In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-4258

U NITED STATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

JOHN H. STOTLER,
                                             Defendant-Appellant.


            Appeal from the United States District Court
                for the Central District of Illinois.
             No. 07 CR 30116—Jeanne E. Scott, Judge.



    A RGUED O CTOBER 5, 2009—D ECIDED JANUARY 14, 2010




 Before E VANS and SYKES, Circuit Judges, and SIMON,
District Judge. Œ
  E VANS, Circuit Judge. After a short jury trial, John
Stotler was found guilty on two counts: attempted posses-
sion of a listed chemical—pseudoephedrine—with intent


Œ
   The Honorable Philip P. Simon, United States District Court
Judge for the Northern District of Indiana, sitting by designa-
tion.
2                                               No. 08-4258

to manufacture methamphetamine, in violation of
21 U.S.C. §§ 846 and 841(c)(1), and possession of metham-
phetamine with the intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to
a term of 110 months. On this appeal, Stotler argues that
the district court erred when it denied his pretrial
motion to suppress evidence seized from a search of his
truck and when it allowed the government to put some
Rule 404(b) evidence before the jury. We start with the
facts.
  Beginning in 2006, law enforcement officers in the area
of Quincy, Illinois, had information regarding Stotler’s
involvement in the manufacture of methamphetamine.
They knew that in 1999 he was convicted in California of
manufacturing methamphetamine. Also, in early 2006,
officers responded to a report of shots fired at Stotler’s
residence. After arriving at his home, officers observed
several items known to be used in the methamphetamine-
making business: over 100 pseudoephedrine pills hidden
in an oven, a scale, lithium batteries, sulfuric acid, salt,
and one gallon of Coleman camping fuel. They also
found glass vials containing methamphetamine residue.
  With this information, law enforcement tabbed Stotler
as a meth-maker-dealer—and they kept their eyes on him.
When the heat is on, most people curtail, or at least slow
down, their illegal activity. But Stotler decided to put
another item in law enforcement’s growing basket of
evidence against him. He opted to purchase enough
pseudoephedrine (the number one ingredient necessary
for making meth) to choke a horse.
No. 08-4258                                               3

  Illinois law prohibits a person from purchasing
more than a small amount of pseudoephedrine during
any 30-day period without a prescription. In addition,
federal law prohibited possessing any amount of
pseudoephedrine with the intent to use it for making
methamphetamine. To comply with state law, over-the-
counter distributors of pseudoephedrine are required to
document their sales to individual customers. This docu-
mentation includes a requirement that the customer
produce a photo ID and provide personal information
when making a purchase of pseudoephedrine.
  During a less-than-30-day period between April and
May 2006, Stotler purchased more than the maximum
amount of pseudoephedrine permitted under Illinois law.
Specifically, on April 19, 2006, he purchased 2,400 milli-
grams of pseudoephedrine from a Wal-Mart store, and on
May 15 and May 17 he purchased 2,400 milligrams and
2,880 milligrams of pseudoephedrine from two
Walgreens stores. The Walgreens stores and the Wal-Mart
were located in the Quincy area.
  On August 15, 2006, an Illinois state judge issued an
arrest warrant for Stotler charging him with possessing an
excessive amount of pseudoephedrine. The warrant
remained outstanding as of April 20, 2007. All this infor-
mation was in law enforcement’s basket when a chap
named Michael Childress got involved in the case.
  On April 19, Childress was acting as a confidential source
for law enforcement officers. He advised an officer that
he was in contact with Stotler and that Stotler wanted
to purchase pseudoephedrine. The officer instructed
4                                               No. 08-4258

