578 F.3d 627 (7th Cir. 2009), 07-3101, United States v. Marrocco

Docket Nº:07-3101.
Citation:578 F.3d 627
Opinion Judge:RIPPLE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Nicholas P. MARROCCO and Vincent J. Fallon, Appellees, and Funds in the Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120.00), Defendant.
Attorney:James M. Kuhn, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant. Stephen M. Komie, Attorney (argued), Komie & Associates, Chicago, IL, for Appellees.
Judge Panel:Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges. EASTERBROOK, Chief Judge, concurring.
Case Date:August 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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578 F.3d 627 (7th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellant,


Nicholas P. MARROCCO and Vincent J. Fallon, Appellees,


Funds in the Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120.00), Defendant.

No. 07-3101.

United States Court of Appeals, Seventh Circuit.

August 24, 2009

Argued Nov. 5, 2008.

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[Copyrighted Material Omitted]

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James M. Kuhn, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Stephen M. Komie, Attorney (argued), Komie & Associates, Chicago, IL, for Appellees.

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

After discovering that Vincent Fallon had purchased a one-way train ticket in cash a short time before his trip, Amtrak police officer Eric Romano concluded that Mr. Fallon fit the profile of a typical drug courier. Shortly before Mr. Fallon's train was scheduled to depart, Officer Romano and Officer Sterling Terry approached Mr. Fallon in his compartment, where they asked him several questions. After Mr. Fallon admitted that he was carrying $50,000 in a locked briefcase, the officers seized the briefcase, which was found to contain $100,120.00 in cash (the " funds"). The Government subsequently instituted a forfeiture proceeding under 21 U.S.C. § 881(a)(6). During that proceeding, Mr. Fallon and Nicholas Marrocco (collectively the " claimants") filed a motion to suppress the evidence of a dogsniff test that had indicated that the funds carried the odor of drugs. The district court granted the motion. It later determined that Mr. Marrocco was the lawful owner of the funds and ordered the funds returned to him. The Government subsequently filed this appeal. For the reasons set forth in this opinion, we reverse the decision of the district court and remand this case for further proceedings.




On December 6, 2002, Officer Romano performed a search of Amtrak's reservation computer to determine whether any of the passengers scheduled to depart Chicago's Union Station on that date had purchased their tickets under suspicious circumstances. He discovered that Mr. Fallon had paid $310.80 in cash for a one-way ticket to Seattle less than 72 hours before his train's scheduled departure. Officer Romano concluded that the details of Mr. Fallon's purchase fit a drug-courier profile. Mr. Fallon arrived at the platform twenty minutes before the train's scheduled departure time. Upon learning of Mr. Fallon's arrival, Officer Romano and Officer Terry approached Mr. Fallon's compartment, identified themselves and showed Mr. Fallon their badges. At the officers' request, Mr. Fallon gave the officers his identification and ticket. He told them that he was traveling to Seattle to visit a girlfriend. The officers asked Mr. Fallon whether he was carrying any drugs, weapons or large sums of money. They noticed that Mr. Fallon was sweating when he replied that he was not carrying

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any of those items. When the officers inquired about the backpack and briefcase in Mr. Fallon's compartment, Mr. Fallon stated that the bags were his, that he had packed them himself and that no one had given him anything to carry. Mr. Fallon allowed the officers to search the backpack; they found nothing incriminating. Mr. Fallon denied the officers' request to search the briefcase. Officer Romano then took the briefcase from the compartment and asked Mr. Fallon if he had a key to the briefcase. Mr. Fallon said he did not, and he explained that he had used a knife to open it. He then told Officer Romano that the briefcase contained $50,000.

The officers then asked Mr. Romano to accompany them to the Amtrak police office, and Mr. Fallon complied. Officer Romano used a pocket knife to open the briefcase and discovered that it contained bundles of money. He then quickly shut the briefcase. Officer Terry then called a police dispatcher and requested that a police dog (the " canine unit") be brought to the office to conduct a sniff search of the briefcase. Later, the canine unit arrived at the office and alerted to the briefcase, indicating that it contained drugs or money contaminated with drugs. The currency was removed from the briefcase, sealed into evidence bags and sent to a bank to be counted. The bank determined that the funds amounted to $100,120.00.


