the stop
of the Denali or the seizure of evidence from the Denali.

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No. 12-3830 5
than two seconds’ braking time separated the vehicles. The
court also determined that the subsequent warrantless search
of the Scion was justified by the smell of burnt marijuana and
by the appearance of marijuana particles in the car. The court
therefore denied Peters’ motion to suppress. Peters appeals.
II.
On appeal, Peters contends that the district court clearly
erred when it concluded that the stop of the Scion and the
subsequent search of the interior were supported by probable
cause. First, Peters maintains that Deputy Ernstes’ testimony
was too vague and conclusory to support a finding that the
Scion was following the Denali too closely. Second, Peters
contends that the court erred in crediting the deputy’s testi-
mony regarding the smell of marijuana in the car. In consider-
ing a district court's decision on a motion to suppress, we
review findings of fact for clear error and questions of law de
novo. United States v. Wysinger, 683 F.3d 784, 793 (7th Cir. 2012);
United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011).
We begin with the stop of the Scion. The prosecution bears
the burden of proving by a preponderance of the evidence that
a warrantless stop is supported by probable cause. Garcia-
Garcia, 633 F.3d at 612; United States v. Basinski, 226 F.3d 829,
833 (7th Cir. 2000). When a police officer reasonably believes
that a driver has committed even a minor traffic offense,
probable cause supports the stop. Whren v. United States, 517
U.S. 806, 819 (1996); Garcia-Garcia, 633 F.3d at 612. We con-
cluded in Muriel that, in assessing whether a vehicle is follow-
ing another more closely than is reasonable and prudent under
Indiana law, the “use of the ‘two-second rule’ as a guide for

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6 No. 12-3830
reasonableness comports with Indiana law.” Muriel 418 F.3d at
724. The only question, then, is whether the court clearly erred
when it credited Deputy Ernstes’ testimony that there was less
than two seconds’ braking time between the Scion and the
Denali. According to Peters, the deputy’s testimony was too
vague and conclusory regarding the distance between the two
vehicles to satisfy the government’s burden on a probable
cause determination. In particular, Peters complains that the
deputy did not explain how he measured the distance from the
front bumper of the Scion to the rear bumper of the Denali.
Nor did the deputy specify how he measured the speed of the
two vehicles.
The district court’s fact-findings were adequately sup-
ported by the record. At the suppression hearing, Deputy
Ernstes testified that he was driving behind the cars when he
noticed that the Denali slowed its speed and the Scion moved
closer to the back of the Denali. He was then asked how close
the Scion came to the Denali as the two traveled in tandem on
the interstate. He replied:
The front bumper of the Scion and the rear bumper
of the Denali – and we’re traveling at speeds around
60, 64 miles an hour at this time, around 60, between
that range. And it got less than – for the majority of
the time, it was between 50 and 75 feet. But, it was,
a short period of time, shorter than that. So …
R. 280, Tr. at 156. When asked how he determined a safe
following distance, Deputy Ernstes testified that he used the
two-second rule described in the “Indiana Driver’s Manual.”
That manual provides a table of distances that a vehicle travels

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No. 12-3830 7
in one second at particular speeds. For example, the deputy
testified that a vehicle traveling fifty-five miles per hour would
traverse 80.7 feet in one second, and a vehicle traveling sixty-
five miles per hour would cover 95.3 feet in one second. R. 280,
Tr. at 158–59. Under the two-second rule, a car traveling fifty-
five miles per hour should therefore allow approximately 160
feet of braking distance; a car traveling sixty-five miles per
hour should stay approximately 190 feet behind any vehicle in
front of it. Thus, even using the slowest speed that Deputy
Ernstes described (sixty miles per hour) and the longest
distance he observed between the cars (seventy-five feet), the
Scion was following the Denali too closely under Indiana law.
Muriel, 418 F.3d at 724.
As for the adequacy of Deputy Ernstes’ estimates of the
distance between the vehicles and the speed of the Scion, the
deputy testified that he had been a police officer for fifteen
years with significant training and experience in traffic
enforcement, among other things. R. 280, Tr. at 149–52. The
district court found Deputy Ernstes to be credible and credited
his testimony. We must therefore defer to those findings of fact
unless they are clearly erroneous. Garcia-Garcia, 633 F.3d at 614.
See also United States v. Jones, 614 F.3d 423, 425–26 (7th Cir.
2010) (a factfinder's choice between two permissible views of
the evidence cannot be clearly erroneous). Under Federal Rule
of Evidence 701, a witness who is not testifying as an expert
may offer testimony in the form of an opinion if the testimony
is rationally based on the witness’s perception, helpful to
clearly understanding the witness’s testimony or determining
a fact in issue, and is not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702. Judging

