In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1173

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDDIE LAMAR CARLISLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 1:08-CR-22—William C. Lee, Judge.

ARGUED JUNE 1, 2010—DECIDED AUGUST 11, 2010

Before BAUER, FLAUM and TINDER, Circuit Judges.

FLAUM, Circuit Judge. On February 18, 2008, Eddie

Lamar Carlisle was arrested at the home of Michael

Chapman during a drug sweep. Two officers caught

Carlisle fleeing from the back of the house while two

other officers entered the front door of the house. Carlisle

was carrying a closed backpack with him. The officers

searched the backpack and found marijuana, crack, a

scale, a spatula, and packaging materials. Carlisle was
2 No. 10-1173

charged with one count of knowingly possessing with

intent to distribute five grams or more but less than fifty

grams of a mixture containing a detectible amount of

cocaine base and one count of possessing with intent to

distribute marijuana. Carlisle moved to suppress the

evidence found in the bag, arguing that the search

violated his Fourth Amendment rights. The district court

held a suppression hearing. At the hearing, Carlisle

claimed that the backpack was not his and that someone

in the house asked him to carry the bag to the garage.

The district court denied the motion to suppress on the

ground that Carlisle did not have standing to raise a

Fourth Amendment challenge to the search of the bag

because he did not have a privacy interest in the bag.

Carlisle pleaded guilty but reserved his right to appeal

the district court’s denial of his motion to suppress.

Because we agree with the district court that Carlisle

did not have a reasonable expectation of privacy in the

bag, we affirm.

I. Background

The series of events that led up to the arrest of

defendant-appellant Eddie Lamar Carlisle began in the

middle of the afternoon of February 18, 2008, when Sergeant Thomas Strausborger of the Fort Wayne Police

Department executed a search warrant several doors

down from Michael Chapman’s residence. While there,

Strausborger observed people coming and going from

Chapman’s residence in a manner that he considered

indicative of a drug operation. Considering the suspicious
No. 10-1173 3

traffic pattern and several tips his office had previously

received, Strausborger contacted Detective Andrew

Irick, who worked with the agency that monitors home

detention detainees, and told Irick about his suspicions.

That evening, Officers Michael Smothermon, Matthew

Snyder, Andrew Irick, and Jeff Halsey went to Chapman’s house to perform an unannounced visit to search

for drugs. Chapman was a home detention detainee

who voluntarily submitted to wearing a tracking device

on his ankle and consented to announced and unannounced searches of his home as part of the home detention program. Because of Chapman’s status as a home

detainee, the officers did not need a search warrant. At

the house, Smothermon and Snyder went to the back

while Irick and Halsey remained in the front. Although

all of the officers were in radio contact, the record

does not precisely reflect how the timeline of what occurred in front of the house lines up with the timeline

of events behind the house. Upon arriving, Irick

knocked on the front door and identified himself as a

police officer. Irick saw a woman peek out and begin

to play with the lock. Officer Halsey looked through a

side window and saw a man, a woman, and a younger

child moving around the living room. Irick and Halsey

heard glass breaking inside the house and then the

woman opened the front door.

At some point between when the officers in front first

knocked and when the officers gained access to the

house through the front door, Carlisle exited through the

back door of the house. Prior to Carlisle exiting the
4 No. 10-1173

house, Officer Smothermon saw someone look out of the

vertical blinds on the side of the house. Then, according

to Officer Smothermon, Carlisle exited the rear of the

house in a nervous manner, paused for a second glancing

around, and began to run toward the alleyway behind

the garage. Carlisle was carrying a backpack with him.

When Carlisle started to run, Officer Smothermon came

out of his hiding position and ordered Carlisle to stop.

Officers Smothermon and Snyder did not know who

Carlisle was and thought he may be Chapman trying

to escape. Smothermon drew his taser and ordered

Carlisle to the ground. Snyder drew his gun. Carlisle

put the bag down and laid down on the ground.

