In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1927

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TOMMY WEBSTER,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Indiana, South Bend Division.

No. 3:11-cr-00067-RLM-1— Robert L. Miller, Jr., Judge.

ARGUED SEPTEMBER 9, 2014 — DECIDED JANUARY 5, 2015

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. On May 9, 2012, Tommy Lee

Webster, Jr. was charged in a superseding indictment with five

counts, including: possession with intent to distribute cocaine

in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in

furtherance of a drug trafficking offense, in violation of

18 U.S.C. § 924(c); manufacture of marijuana, in violation of

21 U.S.C. § 841(a)(1); possession with intent to deliver cocaine
2 No. 13-1927

base, in violation of 21 U.S.C. § 841(A)(1); and possession of a

firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). A jury convicted him on all counts, and he was

sentenced to 168 months’ imprisonment followed by three

years of supervised release. Webster now appeals that conviction. 

Webster’s arrest occurred on March 11, 2011, when police

officers went to a residence at 816 Almond Court in South

Bend, Indiana, in response to an anonymous tip. As two

officers proceeded to the front door, a third officer heard a

door close and went to the yard on the side of the house where

he encountered Webster. Webster had $2,296 in cash on his

person at the time, and the officers smelled a strong odor of

marijuana coming from the house and on Webster’s clothing.

Webster produced a driver’s license that indicated he resided

at 816 Almond Court. Two individuals exited the house and

began running from the residence. One fled back inside the

house and ultimately escaped through a second-floor window,

but the other, Frederick Jones, was apprehended. The officers

placed Jones and Webster in the caged back seat of a squad car

while they sought a search warrant for the residence. An

officer, Corporal Hammer, was in the patrol car with them for

approximately 2-1/2 hours before and during the search, and

at some point he employed the internal video camera in the car

to record all conversations in the vehicle. He was absent from

the car for approximately 8 minutes, and during that time

Webster engaged in conversation with Jones and placed

several phone calls which are audible in the recording. The

government subsequently moved to enter that 8-minute

excerpt into evidence, as well as a transcript of that recording
No. 13-1927 3

prepared by Corporal Hammer, Officer Kronewitter, and a

third officer. Defense counsel offered no objection, and the

district court allowed the evidence. Before playing the tape, the

court informed the jury that the recording was evidence but

the transcript was not evidence and that it merely reflected

what a few people believe is on the tape. The jury was further

instructed that in the case of a conflict, they should “go with

what you hear, rather than what you see.”

The search of the residence revealed a marijuana grow

operation, including 50 rooted plants, 38 cuttings, highpressure sodium grow lights on timers, chemicals, and a

computer that displayed the video from surveillance cameras.

In addition, the officers found marijuana in the pocket of a coat

in the first floor closet, and plastic baggies and electronic scales

in the kitchen. Of the three upstairs bedrooms, only one

contained a bed. In that bedroom, the officers found a bag

containing several smaller plastic bags of marijuana next to the

bed, loose marijuana and another container of marijuana near

the bed, and, in the pocket of a coat hanging in the closet, a

plastic bag containing several smaller bags filled with white

and brown powder substances. A loaded shotgun was found

in that bedroom and an unloaded shotgun was found in the

closet. 

Webster challenges his convictions on the drug and

firearms charges on three grounds. He asserts that the district

court erred in allowing the admission into evidence of forensic

laboratory reports as well as a recording of the conversation

involving Webster in the squad car. In addition, he contends

that the evidence was insufficient to support the convictions.

We address these arguments in turn.
4 No. 13-1927

We begin with the challenge to the admission of the

forensic laboratory reports. The suspected drug evidence was

sent to the Indiana State Police laboratory and Kristen

Sturgeon, a forensic scientist, prepared two laboratory reports

identifying the drugs. Although Sturgeon was disclosed as a

potential government expert witness prior to trial, she was

never called to testify during the trial. Instead, the two lab

reports were admitted into evidence during the testimony of

Indiana State Police Trooper Brian Hoffman and South Bend

Police Sergeant Michael Steven Suth. 

