U.S. v. Marin

• Citation: 761 F.2d 426
• Decision Date: 15 May 1985
• Docket Number: 83-3210,Nos. 83-3209,s. 83-3209
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector MARIN and Aida Serna Barreto, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 426

761 F.2d 426

UNITED STATES of America, Plaintiff-Appellee, v. Hector MARIN and Aida Serna Barreto, Defendants-Appellants.

Nos. 83-3209, 83-3210.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 30, 1984.

Decided May 7, 1985.

As Amended May 15, 1985.

Steven A. Miller, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Jack I. Rodgon, Chicago, Ill., for defendants-appellants.

Before CUDAHY and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

COFFEY, Circuit Judge.

The defendants, Hector Marin and Aida Serna Barreto, appeal their convictions for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. We affirm.

I

On May 9, 1983, Maurice Dailey, an agent of the Federal Drug Enforcement Administration ("DEA"), met with a confidential source ¹ who informed Dailey that an Aida Serna Barreto was distributing cocaine on the north side of Chicago, Illinois. Surveillance of Barreto began on May 16, 1983, after various background checks conducted by DEA agents disclosed that she resided at 2000 West Summerdale in Chicago. On May 16, DEA agents observed Barreto travel to O'Hare Airport, where she met a Latin male arriving on a flight from Florida, and on May 18, 1983, the confidential source informed the DEA that Barreto had just received a shipment of cocaine from Florida. On May 24, 1983, at approximately 7:30 a.m., the confidential source again contacted the DEA, this time informing the agents that Barreto would begin distributing cocaine that day. After receiving this information, Agent Dailey organized several DEA agents to conduct further surveillance of Barreto. Dailey provided the agents conducting the surveillance operation with all the information contained in the DEA files concerning Barreto.

Between 9:00 and 9:30 a.m. on May 24, 1983, the DEa agents observed Barreto leave her residence, enter a yellow Camaro automobile registered to Hector Marin, 901 West Argyle, and drive two or three blocks south where she picked up two Latin passengers, one male and the other female. The agents observed Barreto and her two passengers proceed to 1507 West Lawrence in a circuitous manner, circling blocks and retracing their path several different times for approximately one-half hour, in an obvious effort to elude and frustrate attempted surveillance. Barreto existed the automobile, entered the building at 1507 West Lawrence, and after several minutes returned to the automobile. Barreto continued to drive in a circuitous manner, eventually returning to her residence at 2000 West Summerdale. Barreto exited the automobile and entered her residence, while the male and female Latin passengers drove off in the Camaro. At approximately 1:25 p.m., the agents observed Barreto leave the building at 2000 West Summerdale, unaccompanied, and enter a black Oldsmobile, registered to Isabella Scott. Barreto drove away in a circuitous manner, circling blocks, retracing streets, and proceeding very slowly, taking fifteen to twenty minutes to drive the ten to twelve blocks from her residence to 901 West Argyle. ²

Upon Barreto's arrival at 901 West Argyle, a Latin male, later identified as Hector Marin, exited the building at that address, carrying a brown paper bag. Marin stood on the sidewalk, nervously and cautiously looking up and down the street for several minutes. He then ran to the black Oldsmobile and entered the driver's side of the vehicle, still carrying the brown paper bag. Barreto slid over to the passenger side as Marin bent over, his head disappearing from view for several seconds, and then reappeared behind the steering wheel. Marin and Barreto drove westbound approximately one block, turned onto Sheridan Road, and immediately pulled the vehicle to the curb where Marin surveyed the area, looking out of the driver's window down Argyle Street. Marin soon merged into traffic and drove back and forth on side streets for ten to fifteen minutes, eventually entering southbound Lake Shore Drive, the entire time under the surveillance of the DEA agents. ³

