108 F.3d 684 (7th Cir. 1997), 95-1549, United States v. Jerez

Docket Nº:95-1549, 95-1562.
Citation:108 F.3d 684
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lenin M. JEREZ and Carlos M. Solis, Defendants-Appellants.
Case Date:February 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 684

108 F.3d 684 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lenin M. JEREZ and Carlos M. Solis, Defendants-Appellants.

Nos. 95-1549, 95-1562.

United States Court of Appeals, Seventh Circuit.

February 27, 1997

Argued Sept. 13, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied May 19, 1997.

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[Copyrighted Material Omitted]

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Pamela Pepper (argued), Office of the United States Atty., Milwaukee, WI, for U.S.

Douglas M. Bihler, Bihler & Kuehl, Milwaukee, WI, for Lenin M. Jerez.

Mark E. Kershek (argued), Kershek & Kershek, Milwaukee, WI, for Carlos M. Solis.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Lenin Jerez and Carlos Solis pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Prior to entering the pleas, Mr. Jerez and Mr. Solis filed motions to suppress the cocaine which formed the basis of the charges on the ground that its seizure violated the Fourth Amendment. The district court denied the motions. Pursuant to their conditional plea agreements, Mr. Jerez and Mr. Solis now appeal the district court's denial of their motions to suppress. For the reasons set forth in the following opinion, we reverse the judgment of the district court.

I

BACKGROUND

  1. Facts

    On September 26, 1994, Deputy Sheriffs Donald Hurrle and Daniel Lent were patrolling the area around Mitchell Field International Airport in Milwaukee County, Wisconsin. Both officers were assigned to the drug interdiction unit, the purpose of which was to prevent the entry of illegal drugs into Milwaukee County. The officers were looking for "target vehicles" from "source states." "Target vehicles" are vans or two-door vehicles. Deputy Hurrle testified that such vehicles are favored by drug couriers. "Source states" include California, Texas, Florida and Arizona. These states are considered to be a locus of drug trafficking.

    At around 7:25 p.m., Deputies Hurrle and Lent noticed a two-door, white 1988 Honda Prelude with Florida license plates in the parking lot of a Quality Inn near the airport. Because the two-door car from Florida was parked near the airport and the interstate, the officers believed that the car might be involved in drug trafficking. Seeking more information about the car, Deputy Hurrle used his radio to request the Sheriff's Department to run the license plate number through its computer. The check revealed that the car was not stolen and was registered to Carlos M. Solis of Miami, Florida. The officers then entered the motel to ask the staff at the front desk some questions about Mr. Solis. They learned that Mr. Solis was a registered guest at the motel and was staying in Room 161 with another individual.

    Deputies Hurrle and Lent proceeded from the motel to the Sheriff's Office at the airport to obtain more information about Mr. Solis, including whether Mr. Solis had a criminal history and whether he was wanted in any other jurisdiction. Their computer investigation revealed that Mr. Solis' Florida driver's license was suspended and that he had been arrested in August 1994 for smuggling contraband into the Dade County Jail. 1 The investigation did not reveal why the driver's license was suspended or what type of contraband Mr. Solis had been accused of smuggling into the jail. Mr. Solis had no extraditable felony warrants.

    At around 8:30 p.m., after responding to another call, the officers returned to the Quality Inn. Deputy Hurrle, at the suppression hearing, stated that the reason for returning was that the deputies "hope[d they] could get a consent search" by knocking on the door of Mr. Solis' motel room. Tr. at 34. Because Mr. Solis' car was no longer in the parking lot when they arrived, the officers instead decided to set up surveillance of the area. Deputies Hurrle and Lent proceeded to maintain a look-out of the parking lot for more than two hours, during which time they saw no sign of the Honda. At 10:45 p.m., close to the officers' 11:00 p.m. "quitting time," the deputies returned to the airport office to complete their activity reports for the day and to fax the reports to the central office of the Sheriff's Department.

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    On the way home just after 11 p.m., Deputy Lent drove past the Quality Inn and noticed that Mr. Solis' white Honda was again in the parking lot. He contacted Deputy Hurrle to relay the sighting and to request that Deputy Hurrle meet him in the parking lot. About five minutes later, Deputy Hurrle arrived and, along with Deputy Lent, proceeded into the hallway of the motel towards Room 161.

