In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4613

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN BIGGS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 316—Suzanne B. Conlon, Judge.

____________

ARGUED MARCH 27, 2007—DECIDED JUNE 14, 2007

____________

Before MANION, KANNE, and WOOD, Circuit Judges.

MANION, Circuit Judge. A jury convicted Calvin Biggs

of possession with intent to distribute crack cocaine and

possession of a firearm as a convicted felon. The district

court sentenced Biggs to 360 months of imprisonment.

Biggs appeals, claiming that the drugs and guns at issue

should have been suppressed because he was arrested

without probable cause and because his subsequent

consent to search was involuntary. He also challenges

the jury’s viewing of an exhibit during deliberations and

the reasonableness of his sentence. We affirm Biggs’s

convictions and sentence.
2 No. 05-4613

I.

On the night of April 13, 2004, officers from the Chicago

Police Department arrested Calvin Biggs. The parties

present conflicting versions of what happened that night.

We begin with the government’s version, which a magistrate judge found to be credible and which the district

court adopted. According to Officer Patrick Thelan,

who testified at an evidentiary hearing, an anonymous

source informed him that a heavyset black man in a creamcolored sweater was selling drugs at a particular intersection. Within twenty minutes of receiving this information, Officer Thelan and his partner Sergeant Michael

Stack drove by the intersection in an unmarked police

vehicle and observed a man on the corner fitting the

description provided by the tipster. The officers drove

around the block to a vacant lot from where they could

observe the man without being seen. From a distance of

approximately fifty to seventy-five feet, both officers

watched with binoculars. Over the course of about fifteen

minutes, the man received currency from three different

individuals and handed each something from the rear

of his pants. The officers left their vantage point after

the third suspected drug transaction, returned to their

vehicle, drove back around the block, and parked the

vehicle to approach Biggs. Biggs fled when he saw the

officers approach. The officers pursued him into a nearby

basement apartment. As Biggs entered the apartment, the

officers saw him remove a plastic bag from his pants and

throw it to the floor. Sergeant Stack recovered the bag,

which subsequent testing revealed contained 2.3 grams

of crack cocaine, and placed Biggs under arrest.

The officers escorted Biggs to their vehicle and alerted

him to his rights under Miranda v. Arizona, 384 U.S. 436
No. 05-4613 3

(1966). Biggs then told the officers that he could not go back

to jail because he had to take care of his daughter. Biggs

offered to get the officers some guns in exchange for his

release. The officers responded to Biggs’s offer with

questions about the guns, asking their type and location

and whether any dogs were at the location. The officers

never told Biggs that they would release him in exchange

for the guns; instead, they continued to ask questions. They

drove Biggs to a parking lot of an abandoned candy

factory, where at least two other officers were present.

Approximately twenty-five minutes after the officers took

Biggs into custody, he signed a consent to search form

for the first floor of 4844 W. Huron, the place where Biggs

said the guns were stored. Another officer arrived to

transport Biggs to jail for booking. Biggs informed that

officer of his belief that he should be released because he

gave up some guns, but that officer simply confirmed

that the guns were Biggs’s own weapons. Officer Thelan

and the other officers then drove about two miles to the

residence, where they recovered two guns and a bag

containing what testing later determined to be 110.3 grams

of crack cocaine.

Biggs’s account of the evening’s events differs substantially. He testified, along with three other witnesses,

to the following version. Two women from the neighborhood were walking around the block and talking that

night. They saw Biggs enter a basement apartment. Biggs

had gone to the apartment to visit a sick friend, Arthur

Weems, who subsequently died. Another man, Emrick

Burks, was also present inside the apartment. The women

were still on the block a little while later when an officer

approached them and ordered them to empty their pockets and shake out their bras. While this encounter trans-
4 No. 05-4613

pired, Biggs exited the basement apartment. The officer

then shifted his focus away from the women and went to

the basement apartment. The officer met Biggs at the

door as he was leaving and pushed him back into the

apartment. The officer’s partner then ran by the women,

asked where his partner went, and was directed to the

basement apartment, which he also entered.