Smothermon handcuffed Carlisle. The officers said that

they handcuffed Carlisle because he was attempting to

flee and because they feared for officer safety due to the

nature of the search of the house. Around the same time

that the officers in front gained access to the house, one

of the two officers in the back of the house radioed the

front door officers to tell them that they apprehended

an individual attempting to flee.

Inside the house, the officers conducted a consent

search. The officers secured the adults in the dining

room area and performed a protective sweep of the

home. Because it was cold outside, the officers took

Carlisle inside. The officers also grabbed the backpack

and brought it into the house. Inside the home, Officer

Snyder asked Carlisle for identification while Officer

Smothermon patted him down to determine whether

he had any weapons, which he did not. Officer Snyder

also searched the bag that Carlisle had been carrying.
No. 10-1173 5

Officer Snyder testified that he could not determine the

contents of the bag without opening it. There is no testimony that Officer Snyder attempted to do a pat-down

of the bag to determine if it contained weapons without

opening it. When Officer Snyder opened the backpack

he saw a clear plastic bag containing a green leafy substance and an off-white substance in the shape of a

cookie, which turned out to be crack. Based on his experience, Officer Snyder recognized the green leafy substance as marijuana. He did not recognize the offwhite substance. Officer Snyder also saw a scale with a

powder residue on it, a spatula, and packaging materials

in the bag. At that time, Officer Snyder read Carlisle

his Miranda rights. According to Officer Snyder, Carlisle

denied knowledge of the contents of the bag. Carlisle

did not claim or deny ownership of the bag at that time.

Carlisle moved to suppress the evidence found in the

bag. At the suppression hearing, Carlisle gave the following testimony concerning his relationship to the bag:

Q: You were taking the bag to the garage?

A: Yes, sir.

Q: Going to throw it away?

A: No. Just asked me to put it there.

Q: They asked you to put it in there?

A: He, he asked me.

Q: Who asked you?

A: Michael Chapman.
6 No. 10-1173

Q: Because it wasn’t your bag, right?

A: No.

Q: It was Chapman’s bag?

A: Yes, sir.

Q: You didn’t know what was it in?

A: No.

The district court denied the motion to suppress the

evidence. First, the district court found that the initial

stop was a proper Terry stop based on reasonable suspicion arising from Carlisle’s exiting the rear of a

house that was being searched in connection with suspected drug activity. Turning to the search of the backpack, the district court found that Carlisle did not have

standing to raise a Fourth Amendment claim regarding

the search because he did not have a reasonable expectation of privacy in the bag. In the alternative, the district

court found that even if Carlisle did have standing,

the search was proper under the Fourth Amendment.

II. Discussion

Carlisle appeals the district court’s findings that the

initial stop was reasonable and that the warrantless

search of the backpack did not violate his Fourth Amendment rights. When reviewing a district court’s denial of

a motion to suppress, we review factual determinations

for clear error and legal questions de novo. United States

v. Ellis, 499 F.3d 686, 688 (7th Cir. 2007). Determinations

of probable cause and reasonable suspicion are normally
No. 10-1173 7

mixed questions of fact and law, but when “what happened?” is not at issue, the ultimate resolution of

whether probable cause or reasonable suspicion existed

is a question of law which we review de novo. United

States v. Burnside, 588 F.3d 511, 516 (7th Cir. 2009).

A. The Initial Stop

Carlisle contends that the officers did not have sufficient reasonable suspicion to stop and detain him

and therefore, this stop violated his Fourth Amendment

rights. If the stop was improper, the fruits of the stop

would also be improper and the contents of the bag

should have been excluded.

Police officers may conduct a brief investigatory stop

of a suspect if they have reasonable suspicion based on

articulable facts that a crime is about to be or has been

committed. United States v. Wimbush, 337 F.3d 947, 949

(7th Cir. 2003) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).

