                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2173
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,

                              v.

RANDALL R. JOHNSON,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
          No. 02-CR-10107—Joe Billy McDade, Judge.
                        ____________
 ARGUED FEBRUARY 12, 2004—DECIDED SEPTEMBER 2, 2004
                    ____________



  Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
  COFFEY, Circuit Judge. Defendant-appellant, Randall
Johnson, appeals the district court’s denial of his motion to
suppress. We affirm.


                      I. Background
  At about 4:30 a.m. on August 18, 2002, Sergeant David
Cook of the Peoria (Illinois) Police Department, while on
patrol duty, responded to a police dispatch reporting that
one individual was showing another a gun in an alley
2                                                    No. 03-2173

behind the 400 block of Cornhill Street in Peoria, Illinois.
Included in the dispatch was the description of two vehicles,
one of which was a four-door gray or silver Buick and the
other a maroon-colored car (make of vehicle was unspeci-
fied).1 Cook responded to the call immediately and while in
direct route to the location referred to in the dispatch, he
observed a silver 1987 Buick Park Avenue heading in the
opposite direction. According to Sergeant Cook’s testimony,
he was approximately six blocks away from the address
relayed in the report, the 400 block of Cornhill, when he
first encountered the Buick referred to as resembling the




1
   Near the conclusion of testimony in the suppression hearing,
Johnson’s counsel offered an exhibit into evidence, which he
identified as a document received from the Peoria Police Depart-
ment dispatcher pursuant to counsel’s request purporting to show
the contents of the police dispatch call. This document has an
entry, which is identified in military time as “04:38” (4:38 a.m.),
which reads “call received at rear of 415 Cornhill—report of a
male black in a maroon vehicle showing a gun to a white male
that got out of a gray Buick.” R.11, Defendant’s Exhibit 3. The
remainder of the exhibit recounts the police officers’ actions in
responding to the dispatch and pulling over a gray Buick. The
government did not object to the admission of this document but
noted that the language in the exhibit served only as a summary
of what transpired and did not constitute a verbatim transcript.
The district court admitted the exhibit without objection from the
government and informed counsel that what ultimately mattered
with respect to the content of the dispatch call was what the
officer making the stop recalled hearing from the dispatch, and
not what the dispatch officer actually said. For example, as
recounted infra, Cook recalled hearing two separate calls, i.e., one
involving an “individual showing another a gun” and a second (in
his mind separate and distinct) call involving “vehicle descriptions
and where they were at.” R. 129.
No. 03-2173                                                     3

one described in the radio call.2 The Buick was the only
vehicle on the road at this early hour in the morning (4:30
a.m.).3
  Sergeant Cook began following the Buick and, shortly
thereafter, activated his squad car’s overhead lights and
signaled the defendant to pull to the side of the road. After
the driver pulled over, Cook walked over to the vehicle,
shined his flashlight into the passenger compartment and
he immediately recognized the driver as Randall Johnson,
a man whom he had known for some ten years (because
Johnson had previously lived with his (Cook’s) stepsister)
and whom Cook knew to be wanted on an outstanding
arrest warrant.
  After recognizing Johnson, Cook directed him to exit the
vehicle. Johnson complied and Cook placed him under ar-
rest pursuant to the outstanding warrant. Shortly there-
after, two other Peoria police officers, Officers Goforth
and Hunt, arrived on the scene in response to a radio
communication from Cook stating he was pulling a vehicle
over in the vicinity of McClure and Wisconsin (approxi-
mately 12 blocks from where the car was first spotted)
matching the description of the one identified in the 4:30
a.m dispatch. Cook and Hunt proceeded to conduct a
routine safety search of the defendant by patting him down
and checking his clothing and pockets for weapons. During
their search of Johnson, the officers removed his cap and,
while putting it back on his head, discovered a paper packet
(which fell from his hat and landed on Johnson’s shoulder)
containing an off-white powder, which the officers believed


2
  According to Cook, he was in the vicinity of Perry Avenue and
Abington Street in Peoria, Illinois, when he spotted the silver
Buick, approximately six (6) blocks from the location on Cornhill.
3
  When questioned at trial, Cook testified that the area of Peoria
in which the car was spotted is known for drug activity.
4                                                   No. 03-2173

