In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3656

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL L. BOHMAN,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 3:10-cr-00038—William M. Conley, Chief Judge.

ARGUED APRIL 13, 2011—DECIDED JUNE 28, 2012

Before POSNER, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge. The question presented in this

appeal is whether the police may stop a vehicle only

because it emerged from a site suspected of drug activity. Appellant Daniel Bohman raised this question

in a motion to suppress evidence discovered when the

car he was driving on August 18, 2009, was stopped

leaving what turned out to be an active meth lab. His

motion was denied after a hearing conducted by a magis-
2 No. 10-3656

trate judge and review by a district judge on a report

and recommendation. Bohman preserved his objection

to the adverse ruling through a conditional guilty plea

pursuant to Fed. R. Crim. P. 11(a)(2). So we consider

the evidence presented below.

The investigation began with information provided

by a man named Ed Olmsted who was arrested in Marathon County, Wisconsin for possessing an anhydrous

ammonia tank and wanted to “snitch in exchange for

consideration on his charges.” United States v. Barttelt,

No. 10-cr-38-wmc, 2010 WL 3363247, at *1 (W.D. Wis.

July 12, 2010). Olmsted’s offer piqued the interest of

Sgt. Brian Kingsley of the nearby Lincoln County, Wisconsin Sheriff’s Department because Kingsley credited

another trusted investigator’s endorsement of Olmsted’s

reliability. Olmsted met with Kingsley and told him that

he saw known meth cook Jack Barttelt brew meth

three times in the past two months at a hunting cabin

on “Big Tony’s” property. Olmsted identified a rural

forty-acre parcel owned by Tony Thorenson in a plat

book and also told Kingsley that (1) he had seen an anhydrous ammonia tank at the cabin within the last week

or so; (2) that a locked cable blocked the drive leading

to the Thorenson cabin; and (3) that Barttelt drove a

green Mercury Grand Marquis.

Kingsley’s 17-plus years with the department, his 40-orso meth lab busts, and his training and experience

qualify him as a veteran meth investigator. With a sniff

he can distinguish between household ammonia (often

diluted in cleaners) and anhydrous ammonia (used legiti-
No. 10-3656 3

mately as a fertilizer but also in cooking meth) because

of the latter’s noticeably more pungent odor and the

burning sensation it causes in his mouth and nose.

Based on his experience, Kingsley thought he would

find evidence of a meth lab at the cabin in one of three

phases because meth cooks do not tend to store anhydrous

ammonia for more than a week or so: (1) precooking

(gathering ingredients, paraphernalia); (2) cooking; or

(3) post-cooking (glassware, filters, starter fluid cans,

lithium battery strips, and so on).

Sgt. Kingsley drove to the Thorenson property shortly

after his evening interview with Olmsted, arriving at

about 11 p.m. Another officer rode along but only

Kingsley testified at the suppression hearing. Kingsley

testified that he found a locked cable blocking a driveway just as Olmsted described. About 300 yards

through the woods, he saw a cabin and a light. As he

prepared his surveillance gear, Kingsley inadvertently

beeped his horn. Vehicle lights came on near the cabin

and started down the drive toward the cabled gate.

Kingsley quickly backed his squad car westward away

from the driveway with his lights off. Kingsley saw the

vehicle stop at the cable for about twenty to thirty

seconds and then back up the driveway to the cabin’s

vicinity. Kingsley testified that the vehicle’s movement

caused him to be “very surprised” and seemed unusual

to him because he thought that if someone were

checking on a car honk they would have come onto the

road and possibly a little farther rather than just

stopping at the gate. About five minutes later, after he

had repositioned his car to the east of the driveway,

Kingsley observed a second incident of a vehicle
4 No. 10-3656

driving up to the cable. This time, like before, the

vehicle stopped at the cable, but unlike earlier, it

emerged out of the driveway about twenty seconds

later, driving toward Kingsley’s position. Kingsley

flipped on his police lights and pulled in front of the

approaching car, which stopped immediately. Kingsley

frankly conceded that he did not observe any traffic

violations before the stop. At some point it became clear

that the stopped car was not a green Grand Marquis

but was instead a reddish-maroon Chevrolet Beretta

coupe. Kingsley did not testify that the vehicle that

came down the driveway either time appeared to be a

Grand Marquis, or even that it appeared to be the

same vehicle both times. Kingsley said that all he could

tell about the car before he stopped it was that it was

a vehicle with two headlights.

