In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1938

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN WATSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-140-C-01—Barbara B. Crabb, Chief Judge.

ARGUED JANUARY 27, 2009—DECIDED MARCH 12, 2009

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The defendant appeals from

his conviction for illegal possession of guns and ammunition, for which he was sentenced to six years in prison.

The only question is the legality of the seizure of the

weapons, which were essential evidence of his guilt.

A police officer received an anonymous tip that a black

man was dealing guns out of the trunk of a maroon

Dodge Intrepid driven by a white woman. The word “tip”

is a misnomer, since the tipster, who claimed to have
2 No. 08-1938

actually witnessed the criminal activity, had talked to

the police officer by phone for an hour, giving a wealth

of detail about the car and its occupants. He refused to

give his name on the ground that he feared retaliation

by the criminal community (which, he said, had happened to him once before), but he gave his phone

number and other information that would have made it

a cinch for the police to identify him. The police located

a maroon Dodge Intrepid driven by a white woman

with a black male passenger (the defendant) and

ordered the driver to stop, which she did. Six police

officers approached the car with guns pointed at the

occupants, whom they ordered to leave the car and walk

backwards toward them. The driver consented to a

search of the car, which the police knew from a computer check of the license plate was hers, and they

found the weapons in the trunk.

Anonymous tips have often been held to be an insufficient basis by themselves for a finding of reasonable

suspicion that would justify a stop. E.g., Florida v. J.L.,

529 U.S. 266 (2000); United States v. Robinson, 537 F.3d

798, 802 (7th Cir. 2008); United States v. Brown, 401 F.3d

588, 595-96 (4th Cir. 2005). But there is no flat rule that

such a tip can never provide a valid basis for such a

finding, especially since the fact that a tipster gives a

name doesn’t negate the possibility that the tip is anonymous; the name may be a fake. United States v. Wooden,

551 F.3d 647, 649 (7th Cir. 2008). The tip in this case,

moreover, was only quasi-anonymous, since the police

could easily have identified the tipster—and that is important. Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995);
No. 08-1938 3

United States v. Andrade, 551 F.3d 103, 110 (1st Cir. 2008)

(per curiam); United States v. Casper, 536 F.3d 409, 414-15

(5th Cir. 2008). A tip is less likely to be malicious

or irresponsible if the tipster knows that the police can

find him, United States v. Kent, 531 F.3d 642, 648-49 (8th

Cir. 2008), though there is always the possibility that

the identifying details are fake.

And the amount of detail the tipster gave the police,

much of which they were able to corroborate, was

evidence that the tipster had indeed seen the car and its

occupants. See United States v. Torres, 534 F.3d 207, 210-11

(3d Cir. 2008). It remained conceivable that he could

have fabricated his witnessing of gun dealing, but that

was not so likely as to deprive the police of reasonable

suspicion that the car contained weapons, see United

States v. Hicks, 531 F.3d 555, 560-61 (7th Cir. 2008); United

States v. Vongkaysone, 434 F.3d 68, 74 (1st Cir. 2006); United

States v. Johnson, 364 F.3d 1185, 1191 (10th Cir. 2004);

compare United States v. Monteiro, 447 F.3d 39, 46 (1st Cir.

2006)—as of course it did.

The icing on the cake is that the police did not stop the

car until they observed a violation—the rear license

plate was not illuminated, as state law required—which

gave them a legal basis for stopping the car. That they

would not have stopped it had they not suspected a

more serious violation—as they obviously did, or they

would not have approached with drawn and pointed

guns—is of no moment. Arkansas v. Sullivan, 532 U.S. 769,

771-72 (2001); Whren v. United States, 517 U.S. 806, 813

(1996); United States v. Franklin, 547 F.3d 726, 733 (7th Cir.
4 No. 08-1938

2008); United States v. Stachowiak, 521 F.3d 852, 855 (8th

Cir. 2008). And for further icing we note that the driver

consented to the search, as she had every right to do

because it was her car.

The defendant argues that even if the police could

lawfully stop and lawfully search the car, they had no

right to frighten him by pointing their guns at him. There

are cases in which, although the police have every right

to conduct a search or arrest a person or seize property,

the manner in which they do so violates the Fourth

Amendment. The usual case is that of the use of excessive physical force to effect an arrest. E.g., Graham v.

