In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1818

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEITH ABDUL JENNINGS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06 CR 71—Robert L. Miller, Jr., Chief Judge.

ARGUED NOVEMBER 13, 2007—DECIDED SEPTEMBER 15, 2008

Before COFFEY, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Moments before heavily armed

police began to execute a nighttime search warrant at an

apartment in South Bend, Indiana, Keith Jennings drove

his car into a parking spot next to the targeted apartment.

This area was inside the security perimeter that police

had established for the search, so two officers boxed him

in with their cars and approached with guns drawn. In

plain view through Jennings’s window, the officers saw a
2 No. 07-1818

plastic bag containing what turned out to be 13 grams

of crack cocaine.

Jennings was charged with possessing the crack with

intent to distribute, see 21 U.S.C. § 841(a)(1), and he

moved to suppress the drugs on the ground that he was

detained without reasonable suspicion. The district court

denied that motion, and a jury found him guilty. The

court sentenced him to 360 months after concluding that

two of his prior convictions—one for a drug-trafficking

crime and the other for resisting a law enforcement

officer—qualified him as a career offender. See U.S.S.G.

§ 4B1.1(a). On appeal Jennings challenges the suppression

ruling and his sentence. We affirm.

I. Background

Several South Bend police officers testified at the suppression hearing and described the events leading up

to Jennings’s arrest. Sergeant Tim Medich testified that

on May 3, 2006, he applied for a warrant to search an

apartment located at 428 South 27th Street in South Bend.

In his supporting affidavit, Medich related that within

the previous 48 hours an informant bought cocaine at

the apartment. A state judge issued a warrant for the

premises, a one-story duplex at the end of a cul-de-sac.

Lieutenant David Ryans described the area around the

targeted apartment. He testified that 27th Street runs

south about 200 to 300 feet from its intersection with

Jefferson Street and dead-ends in the cul-de-sac, which

serves as a parking area because the surrounding apart-
No. 07-1818 3

ments have no driveways or off-street parking. The

apartment to be searched has ground-level entrances in

the front and back, and the front door is on the north

side, closest to the cul-de-sac.

Lieutenant David Ryans testified that before the search

officers had set up a security perimeter around the targeted

apartment to secure the front, rear, and sides of the building. The purpose of a security perimeter is to protect the

safety of the officers and innocent bystanders while a

warrant is being executed. Ryans testified that the scope

of a security perimeter at a search scene varies, but he

said that it typically covers the outer 25- to 50-foot radius

of the building to be searched.

Officer Charles Flanagan testified that on the night of the

search, he was assigned to “eyeball” the 27th Street apartment while a SWAT team was briefed at the station. The

SWAT team planned to enter the apartment through the

back door. Because they would be armed with highpowered rifles that could penetrate walls or windows, it

was Flanagan’s responsibility to inform them if there

were any bystanders around the front of the building

before the search began. Around 8:30 or 8:45 p.m.,

Flanagan went to 27th Street in an unmarked car and

positioned himself on the street just short of the cul-de-sac

where he could watch the front of the apartment. Although

there were quite a few cars parked in the cul-de-sac, there

was no traffic on 27th Street. At about 9:30 p.m., just before

the search began, Sergeant John Mortakis arrived with

several other officers in an unmarked van. Mortakis

parked his van directly behind Flanagan’s car.
4 No. 07-1818

Officer Flanagan and Sergeant Mortakis described what

happened next. About 30 seconds before the search began,

the SWAT-team commander radioed Flanagan, who

confirmed that all was clear. To Flanagan’s surprise, just

after he gave the all clear, Jennings drove up from Jefferson

Street in a white Cadillac, passed Mortakis’s van and

Flanagan’s car, and parked within the security perimeter,

about 35 to 50 feet away from the targeted apartment.

Another car was parked in the space closest to the apartment, but Jennings parked the Cadillac in the next-closest

space. Mortakis immediately pulled his van directly

behind the Cadillac, blocking it from leaving. Flanagan

saw the Cadillac’s reverse lights come on, so he drove

his car between Mortakis’s van and the Cadillac, right

against the Cadillac’s bumper, to make sure it could not

leave.

Several officers then approached the Cadillac with their

guns drawn, yelling for its occupants to show their

hands. The passenger complied immediately, but the

officers saw Jennings making furtive movements with his

hands. As they approached with flashlights, the officers

saw Jennings put a plastic bag containing crack under

the center armrest before putting his hands in the air.

Sergeant Mortakis explained at the suppression hearing

that he blocked the Cadillac because it had entered the

security perimeter surrounding the scene of the search.

Other officers confirmed that it was police policy to stop

anyone who enters the security perimeter during an

ongoing narcotics search because the execution of a drugrelated search warrant creates special dangers for the

public and for the officers conducting the search.
No. 07-1818 5

The district court denied Jennings’s motion to suppress.

