69 F.3d 136 (7th Cir. 1995), 94-3935, United States v. Rodriguez

Docket Nº:94-3935.
Citation:69 F.3d 136
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tomas RODRIGUEZ, Defendant-Appellant.
Case Date:October 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 136

69 F.3d 136 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Tomas RODRIGUEZ, Defendant-Appellant.

No. 94-3935.

United States Court of Appeals, Seventh Circuit

October 23, 1995

Argued Sept. 13, 1995.

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[Copyrighted Material Omitted]

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Barry Rand Elden, Asst. U.S. Atty., Collen Coughlin (argued), Office of the U.S. Attorney, Criminal Appellate Division, Chicago, IL, for plaintiff-appellee.

Alexander M. Salerno, Berwyn, IL, argued for defendant-appellant.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

After entering a conditional plea of guilty to an indictment charging him with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), Tomas Rodriguez now appeals his conviction. He challenges the legality of the arrest and search that led to his indictment, the district court's determination of his suppression motion without a hearing, and the district court's application of the sentencing guidelines in determining his sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.



  1. Facts

    On June 21 and 22, 1994, Tomas Rodriguez flew from Los Angeles to Chicago's O'Hare International Airport with a stopover in Las Vegas. On the morning of June 22, agents of the Drug Enforcement Agency ("DEA") and the United States Customs Service received a tip from a confidential informant that Mr. Rodriguez would be arriving at O'Hare that morning and that he had purchased his one-way ticket with cash. Acting on this information, two officers assigned to the DEA Airport Task Force met Mr. Rodriguez' flight and observed his activities upon arrival.

    When Mr. Rodriguez arrived at the gate in Chicago, he began looking nervously around the terminal. According to the agents, he appeared to be engaging in counter-surveillance. The agents then followed him to the baggage claim area and observed as Mr. Rodriguez waited until all the other passengers from his flight had retrieved their luggage before he claimed his own bag. 1

    As Mr. Rodriguez walked toward the exit of the airport, one of the agents approached Mr. Rodriguez and identified himself as a law enforcement officer. Mr. Rodriguez agreed to answer a few questions; he confirmed his name for the agent and the flight upon which he had just arrived. Also upon request, he produced his airline ticket and verified his ownership of the bag he had just retrieved. In the view of one of the officers, Mr. Rodriguez became "extremely nervous" during the course of the encounter.

    The agent then asked for Mr. Rodriguez' consent to search his luggage. When Mr. Rodriguez agreed, he and the agent moved away from the doorway, and Mr. Rodriguez opened his bag. In the bag agents observed two brick-shaped packages, each of which subsequently was found to contain a kilogram of cocaine.

  2. Proceedings in the District Court

    Mr. Rodriguez, through counsel, filed a motion seeking additional discovery and a motion to quash his arrest and suppress evidence. The district court initially granted the motion for additional discovery and set for hearing the motion to suppress. Upon the government's motion for reconsideration, however, the district court vacated its order scheduling a suppression hearing and denied defendant's motion to quash the arrest and suppress evidence. As a result of the district court's ruling, Mr. Rodriguez' request for additional discovery was rendered moot.

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    The district court took the view that Mr. Rodriguez had not met his burden of making the prima facie showing of illegality necessary to entitle him to a suppression hearing. Noting that Mr. Rodriguez' motion focused on events leading up to the encounter, the court found that the record, on its face, supported a finding that the actual encounter and subsequent search was consensual.

    The district court addressed Mr. Rodriguez' claim that his consent was not given voluntarily but was instead the product of trickery by officers specially trained to obtain waivers of constitutional rights. The court stated that he had not supported these allegations with definite, specific, detailed, and nonconjectural facts. Characterizing Mr. Rodriguez' allegations of illegality in this manner, the court determined that a hearing on the motion to suppress was not required.

    Turning to the merits of the motion, the court determined that the lack of sufficient evidence to require a hearing on the motion to suppress foredoomed the motion itself. In reaching this conclusion, the court relied on the objective test of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980): "[A] person has been 'seized' within the meaning of the Fourth Amendment ... only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554, 100 S.Ct. at 1877. The district court took the view that, under Mendenhall, the airport encounter did not rise to the level of a "seizure." To determine whether the search was consensual, the district court applied the factors set forth in United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir.1993), and found that Mr. Rodriguez had voluntarily consented to the search.

    The district court rejected Mr. Rodriguez' argument that his consent had been obtained through subtle psychological coercion employed by officers specially trained to employ such tactics. The district court held that, because the test is an objective one, and the focus is on what a reasonable suspect would have felt free to do, the agents' subjective motivation and training are immaterial. The court found no evidence in the record to support the conclusion that Mr. Rodriguez had not voluntarily consented to the search.

    On September 1, 1994, the district court accepted Mr. Rodriguez' conditional plea of guilty to the indictment. Prior to sentencing, Mr. Rodriguez petitioned the district court to sentence him below the statutory mandatory minimum as permitted by Sec. 5C1.2 of the Sentencing Guidelines. At sentencing, however, the district found that Rodriguez had not furnished all the information within his knowledge concerning the offense, as required for downward departure under Sec. 5C1.2, and sentenced him to the statutory minimum five years' imprisonment.



  3. Denial of Hearing

    We first address whether the district court properly denied Mr. Rodriguez' motion to quash his arrest and suppress evidence without an...

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