Ochana v. Flores, 02-2227.

• Decision Date: 17 October 2003
• Docket Number: No. 02-2227.,02-2227.
• Citation: 347 F.3d 266
• Parties: John OCHANA, Plaintiff-Appellant, v. Fernando FLORES and Anthony Schwocher, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

347 F.3d 266

John OCHANA, Plaintiff-Appellant, v. Fernando FLORES and Anthony Schwocher, Defendants-Appellees.

No. 02-2227.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2003.

Decided October 17, 2003.

Rick M. Schoenfield (argued), Divincenzo Schoenfield Swartzman, Chicago, IL, for Plaintiff-Appellant.

Mara S. Georges, Marc J. Boxerman (argued), Office of the Corporation Counsel Appeals Division, Chicago, IL, for Defendant-Appellee.

Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

John Ochana fell asleep at the wheel of his car at a busy intersection in Chicago during rush hour. Fortunately for Ochana, police officers arrived in time to escort him safely out of the car. Unfortunately for Ochana, the officers also conducted a search of his car and found an unmarked bag of white powder and a mysterious bottle labeled in Spanish. Notwithstanding his protestations of "it's not what you think," Ochana was brought in on traffic and criminal charges and spent the better part of the weekend in jail. Laboratory test results for the white powder later came back negative, and all criminal charges were dropped. Ochana subsequently brought this action against the officers pursuant to 42 U.S.C. § 1983, claiming that they had violated his Fourth Amendment rights by unlawfully searching and arresting him without probable cause. The district court granted summary judgment in favor of the officers, and Ochana appealed. We affirm.

I

Around 6:00 p.m. on Friday, June 23, 2000, Ochana was at the wheel of the first vehicle stopped at the light on Kostner Avenue where it intersects with Irving Park Road in Chicago, Illinois. Two Chicago police officers, Defendants Fernando Flores and Anthony Schwocher, were in their squad car, which was located a few cars behind Ochana's car. The light at the intersection changed, but Ochana's car did not respond, and people started honking their horns. Someone coming from the opposite direction on Kostner told the officers that there was a car blocking traffic, and that the driver was either asleep at the wheel or passed out.

The officers activated their emergency equipment and pulled up in their squad car next to Ochana's car. Schwocher went over to Ochana's car and observed that Ochana was asleep behind the wheel with his head down. The gear of Ochana's car was in "drive," and his foot was on the brake. Ochana's window was open, and Schwocher attempted to wake him by calling to him, but Ochana did not respond. Schwocher reached in through the open window of Ochana's car, shifted the gear into "park," and then attempted to wake him by shaking him. Even then, Ochana did not wake up entirely; instead, he kept waking up and then nodding off to sleep again. It was not until the officers knocked on the door of his car that Ochana woke up fully, startled. Ochana thought that he had dozed off only for a few minutes. He did not recall that cars behind him were honking, that cars were passing in the opposite lane of traffic, that the officers had reached in and shifted the gear into "park," or that they had tried to wake him.

The officers ordered Ochana to get out of his car. From that point onward, most of the facts are disputed. According to the officers, they physically had to help carry Ochana out of the car; according to Ochana, he was able to get out of the car by himself. The officers escorted Ochana to the rear of the vehicles and asked to see his driver's license. The officers testified that Ochana was still groggy and incoherent, but Ochana maintains that he was alert and awake. Ochana, however, testified that he did not remember whether he pulled out his driver's license. Schwocher testified that because Ochana was not responding to his request for the driver's license, he had to reach into Ochana's pocket and pull it out himself. The officers asked Ochana why he was sleeping, and Ochana responded only that he was tired.

While Ochana was behind the vehicles with Schwocher, Flores looked into the passenger compartment of Ochana's car. Flores testified that he saw a white substance in a clear, unlabeled bag sticking out more than halfway from inside an open, unzipped backpack. Ochana, in contrast, testified that his backpack was closed. The clear, unlabeled bag was a Ziplock sandwich bag; inside it was a clear plastic scoop and a white powdery substance. According to Ochana, the white powder also had yellow flecks and a lemon-lime scent. The officers did not taste or smell the powder. Based on its appearance and packaging, and also taking Ochana's impaired condition into account, the officers believed that the powder was either cocaine or heroin. Flores removed the backpack from Ochana's car and further discovered a brown bottle of "Cynomel" that appeared to be a prescription drug. The bottle was labeled in Spanish without any prescription information on it.