to be a controlled substance (powder cocaine). Upon seizing
the packet, Officer Hunt walked the defendant to his squad
car and secured him in the vehicle while Officers Cook and
Goforth proceeded to search Johnson’s car, including the
trunk, for additional contraband. While searching the trunk
of Johnson’s vehicle, Cook discovered a partially opened
briefcase with a broken clasp and opened the briefcase a
few more inches, which led to the discovery of a loaded
revolver. Knowing that the defendant was a convicted felon
based on a prior aggravated battery offense, the sergeant
retrieved and took possession of the weapon. No other
contraband was found in Johnson’s vehicle.4 Officer Goforth
proceeded to conduct an inventory of the vehicle’s contents
and recorded the personal property found on the police
department’s paper form for impounded vehicles.
  On September 18, 2002, a federal grand jury indicted
Johnson for unlawful possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g). Subsequently, Johnson filed
a motion to suppress the physical evidence discovered, as
well as the statements made at the time of his arrest, and
argued that the initial stop of the vehicle and the search of
the trunk were both in violation of the Fourth Amendment.
After hearing the testimony and arguments, the district
court denied the motion to suppress in its entirety. The trial



4
  However, it should be noted that after the revolver was
recovered, Officer Cook mirandized Johnson and elicited a
statement from him regarding his activities that night. Shortly
thereafter, the police paddy wagon arrived and Johnson was
transferred from Hunt’s car to the wagon. When Johnson exited
the car, the officers found two small cellophane bags, which
Johnson later admitted belonged to him and contained crack
cocaine. In addition, the car Johnson was driving did not belong
to him. It was later learned that the car was actually registered
to a George Moss, who could not be reached that morning and
thus required the officers to take full possession of the vehicle.
No. 03-2173                                                5

judge found that reasonable suspicion was lacking to justify
the initial traffic stop, but nonetheless concluded that the
arrest based on the outstanding arrest warrant and the
subsequent search of the vehicle were both valid (thus
allowing the prosecution to introduce the contested evidence
recovered from the car) including the revolver found in the
trunk. The court reasoned that the discovery of the con-
trolled substance on the defendant’s person gave the officers
probable cause to search the entire vehicle for additional
contraband. It was upon this lawful search, the court noted,
that a loaded revolver was discovered. The trial judge also
ruled that the weapon was admissible in evidence because
it would inevitably have been discovered during the subse-
quent vehicle inventory search. After the court’s ruling,
Johnson entered a conditional plea of guilty, which the trial
judge accepted and sentenced Johnson to 30 months in
prison and a $100 special assessment. Johnson’s guilty plea
was accepted by the court and the trial judge allowed him
to reserve the right to appeal the denial of his motion to
suppress.
  A few months later, Johnson personally sent a letter to
the trial judge, requesting that he reconsider his denial of
his motion suppress. Although the trial judge made clear
that ordinarily he refuses to respond to personal letters
from a defendant represented by counsel, the judge stated
that because he was sufficiently troubled with his prior
ruling on the motion to suppress, he requested that counsel
provide supplemental briefing on the motion. In a written
order dated December 12, 2003, the court granted Johnson’s
(informal) motion to reconsider stating that the trial court
was “sufficiently troubled by the ruling.” United States v.
Johnson, No. 02-10107, *1 (C.D. Ill. Apr. 25, 2004) However,
after review of the record and relying on United States v.
6                                                No. 03-2173

Green,5 the trial judge reaffirmed his prior ruling and once
again denied Johnson’s motion to suppress, finding the
arrest, search and seizure were conducted pursuant to a
valid arrest warrant which “dissipated any taint caused by
the illegal stop of the automobile.” Id. at *3-4. Pursuant to
his plea agreement Johnson was sentenced to 30 months
imprisonment, three years of supervised release, and a $100
special assessment.


                          II. Analysis
  Johnson appeals the district court’s verbal, and subse-
quent written order, denying his motion to suppress. We
review de novo all questions of law, including the existence
or absence of probable cause or reasonable suspicion to
believe that a crime has been committed. Ornelas v. United
States, 517 U.S. 690, 697 (1996); Saffell v. Crews, 183 F.3d
655, 657 (7th Cir. 1999); United States v. Finke, 85 F.3d
1275, 1278 (7th Cir. 1996). Findings of fact are reviewed for
clear error and, “ ‘[b]ecause the resolution of a motion to
suppress is necessarily fact-specific, we give special defer-
ence to the district court that heard the testimony and
observed the witnesses at the suppression hearing.’ ” United
States v. Sholola, 124 F.3d 803, 811 (7th Cir. 1997) (quoting
United States v. Stribling, 94 F.3d 321, 323 (7th Cir. 1996));
see also Ornelas, 517 U.S. at 697-99.
  The government contends that the district judge incor-
rectly concluded that Sergeant Cook lacked reasonable
suspicion to stop the vehicle and, thus, the suppression
motion should have been denied on this basis alone. Under
Terry v. Ohio, 392 U.S. 1, 30 (1968), “police officers may
conduct a brief, investigatory stop of a suspect if they have
reasonable suspicion based on articulable facts that a crime


