USA. v. Ienco

• Citation: 182 F.3d 517
• Decision Date: 27 August 1999
• Docket Number: No. 98-2487,98-2487
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellant, v. Joseph Ienco, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 517

182 F.3d 517 (7th Cir. 1999)

United States of America, Plaintiff-Appellant, v. Joseph Ienco, Defendant-Appellee.

No. 98-2487

United States Court of Appeals, Seventh Circuit

Argued January 22, 1999

Decided June 24, 1999

Rehearing Denied August 27, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 586--David H. Coar, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Posner, Chief Judge, Flaum, and Ripple, Circuit Judges.

Flaum, Circuit Judge.

This court is reviewing Joseph Ienco's case for a third time. Following a jury trial, the defendant was convicted of a number of federal crimes arising out of an unsuccessful extortion attempt. The crimes included conspiracy to commit extortion in violation of 18 U.S.C. sec. 1951, interstate travel in aid of racketeering in violation of 18 U.S.C. sec. 1952, and using or carrying firearms during and in relation to a crime of violence in violation of 18 U.S.C. sec. 924(c)(1). In United States v. Ienco, 92 F.3d 564 (7th Cir. 1996) ("Ienco I"), we remanded, because of an erroneous evidentiary ruling, for a new determination of whether the defendant's motion to suppress certain evidence later admitted at his trial should have been granted.¹ In United States v. Ienco, 126 F.3d 1016 (7th Cir. 1997) ("Ienco II"), after the district court had partially granted Ienco's motion to suppress and the government appealed from that order, the defendant moved to dismiss the government's appeal for lack of jurisdiction because the district court had not yet disposed of the entire motion. Without reaching the merits of the appeal, we denied the motion to dismiss, but remanded the case with instructions that the district court enter an order ruling on the motion to suppress in its entirety, noting that appeal from that order would position us for the current appeal. The district court granted the full motion to suppress and, for the reasons stated herein, we affirm.

I. FACTUAL BACKGROUND

This case begins with Jerome Greenberg, a seller of clothing "seconds" in Chicago. In August of 1994, Greenberg received a phone call from New York informing him that he owed the caller $140,000 on a shipment of denim shorts from Tunisia. Greenberg refused to pay, claiming that he had not agreed to such a price. As a result of his refusal, Greenberg received a visit by the defendant, Joseph Ienco, and his associate, Gregory Iovine, on behalf of the New York seller.

Ienco and Iovine, armed with two pistols, traveled by train from New York to Chicago, where they rented a room at the Days Inn on Lake Shore Drive. They also rented a minivan which, on August 29, 1994, the pair drove to 2728 North Hampden Court, the building in which Greenberg had his office. The two men entered the building around noon without being buzzed in (someone had propped the door open), and barged into Greenberg's office unannounced. Ienco told Greenberg that he and Iovine were there to collect the money for the aforementioned goods. When the visit became unfriendly, Greenberg's secretary, at his instruction, called the police. Ienco and Iovine left immediately, but not before promising Greenberg that they would return.

That afternoon, at approximately 5:00 p.m., Ienco and Iovine, armed with their weapons, drove the minivan back to Greenberg's neighborhood. They parked, leaving the guns in the van, and entered the building. Greenberg saw them coming into the building on his closed circuit television monitor and called the police. Greenberg told his nephew, Ross Berman, to go downstairs and watch for the two men.

At 5:25 p.m., a police dispatcher sent out a message stating: "Disturbance with two men in a lobby, 2728 North Hampden Court. 2728 Hampden Court. Greenberg is your complainant. You'll find him on the second floor in Apartment 207." Chicago Police Officers Angarone and McGann responded to the call. Berman intercepted their police car as it approached the building and, pointing toward 2728 North Hampden Court, told the officers "they're in the building." Berman appeared nervous and agitated.