Biggs and Burks then testified that the officers ordered

them and Weems to the ground, handcuffed them, and

searched the apartment. Six other officers entered the

apartment during the search, but four of them left after

learning that the situation was under control. The search

turned up the 2.3 grams of crack cocaine. The officers

then escorted Biggs to their vehicle and told Biggs that

this amount of drugs was negligible, and allegedly promised to make the drugs disappear if Biggs would provide them with a gun. The officers drove Biggs to the

abandoned candy factory parking lot where Biggs negotiated with the four officers for approximately fifteen

minutes. The officers allegedly threatened to get a search

warrant for the residence and arrest everyone in the

house, including his mother and girlfriend, if Biggs did

not consent to the search. Biggs then signed the consent

to search form without reading it. Much to his surprise,

he was not released, but was instead taken to jail.

A grand jury indicted Biggs for possession with intent to

distribute crack cocaine and possession of two firearms

as a convicted felon. See 21 U.S.C. § 841(a)(1); 18 U.S.C.

§ 922(g)(1). Biggs moved to suppress the evidence of the

guns and drugs and to quash his arrest. He based his

claim on a lack of probable cause and on an involuntary

consent to search. After an evidentiary hearing, a magistrate judge found that Biggs’s version of events lacked
No. 05-4613 5

credibility and denied the motions in a written recommendation that the district court accepted and adopted.

Biggs proceeded to trial. During deliberations, the jury

requested to view the 2.3 grams of cocaine that had been

found at the apartment. Biggs objected to the viewing. The

court overruled the objection and returned the jury to the

jury box. There she permitted the jurors to examine the

drugs by having the exhibit passed among the jurors. The

jury subsequently convicted Biggs on both counts and the

district court sentenced him to 360 months of imprisonment. Biggs appeals both his convictions and sentence.

II.

On appeal, Biggs first argues that the officers lacked

probable cause or reasonable suspicion for the initial

confrontation and arrest at the apartment. Based on that,

he claims the district court should have suppressed the

evidence gleaned from this encounter. In considering

whether evidence should be suppressed, we review the

district court’s legal conclusions de novo and factual

findings for clear error. United States v. Breland, 356 F.3d

787, 791 (7th Cir. 2004) (citation omitted). To determine if

the circumstances warrant suppression, we must examine the validity of the arrest. To arrest Biggs without

a warrant, the officers “ ‘must have probable cause, under

the totality of the circumstances, to reasonably believe

that a particular individual has committed a crime.’ ”

United States v. Oliva, 385 F.3d 1111, 1114 (7th Cir. 2004)

(quoting United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir.

1995)). “In order to have probable cause for an arrest,

law enforcement agents must reasonably believe, in light

of the facts and circumstances within their knowledge at

the time of the arrest, that the suspect had committed
6 No. 05-4613

or was committing an offense.” Payne v. Pauley, 337 F.3d

767, 776 (7th Cir. 2003) (citation omitted).

The magistrate judge, in findings that were accepted

and adopted by the district court over Biggs’s objections,

found Officer Thelan’s testimony credible. According to

Officer Thelan’s version of events, the officers received

an anonymous tip describing a man who was selling

drugs at a particular intersection. The officers corroborated

this tip when they saw a man matching the informant’s

description engage in three suspected drug transactions.

When the officers approached him he fled to a nearby

apartment dwelling. They caught him and arrested him.

Under this scenario, the officers had probable cause for

the arrest. See United States v. Schaafsma, 318 F.3d 718, 722

(7th Cir. 2003) (finding that a statement implicating the

defendant, his presence at a crime scene, and his flight is

sufficient for probable cause).

Biggs responds that crediting Thelan’s testimony was

clear error. We generally defer to the district court’s

determination of credibility because, unlike our review

of transcripts, the district court “had the opportunity to

listen to testimony and observe the demeanor of witnesses

at the suppression hearing.” United States v. Parker, 469 F.3d

1074, 1077 (7th Cir. 2006) (citation omitted). Since the

district court adopted the credibility determinations of the

magistrate judge, we review the magistrate judge’s findings for clear error. United States v. Gillaum, 372 F.3d 848,

854 (7th Cir. 2004) (“This deference is equally applicable

where credibility determinations have been made by a

magistrate judge and the report and recommendation of

the magistrate judge have been adopted by the district

court.”). Although we review for clear error, determinations of witness credibility “ ‘can virtually never be clear
No. 05-4613 7

1 The “virtually never” language originates in a Supreme Court

decision which stated, “a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence[;] that

finding, if not internally inconsistent, can virtually never be

clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575-76

(1985) (citations omitted).

