In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3063

United States of America,

Plaintiff-Appellee,

v.

Tunji Kincaid,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 30090--Jeanne E. Scott, Judge.



Argued April 10, 2000--Decided May 16, 2000




       Before Easterbrook, Kanne and Rovner, Circuit Judges.

      Kanne, Circuit Judge. In September 1998, Tunji
Kincaid was arrested for criminal trespass to
land after he parked his stalled car in the
driveway of a vacant residence owned by Jack
Childress. Incident to his arrest, his car was
searched and 12.4 grams of crack cocaine and a
crack pipe were found. On this basis, Kincaid was
indicted for possession of cocaine with intent to
distribute, pursuant to 21 U.S.C. sec.sec.
841(a)(1), (b)(1)(B).

      Kincaid moved to suppress the evidence found in
his car because the arresting officer lacked
probable cause to make the criminal trespass
arrest. The district court denied this motion,
and Kincaid subsequently pleaded guilty to the
cocaine possession charge against him. Kincaid
appeals the denial of the motion to suppress,
again claiming that the arresting officer lacked
probable cause to make the arrest. We affirm the
decision of the district court.

I.   History

      Between 8:00 and 9:00 on the morning of
September 15, 1998, Kincaid was driving south on
13th Street in Springfield, Illinois, when his
Chevrolet Caprice Classic stalled. Kincaid pulled
off the road and parked in the driveway of a
vacant residence at 902 South 13th Street. This
residence was owned by Jack Childress. Kincaid
left the car and raised the hood. He found that
one of the battery cables had come loose from its
post and attempted to re-attach it.

      The vacant residence included a residential
duplex, which Childress was in the process of
remodeling, with an attached garage. On the
garage, Childress had posted a "No Trespassing"
sign as a result of a pair of break-ins to the
residence. Childress’s property extends from the
garage and duplex to a sidewalk, a distance of
about twenty feet. The sidewalk and the grass
strip beyond the sidewalk, which together span
about thirteen feet, are public property.
Therefore, the driveway on this property is owned
in part by Childress, up to the sidewalk, and in
part by the public. Immediately beside the "No
Trespassing" sign is another sign, which read
"Sparkle Automotive Repairs," but no such
business existed in September 1998. Kincaid and
the government dispute whether Kincaid’s car was
parked entirely, or at all, on Childress’s
property, and the parties also dispute whether
Kincaid had to enter Childress’s property to
inspect his car engine.

      Officer Larry Stelivan of the Springfield Police
Department had patrolled the surrounding
neighborhood for much of his twenty-year career.
After the break-ins occurred at his 13th Street
property, Childress informed Stelivan that
unwanted people often loitered on the property
without permission and asked Stelivan to attempt
to keep everyone, with the exception of
Childress’s son, off the property. Stelivan
agreed to this request and subsequently told
numerous individuals that they were not allowed
on Childress’s property without permission.
Stelivan stated that he was familiar with Kincaid
and specifically told Kincaid before September
15, 1998, that he was not allowed on Childress’s
property.

      Officer Stelivan was on patrol on the morning
of September 15, 1998, when he saw Kincaid’s
vehicle parked in Childress’s driveway. Stelivan
believed that the car was parked in the private
portion of the driveway, and he saw Kincaid
standing beside the car, near the garage.
Stelivan stopped and asked Kincaid what he was
doing on Childress’s property. Kincaid replied
that his car had stalled. As Stelivan parked his
car to help Kincaid, Stelivan saw another man,
Manual Pitts, run from the area. Stelivan
approached Kincaid’s car, and Kincaid showed him
that the battery cable was loose. Kincaid was
attempting to tighten the battery cable clamp,
but he needed pliers to do so properly.

      Kincaid attempted to borrow a pair of pliers
from a neighbor, Mary Burns, but Burns refused.
Without pliers, Kincaid was unable to fix the
car. Because of the loose battery cable, the car
would start but would not keep running. Stelivan
helped Kincaid move the car off of Childress’s
property and onto the street, then Stelivan
arrested Kincaid for criminal trespass. Kincaid
was transported to county jail. Subsequent to his
arrest, police officers searched his car and
found 12.4 grams of crack cocaine and a crack
pipe.