The court concluded that even in the absence of reasonable

suspicion, the police “may detain—briefly, and with no

more than reasonable force—those whose presence adjacent to the scene of a search poses a potential significant

risk to the officers.” The court held that the safety risks

posed by Jennings’s breach of the security perimeter

justified a brief stop.

II. Analysis

A. The Suppression Ruling

In challenging the district court’s suppression ruling,

Jennings first argues that the search warrant did not

authorize the officers to search him or his car. But the

government has never argued that it did; instead, the

government has always contended that the officers were

justified in detaining Jennings to ensure his and their

safety during the search, and that once he was detained,

the police saw the bag of crack in plain view. Jennings

also argues that the detention violated the Fourth Amendment because the officers had no reason to suspect that

he or his passenger were involved in criminal activity.

We review findings of fact on a motion to suppress for

clear error; a determination that a seizure was reasonable is reviewed de novo. See United States v. SandovalVasquez, 435 F.3d 739, 742 (7th Cir. 2006).

The Fourth Amendment requires searches and seizures

to be reasonable, Illinois v. McArthur, 531 U.S. 326, 330

(2001), and the Supreme Court has held that this require-
6 No. 07-1818

ment authorizes officers executing a search warrant to

“take reasonable action to secure the premises and to

ensure their own safety and the efficacy of the search.” Los

Angeles County, Cal. v. Rettele, 127 S. Ct. 1989, 1992-93

(2007); see also Michigan v. Summers, 452 U.S. 692, 702-03

(1981). Accordingly, officers executing a search warrant

have categorical authority to detain any occupant of the

subject premises during the search. See Muehler v. Mena,

544 U.S. 93, 98 (2005); Summers, 452 U.S. at 705. This

authority exists in part because the probable cause underlying a warrant to search a premises gives police reason

to suspect that its occupants are involved in criminal

activity, and also because the officers have a legitimate

interest in minimizing the risk of violence that may erupt

when an occupant realizes that a search is underway.

See Summers, 452 U.S. at 702-03.

Other circuits have held that the rule of Summers also

permits police to detain people who approach a premises

where a search is in progress. For example, in United

States v. Bohannon, the Sixth Circuit upheld as reasonable

the detention of a man who drove into the driveway of a

suspected methamphetamine lab while a search was

underway. 225 F.3d 615, 616 (6th Cir. 2000). The man got

out of his car and walked toward the residence, and the

court held that detaining him was reasonably necessary

to protect the officers conducting the search, and that

the man’s arrival at a residence that housed a drug lab

made it reasonable for the officers to suspect that he

too was involved in criminal activity. Id. at 617. Similarly,

in Baker v. Monroe Township, the Third Circuit held that

it was reasonable for officers to detain dinner guests
No. 07-1818 7

who knocked on the door of a house where the police

were conducting a search. 50 F.3d 1186, 1188-89 (3d Cir.

1995). Because the officers knew that drug customers

regularly came and went from the house, the court concluded that it was reasonable for the police to stop and

ascertain the identity of anyone approaching it during

the search. Id. at 1191-92.

It is a logical extension of the rule of Summers and

the reasoning in Bohannon and Baker to hold here that it

was reasonable for the officers to briefly detain Jennings

after he entered the security perimeter surrounding the

apartment where the narcotics search was underway.

Although Jennings never stepped onto the property being

searched, he entered the officers’ security perimeter just

as a SWAT team armed with high-powered rifles entered

the apartment from the rear. His arrival took the officers

by surprise, and given the elevated risk of violence during

a search for narcotics, they were reasonably concerned

for their own and for Jennings’s safety, as well as for any

activity that might compromise the search. Had it become

necessary for the officers to apprehend anyone trying to

escape through the front door of the apartment, Jennings

and his passenger would have been in their path. Under

these circumstances, 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. Summers,

452 U.S. at 702-03.

The Fourth Amendment’s reasonableness requirement

strikes a balance between an individual’s interest in being
8 No. 07-1818

left alone and the public’s interest in community safety,

crime control, and the safety of law enforcement officers

engaged in the work of protecting the public and investigating crime. See McArthur, 531 U.S. at 331; United States

v. Burton, 441 F.3d 509, 511-12 (7th Cir. 2006). Here, the

officers’ interest in maintaining control inside their

security perimeter until the SWAT team secured the

targeted apartment for the search far outweighed

Jennings’s interest in being left alone for the few

moments that he was detained. Seconds passed between

the moment the officers blocked in the Cadillac and the

moment they saw the bag of crack in plain view through

Jennings’s window, giving them probable cause for arrest.

In light of the limited nature of the intrusion and the

officers’ compelling need to maintain control within the

security perimeter, Jennings’s detention was reasonable.