The suspicious conduct may be ambiguous and susceptible to an innocent explanation, but the officers may

detain the individual to resolve such ambiguity. Illinois

v. Wardlow, 528 U.S. 119, 125-26 (2000). Officers may rely

on their experience in evaluating the significance of the

suspect’s conduct. United States v. Baskin, 401 F.3d 788,

791 (7th Cir. 2005). During the stop, the officer may conduct a pat-down search to determine whether the person

is carrying a weapon if the officer has an articulable

suspicion that the subject is armed and dangerous. Terry,

392 U.S. at 24. The protective search permitted without
8 No. 10-1173

a warrant during a Terry stop is “limited to that which

is necessary for the discovery of weapons which might

be used to harm the officer or others nearby.” Minnesota

v. Dickerson, 508 U.S. 366, 373 (1993). The officers may

also detain a bag or luggage from a suspect when they

have reasonable suspicion to believe that the bag contains contraband or evidence of a crime. United States

v. Place, 462 U.S. 696, 708-09 (1983); United States v.

Ward, 144 F.3d 1024, 1030-31 (1998).

We find that the officers had reasonable suspicion to

believe that criminal activity was occurring and that

Carlisle was armed and dangerous, thereby making the

initial stop proper. Officer Smothermon testified at the

suppression hearing that he stopped Carlisle because:

We, um, were there to, um, search the home based

on the tip information that there may be narcotics

that could be going on, and they would be looking

out the blinds and, and, um, this, um, individual

suddenly bursting out the rear of the home attempting

to flee, I felt it prudent to stop and see what he

might be doing. That seemed suspicious to me.

In response to a follow-up question regarding why he

feared for officer safety, Smothermon stated, “I had a

heightened sense of awareness based on the peeking out

of the blinds. The reason that we were there to start

with, and that he, he did it in an urgent manner, try to

flee the residence.” When asked why the officers handcuffed Carlisle once he had stopped, Officer Snyder

responded:
No. 10-1173 9

We were there to do a narcotics investigation due to

tips we have received from the Fort Wayne City

vice narcotics, and, um, basically when you are in

a situation like that with narcotics, um, usually weapons are involved more often than not, so we handcuffed for officer safety and escort them back inside. 

Both officers testified that they did not attempt to

identify Carlisle until they were back inside the house.

The government relies on the following factors to

justify the propriety of the stop: (1) the nature of the

officers’ visit to the house; (2) the person peeking out

from the blinds prior to Carlisle exiting the house;

(3) Carlisle’s attempt to leave the house while a drug

search was occurring; and (4) the nervous manner that

Carlisle left the house, described by Officer Smothermon

as “target glancing” and then running. These factors are

all relevant to our consideration. We have previously

held that the detention of an individual attempting to

enter an area that was currently secured for the purpose

of a narcotics sweep was proper. United States v. Jennings,

544 F.3d 815, 818-19 (7th Cir. 2008). In Jennings, we reasoned, “it was reasonable for the officers to ‘exercise

unquestioned command of the situation’ by detaining

Jennings long enough to ensure that he was unarmed and

uninvolved in criminal activity.” Id. Additionally, the

Supreme Court has held that evasive behavior and

flight are suggestive of wrongdoing and can be factors

considered in a court’s determination of whether an

officer had reasonable suspicion to execute a Terry stop.

Illinois v. Wardlow, 528 U.S. 119, 125-26 (2006). These
10 No. 10-1173

cases, read together, make it unquestionable that an

individual fleeing an area where a narcotics sweep is

taking place gives rise to reasonable suspicion to justify

a Terry stop.

Carlisle does not rest his argument solely on the contention that the initial stop was improper, but rather

argues that the officers’ continuation of the stop was

improper once Carlisle complied with the officers’ order

to get down on the ground. To support this argument,

Carlisle interprets the officers’ testimony to mean that

the only purpose of the stop was to insure that he was not

Chapman attempting to escape. As such, he claims that

the officers should have asked for name and identification and let him go upon learning that he was not Chapman. The government casts the reasonable suspicion in

broader terms. The government suggests that the officers

had a reasonable suspicion that someone in the home

wanted to hide contraband and that anyone leaving

should at least be stopped and asked about what was

happening. The government’s formulation of the reasonable suspicion is consistent with the totality of the

evidence—someone glancing out the window blinds,

Carlisle exiting from the rear of the house while

officers were knocking at the front, Carlisle carrying the

backpack, Carlisle looking from side to side once outside

the door, and Carlisle running towards the only possible

exit from the rear. Under these circumstances, it was

reasonable for the officers to stop Carlisle and detain him

to ask questions to determine why he was leaving the

house with a backpack during a drug sweep. While

handcuffing is not a normal part of a Terry stop, it does not
No. 10-1173 11

automatically turn a Terry stop into an unlawful arrest.