    At around 11:05 or 11:10 p.m., when the two officers arrived at Room 161, the room was "quiet"; no sounds were heard coming from the room. Tr. at 38. Nevertheless, the deputies "immediately knocked on the door for several minutes, getting no response." Tr. at 79. The deputies took turns knocking. Deputy Lent testified that, after Deputy Hurrle "initiated the knocking" and "got no response," he (Deputy Lent) "then knocked on the door for a period of approximately three minutes." Id. When Deputy Lent was asked at the suppression hearing whether the officers had knocked "[t]he whole three minutes," he responded, "Intermittently, between myself and Detective Hurrle, yes." Id. 2 At some point during the knocking, one of the deputies spoke in the direction of the door, "Police. Open up the door. We'd like to talk to you." Tr. at 93.

    Dissatisfied with the lack of response and convinced that the room's occupants, though hearing the knocks, were "voluntarily" ignoring them, id., Deputy Hurrle decided to go outside and knock on the window of Room 161. At the suppression hearing, Deputy Lent explained this decision and the persistence of the officers: "[O]ur reasons for sticking around were--and for proceeding to knock on the window were--[it] was beginning to be a late hour. [The p]eople [in the motel room were] from a strange city. [They m]ay in fact feel threatened if someone comes and knocks at the door, [at a] late hour. That's [also] why we proceeded to present ourselves as officers." Id. Deputy Hurrle wanted to "see if he could get a response[, v]ia the window versus the door." Tr. at 94.

    Deputy Hurrle exited the motel and walked around to the window of Room 161 while Deputy Lent "continued to stand by at the door and continued to knock." Tr. at 80. Deputy Hurrle then "began knocking on [the room's window] while [Deputy] Lent continued knocking on the door." Magistrate Judge's Recommendation at 3. The knocking on the window was loud enough for Deputy Lent to hear it from where he was knocking. Despite the commotion, there was no immediate response from the room. Finally, after Deputy Hurrle had "knock[ed] on the window for approximately one-and-a-half to two minutes," Deputy Lent heard movement inside Room 161. Tr. at 94.

    Deputy Hurrle testified that, after he knocked on the window "a couple of times," he saw, through a small opening in the window's drapes, Mr. Jerez' face as he lay in the bed. Tr. at 44, 46. The deputy directed light from his flashlight into the room in order to make this observation. With the aid of the flashlight, Deputy Hurrle saw Mr. Jerez move under the covers. Soon thereafter, Mr. Solis opened the drapes to see Deputy Hurrle standing in front of the window. The deputy was wearing a windbreaker-type jacket with a law enforcement emblem and lettering, "Drug Enforcement Unit, Milwaukee County Sheriff's Department." Tr. at 47. Deputy Lent testified that, from where he was standing, he heard Deputy Hurrle address Mr. Solis, "Sheriff's Department. Can we talk to you? Would you open up the door?" or with words to that effect. Tr. at 95. Deputy Hurrle testified that Mr. Solis shook his head "yes" in response.

    When Deputy Hurrle returned to the inner hallway, Mr. Solis, clothed only in his underwear, was opening the door. The room behind him was dark. The officers identified themselves, displayed their badges, and asked if they could speak with him. Mr. Solis "said sure, or words to that [e]ffect." Tr. at 82. As Mr. Solis proceeded to open the door further, the officers asked if they could come in and talk. Mr. Solis told the officers that they could and opened the door.

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    Upon entering the room, the deputies noticed a half-smoked marijuana cigarette lying on top of the television. Asked what it was, Mr. Solis replied, "That's all we've got." Tr. at 21. Deputy Hurrle then asked Mr. Jerez, who was still in bed, if he would get up and speak with them. Once Mr. Jerez was out of the bed, the deputies proceeded to interrogate the appellants. In response to the questions, Mr. Solis said that they were from Miami and were in Milwaukee on vacation. He also said that they had come to Milwaukee to visit relatives. When pressed by the officers, neither appellant was able to supply the names or addresses of the relatives whom they might be visiting.

    Following this exchange, Deputy Hurrle asked if there was anything illegal in the room. The appellants said "no." Apparently carrying out the plan to "get a consent search," the officers then asked if they could look through the appellants' room and belongings. Mr. Solis and Mr. Jerez both gestured that a search would be acceptable, stating that they had nothing that they should not have. Deputy Lent then asked the two to step away from the beds and to move towards the bathroom area. Deputy Hurrle picked up a nylon suitcase from the floor and placed it on the bed. Deputy Lent asked the appellants "whose suitcase Detective Hurrle had at that moment." Tr. at 88. In response, "Mr. Jerez more or less raised his hand and indicated that it was his suitcase." Id. "Detective Hurrle then proceeded to move the bag into a position to begin a search." Id. Deputy Lent "then turned to Mr. Jerez and asked him at that time, '[D]o you mind if my partner looks through your...

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