Connor, 490 U.S. 386 (1989); Walker v. Sheahan, 526 F.3d 973,

978-79 (7th Cir. 2008); Parker v. Gerrish, 547 F.3d 1, 4-5 (1st

Cir. 2008); Gill v. Maciejewski, 546 F.3d 557, 561 (8th Cir.

2008). But the “excess” might consist of threats that put

the arrested (or stopped) person in fear of bodily harm.

Dorsey v. Barber, 517 F.3d 389, 401-02 (6th Cir. 2008).

The defendant’s case is weak; since the police had

reasonable suspicion to think they were approaching an

illegal seller of guns, who had guns in the car (and not

necessarily just in the trunk of the car), they were

entitled for their own protection to approach as they did.

E.g., United States v. Hensley, 469 U.S. 221, 235 (1985);

United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005);

United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004). But

in any event, had they used excessive force his

remedy would be a suit for damages under 42 U.S.C.

§ 1983 (or state law) rather than the exclusion from

his criminal trial of evidence that had been seized in an
No. 08-1938 5

otherwise lawful search. Christopher Slobogin, “Why

Liberals Should Chuck the Exclusionary Rule,” 1999 U.

Ill. L. Rev. 363, 401-02 (1999); cf. William J. Stuntz, “Privacy’s Problem and the Law of Criminal Procedure,” 93

Mich. L. Rev. 1016, 1072 (1995). As in Hudson v. Michigan,

547 U.S. 586 (2006), where the Supreme Court ruled that

a violation of the rule that (where feasible) the police

must “knock and announce” their presence before

breaking into a house that they are authorized to search

does not justify suppression of the evidence found in

the (otherwise lawful) search, there is no causal connection between the manner in which the police approached the defendant in this case and the search of

the car that disclosed the weapons used in evidence

against him. Had they said or done nothing to him,

drawn and pointed no guns, but merely asked the driver

for consent to search the car, the evidence would have

been discovered.

Even closer is United States v. Ramirez, 523 U.S. 65, 71

(1998), where we read that “excessive or unnecessary

destruction of property in the course of a search may

violate the Fourth Amendment, even though the entry

itself is lawful and the fruits of the search are not subject to

suppression” (emphasis added). We thus disagree with

the dictum in United States v. Ankeny, 502 F.3d 829, 836

(9th Cir. 2007), which flies in the face of Ramirez, that the

use of excessive force in the course of a search can

require suppression of the evidence seized it.

This is not even a case of inevitable discovery, as

where the police obtain evidence by means of an illegal
6 No. 08-1938

search but if they hadn’t violated the law they would

have obtained the evidence lawfully, and on that

ground the evidence is admitted. E.g., Nix v. Williams,

467 U.S. 431, 444 (1984); United States v. Tejada, 524 F.3d

809, 813-14 (7th Cir. 2008). There was no causal connection in this case between the alleged police conduct

and the obtaining of the evidence that the defendant asks

us to suppress. The police didn’t obtain the evidence

by pointing their guns at the defendant, but by obtaining

the consent of the driver. And even if the police obtained her consent by intimidation (a question we need

not and do not address), the defendant cannot object.

He was just a passenger; he claims neither a property

nor a possessory interest in the car, so even an illegal

search of it would not have infringed his Fourth Amendment rights. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).

Application of the exclusionary rule would be particularly gratuitous in this case because the defendant has

an adequate remedy by way of a civil action—a remedy

better calibrated to the actual harm done the defendant

than the exclusionary rule would be. United States v.

Sims, 553 F.3d 580, 583-84 (7th Cir. 2009). If he was frightened by police officers’ using excessive force (the force

wasn’t excessive, but for completeness of analysis we

are assuming for the moment that it was), a jury will

assess the damages that are required to compensate

him and deter the police from future such misconduct.

To exclude the evidence on which his conviction was

based would return a gun dealer to his life of crime, and

the cost to society might well exceed the damages that

a jury or judge would award him for his fright. In
No. 08-1938 7

short, when evidence is lawfully seized, police misconduct collateral to the seizure does not trigger the application of the exclusionary rule. For “the fact that a

Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.” Herring

v. United States, 129 S. Ct. 695, 700 (2009).

The judgment is therefore

AFFIRMED.

3-12-09