Ochana allegedly told the officers that the white powder was "creatine" (a popular muscle builder), but according to the officers, "He couldn't say really anything. He just said that it's not what you think it is." The officers told Ochana that they were going to take him in so that they could identify the white powder. The officers did not know what was in the bottle, but they believed that it was a prescription drug that Ochana had obtained illegally.

The officers handcuffed Ochana and took him to the police station. Ochana's car was towed and impounded. Later at the police station, Ochana explained to officers what creatine was—a dietary supplement usually purchased at health food stores to help build muscles, and a non-controlled substance. Moreover, Ochana explained to the officers that the brown bottle contained his thyroid medication. Ochana had obtained it while in Mexico as a substitute for the thyroid medication for which he had a valid prescription in the United States. Ochana asked the defendants to call Walgreens to verify his prescription. Officer Flores called a pharmacist, and was allegedly told that Cynomel was a prescription drug, a steroid, and a controlled substance.

Based on this incident, Ochana was charged with obstruction of traffic, in violation of the City of Chicago Municipal Code, CHICAGO, IL, CODE § 9-40-130 (1999); possession of a controlled substance in violation of 720 Ill. Comp. Stat. 570/402 (1998); and forging or altering a prescription, in violation of 720 Ill. Comp. Stat. 570/406 (1998). He spent the next two nights in jail, and was released on Sunday morning after posting a $100,000 bond, $1,000 of which was nonrefundable. Subsequent attorneys' fees to clear Ochana of the pending charges added up to another $1,000.

On July 21, 2000, both criminal charges were dismissed after laboratory test results for the white powder came back negative. On the obstruction of traffic charge, Ochana received supervision and was assessed a fifty-dollar fine.

In this § 1983 action, Ochana makes two principal allegations against the officers: first, that they searched his vehicle and backpack without probable cause, and second, that they arrested him without probable cause. The district court granted summary judgment in favor of the officers, finding that the search was incident to a custodial arrest, and that the subsequent arrest was warranted by probable cause. Ochana challenges the district court's grant of summary judgment, in addition to various evidentiary rulings.

II

We review de novo a district court's decision to grant summary judgment, Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1010 (7th Cir.2002), drawing all reasonable inferences in the light most favorable to the non-moving party, here Ochana. See Casteel v. Pieschek, 3 F.3d 1050, 1052 (7th Cir.1993).

A. Legality of Search

Defendants raise three independent arguments to support the legality of the search: that (1) it was incident to a custodial arrest; (2) there was probable cause to search for evidence of drugs or intoxicating agent; and (3) the search was inevitable. The district court granted summary judgment based on the first of those theories: that the search was incident to a custodial arrest. We may affirm the district court's ruling on any basis supported by the record. Id. Construing the record in the light most favorable to Ochana, we depart from the district court's analysis but ultimately arrive at the same conclusion.

Generally, it is legal to search a vehicle incident to a lawful custodial arrest, including the contents of any closed containers found inside, in order to disarm the suspect or preserve evidence of a crime. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). It is not, however, permissible to conduct a Belton search pursuant to a traffic citation alone. Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). In Knowles, the Court underscored that a Belton search may not be conducted as part of a mere traffic stop, even if there is probable cause for the traffic stop, or probable cause to arrest the driver for the traffic violation. In order to conduct a Belton search, the occupant of the vehicle must actually be held under custodial arrest. Id. at 118, 119 S.Ct. 484.

Construing the record in the light most favorable to Ochana, we find insufficient evidence that Ochana was under custodial arrest at the time of the search. A suspect is under custodial arrest when "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." United States v. Ienco, 182 F.3d 517, 523 (7th Cir.1999). For example, in Smith v. Ball State Univ., 295 F.3d 763, 768-69 (7th Cir.2002), we found that the removal and detention of an unconscious person at the wheel of a running vehicle was merely investigatory and was not equivalent to a custodial arrest, even if the officers reasonably believed...