Kingsley and his colleague got out of their car and

walked toward the stopped vehicle. As soon as Kingsley

could see into the car, he recognized the driver as Daniel

Bohman but did not recognize the passenger. Both complied with Kingsley’s request to step out of the Beretta.

As Kingsley questioned the passenger, who identified

himself as Jake Barttelt, he smelled the distinctive

odor of anhydrous ammonia. Barttelt claimed he had

been bear hunting, but that sounded unlikely to Kingsley

because of Barttelt’s attire (shorts, tennis shoes, and

socks, but no shirt) and the time of night. Kingsley concluded that he had uncovered a meth cook site. Backup

arrived and police placed Bohman and Barttelt into

different squad cars. Kingsley asked Bohman about a

meth cook and Bohman answered affirmatively and

indicated that Barttelt was cooking.
No. 10-3656 5

A search of the cabin (authorized by a subsequently

issued warrant, based in part on information learned

during the vehicle stop) confirmed that it was indeed a

lab, but the particulars are not relevant to the issue

before us. Bohman doesn’t dispute that a justifiable stop

of his car would permit his removal from the car, and

properly so. E.g., Smith v. Ball State Univ., 295 F.3d 763,

769 (7th Cir. 2002) (officers may order drivers to exit

their vehicles during investigatory stops). And he essentially concedes that once Kingsley sniffed anhydrous

ammonia, to say nothing of Bohman’s admission, there

was probable cause to search the cabin. Instead, Bohman

maintains that if the stop was unreasonable, then anything obtained during the stop should be suppressed

and the cabin search would be fruit from that poisonous

tree. The district court found that Kingsley had reasonable suspicion that there was or recently had been

meth cooking at the cabin, United States v. Barttelt, No. 10-

cr-38-wmc, 2010 WL 3363307, at *5 (W.D. Wis. Aug. 23,

2010), but it noted that finding reasonable suspicion for

stopping the car was a “closer call” and a “debatable

point,” id. at *5-*7. Yet the court found that Olmsted’s

corroborated information and the “suspicious behavior”

in response to the horn honk justified moving the

suspicion regarding the car from “beyond a hunch to at

least minimal suspicion.” Id. at *6-*7. Alternatively, the

court found that even if the stop was unreasonable, the

determination’s closeness justified concluding that any

error was merely negligent and that Kingsley acted in

good faith—that is, his conduct did not justify exclusion.

Id. at *7.
6 No. 10-3656

A mere suspicion of illegal activity at a particular place

is not enough to transfer that suspicion to anyone who

leaves that property. See United States v. Johnson, 170

F.3d 708, 720 (7th Cir. 1999). The Fourth Amendment

allows officers to “stop and briefly detain a person for

investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal

activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S.

1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This

reasonableness standard typically requires a set of facts

that we can measure against an objective standard such

as “probable cause or a less stringent test” such as reasonable suspicion. Delaware v. Prouse, 440 U.S. 648, 654

& n.11 (1979) (internal footnotes omitted). In those circumstances where we do not insist on “some quantum

of individualized suspicion,” we rely on other safeguards to assure that the reasonable expectation of

privacy is not “subject to the discretion of the official in

the field.” Id. at 654-55 (quoting Camara v. Mun. Court, 387

U.S. 523, 532 (1967)). For instance, an officer with a

warrant to search a place may stop anyone leaving that

place without additional individualized suspicion, see

Michigan v. Summers, 452 U.S. 692, 702-03 & n.16 (1981),

but a mere suspicion of illegal activity about a place,

without more, is not enough to justify stopping everyone emerging from that property, see Johnson, 170 F.3d

at 720.