5
    111 F.3d 515 (7th Cir. 1997).
No. 03-2173                                                  7

is about to be or has been committed.” United States v.
Wimbush, 337 F.3d 947, 949 (7th Cir. 2003); see also United
States v. Mancillas, 183 F.3d 682, 695 (7th Cir. 1999).
“Reasonable suspicion” means “ ‘some objective manifesta-
tion that the person stopped is, or is about to be, engaged in
criminal activity.’ ” United States v. Swift, 220 F.3d 502, 506
(7th Cir. 2000) (quoting United States v. Cortez, 449 U.S.
411, 417 (1981)). Although police may not detain a suspect
based merely on a “hunch,” under Terry and its progeny
“the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short
of satisfying a preponderance of the evidence standard.”
United States v. Arvizu, 534 U.S. 266, 274 (2002). When
evaluating the reasonableness of a stop, courts must
examine the totality of the circumstances known to the
officer at the time the stop is made. United States v.
Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002). With Terry
stops relating to vehicles, such as the present case, the
description, proximity of the vehicle to the suspected
criminal activity and the proximity to the reported crime
are two important factors to be considered in determining
reasonable suspicion. See United States v. Brown, 366 F.3d
456, 460 (7th Cir. 2004) (proximity in time of a stop to a
report of alleged suspicious activity found to be a valid
component of a reasonable suspicion determination); Cf.
United States v. Wimbush, 337 F.3d 947, 950 (7th Cir. 2003)
(concluding that reasonable suspicion for a stop existed
when defendant “was driving a vehicle substantially similar
to the one driven by the suspect [of a shooting] . . . and the
shooting had occurred only minutes earlier in an area just
eight blocks away”).
  After reviewing and analyzing the totality of the facts and
circumstances herein, as testified to by the police officers,
and the law applicable thereto, we agree with the trial court
and refuse to hold that the initial stop was supported by
reasonable suspicion. In United States v. Green, 111 F.3d
8                                                 No. 03-2173

515 (7th Cir. 1997), a case in which the facts are similar to
those in the present case, we reversed the district court and
held that reasonable suspicion to stop a vehicle was not
present, stating: “In this case, the only specific and objec-
tive fact the government points to justifying the stop of
Green’s car is that ‘Officer Walker previously saw the
defendant’s car in front of Williams’ house.’ That on one
occasion a car is parked on the street in front of a house
where a fugitive resides is insufficient to create reasonable
suspicion that the car’s occupants had been or are about to
engage in criminal activity. The officers did not claim that
the occupants fit the description of Williams; that they were
seen entering or leaving the house, or talking with Wil-
liams; or that the car was seen in front of the house on
multiple occasions or at strange times. Thus, the Terry stop
was not justified at its inception.”Id. at 519-20 (footnote
omitted).
   As in Green we hold that the information relied upon by
Sergeant Cook concerning the initial traffic stop, as well as
Cook’s testimony indicating he was not aware of any
relation between the suspicious activity and the description
of the cars, was insufficient to satisfy the reasonable
suspicion requirements of Terry and was, therefore, unjusti-
fied. Sergeant Cook testified merely that he recalled: (1)
spotting a vehicle almost matching the description of the
one described in the dispatch traveling within six blocks of
suspicious activity (although as noted infra, Cook testified
that he could not recall if the cars described were related to
the alleged illegal activity); (2) traveling in a known drug
area; (3) at 4:30 a.m. However, Cook also testified that he
did not remember if the dispatch provided information that
connected the two vehicles to the two men who were
allegedly handling a firearm.6 Cook admitted upon ques-


6
    The closest that any of the officers who responded to the
                                                 (continued...)
No. 03-2173                                                         9

tioning by Johnson’s counsel that it was “possible that [a]
black male was associated with the maroon vehicle and [a]
white male was associated with the Buick.” (Tr. at 112
(emphasis added)). However, during the government’s
redirect the trial judge interjected and asked Cook: “I
thought you told [Johnson’s counsel] that you could have
heard the dispatcher say that there was a black person in
one car showing the gun to a white guy in the Buick. You
didn’t hear that?” Cook responded: “It could have been
dispatched that way. I don’t recall hearing that. I remember
that it was one individual showing another [a] gun, the two
vehicle descriptions and where they were at.” (Tr. at 129.)
Based on the limited amount of information Cook recollects
from the radio transmission, and in the absence of him
testifying that he recalled any relationship between the
vehicles mentioned in the dispatch and the suspicious
activity of the two men (one individual showing another a
firearm), we are of the opinion that Cook lacked reasonable
suspicion to initiate a stop of the vehicle. Thus, we hold
that, based on the combination of Cook’s testimony and the
trial judge’s findings, the district court did not err in
concluding that Cook did not have reasonable suspicion to
initiate the traffic stop and that it was, therefore, illegal.
United States v. French, 291 F.3d 945, 950-51 (7th Cir.
2002) (“We review a trial court’s findings of fact in a
suppression hearing for clear error.”).
    However, despite the fact that the initial stop was