2 Biggs himself conflated these terms, testifying at the evidentiary hearing that “[t]hey handcuffed all of us and told us to

get on the ground—I mean on—on the floor.”

error.’ ” United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.

2005) (quoting United States v. Blalock, 321 F.3d 686, 690

(7th Cir. 2003) (internal quotation marks and citation

omitted)).1

Biggs argues that because Officer Thelan’s testimony is

improbable, the district court clearly erred by adopting

the magistrate judge’s credibility determination. Specifically, Biggs claims that Officer Thelan’s testimony should

be discredited because there were no video or audio

recordings of the events, because no federal officers

were involved in the arrest, and because the purported

drug buyers and confidential informant remained unidentified and unavailable to testify. Biggs also points to

discrepancies in Officer Thelan’s testimony, including

whether he identified Biggs as matching the informant’s

description when he drove by the intersection or during

surveillance, and whether Biggs threw the drugs to the

“ground” or the “floor.2

” He also questioned why Officer

Thelan could recall that the lights were on in the apartment, but not whether anyone else was present in the

apartment. Finally, Biggs notes that although Officer
8 No. 05-4613

Thelan stated that Biggs was wearing a cream-colored

sweater, his booking photograph depicts him in a green

and white jersey. Biggs’s counsel explored each of

these issues during the evidentiary hearing before the

magistrate judge. The magistrate judge thoroughly evaluated the testimony, concluding that “[o]n balance” Officer

Thelan’s testimony was more credible than the version of

events presented by Biggs, the two women, and the other

man in the apartment. Elaborating on their demeanor,

the magistrate judge explained that Biggs’s witnesses

exhibited a “tone of voice and body language suggest[ing]

that they were either making things up, trying to remember

the right thing to say, or trying to avoid saying the wrong

thing.” The magistrate judge also noted that Biggs’s

witnesses were “inconsistent amongst themselves in

significant respects” and found cause for bias in their

testimony. Given the divergent versions presented by

the government and the defense, which version to believe is purely a credibility determination. We find no

clear error in the crediting of Officer Thelan’s testimony

which, contrary to Biggs’s assertions, is not implausible. See

United States v. Pedroza, 269 F.3d 821, 825-26 (7th Cir. 2001)

(“As there is nothing physically impossible or otherwise disqualifying about these [credibility] findings and

determinations, we reject those arguments [challenging

the magistrate judge’s credibility determination].”) Once

this testimony is deemed credible, Officer Thelan’s observations provided a basis for both probable cause and

reasonable suspicion. Schaafsma, 318 F.3d at 722. Accordingly, the arrest was valid and there is no cause for suppression of the evidence seized pursuant to the arrest.

Biggs next argues that the guns and the drugs found

at 4844 W. Huron should have been suppressed as evi-
No. 05-4613 9

dence because he did not voluntarily consent to the

search. Although there was no warrant to search Biggs’s

home, a warrantless search is constitutional under the

Fourth Amendment if Biggs consented voluntarily. United

States v. Grap, 403 F.3d 439, 443 (7th Cir. 2005). To evaluate voluntariness, we look to the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).

In particular, “[w]e consider the following criteria: (1) the

age, education and intelligence of the defendant;

(2) whether [defendant] was advised of his constitutional

rights; (3) the length of detention prior to consent;

(4) whether [defendant] consented immediately or police

made repeated requests for consent; (5) whether physical

coercion was used; (6) whether [defendant] was in custody.” United States v. Strache, 202 F.3d 980, 985 (7th Cir.

2000) (citation omitted). The district court adopted the

magistrate judge’s conclusion that Biggs’s consent was

voluntary. We review “only for clear error” this factual

question of whether Biggs “freely and voluntarily consented.” Pedroza, 269 F.3d at 829 (citing United States v.

Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001)).

The magistrate judge’s opinion considered each of the

above factors. The judge found that “the testimony presented at the hearing shows that Mr. Biggs is an articulate

adult with a tenth or eleventh grade education, a substantial employment history, and an intimate familiarity

with the criminal justice system.” The officers advised

Biggs of his constitutional rights with Miranda warnings.

Although Biggs was in custody, and about four officers

were present, Biggs signed a form consenting to the search

within, as the magistrate judge found, “at most” twentyfive minutes of being arrested, handcuffed, and seated

in a police vehicle. Furthermore, there is no evidence of
10 No. 05-4613

physical coercion. Biggs testified that the officers yelled at

him and threatened to arrest others at his residence, but

the magistrate judge did not credit this testimony in his

opinion. Although choosing an abandoned candy factory

parking lot as a location for signing a consent form may

be a bit odd, the location was within two miles of his

residence and roughly at some point between the basement

apartment where he was arrested and the residence

where the guns and drugs were found. Under these

circumstances, we conclude that the district court did not

commit clear error in adopting the magistrate judge’s

finding that Biggs voluntarily consented. Cf. Strache, 202

F.3d at 982 & 985-86 (finding voluntary consent when a

defendant was awakened, handcuffed, held in custody

for twenty minutes with five officers present, and not

given Miranda warnings).

Biggs further claims that he did not voluntarily consent because he consented only after the officers allegedly

promised to release him if he provided them with guns. As

the magistrate judge found, however, Biggs himself first

proposed the guns-for-freedom deal to the officers after

receiving Miranda warnings. The officers never affirmatively accepted the offer, and only responded with questions relating to the guns and their location. Under the

version of events credited by the magistrate judge and

district court, in which we again find no clear error,

this was not improper. The officers’ questions may have

misled Biggs into thinking that the officers were at least

interested in accepting his offer, but neither their questions nor Biggs’s misunderstanding rendered his consent involuntary. See United States v. Rutledge, 900 F.2d

1127, 1130 (7th Cir. 1990) (noting that officers “are allowed

to play on a suspect’s ignorance, his anxieties, his fears,
No. 05-4613 11

and his uncertainties; they are just not allowed to magnify

those . . . to the point where rational decision becomes

impossible.”). The officers in this case did not lie and

never affirmatively stated that Biggs would be released

upon the recovery of the weapons. They did not caution

him about his possible misunderstanding, but the officers

are not “fiduciar[ies] of the suspect.” Id. Furthermore,

the form that Biggs signed also stated on the line immediately above his signature that he had not “received any

threats, promises, or duress of any kind.” Therefore, in the

totality of the circumstances, Biggs’s mistaken belief that

he would be released if he turned over guns does not

render his consent involuntary; the district court did not

commit clear error in determining that Biggs voluntarily

consented to the search.

Biggs next argues that the jury’s handling of the crack

cocaine exhibit during deliberations prejudiced the verdict. The jury initiated this viewing by sending a note to

the court that read, “[a]re we allowed to look at the 2.3

grams of cocaine (exhibit 13)?” The district court judge

convened the parties to discuss the request. The district

judge noted that the particular exhibit had not been

passed to the jury during trial, apparently due to inadvertence.

“We afford the district court considerable discretion in

the handling of exhibits during the course of a trial as

well as during jury deliberations. We review the district

court’s handling of the exhibits for a clear abuse of discretion.” United States v. Arroyo, 406 F.3d 881, 886 (7th Cir.

2005) (internal citations omitted). In this case, we find no

error in the decision to permit the jury, following their

request, to view the cocaine exhibit during deliberations.

The government had referred to the exhibit during clos-
12 No. 05-4613

ing arguments, emphasizing that the packaging of the

drugs recovered at the apartment and the drugs recovered

at the residence was identical, and therefore suggested

that Biggs possessed both stashes of drugs. Since the

admitted exhibit was not passed among the jurors during

trial, and since they requested to see the exhibit during

deliberations, and since the government referred to the

exhibit in its argument, it was reasonable and no abuse of

discretion for the district court to fulfill the jurors’ request.