      On November 9, 1998, Kincaid was indicted for
possession of a controlled substance with an
intent to distribute, in violation of 21 U.S.C.
sec. 841(a)(1). On January 26, 1999, Kincaid
filed a motion to suppress on the ground that
Stelivan lacked probable cause when he arrested
Kincaid for criminal trespass. In his motion,
Kincaid argued that Stelivan lacked probable
cause to arrest him for trespass because Kincaid
never entered Childress’s property and because
Kincaid lacked prior notice. In his motion and at
the subsequent hearing held on February 8, 1999,
Kincaid claimed that he had been on public
property at all times and that notice was
insufficient because Stelivan failed to ask
Kincaid whether he had received permission to be
on the property. However, the district court
credited Stelivan’s testimony that he had
provided notice to Kincaid prior to September 15,
1998, that he was not permitted to enter the
property and Stelivan’s testimony that Kincaid
had actually entered portions of Childress’s
property. On this basis, the district court
determined that Stelivan had probable cause and
authority to make the arrest and denied Kincaid’s
motion to suppress.

      On April 5, 1999, Kincaid pleaded guilty to the
charge of possession of a controlled substance
with intent to distribute, but he reserved the
right, pursuant to Fed. R. Crim. P. 11(a)(2), to
challenge the district court’s denial of his
motion to suppress. Kincaid was sentenced as a
career offender to 282 months imprisonment,
followed by eight years supervised release.

II.   Analysis

      On appeal, Kincaid presents three arguments in
support of his contention that Stelivan lacked
probable cause to arrest him for criminal
trespass. First, he argues that the district
court erred in finding that Kincaid had
sufficient notice to meet the requirements of the
Illinois criminal trespass statute. 720 Ill.
Comp. Stat. 5/21-3(a)(2). Second, he contends
that the court erred in finding that Kincaid had
actually entered Childress’s property. Third,
Kincaid argues that Stelivan lacked probable
cause to arrest him because the Illinois criminal
trespass statute carves out an exception to
criminal trespass under emergency circumstances.
720 Ill. Comp. Stat. 5/21-3(f). We review de novo
a district court’s determination of probable
cause. See United States v. Scheets, 

, 835-36 (7th Cir. 1999); United States v.
McKinney, 

, 328 (7th Cir. 1998).
However, when we review the district court’s
denial of a motion to suppress, we review de novo
questions of law, and we review for clear error
questions of fact. See United States v. Strache,

, 984-85 (7th Cir. 2000); 

.

      The Fourth Amendment preserves "[t]he right of
the people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures." U.S. Const. amend. IV.
However, "[a]n arrest conforms to the
requirements of the Fourth Amendment ’so long as
the police are doing no more than they are
legally permitted and objectively authorized to
do.’" United States v. Woody, 

, 1268
(7th Cir. 1995) (citations omitted). Therefore,
there will be no Fourth Amendment violation in a
search incident to arrest where the arresting
officer is authorized by state or municipal law
to effect a custodial arrest and the officer has
probable cause to make such arrest. See 

parties agree that Stelivan was authorized
to arrest Kincaid, and the relevant dispute
focuses instead on whether there was probable
cause to arrest Kincaid for criminal trespass.
Probable cause for an arrest exists when a person
could reasonably believe, in light of the facts
and circumstances within the knowledge of the
arresting officer at the time of the arrest, that
the suspect had committed or was committing an
offense. See Booker v. Ward, 

, 1057
(7th Cir. 1996).

A.   Criminal Trespass

      Illinois’s criminal trespass to land statute
provides that "[w]hoever . . . enters upon the
land of another, after receiving, prior to such
entry, notice from the owner or occupant that
such entry is forbidden . . . commits a Class B
misdemeanor." 720 Ill. Comp. Stat. 5/21-3(a)(2);
see People v. Flanagan, 

, 667 (Ill.
App. Ct. 1985). If we conclude that a prudent
person in light of the facts and circumstances
known by Stelivan on September 15, 1998, would
have believed that Kincaid both had entered
Childress’s property and had notice that he was
not allowed to do so, we will conclude that
Stelivan had probable cause to arrest Kincaid.