United States v. Smith, 3 F.3d 1088 (7th Cir. 1993). Given the

totality of the circumstances, the officers’ actions in

detaining Carlisle did not violate his Fourth Amendment rights.

B. The Search of the Bag

Carlisle next challenges the search of the bag. After

securing Carlisle and bringing him and the bag into the

home, Officer Snyder opened the backpack and searched

it. Carlisle challenges this as a warrantless search and

argues that the evidence inside the bag should have

been suppressed. The district court rejected this claim

because it found that Carlisle did not have a reasonable

expectation of privacy in the contents of the bag. We agree.

The Supreme Court has consistently held that “Fourth

Amendment rights are personal rights which, like some

other constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Under

Rakas, the Court held that the “standing” issue under

the Fourth Amendment should be addressed through

the substantive Fourth Amendment question of whether

the person challenging the search “had a legitimate

expectation of privacy in the premises he was using

and therefore could claim the protection of the Fourth

Amendment with respect to a governmental invasion

of those premises, even though his ‘interest’ in those

premises might not have been a recognized property

interest at common law.” 439 U.S. at 143. When considering whether an individual has a legitimate expecta-
12 No. 10-1173

tion of privacy, a court must consider: (1) whether the

individual, by his conduct, has exhibited an actual (subjective) expectation of privacy; and (2) whether the individual’s subjective expectation of privacy is one that

society is prepared to recognize as reasonable. Smith v.

Maryland, 442 U.S. 735 (1979) (citing Katz v. United States,

389 U.S. 347 (1967)). In this case, it is the first prong, the

subjective expectation of privacy, that is at issue. Whether

an individual has exhibited a subjective expectation of

privacy is a highly fact-specific inquiry. Several key

cases shed light on where courts have drawn the line

for when an individual has a reasonable expectation of

privacy, and can therefore challenge the search, and

when he does not.

Before we examine the case law in this area, it is important to separate cases of abandonment from cases where

it is ambiguous at the time of the search whether the

individual had a subjective expectation of privacy in the

searched area. Both the government and Carlisle cite

several cases where the defendant abandoned the

property at the time of the search. See United States v.

Rush, 890 F.2d 45 (7th Cir. 1989); United States v. Smith,

3 F.3d 1088 (7th Cir. 1993); Bond v. United States, 77 F.3d

1009 (7th Cir. 1996). In these three cases cited by the

parties, the defendants openly denied ownership of the

property at the time of the search. In all three cases we

found that the defendant’s disavowal of ownership was

sufficient to constitute abandonment. “Abandoned property is not subject to Fourth Amendment protection.”

United States v. Pitts, 322 F.3d 449 (7th Cir. 2003) (citing

Abel v. United States, 362 U.S. 217 (1960)). However, this
No. 10-1173 13

case is not as clear cut as an abandonment case. Officer

Snyder testified that Carlisle did not claim nor deny

ownership of the bag at the time of the search. Therefore,

the abandonment line of cases are inapplicable and we

must answer a more nuanced question: under what

circumstances does a defendant have a subjective privacy interest in a piece of property when ownership

is ambiguous at the time of the search?

Two years after Rakas instructed courts to focus on

whether the defendant had a legitimate privacy interest

in the searched property to resolve questions of standing

under the Fourth Amendment, the Supreme Court issued

two opinions on the same day clarifying the issue. In

Rawlings v. Kentucky, 448 U.S. 98 (1980), the Supreme

Court held that the defendant did not have a legitimate

expectation of privacy in his girlfriend’s purse such that

he could challenge a search of the purse that led to the

discovery of illegal drugs belonging to him. At the time

of the search, Rawlings was sitting next to his girlfriend

on the couch with the purse between them. Rawlings,

448 U.S. at 100-01. Rawlings’s girlfriend had her hand

on the purse. Id. One officer ordered Rawlings to stand.