The first report was admitted into evidence during the

testimony of Trooper Hoffman. He related his observations of

the marijuana grow operation at the residence in detail and

testified that he transported the plants back to his office and

dried them prior to sending them to the laboratory. The

government then sought to admit Sturgeon’s report attesting

that the evidence contained 816 grams of marijuana. In

response to the request to admit the report into evidence,

Webster’s counsel stated “I think I agreed to this, didn’t I? No

objection.” 

Laterin the trial, Sergeant Suth testified as to the lab results

for the powdered substance found in the residence. Suth was

an evidence technician in the Metro Special Operations Section

of the South Bend Police Department, and at the residence he

was responsible for securing the evidence and subsequently

weighing, field testing, and processing it. He testified that the

evidence was then taken to the Indiana State Police Lab and

examined by Sturgeon, and he identified the lab report

containing the results of the testing. The government then

moved to have the report admitted into evidence, and defense
No. 13-1927 5

counsel stated “[n]o objection.” The court held that the exhibit

was admitted without objection. Suth proceeded to testify as to

the findings in Sturgeon’s lab report identifying the white and

brown powder substances as cocaine and cocaine base. 

Webster now contends that the admission of Sturgeon’s

laboratory reports without her testimony or a stipulation as to

the admissibility violatedthe Sixth Amendment Confrontation

Clause of the Constitution. The government concedes that

Sturgeon’s lab reports were not properly admitted, but argues

that the error does not require reversal. 

As the government acknowledges, we have repeatedly held

that “the government may not introduce forensic laboratory

reports or affidavits reporting the results of forensic tests and

use them as substantive evidence against a defendant unless

the analyst who prepared or certified the report is offered as a

live witness subject to cross-examination.” United States v.

Maxwell, 724 F.3d 724, 726 (7th Cir. 2013); Bullcoming v. New

Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011); United States v.

Moon, 512 F.3d 359, 360-62 (7th Cir. 2008). In failing to call

Sturgeon in the trial, the government ran afoul of that proscription. 

In general, when a defendant fails to object to the admission

of evidence at trial, we review only for plain error. In this case,

it appears that the decision not to object was intentional. When

the government first moved to admit the lab reports into

evidence, defense counsel stated that he thought he had agreed

to it and that he had no objection. He reiterated that he had no

objection when the government moved to admit the remaining

lab report. That affirmative decision to forego an objection
6 No. 13-1927

would normally be considered a waiver rather than a forfeiture. See United States v. Locke, 759 F.3d 760, 763 (7th Cir. 2014)

(“a defendant who affirmatively states ‘I do not object’ or ‘I

withdraw my objection’ has not forfeited the right, but rather

intentionally relinquished or waived the right and cannot ask

for review.”) “‘[W]aiver occurs when a defendant intentionally

relinquishes or abandons a known right, whereas forfeiture

occurs when a defendant simply fails to timely assert his

rights.’” United States v. Pappas, 409 F.3d 828, 829 (7th Cir.

2005), quoting United States v. Harris, 230 F.3d 1054, 1058 (7th

Cir. 2000). A forfeiture generally reflects an oversight, whereas

a waiver encompasses a deliberate decision not to present a

ground for relief. Id. In contrast to forfeited issues that we

review for plain error, we do not review issues that are waived

at all because a valid waiver leaves no error to correct on

appeal. Id. at 830. 

Although the decision not to object appears to be an

intentional decision which would constitute a waiver, the

government did not argue that we should construe it as a

waiver. Instead, the government asserted that we should

review the admission of the evidence for plain error. In arguing

that we should review for plain error, the government has

waived the argument that the objection should be considered

to have been waived. United States v. Murphy, 406 F.3d 857, 860

(7th Cir. 2005)(government “waived waiver” by asserting that

we should apply the plain error standard of review). Accordingly, we will review the challenge under the plain error

standard. 
No. 13-1927 7

Under that standard, we will reverse only if there is error

that is plain, that affects the defendant’s substantial rights, and

that seriously affects the fairness, integrity or public reputation

of judicial proceedings, resulting in a miscarriage of justice.