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8 No. 12-3830
the speed of a vehicle or a distance between two vehicles based
on an individual’s perception is the quintessential kind of
evidence contemplated by Rule 701. United States v. Conn, 297
F.3d 548, 554 n.2 (7th Cir. 2002). Perhaps the deputy could have
confirmed his estimate of the car’s speed with radar. Or he
could have compared the speed of the Scion to the speed of his
own vehicle as he followed the Scion. He could have counted
“one Mississippi, two Mississippi” to judge the distance
between the Scion and the Denali. Perhaps he did all of those
things but neither the government nor the defendant asked
him to explain how he determined the car’s speed and trailing
distance, and the defendant did not object to this testimony as
lacking foundation. In any case, none of those things were3
necessary for the court to credit his truthful testimony that, as
an experienced police officer, he judged the distance to be too
short for cars moving so quickly. Nor is there anything vague
or conclusory in testimony that a car was traveling between
sixty and sixty-four miles per hour, fifty to seventy-five feet
behind another vehicle. On the contrary, that testimony was
very specific. In short, the district court committed no error in
crediting the testimony of an experienced police officer that,
For the sake of completeness, we note that Peters did not object to the
3
officer’s testimony as lacking foundation even though that is the essence of
his complaint on appeal. He therefore forfeited his foundation objection to
this testimony. United States v. James, 464 F.3d 699, 709 (7th Cir. 2006) (when
a defendant fails to object to the admission of evidence on particular
grounds until appeal, the argument is forfeited and our review is limited to
the correction of plain error). But the government did not argue forfeiture
and so we address the claim using the usual standard of review. See United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (claims of waiver may
themselves be waived).

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No. 12-3830 9
after observing two cars traveling in tandem for a period of
time, he credibly believed that the trailing car was approxi-
mately seventy-five feet behind the lead car at a speed of
approximately sixty miles per hour. If an officer knowing4
these facts could reasonably conclude that this combination of
speed and distance violated Indiana law, that is all that is
necessary to support probable cause. Garcia-Garcia, 633 F.3d at
614. As Peters has conceded, we decided that issue against him
in Muriel. 418 F.3d at 724. The government thus met its burden
of establishing probable cause sufficient to justify the traffic
stop.
In addition to the stop itself, Peters objected to the subse-
quent search of the vehicle. He contends that the deputy’s
testimony that he smelled marijuana was not credible. The
deputy found only a few particles of marijuana, he complains,
which was not consistent with the deputy’s claim that there
was a strong smell of burnt marijuana when Peters rolled
down his window. He also objects that the officer did not
collect any of the marijuana particles for testing and did not
summon a near-by police dog that was trained to sniff for
drugs, facts which he claims undercut the deputy’s credibility.
On a motion to suppress, we review the district court’s
credibility determinations for clear error. United States v.
Brown, 664 F.3d 1115, 1117 (7th Cir. 2011). “A factual finding is
The district court also viewed and relied on a videotape of the traffic stop,
4
finding that “the videotape establishes that the Scion was in fact traveling
too closely.” R. 166, at 9 n.6. The videotape is not part of the record on
appeal. We have no reason to question the court’s finding that the tape
corroborated the deputy’s testimony.

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10 No. 12-3830
clearly erroneous only if, after considering all the evidence, we
cannot avoid or ignore a definite and firm conviction that a
mistake has been made.” Brown, 664 F.3d at 1117–18. See also
United States v. Kreiger, 628 F.3d 857, 869 (7th Cir. 2010) (factual
finding regarding demeanor and credibility cannot be over-
turned unless the witness was incredible as a matter of law).
None of Peters’ arguments lead us to believe that the court
erred in crediting Deputy Ernstes. The deputy’s testimony that
he smelled burnt marijuana was corroborated, not contra-
dicted, by his statement that he found marijuana particles on
Peters’ clothing. Peters was not charged with marijuana
possession and so there was no need for the deputy to collect
the few crumbs that he observed on Peters’ clothing. Given
that the smell was of burnt marijuana, there was nothing
unusual about the fact that only a few crumbs remained in the
car. And there was no need for the deputy to employ a dog
specially trained to ferret out subtle odors of illicit drugs when
the deputy was “hit by an overwhelming smell of marijuana”
when the window descended. R. 280, Tr. at 175. We have held
that a police officer “who smells marijuana coming from a car
has probable cause to search that car.” United States v. Franklin,
547 F.3d 726, 733 (7th Cir. 2008). The judgment of the district
court is therefore
AFFIRMED.

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