124 F.3d 803 (7th Cir. 1997), 96-2199, United States v. Sholola

• Citation: 124 F.3d 803
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Harry SHOLOLA, Defendant-Appellant.
• Case Date: August 22, 1997
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

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124 F.3d 803 (7th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Harry SHOLOLA, Defendant-Appellant.

No. 96-2199.

United States Court of Appeals, Seventh Circuit

August 22, 1997

Argued Jan. 21, 1997.

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[Copyrighted Material Omitted]

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Barry Rand Elden, Chief of Appeals, Patrick S. Layng (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

James J. Cutrone (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, MANION and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

On August 31, 1995, a federal grand jury returned an indictment against the defendant-appellant, Harry Sholola, charging him with one count of conspiracy to import heroin into the United States from India, in violation of 21 U.S.C. §§ 952(a) & 963, and ten separate counts of importing heroin from India, in violation of 21 U.S.C. § 952(a), and one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). The Government charged that Sholola maintained and used mail boxes in the Chicago, Illinois area, rented under false names, for the purpose of receiving "approximately ounce quantities" of "mixtures containing heroin" from his co-conspirator(s) in India. The evidence against Sholola included: (1) fifteen envelopes "containing mixtures of heroin" that were seized from the mailboxes rented by the defendant; and (2) approximately 123 grams of heroin recovered by authorities from a public storage locker, also rented by the defendant. ¹

Sholola filed a motion to suppress, arguing that the evidence should be excluded as the "direct and indirect fruit" of conduct by law enforcement officials that violated the Fourth Amendment. Specifically, Sholola argued that: (1) police officers lacked probable cause to arrest him outside of a bank in Orland Park, Illinois, on suspicion of credit-card fraud; and (2) the officers exceeded the bounds of the Fourth Amendment when they searched an automobile, incident to that arrest, and discovered, inter alia, information that led investigators to the storage locker and mailboxes rented by the defendant as part of his heroin-importation scheme. Relying on County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), Sholola also challenged the warrantless search of the storage locker, ² arguing that he consented to this search during a time frame in which he alleges that he was unlawfully detained without a hearing. Riverside makes clear that: (1) it is presumptively reasonable for police to hold an arrestee without a hearing for as long forty-eight hours; and (2) shorter periods of detention (such as Sholola's thirty-nine and one-half hours in length) are only unlawful if the arrestee can establish that he was held for an improper purpose (i.e., in order that police might collect additional evidence to justify his arrest and confinement). Id.; see also United States v. Daniels, 64 F.3d 311, 313 (7th Cir.1995). The district court found that: (1) Sholola was held for 36 hours; ³ and (2) the purpose in detaining him was not to discover additional evidence to justify his arrest on state-law charges. Notwithstanding these clear and unambiguous findings of fact, Sholola argues on appeal that his consent to the storage locker search was tainted by a Riverside violation and thus invalid.

After conducting an evidentiary hearing on December 1, 1995, in connection with the federal charges against Sholola, the district judge denied the portions of the defendant's motion to suppress which challenged the validity

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of his arrest as well as the search of the automobile under the Fourth Amendment. The court continued the hearing to address the issue of whether the search of the defendant's storage locker was proper, and also to determine the validity of the defendant's "Terry stop" (i.e., whether the officer who initially stopped Sholola for questioning had "reasonable suspicion [of] criminal activity.") Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thereafter, the judge denied Sholola's suppression motion in its entirety.

On February 2, 1996, Sholola withdrew his plea of not guilty to the charge of conspiring to import heroin and, pursuant to a written agreement with the Government, entered a conditional guilty plea in which he admitted to the charge of conspiring to import heroin while reserving the right to appeal the district court's ruling on his motion to suppress. Following a change-of-plea hearing, the court accepted Sholola's conditional guilty plea and entered a judgment of conviction. On May 7, 1996, Sholola was sentenced to thirty-seven months imprisonment, to be followed by five years of supervised release, and ordered to pay a special assessment of $50. On appeal, the defendant asserts that the court improperly denied his motion to suppress. ⁴ We affirm.