The officers retained the briefcase and the funds; the Government subsequently filed a complaint, alleging that the funds were subject to forfeiture under the Controlled Substances Act. 21 U.S.C. § 881(a)(6). During the events that followed, Mr. Fallon indicated that the briefcase and its contents belonged to Mr. Marrocco; the claimants asserted that Mr. Marrocco had given the briefcase and the funds to Mr. Fallon and had instructed him to place the funds in a safe deposit box for Mr. Marrocco's later use.

The claimants moved to suppress the seizure of the funds. The district court granted the motion on March 21, 2005 (the " March 2005 ruling") and simultaneously set a status hearing for April 1, 2005.1 It concluded that, although reasonable suspicion justified the temporary detention of the briefcase, Officer Romano's physical search of the briefcase was improper. The Government moved for reconsideration, arguing, among other things, that the suppression of the contents of the briefcase was improper under either the inevitable discovery doctrine or the independent source doctrine. On September 21, 2006, the district court denied the Government's motion for reconsideration (the " September 2006 ruling"), but did not determine ownership of the briefcase.2

On April 24, 2007, the claimants filed a motion to determine ownership of the funds. The district court held that the evidence that the dog alerted to the briefcase was not admissible against either of the claimants and concluded that, absent the evidence of the dog alert, the Government had failed to demonstrate a substantial connection between the seized funds and illegal narcotics activity. The court concluded-based on Mr. Marrocco's deposition testimony, his answers to interrogatories and the presumption that the possessor of property that is seized is entitled to its return-that Mr. Marrocco was the lawful owner of the funds. Accordingly, on July 5, 2007, the court ordered the

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funds returned to Mr. Marrocco. The Government filed this appeal within sixty days of that ruling.



The Government challenges the district court's order requiring the funds to be returned to Mr. Marrocco.3 It submits that the district court erroneously held that the evidence of the dog's alert to the briefcase was not admissible against Mr. Marrocco.4 All agree that the officers had reasonable suspicion to detain the briefcase in the first instance. Nor, on appeal, does anyone contend that the officers could have lawfully opened the briefcase.

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The Government claims, however, that the evidence of the briefcase's contents should have been admitted against Mr. Marrocco because, even without the unlawful search, the officers inevitably would have discovered that the briefcase contained money contaminated by drugs. 5

When considering a district court's ruling on a motion to suppress, we review the court's legal conclusions de novo, and we defer to the district court's factual findings unless those findings are clearly erroneous. United States v. Martin, 422 F.3d 597, 601 (7th Cir.2005). We evaluate the propriety of the officers' conduct at each stage of the investigation, viewing their actions in light of the totality of the circumstances.6

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We first consider the officers' initial encounter with Mr. Fallon to determine whether they were permitted to seize and detain the briefcase and its contents.7 The limited investigative detention of luggage is permissible under the Fourth Amendment where an investigating officer reasonably believes that the luggage contains narcotics. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The suspicion necessary to justify such an intrusion must amount to " more than a mere hunch," United States v. LePage, 477 F.3d 485, 487 (7th Cir.2007) (citing United States v. Ganser, 315 F.3d 839, 843 (7th Cir.2003)), and cannot be based solely on an officer's conclusion that a suspect fits a drug-courier profile, United States v. Sterling, 909 F.2d 1078, 1083 (7th Cir.1990) (citing Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam)). Instead, the suspicion justifying such conduct must be based on specific, articulable facts which, judged in light of the officers' experience, would justify the intrusion. United States v. Yang, 286 F.3d 940, 949 (7th Cir.2002). However, even when an officer has reasonable suspicion, his ability to detain a suspect's baggage is limited: Any such detention must be reasonable in time and scope given the totality of the circumstances surrounding the investigatory act. See Sterling, 909 F.2d at 1085 ("Even if the decision to detain a suitcase is made on the basis of reasonable suspicion, the duration of the detention may abridge constitutional standards.").

With these standards in mind, we turn to the officers' initial questioning of Mr. Fallon. At the time that the officers approached Mr. Fallon's compartment, they knew that Mr. Fallon had purchased a one-way train ticket with cash within a few days of his scheduled departure. These facts, as Officer Romano noted, fit the profile of a drug courier. Nevertheless, the officers reasonably could not have suspected, based on these facts, that Mr. Fallon was carrying drugs or money associated with drugs...

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