United States v. Iacona, 728 F.3d 694, 699 (7th Cir. 2013). An

error affects substantial rights if it is prejudicial, “that is, when

it has affected the outcome of the district court proceedings.”

United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014). 

The government contends, correctly, that the error here

could not have affected Webster’s substantial rights, because

Webster never contested that the substances were in fact drugs.

Webster conceded in opening statements, andreferenced again

in closing arguments, that there were drugs found in the home.

Rather than wage a doomed battle as to the nature of the

substances in the home, defense counsel focused on the

argument that Webster was not connected to those drugs or

the residence and that other persons were responsible for the

drug operation. 

The decision by defense counsel has a strategic benefit.

“Hearsay usually is weaker than live testimony, and defendants may prefer the hearsay version rather than making an

objection that would compel the prosecution to produce a

stronger witness.” Moon, 512 F.3d at 361. Where the nature of

the substance cannot realistically be challenged, defense

counsel may well choose to focus the defense on the most

vulnerable areas of the government’s case. Given the extensive

grow operation found in the home, it certainly would have

been reasonable for defense counsel to conclude that it would

be futile to focus an attack on the nature of the substances

found there.
8 No. 13-1927

In Maxwell, 724 F.3d at 724-28, we addressed an analogous

situation. Maxwell was prosecuted for possession with intent

to distribute crack cocaine. Id. at 725. His strategy at trial was

to contest whether he had the intent to distribute, rather than

to challenge the nature of the substance involved. Id. at 727-28.

We held that as there was no question at trial as to the type of

drugs being distributed, the admission of the laboratory report

evidence could not constitute plain error. Id. at 728. The same

outcome is mandated here. There could be no harm to Webster

in this case, because the failure to present the testimony of the

analyst who prepared the report had no impact on his defense,

which did not challenge the existence of the drugs but contested only his connection to them. Nothing in the report

addressed his connection to the drugs. Only the nature of the

substances was presented in the testimony regarding the lab

report, and that was not a contested issue at trial. Accordingly,

the error in the admission of the forensic report evidence does

not require reversal.

Webster next contends that the district court erred in

allowing the consideration of the taped and transcribed

conversation that occurred in the squad car. He asserts that the

recording ofthat conversation violated his Fourth Amendment

right to be free from unreasonable searches and seizures. He

notes that electronic surveillance can constitute a search within

the purview of the Fourth Amendment, and maintains that the

surveillance in this case constituted an unreasonable search.

In order to succeed on this claim, Webster has to establish

that he had a reasonable expectation of privacy in the conversation that took place in the caged portion of the squad car. A

reasonable expectation of privacy exists when the defendant
No. 13-1927 9

manifested a subjective expectation of privacy and society

recognizes that expectation to be reasonable. United States v.

Walton, 763 F.3d 655, 658 (7th Cir. 2014). Therefore, it contains

both a subjective and objective component. We assume for

purposes of the analysis here that Webster in fact manifested

a subjective expectation of privacy, which was evidenced by

his silencing of the conversation when the officer was in the

patrol car, as would be expected from someone seeking to keep

a conversation private. Id. (the subjective prong looks to the

individual’s affirmative steps to conceal and keep private that

which was the subject of the search).

Instead, the insurmountable obstacle to his claim is in the

objective portion of the test—whether the expectation is one

that society accepts as reasonable. Although our circuit has not

yet addressed this question, six circuits have done so over the

last two decades and all have held that there is no objectively

reasonable expectation of privacy in a conversation that occurs

in a squad car. See United States v. Dunbar, 553 F.3d 48, 57 (1st

Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-01 (10th

Cir. 2000); United States v. Clark, 22 F.3d 799, 801-02 (8th Cir.

1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.