Marin and Barreto traveled south some twenty blocks, exited Lake Shore Drive, and proceeded west on Fullerton, where they quickly became mired in heavy traffic. Agent Dailey, afraid that Marin and Barreto would be lost in the heavy traffic, instructed Agents Knute Nyman and Lawrence Evans, who had been following Marin and Barreto since their entry onto Lake Shore Drive, to "stop the vehicle." Agent Evans approached the driver's door, announced that he was a police officer, instructed Marin to get out of the car, conducted a protective search of Marin, and directed Marin to produce a driver's license or other identification. Simultaneously, Agent Nyman approached the passenger door and yelled, "Police officer. Get out of the car." Nyman testified that as he approached the automobile, Barreto "bent over in the front seat and was doing something on the floor." Agent Nyman opened the door, grabbed Barreto by the arm, and pulled her from the car. Nyman looked on the floor of the automobile and saw the brown paper bag that Barreto appeared to be reaching for as he approached. Nyman opened the bag looking for weapons or narcotics and discovered a white substance that appeared to be cocaine. Barreto and Marin were placed under arrest and a field test of the white substance contained within the brown paper bag indicated that the substance was indeed cocaine.

Agent Dailey arrived on the scene, informed Marin and Barreto of their Miranda rights, asked Marin his address, and also asked him if anyone was at his residence. Marin responded that he lived at 901 West Argyle, and that his wife was probably not at home, but might be at a laundromat near their apartment. Agent Evans proceeded to 901 West Argyle, and about one-and-a-half blocks away from that address, he stopped a woman and a young female child on the street. Agent Evans introduced himself as a police officer and asked the woman, whom he believed to be Mrs. Marin, to identify herself. Mrs. Marin, who was then four months pregnant, identified herself as Hector Marin's wife. While waiting for Agent Dailey, Evans explained to Mrs. Marin that her husband had been arrested for possession of cocaine. According to Evans, he told Mrs. Marin that he would "obtain a search warrant, if necessary to search the apartment" but asked "if she would give ... permission to search the apartment." Agent Evans further testified that, "[w]e told her that she in effect had the right not to consent to a search. At that point in time, she said we could search her apartment, but if we could put it in writing." Evans took no further action until Agent Dailey arrived.

When Dailey arrived, Evans, Mrs. Marin, and her daughter got out of the automobile in which they had been waiting. Dailey introduced himself and asked Mrs. Marin a second time if she would consent to a search of the Marin apartment. According to Agent Dailey, Mrs. Marin again consented to the search, but again stated that she "wanted [the consent] in writing." Dailey requested via radio that a Spanish translation of a consent to search form be delivered to the Marin apartment building, ⁴ and an officer arrived with the form in twenty to twenty-five minutes. Evans observed that after the Spanish consent form was handed to Mrs. Marin, "she read it before she signed it." Once Mrs. Marin had executed the consent form, DEA agents entered the Marin apartment and searched the premises, uncovering a scale and an attache case that contained approximately $7,000 in cash and one kilogram of cocaine.

This evidence was presented to a Federal Grand Jury which returned an indictment against Barreto and Marin for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Barreto and Marin pled not guilty and filed a motion to suppress the cocaine seized from the automobile in which Marin and Barreto were traveling for lack of probable cause, and the cocaine seized from Marin's apartment for lack of either a valid search warrant or valid consent. Following an evidentiary hearing, the district court denied the defendants' motion to suppress, holding that the totality of circumstances provided the agents with probable cause to stop and search the automobile. The district court further ruled that Mrs. Marin had consented to the search of the Marin apartment. Barreto and Marin waived a jury trial and following a one-day trial before the bench, the district court found the defendants guilty of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. The district court sentenced Barreto to five years imprisonment and Marin to a four year prison term. On appeal, the defendants contend that the district court erred in failing to suppress the cocaine seized from the automobile and the Marin apartment.

II

A. THE SEARCH OF THE AUTOMOBILE

The defendants initially contend that the DEA agents lacked probable cause to stop and search the black Oldsmobile in which they were traveling. The defendants argue that the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)--which considers the basis of an informant's knowledge and the informant's veracity or reliability--must guide this court's analysis of the probable cause issue. According to the defendants, the DEA agents' confidential source, who provided the agents with information concerning Barreto's participation in cocaine traffic, had no prior history as an informant, no credibility, no veracity, and provided no detail or basis for the substance of his information. Moreover, the defendants contend that the surveillance by the DEA agents revealed, at...