When Sgt. Kingsley stopped Bohman’s Beretta, everything informant Olmsted said had checked out, but the

government does not attempt to justify the vehicle stop on

the basis that Kingsley had accumulated probable cause

that the cabin housed a meth cook. Kingsley still had a
No. 10-3656 7

few critical things to confirm: the presence of an

anhydrous ammonia tank, suspected cook Jake Barttelt,

and, of course, his green Grand Marquis. So we agree

with the district judge that Kingsley needed something extra to move the justification for the stop from “a

hunch to at least minimal suspicion.” 2010 WL 3363307,

at *7. The response to the horn honk doesn’t move the

suspicion on the Beretta beyond a hunch but for a different reason than Bohman argues. Bohman’s alternative,

innocent explanation for the reaction to the horn honk

(the equivalent of a doorbell ring in this rural environment) doesn’t undercut the reasonableness of Kingsley’s

surprised reaction or his belief that the behavior was

“unusual.” See, e.g., United States v. Baskin, 401 F.3d 788,

793 (7th Cir. 2005) (behavior “susceptible to an innocent

explanation when isolated from its context may still

give rise to reasonable suspicion when considered in

light of all of the factors”); United States v. Fiasche, 520 F.3d

694, 698 (7th Cir. 2008) (seemingly innocent behavior

suggested “something was rotten in Denmark when [a]

car sped up a bit”). Yet as surprising as this behavior

may have been, it does not on its own lend a suspicion

of something illegal or wrong as to the Beretta. It didn’t

give Kingsley anything to add to his existing suspicion

that the activity at the cabin might involve an anhydrous

ammonia tank, Jake Barttelt, and a green Grand Marquis.

So when Kingsley stopped the car he did so because it

emerged from a forty-acre tract containing a suspected

meth cook site.

In Johnson, we concluded that police are not entitled

to detain just anyone who walks out of an apartment
8 No. 10-3656

generally suspected of hosting illegal activity. 170 F.3d

at 719-20. The police did not suspect anyone in particular of criminal activity. Id. Yet the police still

detained the first person who happened to walk out of

the suspected apartment. Id. at 711. Bohman’s case is

indistinguishable (and, surprisingly, the government

ignores it in its briefing). Like the officers in Johnson,

Kingsley suspected that a particular place housed drug

activity. And like in Johnson, he stopped the first person

that emerged. The principal difference between this

case and Johnson is an immaterial one: in this case,

Sgt. Kingsley comported himself unobjectionably and

professionally (attempting to conduct covert surveillance

from public property) as opposed to Johnson, which

involved “knock and talk” techniques that opened the

officers’ conduct to criticism. See id. at 721 (Evans, J.,

concurring) (seeds of bad search “sown when the police

decided to use the ‘knock and talk’ ” shortcut).

The government’s attempt to justify the stop based

on reasonable suspicion despite the lack of particular

suspicion about the car actually stopped ignores that the

Supreme Court has only allowed such stops in narrow

circumstances. Namely, when the police have a warrant

to search a house, the detention of individuals found

leaving that house is constitutionally reasonable because of “the nature of the articulable and individualized

suspicion on which the police base the detention of

the occupant of a home subject to a search warrant.”

Summers, 452 U.S. at 703. The impending warrant-authorized search of the home means that the detention, although a meaningful restraint on liberty, “was surely less
No. 10-3656 9

This case seems unusual because, as we noted earlier, 1

Kingsley did not observe the Beretta navigate the road in a

(continued...)

intrusive than the search itself,” id. at 701, and “represents

only an incremental intrusion on personal liberty,” id. at

703. But in this case there was no warrant and the reasoning of Summers can’t be stretched to cover a case

like this which involves, at most, reasonable suspicion.

Moreover, there is also no suggestion that the Beretta

posed any danger to anyone. Unlike the officer in

United States v. Brewer, Sgt. Kingsley didn’t hear or receive

reports of an ongoing danger such as gunshots. 561 F.3d

676, 678 (7th Cir. 2009). In Brewer, as an officer prepared

to respond to a report of a fight at a notorious apartment

complex, he heard something that sounded like gunfire

coming from the complex. Id. at 677. Within minutes, a

dispatcher told him that shots had been fired and as he

drove toward the complex via its only access point a car

passed him going the other direction. Id. On those

facts, very different from this case, we found that “the

case is on the line between reasonable suspicion and

pure hunch” but given the unusual circumstances—the

single access point, the timing of the car’s departure

from the complex related to the shots fired, the lateness

of the hour and lack of traffic, and importantly, the situation’s dangerous nature—we found that reasonable

suspicion justified the stop. Id. at 678. Those are differences that matter. The stop in this case was on the

other side of the line; it was based on a hunch.