I. BACKGROUND

At approximately 3:45 PM on the afternoon of July 11, 1995, the defendant, Harry Sholola, entered the A.J. Smith Federal Bank (the "Bank") in Orland Park, Illinois. He was observed by Patrolman Anthony Farrell, a nine-year veteran of the Orland Park Police Department who had been employed at the Bank as a part-time security guard for more than three years. ⁵ Farrell testified that he had been employed as a security officer prior to becoming a policeman, and that in all he had approximately eleven years' experience working as a security guard, mostly at retail establishments. His duties at the Bank included "patrol[ling] the inside of the bank and keep[ing] an eye on the parking lot ... to ensure the safety of the employees in the Bank." Farrell took note of the defendant, whom he did not recognize as a regular customer, as well as the defendant's appearance (the defendant's shirt was soiled and his necktie was improperly knotted). Farrell watched Sholola approach the teller's window, where he produced a VISA credit card and a California driver's license. The teller, Carina Julian, made eye contact with Officer Farrell and nodded toward a back room. ⁶ Farrell and Julian met in the back room, leaving Sholola at the teller's window. Because Julian was suspicious, she displayed the credit card and driver's license to Farrell that Sholola had presented. She also informed Officer Farrell that Sholola had requested a cash advance of $1,900. The name on the credit card and the driver's license presented was "Joeh Alejandre," and Sholola's picture was on the driver's license. While in Julian's presence, Farrell telephoned the Orland Park Police Station and asked the dispatcher to run a computerized check on the driver's license, using both the number on the license and the name Joeh Alejandre. The dispatcher accessed the records of the California Department of Motor Vehicles ("DMV") and reported that the California DMV had no record on file of a driver's license issued to Joeh Alejandre. Officer Farrell suggested to Julian that she run the necessary checks on the credit card and consult with her supervisor. Julian contacted the credit card company and determined that the card was valid and that a $1,900 cash advance was authorized. With regard to whether Julian should process the transaction, Farrell "told her to do whatever the bank told her to do." Farrell returned to the lobby, and observed Sholola signing a cash advance slip and receiving the $1,900. Sholola placed the money in his pocket and exited through the Bank's front entrance onto the parking lot.

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Officer Farrell followed Sholola, and observed him walking toward a pick-up truck in the Bank's parking lot. Farrell temporarily lost sight of the defendant behind the truck, and shortly thereafter noticed Sholola "peek[ing] out from alongside of [the] pick-up truck." As Farrell started to walk towards him, Sholola began to walk away from the officer. Officer Farrell described his gait as being "a very quick, fast-paced walk." Sholola made his way to the south exit of the Bank's parking lot and, as he was about to cross a heavily-travelled highway, Officer Farrell initiated "verbal contact," raising his voice and directing the defendant to stop. Sholola did not respond initially, and continued to cross the street and enter upon a garden supply store's parking lot. Once in this lot, Sholola stopped and Officer Farrell approached and questioned him.

Officer Farrell testified that even though he was in full police uniform and dress, he commenced his interview by identifying himself to Sholola as an officer of the law. Farrell inquired of the defendant as to where he was going, and he replied that he was on his way to purchase flowers. At this time, Officer Farrell requested identification from Sholola, and the defendant provided the bogus driver's license he had used in the Bank (concerning which the California DMV had no record, as Farrell knew). Farrell asked Sholola if he had a car and, if so, where it was parked. The defendant said that he did have a vehicle and pointed to a maroon, four-door Honda Acura (the "Acura") parked in the garden center's parking lot. Farrell asked if he had keys to the car and could prove that it belonged to him. Instead of answering "Yes" or "No," Sholola produced some keys from his pocket, walked towards the vehicle, opened the front driver's side door, and stated, "See, it's my car." When Sholola was about to enter the vehicle, Officer Farrell directed him to move away from the door. As Sholola exited the vehicle, the officer positioned himself between the defendant and the open car door.

Farrell asked Sholola his age, and the defendant replied that he was forty-four years of age, an answer that contrasted with the information reflected on Alejandre's driver's license, which showed an age of thirty-six years. Farrell repeated the age question, and Sholola changed his answer; this time he stated that he was...