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

No. 02-1002
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

BEREND SCHAAFSMA, JR.,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 00 CR 544—Rebecca R. Pallmeyer, Judge.
                          ____________
  ARGUED JANUARY 17, 2003—DECIDED JANUARY 31, 2003
                    ____________


 Before BAUER, POSNER, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Berend Schaafsma, Jr. won a
battle but, more importantly, lost a war when a jury found
him guilty of involvement in an MDMA (thankfully short-
ened from its full name: methylenedioxymethamphet-
amine) sale which was interrupted by police outside a
Hooters restaurant in Orland Park, south of Chicago. The
battle he won—an order from the district judge grant-
ing his motion to suppress evidence obtained after his
arrest—forms the basis of his appeal: he says some of
the suppressed evidence slipped into the trial and that
entitles him to a do-over.
  MDMA is a synthetic, psychoactive drug with both stim-
ulant (amphetamine-like) and hallucinogenic (LSD-like)
2                                             No. 02-1002

properties. It goes by various street names—Adam, XTC,
hug, beans, the love drug, and most commonly, Ecstasy.
It’s a dangerous drug—ingesting high doses can cause
sharp increases in body temperature leading to muscle
breakdown and kidney and cardiovascular system failure.
Despite its dangerous propensities, it’s a drug in demand.
And so, enter Schaafsma and one Richard Marrella on
their ill-fated trip to Hooters.
  Marrella was an Ecstasy dealer—there’s no doubt
about that. In June 2000 he got hooked up with Schaafsma,
and the two had several conversations about dealing in
Ecstasy. In late June or early July, Schaafsma agreed
to buy approximately 2,000 pills from Marrella. They met
in the parking lot at a Gold’s Gym in Orland Park, and
Schaafsma gave Marrella cash (in a brown paper bag) in
exchange for the pills. After this sale, Schaafsma con-
tacted Marrella every few days to see if Marrella had any
more Ecstasy to sell.
  On July 10, 2000, Marrella began having telephone
discussions regarding the purchase of Ecstasy with a man
he knew as Marcus. Unbeknownst to Marrella, “Marcus”
was actually Mark Recker, a drug officer acting in an
undercover capacity. Marrella and Recker discussed the
possibility of Marrella buying a large quantity of Ecstasy
from Recker, after which Marrella called Schaafsma to
see if he was interested in buying the drugs once they
were obtained.
  Over the next 2 days, Marrella had conversations with
Recker and Schaafsma, brokering a deal involving 5,000
Ecstasy pills. After checking to see if Schaafsma could
supply the money, Marrella agreed to buy 5,000 pills from
Recker at a price of $6.50 per pill. Schaafsma agreed to
buy them from Marrella at a price of $8.00 per pill (a tidy
$1.50-per-pill profit for Marrella). During tape-recorded
telephone calls, Marrella indicated to Recker that he had
No. 02-1002                                              3

a “guy,” referring to Schaafsma, who was working on get-
ting the money together. Eventually, Marrella and Recker
agreed to meet on July 12 at the Hooters restaurant in
Orland Park to do the deal.
  Before the deal was supposed to take place, Schaafsma
and Marrella discussed the fact that Schaafsma was not
able to come up with the entire $40,000 (5,000 pills at $8
each). Marrella and Schaafsma agreed that Schaafsma
should bring the $32,500 needed to pay Recker for the
drugs and that Schaafsma would pay Marrella his $7,500
profit after Schaafsma sold the pills.
  A little before noon on July 12, 2000, Schaafsma went
to Marrella’s house with the cash in a brown paper bag.
Schaafsma told Marrella that he was $2,000 short, and
Marrella put in $2,000 of his own money. Marrella and
Schaafsma agreed that Schaafsma would watch Marrella’s
car with the money in it while Marrella went inside Hoot-
ers to meet with Recker. Marrella and Schaafsma drove
in separate cars to the restaurant.
  In preparation for the meeting, surveillance agents
were all over Hooters. At approximately 12:25 p.m. Mar-
rella entered the parking lot in a black Chrysler. Unbe-
knownst to law enforcement at that time, Schaafsma’s car
was captured on video tape driving into the parking lot
behind Marrella. As seen on the video, Marrella initially
entered the parking lot and turned left, but then decided
to park in a different location. Schaafsma backed up his
car to allow Marrella to back up and park. Schaafsma then
drove past Marrella’s car and parked facing Hooters, giving
him a straight line of vision to Marrella’s car.
  After parking, Marrella went inside Hooters and met
with Recker, who told Marrella that he wanted to count
the money. They then left the restaurant and went to
Marrella’s car.
4                                               No. 02-1002