Childress to tell Stotler that he (Childress) had 1,500 pills
available for sale at a price of $600. Later that day,
Childress told the officer that he had talked with Stotler,
who said he would buy the pills. According to Childress,
Stotler said he would be at Childress’s home in Quincy
the following day to do the deal. At that time, Stotler
lived some 35 miles outside of Quincy.
  With this information, officers made arrangements to
have Childress sell pseudoephedrine to Stotler. The next
day, April 20, officers met with Childress at his residence
and gave him 1,500 pseudoephedrine pills. Childress
was instructed to sell the pills for $600 and to contact
officers by phone after the deal went down. Officers then
maintained surveillance of Childress’s residence while
waiting for Stotler to arrive.
  Just as Childress said, Stotler arrived at the appointed
time and place in a GMC pickup truck that afternoon. One
officer observed Stotler and Childress meeting and talking
outside the residence. Shortly thereafter, officers saw
Stotler return to his pickup and start to leave. He was
then stopped by officers within 100 feet of Childress’s
house.
  After getting out of the truck, Stotler was directed by
officers to put his hands above his head, but he refused.
An officer then pinned him against the truck, advised
him of the outstanding arrest warrant, and directed him
to place his hands behind his back. Stotler again refused.
He was then forced to the ground and handcuffed.
  During a search of his person, officers seized $600 from
his right front pocket and $250 from his left front pocket.
No. 08-4258                                                5

They also searched the cab of Stotler’s truck and seized a
plastic baggie containing Hydrocodone pills (a controlled
substance) from inside the glove compartment. Officers
then searched the bed of the truck where they found a
paint gun bearing Stotler’s initials. Inside the gun were two
plastic baggies containing approximately 8 grams of
methamphetamine and one baggie containing a powdery
substance labeled as “cut,” an apparent reference to a
common substance used in the distribution of narcotics.
Finally, officers seized a small bag, located near the
paint gun, that contained a digital scale. These events
led to the charges against Stotler in federal court.
  Once charged, Stotler filed a motion to suppress the
evidence obtained from the search of his pickup truck.
Following an evidentiary hearing, a magistrate judge
recommended that the motion be denied. In his recom-
mendation, the judge concluded that the search of the
truck was valid based on the existence of probable cause
at the time Stotler arrived at Childress’s residence and,
alternatively, that the evidence seized during a search of
the cab of the truck as incident to the defendant’s arrest
provided probable cause to search the bed of the truck.
  The district judge adopted the magistrate judge’s recom-
mendation and denied the motion. Her only disagree-
ment with the magistrate was that she concluded that
probable cause existed to search the truck when Stotler
drove away from Childress’s residence, not when he
initially arrived on the scene.
  Stotler relies, for the most part, on Arizona v. Gant, 

(2009), which was decided 10 months after he
6                                               No. 08-4258

went to trial. He says Gant supports his argument that the
evidence seized from his pickup truck should have
been suppressed.
  In Gant, the defendant (Rodney Gant) was arrested for
driving with a suspended license. He was handcuffed and
locked in the back of a patrol car. Police officers then
searched his car and discovered cocaine in the pocket of
a jacket on the back seat. Because Gant did not have
access to his car to retrieve weapons or evidence at the
time of the search, the Supreme Court held that the search-
incident-to-arrest exception to the Fourth Amendment’s
warrant requirement, as defined in Chimel v. California, 

, 

, 

(1969), and applied
to vehicle searches in New York v. Belton, 

,

, 

(1981), did not justify the
search of the car. His case, Stotler maintains, is indistin-
guishable from Gant. We disagree.
  In Belton, the Supreme Court said, “when a policeman
has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that
automobile.” 

, 460 (1981). Gant backed off a
bit from Belton and held that “[p]olice may search a
vehicle incident to a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable
to believe the vehicle contains evidence of the offense
of arrest.” 