1993); United States v. Fridie, 442 Fed. Appx. 839, 841 (4th Cir.

2011)(unpublished); United States v. Carter, 117 F.3d 1418 (5th

Cir. 1997)(unpublished). The reasoning of those courts are

instructive. The Tenth Circuit in Turner based its holding on

the distinct nature of a squad car, which is a place bristling

with electronics in which the practical realities of the situation

should be apparent to occupants. 209 F.3d at 1201. It noted that

in addition to the microphones to a dispatcher, it is increasingly common for squad cars to possess video recording
10 No. 13-1927

devices (and in fact one such device was used to record the

conversation in this case,) and other electronic and recording

devices. Id. Moreover, as a number of circuits have recognized,

the squad car is in essence the mobile office of the patrol

officer, and the back seat is often used as a temporary jail for

housing and transporting arrestees and suspects. Clark, 22 F.3d

at 801-02; McKinnon, 985 F.2d at 527. Given the nature of the

vehicle and the visible presence of electronics capable of

transmitting any internal conversations, the expectation that a

conversation within the vehicle is private is not an expectation

that society would recognize to be reasonable. We agree with

those circuits, and hold that conversations in a squad car such

as the one in this case are not entitled to a reasonable expectation of privacy, and therefore the recording of the conversation

is not a violation of the Fourth Amendment. 

We note that this holding reflects the layout and equipment

of the squad car, and express no opinion as to conversations

that occur in other vehicles. For instance, Webster relied

largely on a district court opinion in United States v. Williams,

15 F. Supp. 3d 821 (N.D. Ill. 2014), in which the court held that

there is a reasonable expectation of privacy in conversations

that take place in a squadrol or patrol wagon. That decision,

however, is inapposite. The Williams court emphasized in its

decision that the squadrol had three compartments including

two separate rear compartments for prisoners that were

physically separated from the front portion of the vehicle in

which the officers rode. Id. at 825. The prisoner compartment

was separated from the front part by a wall and windows with

thick plexiglass through which officers could see but not hear

the prisoners, and there were no electronics visible. Id. In
No. 13-1927 11

finding an objectively reasonable expectation of privacy, the

court distinguished the squadrol from the patrol car with its

electronics and visibility to the public. Id. at 828-30. Therefore,

that case is not helpful to Webster. Because there was no

expectation of privacy in the squad car, the recordings did not

violate Webster’s Fourth Amendment rights. Webster argues

in his reply brief that the transcript of the recording should

have been excluded because the government failed to provide

an adequate foundation for it, but that argument was not

raised in the opening brief and therefore is waived. See United

States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007).

The final challenge presented by Webster is one to the

sufficiency of the evidence. Webster asserts that the government did not produce sufficient evidence to support the

possession charges because there was no evidence that he was

in actual physical possession of the drugs or guns, and the

government failedtodemonstrate that he had exclusive control

of the premises sufficient to support a finding of constructive

possession. He also asserts that there was insufficient evidence

to connect the guns to the drugs, and therefore to support the

conviction for possession in furtherance of drug trafficking. 

Ordinarily, we review a challenge to the sufficiency of the

evidence to determine only whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt, viewing the evidence in the light most

favorable to the government. United States v. Cejas, 761 F.3d

717, 726 (7th Cir. 2014). In this case, however, Webster failed to

file a motion for acquittal under Federal Rule of Criminal

Procedure 29 at the close of evidence or within seven days of

the verdict. Accordingly, we will review under the plain error
12 No. 13-1927

standard, and will reverse only if there is error that is plain,

affects the defendant’s substantial rights, and seriously affects

the fairness, integrity or public reputation of judicial proceedings, effectuating a miscarriage of justice. Iacona, 728 F.3d at

699; United States v. Van Allen, 524 F.3d 814, 819 (7th Cir. 2008). 