      Kincaid first questions whether a prudent person
would have believed that he had prior notice that
he was not allowed on Childress’s driveway. A
person has received notice if "he has been
notified personally, either orally or in writing"
or "if a printed or written notice forbidding
such entry has been conspicuously posted or
exhibited at the main entrance to such land or
the forbidden part thereof." 720 Ill. Comp. Stat.
5/21-3(b). Kincaid argues that the "No
Trespassing" sign posted on the garage door was
not posted at the "main entrance" to Childress’s
property. In addition, he notes that the
adjoining property, which shared a single
driveway, posted a sign for a business, "Sparkle
Automotive Repairs." On these grounds, Kincaid
contends that a reasonable person would not
obtain notice from the "No Trespassing" sign, as
one might reasonably infer that the sign
referenced only the "forbidden part" of
Childress’s property, the garage.

      However, the district court based its finding
of probable cause on both this posted notice and
its finding of fact that Kincaid had received
prior oral notice from Stelivan that he was not
allowed on Childress’s property. Stelivan
testified that, pursuant to Childress’s request,
he told many people, including Kincaid, that they
were not allowed to stand around on Childress’s
property. Kincaid does not dispute that Childress
had previously warned him against standing around
on Childress’s property, but he contends that
this notice does not constitute proper notice
that using the driveway to perform emergency
repairs on his car was forbidden. We find this
argument unavailing.

      The relevant probable cause inquiry on the
question of notice is whether a reasonable person
in Stelivan’s position would infer notice onto
Kincaid, that is whether Stelivan had reasonable
grounds to believe that Kincaid received the
notice, not whether Kincaid believed such notice
had been given. See Dutton v. Roo-Mac, Inc., 

, 607 (Ill. App. Ct. 1981). The
district court found that Stelivan had previously
warned Kincaid against standing around on
Childress’s property. The court held that a
prudent person would have believed that Kincaid
had prior notice that he was not allowed to be on
Childress’s driveway. Direct evidence of a
defendant’s prior notice is dispositive as to
whether a reasonable person would believe that
the defendant had received notice.

      Moreover, at least one Illinois court has found
probable cause for a criminal trespass arrest
without direct evidence of notice. In People v.
Wetherbe, 

, 5 (Ill. App. Ct. 1984),
the court concluded that the arresting officer
had probable cause to make a criminal trespass
arrest without any evidence of prior notice, when
the arrest was based on prior request of the
owner that prowlers be kept away, the presence of
individuals on the property at an unusual hour
and these individuals’ "unlikely explanation" for
their presence. Here, in contrast, the court had
credible evidence that, at the time of arrest,
Stelivan knew that Kincaid had been given prior
notice.

      Kincaid also contends that Stelivan lacked
probable cause to make an arrest because a
reasonable person would not necessarily have
believed that Kincaid had actually entered
Childress’s property. Kincaid states that he
never actually entered Childress’s property.
Instead, he claims he remained at all times on
the driveway before the end of the sidewalk,
which is on public property. However, Stelivan
testified that when he first saw Kincaid, both
Kincaid and his car were on Childress’s property,
and for purposes of establishing probable cause,
a reasonable person must consider not whether
Kincaid actually entered the property, but
whether Stelivan reasonably believed that he did.
The district court credited Stelivan’s testimony
that he had seen Kincaid on the property, and
from this testimony found that a reasonable
person would have believed that Kincaid had
entered onto Childress’s property and was, by so
doing, committing a crime. On the basis of
Stelivan’s testimony, we find no error in this
aspect of the district court’s probable cause
analysis.

B.   Emergency Exception

      Finally, Kincaid contends that Stelivan lacked
probable cause to arrest Kincaid because the
criminal trespass statute decriminalizes an
otherwise illegal entry made under emergency
circumstances. According to Kincaid, a reasonable
person would consider Kincaid’s situation to be
an emergency, and Stelivan could not have
reasonably believed that Kincaid was committing
a crime by entering Childress’s property and
should not have arrested him for doing so.
However, Kincaid failed to raise this issue in
his motion to suppress or before the district
court at its hearing on the motion, and he has
forfeited his right to appeal this issue.
Therefore, we review only for plain error. See
United States v. Brookins, 

, 623 (7th
Cir. 1995); United States v. Clark, 

,
784 (7th Cir. 1991). Plain error review allows us
"to correct only ’particularly egregious errors’
for the purposes of preventing a miscarriage of
justice." United States v. Franklin, 

, 270 (7th Cir. 1999) (citation omitted).