  As they were walking to Marrella’s car, Marrella asked
Recker about bringing the pills to the parking lot. Marrella
stated that his “guy” was waiting in the lot to take the
pills away, at which time Marrella gestured in the gen-
eral direction of a blue Toyota where a man was sitting
alone.
  Marrella and Recker got into Marrella’s Chrysler. Recker
opened the glove box and confirmed that a large sum of
money—20’s, 50’s and 100’s—encased in a paper bag, was
there. Recker and Marrella discussed going back inside
Hooters after they made the exchange of drugs and money.
  As they were walking back toward Hooters, Recker gave
a prearranged arrest signal to the surveillance agents,
and the charade was over. Agents descended, and as
Marrella was placed under arrest, Recker informed other
officers that the blue Toyota was involved in the deal. At
that time, Officer Anthony Lietzow observed the Toyota
leaving the parking lot at a speed he described as “quicker
than usual, like in a hurry to get out of the parking lot.”
Officers ran across the parking lot and stopped the car,
placing Schaafsma under arrest.
  Prior to trial, Schaafsma filed what he called a “Motion to
Quash Arrest and Suppress Evidence,” claiming that
there was no probable cause for his arrest and that any
evidence from that arrest should be suppressed. After a
hearing, although finding that “the officer’s testimony
was very credible,” the district court concluded that the
agents did not have probable cause to arrest Schaafsma.
The district court reasoned that there should have been
more certainty with regard to which car Marrella was
referring to when he told Recker his partner was in the lot.
After the ruling, the government asked if it would be
able to introduce at trial “evidence of everything that
happened in the parking lot, Marrella’s reference to Mr.
Schaafsma or to the blue Toyota, the exiting of the blue
No. 02-1002                                                5

Toyota [from the lot] and the fact that it was stopped.” The
district court agreed that this evidence could be introduced.
  As a result of this pretrial suppression ruling, the jury
never learned that after his arrest, Schaafsma admitted
that he was in cahoots with Marrella, that he was at
Hooters to pick up the Ecstasy, and that he was going to
sell the pills to someone named “Jamal,” a person with
whom he had been dealing drugs for the past 6 months.
  On this appeal, Schaafsma writes that, after granting
his motion to suppress, the district court “erred in per-
mitting the Government to introduce into evidence at
the trial of this case and before the jury testimony by
Government witnesses of facts surrounding the defen-
dant’s arrest and the identification of his automobile
and other circumstantial evidence tending to prove guilt
which was directly obtained as a result of Appellant’s il-
legal arrest in violation of his Fourth Amendment United
States Constitutional Rights.”
  The short answer to this claim is that the admitted
evidence—historical facts about the presence of Schaafsma
and his Toyota in the lot—did not violate the suppres-
sion order. The even shorter answer is that, with all due
respect to the distinguished trial judge, we think she erred
in granting the motion to suppress in the first place.
  In reviewing a suppression order, findings of fact are
reviewed for clear error. United States v. Duguay, 93 F.3d
346, 349-50 (7th Cir. 1996). The ultimate conclusion
regarding whether law enforcement officers had probable
cause, however, is reviewed de novo. Ornelas v. United
States, 517 U.S. 690, 699 (1996). Here, the facts are not
in dispute, and we think they lead to the clear conclusion
that the agents had probable cause to arrest Schaafsma
as he tried to leave the Hooters lot.
  A police officer has probable cause to make an arrest
“when the facts within the officer’s knowledge and of
6                                             No. 02-1002

which the officer has reasonably trustworthy information
are sufficient to warrant a prudent person in believing
the suspect has committed or is committing an offense.”
United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir.
2000). Probable cause requires only a substantial chance
of criminal activity, not an actual showing of such activ-
ity. See Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983).
Although mere suspicion is not enough, probable cause
“need not be based on evidence sufficient to support a
conviction, nor even a showing that the officer’s belief
is more likely true than false.” United States v. Burrell,
963 F.2d 976, 986 (7th Cir. 1992) (quoting Hughes v. Meyer,
880 F.2d 967, 969 (7th Cir. 1989)). The determination of
whether probable cause exists in a given situation in-
volves examining the totality of the circumstances in a
common sense manner. Sawyer, 224 F.3d at 679.
  And what were the “facts” here? First, during the ne-
gotiations leading up to the sale it was clear that Mar-
rella was brokering the deal for a person supplying money.
Twice during his taped conversation with Recker, Marrella
said his “guy” would be getting the drugs.
   Second, from Marrella’s lips during the deal, officer
Recker knew that Marrella’s “guy” was in a car in the
parking lot. Marrella’s gesture toward the parking lot
caused Recker to look and see a blue Toyota with an
individual sitting in it behind the wheel. The Toyota
was facing Marrella’s car without anything obstructing
its view. When Marrella was arrested and bedlam broke
out, the Toyota was the only car that tried to leave the
lot, and it did so at a speed that a seasoned surveillance
officer knew was faster than usual. While mere presence
at the scene of a crime is not enough to establish prob-
able cause, we know that it is generally accepted that
“flight can be strong evidence of guilt.” United States v.
Lima, 819 F.2d 687, 689 (7th Cir. 1987). And here, the
police had presence plus flight plus Marrella’s statements
No. 02-1002                                              7

clearly indicating that someone in the lot was his “guy”
involved in the sale. Given this evidence, the grant of
a motion to suppress is not only puzzling, but wrong. We
have no trouble concluding that probable cause existed, and
thus less evidence than the government possessed was
admitted against Schaafsma during his trial.
  For this reason, Schaafsma’s conviction, and unchallenged
41-month sentence, are AFFIRMED.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—1-31-03