Id. The other officer ordered Rawlings’s girlfriend to

empty the contents of her purse, which led to the

discovery of the drugs. Id. At the suppression hearing,

Rawlings answered “no” to the questions: “Did you feel

that Vannessa [sic] Cox’s purse would be free from the

intrusion of the officers as you sat there? When you put

the pills in her purse, did you feel that they would be

free from governmental intrusion?” Id. at 104. In finding

that Rawlings did not meet his burden of proving that
14 No. 10-1173

he had a legitimate privacy interest in the purse, the

Court reasoned,

At the time petitioner dumped thousands of dollars

worth of drugs into Cox’s purse, he had known her

for only a few days. According to Cox’s uncontested

testimony, petitioner had never sought or received

access to her purse prior to that sudden bailment.

Nor did petitioner have any right to exclude other

persons from Cox’s purse. In fact, Cox testified that

Bob Stallions, a longtime acquaintance and frequent

companion of Cox’s, had free access to her purse on

the very morning of the arrest and had rummaged

through its contents in search of a hairbrush.

Id. at 105 (internal citations omitted). In United States v.

Salvucci, 448 U.S. 83 (1980), the Supreme Court held that

the defendants did not have an automatic legitimate expectation of privacy in the home of defendant-Zackular’s

mother. The Supreme Court did not reach any determination based on the facts of search, but rather

remanded for a new suppression hearing because “the

respondents relied on automatic standing and did not

attempt to establish that they had a legitimate expectation of privacy in the areas of Zackular’s mother’s home

where the goods were seized.” Id. at 95. What Salvucci

adds to our analysis is a clear statement from the

Supreme Court that the individual seeking suppression

of the evidence bears a burden to prove that he had a

legitimate expectation of privacy in the searched property.

Several years later, in United States v. Peters, 791 F.2d 1270

(7th Cir. 1986) (overruled on other grounds), our circuit
No. 10-1173 15

had occasion to address the issue of when a defendant

has a subjective privacy interest in a piece of property.

The defendant, Peters, contested the admission of

evidence that came from the search of his co-conspirator’s

car. Peters occasionally used the car, had keys to the car,

stored the car in his parents’ driveway, and paid for

repairs to the car. In Peters, we identified the following

factors as key to determining whether an individual has

a legitimate privacy interest in a given piece of property: 

(1) whether the defendant had a possessory [or ownership] interest in the thing seized or the place

searched, (2) whether he had the right to exclude

others from that place, (3) whether he exhibited a

subjective expectation that it would remain free from

governmental invasion, (4) whether he took normal

precautions to maintain his privacy, and (5) whether

he was legitimately on the premises.

791 F.2d at 1281. Based on those factors, we found

that Peters did not have a legitimate expectation of privacy in the car because: (1) Peters was not in possession

of the car at the time of the search nor did he assert

legal ownership of the car; (2) Peters’s testimony at the

suppression hearing did not indicate that he had the

right to exclude others from using the car (he could only

use the car with the owner’s permission, and two or

three other people regularly used the car); (3) none of

Peters’s statements suggested that he believed he could

leave anything in the car and have it remain untouched;

(4) nothing in the record indicated that Peters took

any precautions to assure privacy in the car; and
16 No. 10-1173

(5) Peters was not in or near the car when the search

occurred.