, 1723 (2009).
 In Gant, the only thing the police knew about the defen-
dant when they saw him driving his car was that he had a
No. 08-4258                                             7

suspended driver’s license. He was stopped, arrested,
removed from his vehicle, handcuffed, and locked in
the back seat of a prowler. And then the police searched
his car. No independent probable cause to search the
car existed when it was searched. Stotler’s stop, on the
other hand, was quite different. It was the culmination
of an investigation that included many facts. His is a
true “totality of the circumstances” case. What did the
police know? Although we have mentioned most of
this already, they knew an awful lot about Stotler when
he was stopped. In order, they knew: that Stotler was
convicted of manufacturing meth in 1999; that he was
subsequently involved in the manufacture of meth
based on the seizure of materials used to manufacture
it from his residence in January 2006; that he purchased
a lot of pseudoephedrine in April and May 2006; that he
drove his truck some 35 miles that afternoon to arrive,
just as Childress said he would, to purchase 1,500
pseudoephedrine pills; that he left soon after meeting
with Childress; and that he resisted arrest when
stopped, most likely because he had something to hide.
Given these facts, we think the officers had probable
cause to believe that the truck contained, at the very
least, evidence of something that could be used in manu-
facturing methamphetamine.
  Two things, arguably, point the other way. First, the
police didn’t get a phone call from Childress telling
them that the deal went down. But that can be ex-
plained because the “meeting” went quickly, and it took
place outside, not inside, Childress’s home. Plus, Stotler
tried to drive away soon after conversing with Childress.
8                                               No. 08-4258

That there was not enough time for Childress to get off a
call is just as likely as the conclusion that Stotler got
cold feet before doing the deal. Stotler also says that once
the police found $600 (six $100 bills) on his person they
should have known that the deal with Childress did not
go down. Although we acknowledge that the point is
certainly logical, it’s not the only inference—perhaps
Stotler had $1,450 on him when he arrived to meet with
Childress, not just $850.
   True, as our dissenting colleague notes, Stotler was
arrested on the August 15, 2006 state warrant. That,
however, doesn’t detract from the fact that the officers
also had probable cause to arrest him (and search his
truck) for engaging in what certainly looked like an
illegal pseudoephedrine transaction. That Childress later
reported, after the arrest and search, that the deal didn’t
go down as planned because Stotler wanted to check out
the ingredients in the pills at a Wal-Mart before
coughing up $600 for them, doesn’t dilute the probable
cause that existed.
  Considering the totality of the circumstances, we
think the district judge was correct when she found that
probable cause existed to search the truck because it
was reasonable to believe that it contained evidence of,
at the very least, an attempt to possess materials
(pseudoephedrine) needed for making meth. Because
probable cause existed, the search of the truck, both cab
and bed, was authorized under the automobile excep-
tion to the warrant requirement. See United States v. Ross,

, 820-21 (1982). That rule, recalled in Gant,
No. 08-4258                                                    9

remains unchanged. The legality of the search here need
not rest on the “search incident to arrest” exception to
the warrant requirement.
  To all this, we add a final point. The inevitable discovery
doctrine holds that even an illegally seized item need
not be suppressed if the government can prove by a
preponderance of the evidence that the officers would
have discovered it by lawful means.1 Nix v. Williams, 

(1984). See also United States v. Marrocco, 

(7th Cir. 2009). If the police had not searched
Stotler’s pickup when they did, the evidence would
have undoubtedly been discovered a little later. Obviously,
with Stotler in custody, he was not going to be allowed
to get in his truck and drive away. Also obviously, the
arresting officers would not have allowed the truck to
just sit on the street after Stotler was carted away. What
they would have done, in all likelihood, was impound
the truck and have it towed away. An inventory search
would have naturally followed; the evidence would have
been inevitably discovered. That said, we move to the
404(b) matter.




1
   Concerning inevitable discovery, our dissenting colleague
notes that the government “made no record on this point in
the district court.” True enough. But to give the government
its due, it certainly could have reasonably believed (recall that
Gant was decided 13 months after Stotler’s suppression motion
was denied and 10 months after he was convicted by a jury)
that it didn’t need an extra reason to be able to use its full
arsenal of evidence against Stotler during future proceedings.
10                                              No. 08-4258