See McArthur, 531 U.S. at 332; Burton, 441 F.3d at 511-12.

Accordingly, the district court properly denied Jennings’s

motion to suppress the crack.

B. Jennings’s Sentence

Jennings argues that the district court erred when it

concluded that his Indiana conviction for resisting a law

enforcement officer—a Class D felony—is a crime of

violence qualifying him to be sentenced as a career offender. A “crime of violence” for purposes of the Sentencing Guidelines’ recidivist enhancement includes an

offense that has “as an element the use, attempted use, or

threatened use of physical force against the person of

another” or “otherwise involves conduct that presents a
No. 07-1818 9

serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a). Jennings argues that because the

Indiana statute under which he was convicted requires

proof of “a substantial risk of bodily injury to another

person,” see IND. CODE § 35-44-3-3, instead of a “serious

potential risk of physical injury,” see U.S.S.G. § 4B1.2(a),

his conviction for resisting a law enforcement officer

does not constitute a crime of violence.

We review de novo the district court’s determination

that Jennings’s conviction was a crime of violence. See

United States v. Otero, 495 F.3d 393, 400 (7th Cir. 2007).

Whether Jennings qualifies as a career offender hinges on

whether the Indiana statute criminalizing the offense of

resisting a law enforcement officer categorically describes

a crime of violence. Begay v. United States, 128 S. Ct. 1581,

1584 (2008); James v. United States, 127 S. Ct. 1586, 1593-94

(2007); United States v. Lewis, 405 F.3d 511, 514-15 (7th

Cir. 2005). At the time of Jennings’s offense, the statute

provided that a person commits a Class A misdemeanor

if he:

(1) Forcibly resists, obstructs, or interferes with a law

enforcement officer or a person assisting the officer

while the officer is lawfully engaged in the execution

of his duties as an officer;

(2) Forcibly resists, obstructs, or interferes with the

authorized service or execution of a civil or criminal

process or order of a court; or

(3) Flees from a law enforcement officer after the

officer has, by visible or audible means, identified

himself and ordered the person to stop . . . .
10 No. 07-1818

IND. CODE § 35-44-3-3(a) (1995). Jennings was convicted of

the felony version of this resisting offense, however, which

has this additional element: “the person draws or uses a

deadly weapon, inflicts bodily injury on another person, or

operates a vehicle in a manner that creates a substantial

risk of bodily injury to another person.” Id. § 35-44-3-3(b).

The charging document shows that Jennings was prosecuted under paragraph (3) of the base offense: it says that

in fleeing from a police officer, he “did speed, ignore

traffic control devices, and thus did endanger drivers.”

That, plus the additional felony element that he operated

the vehicle “in a manner that creates a substantial risk of

bodily injury to another person” makes Jennings’s offense

a categorical crime of violence. Jennings’s semantic quibble

that an offense that creates a substantial risk of injury does

not equate to one that creates a serious risk of injury is

just that—a semantic quibble.

The Supreme Court held last term in Begay that the

Armed Career Criminal Act’s requirement that

qualifying predicate felonies be offenses “that present[ ] a

serious potential risk of physical injury to another,” 18

U.S.C. § 924(e)(2)(B)(ii), contemplates only those offenses

that are similar to those itemized in the statute, that is,

“burglary, arson, . . . extortion, . . . use of explosives.” 128

S. Ct. at 1586. The Court noted that these itemized offenses

involved “purposeful, violent, and aggressive conduct”

and held that the statute’s “otherwise” clause—bringing

within its ambit those offenses that “otherwise involve[ ]

conduct that presents a serious risk of physical injury to

another,” 18 U.S.C. 924(e)(2)(B)(ii)—must be interpreted to

require conduct of a similar nature. Id. We have recently
No. 07-1818 11

held that Begay’s interpretation of § 924(e) applies to the

career-offender guideline, § 4B1.1, which contains

identical language. United States v. Templeton, No. 07-2949,

2008 WL 4140616, at *2 (7th Cir. Sept. 9, 2008).

Jennings’s felony resisting-an-officer conviction

required conduct that created a “substantial risk of bodily

injury to another person” by an act of vehicular fleeing

from a police officer by “speed[ing], ignor[ing] traffic

control devices, and thus . . . endanger[ing] other drivers.”

This version of the resisting-an-officer offense under

Indiana law thus involves the sort of purposeful and

aggressive conduct that the Court’s decision in Begay

requires. The district court properly applied the career

offender guideline. See United States v. Spells, No. 07-1185,

2008 WL 3177284, at *8 (7th Cir. Aug. 8, 2008) (affirming

district court’s determination that defendant’s conviction for an alternative version of the felony fleeing/resisting

offense under Indiana law qualified as a violent felony

under the Armed Career Criminal Act).

AFFIRMED.

9-15-08