      Section (f) of the Illinois criminal trespass
to land statute decriminalizes an otherwise
illegal entry onto property when a person enters
"for emergency purposes." 720 Ill. Comp. Stat.
5/21-3(f). An "emergency" is defined as "a
condition or circumstance in which an individual
is or is reasonably believed to be in imminent
danger of serious bodily harm or in which
property is or is reasonably believed to be in
imminent danger of damage or destruction." 

that because his car had stalled,
it was in imminent danger of damage or
destruction had he left it in the street. He
argues that a reasonable person would find that
he entered Childress’s property under emergency
circumstances and was not committing a crime by
entering the property.


      Kincaid claims that he addressed the question
of emergency in his motion to suppress and at the
hearing at which this motion was considered. In
support of this contention, Kincaid notes that he
claimed, in his motion, that Stelivan could not
have concluded that he was committing trespassing
"within the meaning and purpose of the statute,"
which, he claims, incorporates by reference the
argument for emergency situations. In addition,
Kincaid notes that he argued that the arrest was
made because of a "mistake of law," which mistake
Kincaid now claims was the failure to consider
whether the emergency circumstances exception
applies.

      Despite his contention that these broad
statements of law incorporate by reference the
emergency exception to criminal trespass, Kincaid
has forfeited this argument by failing to raise
it in his motion to suppress. In his motion to
suppress, Kincaid never indicated that he felt
that his situation constituted an emergency, and
at the motion hearing, Kincaid never claimed, or
even mentioned, that he felt that his car
stalling was an emergency or that there was any
imminent risk of damage to his vehicle. Although
Kincaid claimed that Stelivan made a mistake of
law in making a custodial arrest, he failed to
articulate on what basis a mistake of law was
made, either by mentioning that Stelivan failed
to consider the emergency exception or by citing
the relevant statutory section, 720 Ill. Comp.
Stat. 5/21-3(f). In addition, although he also
failed to raise the issue of notice in his motion
to suppress, Kincaid specifically requested the
district court allow him to raise these new
arguments at the motion hearing. However, he
failed to request leave at the motion hearing to
argue that the emergency exception applied. We
insist that a party must raise and develop an
argument before the district court or in its
motions to provide the district court with an
opportunity to consider all matters before it.
See, e.g., United States v. Hook, 

,
310 (7th Cir. 1999). By failing to focus the
court on this issue of emergency, Kincaid
deprived the court, which studiously considered
all matters raised before it, of this
opportunity. For this reason, we deem this issue
forfeited, and we review only for plain error.

      Illinois courts provide no guidance on the
question of whether a typical automobile
breakdown constitutes an emergency within the
meaning of 5/21-3(f), so we must determine
whether a miscarriage of justice results if we
affirm the conclusion of the district court.
Certainly, reasonable people may believe that in
a break-down circumstance, automobile owners will
fear that their car is in imminent danger of
damage or destruction if it remains on the road.

      Nonetheless, the facts and circumstances
surrounding this case fail to convince us that a
reasonable person would find that the
circumstances before us constitute such an
emergency. First, Kincaid’s car stalled between
8:00 a.m. and 9:00 a.m., at an hour when traffic
on a residential side street would not constitute
an imminent danger to Kincaid’s vehicle. Second,
Kincaid has provided no evidence that there was
no street parking available. In fact, the
evidence that Kincaid and Stelivan were able to
move the car onto the street after failing to
start it suggests that street parking spaces
existed at the time Kincaid’s car stalled. In the
face of these circumstances, we believe it
reasonable that an arresting officer would not
consider the situation to be an emergency.
Therefore, we find no plain error in the district
court’s determination that Stelivan had probable
cause to perform a custodial arrest.

III.   Conclusion

       Because we find no error in the district
court’s determination that Stelivan had probable
cause to arrest Kincaid for criminal trespass and
no plain error in Stelivan’s failure to apply the
emergency exception to the criminal trespass
statute, we Affirm the decision of the district
court.