  Back in 2005, a detective with the Scott County, Iowa,
sheriff’s office responded to a call from a representative
of a Target store in Davenport, Iowa, concerning a
man who had just purchased a large amount of
pseudoephedrine. The detective was given a description
of the man and his car. Officers subsequently located
the car in a Walgreens parking lot in Davenport. Cheryl
Flesner was alone in the car. The detective entered the
store and observed Stotler purchase two boxes of
pseudoephedrine. Stotler then returned to his car, and
he and Flesner drove to another Walgreens store in Daven-
port. Upon arrival there, Flesner entered the store and
Stotler remained outside. She returned to the car a few
minutes later. Stotler and Flesner then traveled to a third
Walgreens store. This time Stotler entered the store
while Flesner waited outside. The detective followed
Stotler into the store and again observed him purchase
two boxes of pseudoephedrine. After they left the store
and headed toward the Illinois state line, officers
initiated a traffic stop and obtained Stotler’s consent to
search the car.
   During the search of the car, officers seized a map of the
Davenport area, which highlighted the location of the
Walgreens stores Stotler and Flesner had just visited. In
addition, officers seized a notebook which contained
addresses of two other Walgreens stores. Finally, officers
seized numerous packages of pseudoephedrine, receipts
for their purchase, approximately 514 pseudoephedrine
pills (totaling approximately 30.6 grams), some of which
had been removed from the packaging, an eight-pack of
lithium batteries, and a smoking-pipe from Flesner’s purse.
No. 08-4258                                             11

A security video, later retrieved from the Target store,
showed that Stotler and Flesner made individual pur-
chases of pseudoephedrine and walked out of the store
separately.
  This was the 404(b) evidence the judge allowed the jury
to hear. The rule provides that evidence of prior acts is
admissible to prove “motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or
accident,” but not to prove a defendant’s character in
order to show he acted in conformity with the charged
offense. We apply a four-part test to decide whether
Rule 404(b) evidence was properly admitted and will
find no error if:
   (1) the evidence is directed toward establishing a
   matter in issue other than the defendant’s propensity
   to commit the crime charged; (2) the evidence
   shows that the other act is similar enough and close
   enough in time to be relevant to the matter in issue;
   (3) the evidence is sufficient to support a jury
   finding that the defendant committed the similar
   act; and (4) the evidence has probative value that
   is not substantially outweighed by the danger of
   unfair prejudice.
United States v. Vargas, 

, 554 (7th Cir. 2008).
And we think it’s not even a close question: the Iowa
evidence clearly passed the test. It was admissible for
whatever bearing it might have on a crucial issue in this
case—Stotler’s intent on April 20, 2007.
   For these reasons, the judgment of the district court
is A FFIRMED.
12                                                  No. 08-4258

  S YKES, Circuit Judge, dissenting. I agree with my col-
leagues that when John Stotler’s truck was searched on
April 20, 2007, Illinois law enforcement had reason to
believe he was a meth-maker-dealer. But that alone
doesn’t validate the search under the Fourth Amendment.
As this case comes to us, there are at least three impedi-
ments to affirming the denial of Stotler’s suppression
motion—one legal, one factual, and one procedural.1
  First, the legal landscape on vehicle searches has
changed since the time of Stotler’s trial. The Supreme
Court’s decision in Arizona v. Gant, 

(2009),
has removed the primary justification for the search of
Stotler’s truck.2 Gant rejected a broad reading of New York
v. Belton, 

(1981), under which a search of
a vehicle incident to the arrest of a recent occupant
was generally permissible. As applied to vehicles, the
search-incident-to-arrest exception is now significantly
narrowed. As my colleagues note, Gant held that the
“[p]olice may search a vehicle incident to a recent occu-
pant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest.” 