6
  (...continued)
dispatch came to specifically associating the vehicles with the two
men was Officer Hunt’s testimony that the dispatch said “[t]here
were two gentlemen in the 400 block [of Cornhill] looking at a gun
behind their cars.” (Tr. at 11. (emphasis added)). In later question-
ing, Hunt described the dispatch as saying there were “two
gentlemen, one in a maroon vehicle and one in a silver Buick,” (Tr.
at 21.), but he then admitted to not recalling all of the specifics of
the dispatch call.
10                                               No. 03-2173

unlawful, evidence seized as a result of the unlawful traffic
stop may be introduced into evidence at trial if intervening
circumstances establish that the evidence came about
without “exploitation of that illegality [and] instead by
means sufficiently distinguishable to be purged of the
primary taint.” Green, 111 F.3d at 520 (quoting Wong Sun
v. United States, 371 U.S. 471, 488 (1963)). This court will
evaluate three factors when determining whether sufficient
attenuation exists to dissipate the initial taint of unlawful
police conduct: “(1) the time elapsed between the illegality
and the acquisition of the evidence; (2) the presence of
intervening circumstances; and (3) the purpose and fla-
grancy of the official misconduct.” Id. at 521 (citing Brown
v. Illinois, 422 U.S. 590, 603-04 (1975)).
   The decision in Green is helpful in our analysis of the
facts and circumstances in the case at bar. In Green, the
defendant was driving a vehicle that the police stopped
without reasonable suspicion. Id. at 520. During the course
of the traffic stop, the officers discovered that a passenger
in the vehicle was wanted on a valid outstanding warrant.
Id. at 517. The passenger was arrested and the vehicle was
searched incident to that arrest. Id. In the vehicle the police
discovered crack cocaine (in a shopping bag on the floor in
front of the driver’s seat) and a gun (in a gym bag on the
floor on the passenger’s side), prompting them also to arrest
the driver. Id. Before trial, the district court denied the
defendant’s motion to suppress the evidence of the drugs
and gun as the fruits of an unlawful detention. We affirmed
on appeal, holding that a lawful arrest based on an out-
standing warrant for a passenger in the vehicle constituted
an intervening circumstance that dissipated any taint
caused by an initial traffic stop that had lacked reasonable
suspicion. Id. at 521-23. We noted that, in comparison to
other instances in which the Supreme Court has permitted
the admission of evidence acquired after an unlawful action,
“[w]here a lawful arrest pursuant to a warrant constitutes
No. 03-2173                                                     11

the ‘intervening circumstance’ (as in this case), it is an even
more compelling case for the conclusion that the taint of the
original illegality is dissipated.” Id. at 522. Indeed, “[i]t
would be startling to suggest that because the police
illegally stopped an automobile, they cannot arrest an
occupant who is found to be wanted on a warrant.” Id. at
521.7
   Applying Green, we note that once Sergeant Cook identi-
fied Johnson as a person previously known to him, who had
an outstanding arrest warrant, Cook had probable cause to
arrest him independent of the circumstances of the initial
stop. See id. Indeed, Johnson concedes this point, as well as
the authority of the police officers to search him incident to
the lawful arrest on the outstanding warrant. However,
Johnson argues that the search, following his arrest, went
beyond its lawful scope when the officers searched the
trunk of the car. In support of this argument he claims that
a lawful arrest of a person in a vehicle entitles an officer to
perform a warrantless search only of the area of the vehicle
that the passengers were occupying, and not the trunk. See
Mancillas, 183 F.3d at 699 (citing New York v. Belton, 453
U.S. 454, 460-61 (1981)).
  However, Johnson ignores the fact that Cook discovered
(falling out of the hat) what he believed to be a controlled
substance while performing a search pursuant to the
outstanding warrant. This alone provided Cook with
probable cause that a crime had been, or was being commit-
ted and, therefore, he was not violating Johnson’s constitu-