The government in this case relied on the theory of constructive possession in which an individual is deemed to

“possess” contraband items without a showing of immediate,

physical control of the objects. United States v. Schmitt, 770 F.3d

524, 534 (7th Cir. 2014). “Constructive possession may be

established by demonstrating that the defendant knowingly

had both the power and the intention to exercise dominion and

control over the object, either directly or through others.”

United States v. Griffin, 684 F.3d 691, 695 (7th Cir. 2012). In

order to succeed under that theory, the government must

demonstrate a nexus between the defendant and the contraband so as to distinguish him from a mere bystander. Id. That

may be established by demonstrating that the defendant had

exclusive control over the property where the contraband was

discovered, which allows the jury to infer the knowledge and

intent to control objects within those premises. Id. In other

cases, it may be established by evidence supporting the

conclusion that the defendant had the ability to exercise

knowing dominion and control over the items in question.

United States v. Brown, 724 F.3d 801, 804 (7th Cir. 2013). Mere

proximity to the contraband is not enough. Id.; United States v.

Reed, 744 F.3d 519, 526 (7th Cir. 2014). “Proximity must be

coupled with other evidence, including connection with an

impermissible item, proof of motive, a gesture implying

control, evasive conduct, or a statement indicating involvement
No. 13-1927 13

in an enterprise in order to sustain a guilty verdict.” Reed, 744

F.3d at 526.

Webster’s argument as to the sufficiency of the evidence is

largely tied to his argument that the conversation in the squad

car was improperly admitted, and although his argument

would likely fail without that evidence, it assuredly fails in

light of our determination that the conversation was properly

presented to the jury. First, substantial evidence tied Webster

to the residence itself, including that he was the residence’s

mortgagee, his driver’s license listed that residence as his

address, and he had a land contract with John Rees, the

mortgagor, who testified that Webster was living at the

residence at the time of the search. In addition, the neighbor

testified that the only person he ever knew to live there was

Webster. The items in the home further tied Webster to the

residence. The majority of the mail in the residence was

addressed to Webster. Furthermore, in the bedroom that

contained the drugs and guns, there was mail addressed to

Webster but no mail in the name of anyone otherthan Webster,

and in Webster’s name the officers found a receipt dated

January 14, 2011, and a bank statement dated February 28,

2011. The lone coat in the closet was sized extra large, which

was consistent with Webster’s size and not the size of the

persons found in and near the residence at the time of the

search. In addition to that evidence tying Webster to the

residence and the bedroom, Webster’s statements in the patrol

car establish a connection to the drugs in the residence. As set

forth in the government brief without contradiction by

Webster, in the recording Webster stated that the police were

searching inside his house, that they were inside “trying to
14 No. 13-1927

search for shit,” that “[i]t was just about to be tooken out next

month when I moved—I got leases wrote up and everything,”

and that the police were “trying to kill my mother fucking

career.” In addition, he indicated that he had tried to conceal

his connection to the residence, stating that “I came out from

the back and said I was working on the van. No they ain’t seen

me coming from the house. Shit they just seen me on the porch,

shit just trying to knock on the door as far as I’m concerned.” 

A jury could interpret those statements as an acknowledgment that the residence was Webster’s, and that he was

operating a drug business from that residence that he was

attempting to conceal from the police. That connection to the

drug businessprovides a motive for the possession of the guns,

whichalong with the evidence that the bedroom was Webster’s

and the proximity of the gun to the drugs, is sufficient to

distinguish him from an innocent bystander and establish the

nexus required for constructive possession. See Schmitt,

770 F.3d at 534 (testimony that the defendant was a drug dealer

and that drugs were found in his home was relevant to provide

a motive for the presence of a firearm for establishing constructive possession). Moreover, the proximity of the firearms to

drugs in the bedroom, particularly where as here the home

also contained an extensive grow operation including a video

surveillance system, provides an adequate basis for the jury to

conclude that the guns were possessed in furtherance of the

drug offense. There is no basis to conclude that there was a

miscarriage of justice under the plain error standard.

Accordingly, the decision of the district court is

AFFIRMED.