.
  Here, the district court held—and everyone agrees—that
Stotler was arrested on the August 15, 2006 state warrant


1
 I agree with my colleagues that Stotler’s evidentiary argu-
ment based on Rule 404(b) is meritless.
2
  Gant applies here because it was decided while this case was
on direct review. Griffith v. Kentucky, 

, 322 (1987).
No. 08-4258                                             13

for overbuying pseudoephedrine during the months of
April and May of 2006, not for attempting to purchase
1,500 pseudoephedrine pills from Michael Childress on
April 20, 2007. The district court upheld the search of
Stotler’s truck primarily because it was permissible inci-
dent to his arrest on the 2006 warrant. That basis for the
search is no longer valid. Stotler was removed from the
scene and therefore was not within reaching distance of
the passenger compartment when his truck was
searched. And there is no reason to believe that his
truck would contain evidence of the crime of arrest,
which occurred a year earlier in April-May 2006. In
short, Gant has eliminated one justification for this
search; the police were not authorized to search the
truck incident to Stotler’s arrest.
  The alternative justification for the search—that there
was probable cause to believe that Stotler’s truck con-
tained evidence of a crime—simply is not supported by
the record, or at least by the portion of the record on
which the government has relied. It is true that the
police had some background information about Stotler
that identified him as a meth-maker-dealer. They were
aware of his 1999 California conviction for manu-
facturing methamphetamine. They also knew that materi-
als used to manufacture meth had been found at his
residence in January 2006 and that he had purchased
excessive amounts of pseudoephedrine (a meth
“precurser” in narcotics-investigation nomenclature) in
April-May 2006. This information, however, is severely
attenuated in time; Stotler’s meth-making activities in
the first half of 2006 can only be a small component of the
14                                              No. 08-4258

probable-cause equation for a search of his truck a year
later. More pertinent is what law enforcement knew
about Stotler’s activities in or around April 20, 2007, when
the search took place, and what they saw during the
controlled transaction between Stotler and Childress on
that date. And on this more important point, the
evidence falls short.
   The record reflects that in April 2007 Childress was
working with law enforcement to reduce his exposure
on his own meth-related charges. He arranged to sell
Stotler 1,500 pseudoephedrine pills for the purchase
price of $600. The transaction was set to occur at
Childress’s home in Quincy, Illinois, at 5 p.m. on
April 20, 2007, and law-enforcement officers supplied
Childress with the 1,500 pseudoephedrine pills for pur-
poses of the controlled sale. The pills were labeled
S UDAFED S INUS N IGHTTIME P LUS P AIN R ELIEF—large pills
packaged in 10-pill blister packs and contained within
a white, kitchen-sized, plastic garbage bag (admitted as
Exhibit 18AA at trial). Childress put this bulky package
in his truck, which was parked in the driveway of his
home. Stotler arrived at the appointed time, pulled into
the driveway, and got out of his truck.
  Here’s where there’s a gap in the evidence. Although
law enforcement had the scene under surveillance, none
of the officers who testified—either at the suppression
hearing or at trial—saw any transaction occur. Nothing
changed hands. As it turns out, only two of the surveil-
lance officers—Sergeant Patrick Frazier and Special Agent
Seth Knox—were in a position to see anything at all, and
they testified that they saw only a brief conversation
No. 08-4258                                                    15

between Stotler and Childress at the back of Stotler’s
truck. Nothing more.
  In fact, Deputy Sheriff Matt McElfresh, who was appar-
ently in charge of this operation, had at the outset in-
structed the police personnel at the scene to arrest
Stotler on the August 2006 warrant as soon as he started
to leave Childress’s driveway. This was the instruction
regardless of what transpired between Stotler and
Childress. So it was not important whether the officers
could see what actually happened between the two;
Stotler was going to be arrested whether or not the transac-
tion was completed. What this means as a factual matter
is that there is no evidence to establish that the officers
had reason to believe the planned transaction actually
occurred. This in turn means there is no factual basis
for finding probable cause to believe Stotler’s truck
would contain evidence of a crime. All we know is that
Stotler got back in his truck, empty-handed, after a brief
conversation with Childress, and when he started to
leave, officers immediately blocked his exit and
moved in to arrest him. He was searched and found in
possession of $600—six $100 bills—which was the
purchase price for the 1,500 pseudoephedrine pills. All
this suggests that the officers had reason to believe the
planned transaction did not in fact occur, rather than the
opposite.3