1
10 No. 10-3656

(...continued) 1

curious (let alone illegal) manner. Cf. United States v. Burton, 441

F.3d 509, 512-13 (7th Cir. 2006) (drug-house tip, defendant’s

emergence from adjacent house, and position assumed in street

causing cars to swerve was “minimal suspicion” needed for

“a minimal stop”). Kingsley simply stopped a car he knew

nothing about other than its emergence from a suspected

meth cook site. Cf. United States v. Bullock, 632 F.3d 1004, 1013

(7th Cir. 2011) (confirmed tip plus “behavior consistent with

a drug courier or distributor”); United States v. Booker, 579

F.3d 835, 837-39 (7th Cir. 2009) (informant pointed out car);

United States v. Rodriguez, 831 F.2d 162, 165 (7th Cir. 1987)

(reasonable to suspect visitor from Florida came to Indiana to

further drug distribution conspiracy after seeing him meet with

suspected conspiracy members). And a stop resting on the

mere emergence from a suspected drug site violates the prohibition against stops based on nothing more than generalized suspicions. See Johnson, 170 F.3d at 719-20.

In certain circumstances, the Fourth Amendment

permits checkpoint stops as reasonable intrusions on individuals’ rights but only if the police satisfy a balancing test set forth in Mich. Dep’t of State Police v. Sitz,

496 U.S. 444, 450 (1990). But police cannot simply pull

over all vehicles on a certain road in hopes of finding

violators. See City of Indianapolis v. Edmond, 531 U.S. 32, 35-

36, 48 (checkpoint for “the general interest in crime control” violated the Fourth Amendment). Of course, the

government doesn’t justify the stop of Bohman’s Beretta

as a permissible checkpoint. But the purported basis of

the stop—a suspicion about a place and some surprising

behavior a few minutes earlier—would essentially allow
No. 10-3656 11

the government to set up checkpoint stops outside suspected drug production or distribution sites to detect

“ordinary criminal wrongdoing.” Id. at 41.

Perhaps recognizing its shaky position, the government argues in the alternative that even if Kingsley

lacked reasonable suspicion to justify the stop, that

error was merely negligent and did not warrant suppression. The district court characterized Kingsley’s

decision as close and that any error under these circumstances was “no more than negligence” because Kingsley

made “a good faith attempt to” investigate lawfully

under Herring v. United States, 555 U.S. 135, 143 (2009).

2010 WL 3363307, at *7. We don’t doubt Kingsley’s good

faith efforts. But the government doesn’t point to a single

case where the good faith exception applied to a lack of

reasonable suspicion and we don’t think it does. As we

recognized in another context, “removing this sort of

police misconduct from the ambit of the exclusionary

rule would have significant implications: it would eliminate the rule’s deterrent effect on” unreasonable seizures. United States v. Burgard, 675 F.3d 1029, 1035 (7th

Cir. 2012), petition for cert. filed (May 31, 2012) (No. 11-

10613). Contrary than to the district court’s conclusion,

stopping a car just to identify its occupants is deliberate

enough to justify suppression when “there is neither

probable cause to believe nor reasonable suspicion that

the car is being driven contrary to the laws governing

the operation of motor vehicles or that either the car or

any of its occupants is subject to seizure or detention

in connection with the violation of any other applicable

law.” Prouse, 440 U.S. at 650. Although the circum-
12 No. 10-3656

stances may have supported a general suspicion about

the Beretta, because Kingsley lacked that “quantum of

individualized, articulable suspicion,” id. at 662, the

evidence from the stop must be suppressed.

The parties dispute whether Bohman had a sufficient

interest in the cabin area to allow him to seek suppression of the evidence discovered there, see Rakas v. Illinois,

439 U.S. 128 (1978); Alderman v. United States, 394 U.S.

165 (1969), and the extent of the taint that should result

from the stop, see Brown v. Illinois, 422 U.S. 590 (1975);

Wong Sun v. United States, 371 U.S. 471 (1963). The district court did not need to reach these arguments and

the magistrate judge focused the evidentiary hearing on

the stop’s validity. We leave the issues of the sufficiency

of Bohman’s interest in the cabin and the extent of the

taint for the district court to address in the first instance

if Bohman withdraws his guilty plea and seeks to

suppress evidence acquired at the cabin on remand.

We REVERSE the district court’s denial of Bohman’s

motion to suppress and REMAND for further proceedings

consistent with this opinion.

6-28-12