Recently, we addressed this issue again in United States

v. Amaral-Estrada, 509 F.3d 820 (7th Cir. 2007). In AmaralEstrada, the officers saw the defendant and another

male driving the car at issue. 509 F.3d at 822. The defendant and passenger parked the car and walked away

from it. Id. at 823. Several blocks away, one of the

officers stopped the defendant and the passenger. Id. According to the officer’s testimony, the defendant denied

any knowledge of the car, ownership of the car, or ever

having driven the car. Id. Amaral-Estrada testified that

he never denied driving the car, he only denied owning

the car. Id. He testified that Sosa-Verderja, the owner of

the car, lent him the car about a week prior. Id. AmaralEstrada also testified that Sosa-Verderja told him to

drive to a specific Walgreens and go inside, and that

while he was inside the store, someone would come and

put something in the backseat of the car. Id. AmaralEstrada did as he was told and when he came out of the

Walgreens there was a black duffle bag in the back. Id.

The officer took Amaral-Estrada back to the car. Id. The

duffle bag was still in the back. Id. Amaral-Estrada

still denied a connection with the car or the duffle bag.

Id. The officer used the keys obtained from AmaralEstrada to open the car and search the bag. Id. at 824. The

bag contained about $254,947.00. Id. We found that

Amaral-Estrada failed to manifest any actual or subjective expectation of privacy in the car because, based

on his own testimony, he expected others to enter the

car to leave or remove items. Id. at 827-28. Although we
No. 10-1173 17

did not decide this case on abandonment grounds, we

also relied on the fact that Amaral-Estrada told the

officers he did not know anything about the car.

None of the cases cited by the parties are factually

identical to the case at hand, but when read together,

they provide sufficient guidance to consider Carlisle’s

claim within the Peters’s framework. As noted above,

Peters points the Court’s attention to five key factors:

(1) whether the defendant had a possessory [or ownership] interest in the thing seized or the place searched;

(2) the right to exclude others from that place; (3) exhibited a subjective expectation that it would remain free

from governmental invasion; (4) took normal precautions

to maintain his privacy; and (5) was legitimately on the

premises. The government argues that, because Carlisle

denied ownership of the bag, denied knowledge of the

contents, identified the owner of the bag as someone

else, and described only fleeting contact with the bag

in moving it at the owner’s direction, he cannot possibly

meet the five factors laid out in Peters.

While we ultimately agree with the government’s

position, this case is closer to the line than it appears at

first glance. Although Carlisle disclaimed ownership of

the bag, there is no dispute that Carlisle was legitimately in possession of the property. This distinguishes

Carlisle’s situation from that of Rawlings, where Cox

was in possession of the purse at the time of the search,

and Peters, who was not near the car at the time of the

search. Carlisle also indicated that he intended to

maintain privacy in the bag by holding onto it as he
18 No. 10-1173

left the house and by keeping it closed. The issue of

exclusivity is murkier. From the testimony, it appears

that at the time he was in possession of the bag, he had the

right to exclude all others from the bag except Chapman.

This factor distinguishes this case from Amaral-Estrada,

where Amaral-Estrada expected others to take things

from and leave things in the car while he was entrusted

with it. What makes it questionable that Carlisle had

exclusive control is the appellant’s own testimony that

he did not know what was in the bag or who was

using the bag immediately prior to his taking it. This

testimony strongly cuts against any claim of exclusive control and makes Carlisle’s situation similar to

Rawlings’s situation where he lacked control over who

had access to the searched property prior to the search.

What pushes this case fully over the line is the complete lack of testimony that Carlisle had any subjective

expectation that the bag would remain free from governmental invasion. Carlisle bears the burden of proving

that he had a subjective privacy interest in the bag sufficient to challenge the search. See Salvucci, 448 U.S. 83.

The record lacks any evidence of this subjective expectation and Carlisle’s testimony cuts against a finding of

any subjective expectation of privacy in the bag since

he disclaimed ownership or even knowledge of its contents. Therefore, we find that Carlisle did not have a

reasonable expectation of privacy in the backpack sufficient to allow him to challenge the search. Because

Carlisle cannot validly assert a Fourth Amendment challenge to the search of the backpack, we do not reach

the merits of whether the search was proper.
No. 10-1173 19

III. Conclusion

For the reasons set forth above, we AFFIRM the

district court’s denial of the motion to suppress.

8-11-10