3
  As my colleagues point out, after Stotler was arrested and the
search of his truck had begun, Childress explained to the officers
that the transaction had not in fact been completed because
                                                   (continued...)
16                                             No. 08-4258

  My colleagues have concluded that “the district judge
was correct when she found that probable cause existed
to search the truck because it was reasonable to believe
that it contained evidence of, at the very least, an
attempt to possess materials (pseudoephedrine) needed for
making meth.” Maj. op. at 8. I disagree. First of all, the
district judge did not find there was probable cause to
believe the truck contained evidence of an attempt to
possess meth-making materials. She entered a generic
finding that there was probable cause to believe the
truck would contain evidence of a crime without
specifying what crime she had in mind. I suppose we
can infer that it was either an attempt or a completed
crime of pseudoephedrine possession, but the record
doesn’t establish probable cause to believe that the
truck would contain evidence of either.
  First, it is hard to see how there could be probable
cause to believe Stotler’s truck would contain evidence of
a crime if (as my colleagues conclude) that crime was
an attempt to possess pseudoephedrine. To state the
obvious, if the crime was an attempt to possess
pseudoephedrine, it means the drugs never changed
hands; as such, there is no reason to believe that the
drugs would be found in Stotler’s truck. And the record
is insufficient to support probable cause to believe the



3
  (...continued)
Stotler was not sure the pills were usable and wanted to go
to a Wal-Mart to check their ingredients before making the
purchase.
No. 08-4258                                                  17

truck would contain evidence of a completed act of
pseudoephedrine possession because there is no
evidence suggesting the officers had reason to believe
the transfer of pseudoephedrine actually occurred.
The bag of pills was large and highly visible; if it had
actually changed hands and been placed in Stotler’s
truck, the surveillance officers surely would have seen
this. But they did not see this—nor did they see any
activity that could reasonably be construed as a hand-to-
hand drug transaction—because it did not occur.
  It bears repeating that the officers were going to arrest
Stotler on the 2006 warrant regardless of whether the
transaction was completed, and at the time, they were
authorized under Belton to search his truck incident to
that arrest. And that’s what they did. But now, because of
the Supreme Court’s intervening decision in Gant, that
basis for the search is no longer valid. An independent
justification for the search is therefore required, and the
record simply doesn’t supply it.
   I appreciate that neither the police nor the prosecutors
anticipated Gant; their conduct in the field and in the
district court was obviously informed by the prevailing
broad reading of Belton. But I cannot cobble together an
alternative justification for this search based on what
the government has given us. My colleagues suggest that
if all else fails, we may affirm based on the inevitable-
discovery doctrine. It is likely, they say, that Stotler’s truck
would have been impounded after his arrest and an
inventory search would have “naturally followed.”
Maj. op. at 9. Perhaps so. But the government has never
argued that admitting the evidence from this search was
18                                                 No. 08-4258

permissible based on inevitable discovery. It is the gov-
ernment’s burden to prove the elements of this doctrine,
Nix. v. Williams, 

, 444 (1984); United States v.
Marrocco, 

, 638 (7th Cir. 2009), and it made
no record on this point in the district court. Nor, as I
have noted, has the government even bothered to argue
inevitable discovery on appeal.4 It is axiomatic that argu-
ments not raised on appeal are waived. O’Neal v. City
of Chicago, 

, 409 (7th Cir. 2009); United States
v. Johnson, 

, 592 (7th Cir. 2003). This rule
applies to the government too.5




4
  Neither has the government raised the good-faith exception to
the exclusionary rule as a basis to affirm. See United States v.
Leon, 

(1984).
5
  There is some evidence in the suppression-hearing record that
might have bolstered the case for probable cause had the
government developed it. Agent Knox offered brief testimony
about information he had from a confidential informant
named David Mann about Stotler’s meth-dealing activities in
the month of April 2007, just a few weeks before the search of
Stotler’s truck. The district court did not mention this testi-
mony, and the government did not raise it on appeal as either
additional or alternative support for affirming the court’s
denial of Stotler’s suppression motion.



                             1-14-10