As the officers pulled into the driveway, Ienco and Iovine, wearing business suits, exited the building and walked toward them. Officer Angarone got out of the car and, with his hand on his gun, said "stop, don't move." He did not draw his gun. He told the men that he had received a disturbance call and asked if they had seen anything in the building. They said no. When Angarone asked whether they lived in the building, Ienco told him that they were visiting a friend.² Angarone then asked how Ienco and Iovine were getting around and Ienco said "by cab." The officer requested identification and received their driver's licenses. Angarone patted both men down, and took their wallets, money and a set of keys from Ienco's pocket. Neither Ienco nor Iovine were armed. The officer returned the cash and keys but kept the wallets and driver's licenses.

Angarone told the men to get in the backseat of the police car while he checked out the situation inside the building. The men complied and entered the car, but they did not affirmatively consent to enter or remain in the vehicle. Ienco and Iovine were not handcuffed; however, the police car was locked from the outside--it could not be opened from the inside--and the men were not free to leave. They waited in the car for approximately thirty minutes while the officers interviewed Greenberg, who eventually signed a written complaint implicating the two men. At 6:00 p.m., Angarone formally arrested Ienco and Iovine and took them to the police station.

At 10:00 p.m., the police car was routinely searched and the keys to the rented minivan were found in the vehicle. The van was subsequently located and searched, and the police discovered two pistols (including one with a silencer) and a briefcase. At approximately 4:15 a.m., Iovine, after being questioned in custody, gave a statement directing the police to the hotel room at the Days Inn on Lake Shore Drive where the police found additional incriminating evidence.

Prior to trial, Ienco and Iovine filed a joint suppression motion which Judge Duff denied. Iovine then negotiated a plea agreement and testified at trial against Ienco, who was convicted of the extortion related crimes. On appeal, this court remanded for a new suppression hearing because the trial judge erroneously prevented defense counsel from cross-examining a witness who may have been critical to the credibility of Ienco. On remand, Ienco's case was re-assigned to Judge Coar who granted the defendant's new motion to suppress, finding that Ienco was unlawfully arrested when he was initially placed in the police car and that the evidence found in the subsequent van and hotel room searches, as well as Iovine's testimony, were inadmissible because of the Fourth Amendment violation.

II. ANALYSIS

The government raises three issues on appeal. First, it argues that the district court erred in finding that the initial detention violated the Fourth Amendment because it was a permissible Terry stop. Second, it urges that the district court erred in concluding that the evidence obtained from the search of the van was inadmissible fruit of the unlawful search. Third, the government claims that it was error to suppress Iovine's testimony on the same grounds.³

A. Terry stop.

The district court concluded that Ienco's arrest violated the Fourth Amendment because he and Iovine were instructed to enter the police car from which neither could exit, while the police maintained possession of their personal effects. The government argues that this was error because the initial detention of Ienco and Iovine, prior to their formal arrest at 6:00 p.m., was a permissible Terry stop based on Officer Angarone's reasonable, articulable suspicion that Ienco and Iovine were the same men mentioned by Greenberg in the 911 call. Consequently, the government maintains that no arrest of Ienco and Iovine occurred until 6:00 p.m. when the officers returned to the car after talking to Greenberg. In the proceedings below, Officer Angarone claimed that he never ordered the men to stop, but that he said something to the effect of "fellas, can I talk to you for a second." Angarone stated, however, that if he had said "stop," then he would have been telling Ienco and Iovine, not asking them, to stop. At the outset, Officer Angarone's testimony, together with his statement that Ienco claimed to be visiting a friend named Greenberg, would appear to support an appropriate Terry stop. However, Judge Coar found that Officer Angarone had not testified credibly about his version of the initial contact, and instead believed Ienco's version of events. Specifically, Judge Coar found that Officer Angarone said, "Stop, don't move," with his hand on his gun. At that point, the defendant argues, the "seizure" of the men began and there could have been a lawful Terry stop only if Officer Angarone had a reasonable articulable suspicion that the two men were the ones mentioned in the police dispatch. Case law and the district court's unchallenged findings preclude such a conclusion.

The Fourth Amendment protects "against unreasonable searches and seizures." U.S. Const. amend. IV. In Terry v. Ohio, the Supreme Court noted that "not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). Thus, under Terry, a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity is afoot. Id. at 21-22. Reasonable suspicion has been defined as "some objective manifestation that the person...