7
   Regarding the elapsed-time factor, this Court noted that when
a lawful arrest due to an outstanding warrant is the intervening
circumstance, the temporal component is less relevant than in
situations where the police exploit an illegal detention to create a
predictable response (e.g., confession or consent to search). United
States v. Green, 111 F.3d 515, 522 (7th Cir. 1997).
12                                                      No. 03-2173

tional right when searching the vehicle, including the
trunk.8 Under Carroll v. United States, 267 U.S. 132 (1925),
and its progeny, a vehicle may be searched without a
warrant if there is probable cause to believe it contains
contraband or evidence of a crime, and this type of search
“lawfully extends to all parts of the vehicle in which
contraband or evidence could be concealed, including closed
compartments and trunks.” United States v. Patterson, 65
F.3d 68, 70 (7th Cir. 1995) (internal quotation marks
omitted). Probable cause to conduct a search of this type
exists if, given the totality of the circumstances, there is a
“fair probability that contraband or evidence of a crime will
be found in [the vehicle].” Illinois v. Gates, 462 U.S. 213,
238 (1983). Thus, Cook’s discovery of a banned substance9


8
  Also, it should be noted that we are cognizant of and agree with
the district court’s alternate basis for admitting the contested
evidence; that the firearm would have eventually been discovered
through a required inventory search of the vehicle and its
contents. It is well-settled that police are authorized to search
vehicles lawfully taken into custody as part of a post-arrest
inventory search “in order to secure or protect the car and its
contents.” United States v. Wimbush, 337 F.3d 947, 950-51 (7th
Cir. 2003). Therefore, assuming arguendo that Cook did not
initially have probable cause to search the trunk, after legally
arresting Johnson on the outstanding warrant, the firearm
would have nevertheless been discovered later when the police
took possession of the vehicle he was driving and performed an
inventory search, thus rendering the firearm admissible at trial.
9
  Johnson argues that because officers “only found a small
amount of untested powder in Mr. Johnson’s hat,” police lacked
probable cause to search the trunk compartment of his vehicle.
However, this argument is unconvincing. Probable cause to search
will exist if “given the totality of the circumstances, there is a fair
probability that contraband or evidence of a crime will be found in
a particular place.” United States v. Patterson, 65 F.3d 68, 71 (7th
Cir. 1995). Thus, the fact that Cook did not immediately field test
                                                        (continued...)
No. 03-2173                                                       13

(drugs) on Johnson’s person clearly provided him with
probable cause to search the trunk of the vehicle, including
any containers (i.e., the briefcase) therein, since the officer
had a reasonable basis for believing that more drugs or
other illegal contraband may have been concealed inside.
See United States v. Young, 38 F.3d 338, 340 (7th Cir. 1994)
(citing, inter alia, California v. Acevedo, 500 U.S. 565, 570
(1991)). The sequence of events in this case leading up to
the search—(1) an unlawful stop; (2) a lawful arrest of the
driver of a vehicle who is known to be wanted on an out-
standing warrant; (3) discovery of controlled substances on
that driver (Johnson) during a search incident to his arrest;
and (4) the ultimate discovery of a loaded weapon in the
trunk while searching the defendant’s vehicle based on the
probable cause to believe additional contraband was located
therein—also demonstrates that the unreasonable nature
of the traffic stop by the officers was neither purposeful nor
flagrant, much less did any additional misconduct occur
after the stop.



9
   (...continued)
the white substance believed to be contraband does not automati-
cally render his search of the vehicle unjustified. In addition to the
discovery of the white powder Cook also had personal knowledge
of Johnson’s cocaine habit. Cook testified that Johnson “would go
on weeks’ long binges, smoking cocaine and selling off property to
get money to buy cocaine.” (Tr. at 88.) In addition, on the night in
question, Cook stated that he observed Johnson’s appearance to
be “not healthy” and testified further that he believed Johnson
was “strung out,” meaning that he appeared to be under the
influence of a controlled substance. These circumstances provided
Cook with sufficient reason to believe that the substance con-
tained in the white packet was, in fact, a controlled substance and
thus a field test was unnecessary to establish probable cause to
search the car (including the trunk). See Patterson, 65 F.3d at 71-
72.
14                                              No. 03-2173



                     III. Conclusion
  The officers’ knowledge that Johnson was wanted on an
outstanding warrant constituted an intervening circum-
stance, which gave officers probable cause to arrest Johnson
independent of the illegality of the initial unlawful stop.
This, when viewed in combination with the discovery of
contraband on Johnson’s person, more than justified the
officer’s search of Johnson’s vehicle, including the trunk.
Therefore, the district court properly denied the defendant’s
motion to suppress and the judgment of the district court is
                                                 AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—9-2-04