Biggs suggests that the district court should have instructed the jury not to place undue emphasis on the

exhibit, but counsel never requested such an instruction

from the district court. Accordingly, he has forfeited this

request for a cautionary instruction and fails to demonstrate prejudice from its omission. See Montes v. Jenkins,

626 F.2d 584, 588 (7th Cir. 1980) (noting that a defendant’s

“failure to request [a cautionary instruction] means he

must demonstrate, at the least, that he was prejudiced by

the absence of a cautionary instruction.”).

Biggs further objects to the manner in which the jury

viewed the exhibit and handled it as they passed it around

in the courtroom. Biggs argues that if the exhibit had

been sent into the jury room, the circumstances would

have placed less emphasis on the exhibit. Before the district court, however, Biggs explicitly waived an objection

to the manner of presenting the evidence to the jury in

the courtroom. When asked by the court whether he

“object[ed] to bringing the jury back into the courtroom to

pass that around,” Biggs’s counsel responded that

“[w]ithout waiving my initial objection [ ] of it not going on

at all, if we’re going to do it, I think that probably is the

best way to do it.” Accordingly, any objection to the

manner of the presentation of the contraband to the
No. 05-4613 13

jury has been waived. United States v. Redditt, 381 F.3d

597, 602 (7th Cir. 2004).

We turn at last to the sentencing issues that Biggs raises.

Biggs first argues that the rebuttable presumption of

reasonableness applied in this circuit is a violation of

United States v. Booker, 543 U.S. 220 (2005). He concedes

that the issue is foreclosed by circuit precedent, noting

that he raises this issue only to preserve it for further

review. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). His issue is preserved, but we adhere to the

holding in Mykytiuk.

Biggs next argues that his sentence is unreasonable. Biggs

qualifies as a career offender under United States Sentencing Guidelines Manual § 4B1.1, making his advisory

sentencing guideline range, which he does not contest, 360

months to life imprisonment. The district court sentenced him to 360 months of imprisonment on each

count, to run concurrently, which was the bottom of the

advisory guideline range. The statutory minimum for

Biggs’s offense was twenty years of imprisonment. 21

U.S.C. § 841(b). Biggs argues on appeal that a sentence at

the statutory minimum of 240 months would better

meet the guidelines’s requirement that the sentencing

court craft a sentence “sufficient, but not greater than

necessary” to comply with 18 U.S.C. § 3553(a)(2). In

particular, he argues that a lower sentence is warranted

because of the small amount of cocaine recovered during

the initial stop and the fact that he would not be released

until approximately age 63, which he argues makes him

less of a danger to the public. Biggs also claims that his

sentence is disproportionately long compared to those

others received for career offender drug trafficking convictions, although he fails to take into account distinguish-
14 No. 05-4613

ing facts of his case, such as his decision to proceed to

trial, thereby losing a reduction in his base offense level

for accepting responsibility.

As we have previously noted, “[t]his Court’s role is not

to choose between possible sentences but rather to review the reasonableness of the sentence imposed by the

district court.” United States v. Jung, 473 F.3d 837, 845 (7th

Cir. 2007) (citation omitted). In arriving at the sentence,

the district court examined Biggs’s arguments, reviewed

letters submitted by his family and supporters, considered

the nature of the offense, and emphasized Biggs’s recidivism. The district judge appropriately weighed and

articulated the relevant factors in choosing a sentence.

Given the nature of the offense and Biggs’s significant

criminal history, a sentence at the bottom of the guideline range is not greater than necessary. In sum, we find

Biggs’s sentence to be reasonable.

III.

We conclude that the magistrate judge’s credibility

findings, as accepted and adopted by the district court,

were not clearly erroneous. This credited version of the

facts entails that probable cause existed for Biggs’s arrest

and that he voluntarily consented to the search of his

residence, making suppression of the evidence recovered

in the arrest and search unwarranted. At trial, the district court did not abuse its discretion in permitting the

jury to view an exhibit of crack cocaine during deliberations. Finally, we conclude that Biggs’s sentence was

reasonable. Accordingly, we AFFIRM both Biggs’s convictions and sentence.
No. 05-4613 15

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-14-07