U.S. v. $32,400.00, in U.S. Currency, 95-2647

• Decision Date: 12 April 1996
• Docket Number: No. 95-2647,95-2647
• Citation: 82 F.3d 135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $32,400.00, IN UNITED STATES CURRENCY, Defendant, Appeal of Doris CHAPARRO, Claimant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 135

82 F.3d 135

UNITED STATES of America, Plaintiff-Appellee, v. $32,400.00, IN UNITED STATES CURRENCY, Defendant Appeal of Doris CHAPARRO, Claimant-Appellant.

No. 95-2647.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1996.

Decided April 12, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 4936--Charles P. Kocoras, Judge.

Michele M. Fox (argued), Office of the United States Attorney, Civil Division, Appellate Section, Chicago, IL, for Plaintiff-Appellee.

William H. Theis (argued), Chicago, IL, for Claimant-Appellant.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

MANION, Circuit Judge.

Doris Chaparro challenges the forfeiture of proceeds from her drug trafficking on the theory the police illegally seized her. The district court did not clearly err when it concluded the police did not stop Chaparro and that, if they had, they had reasonable suspicion to do so. Therefore, we affirm the district court's denial of Chaparro's motion to suppress evidence seized and statements made.

I.

In February 1993 Chicago police officer Charles Elliott, a deputized agent of the Drug Enforcement Administration, spoke with an informant who had purchased drugs from a woman later identified as Doris Chaparro, the claimant-appellant in this case. The informant described Chaparro's car, where she lived, and where she dealt drugs--a tavern at Cornelia and Southport Avenues in Chicago. He also gave her name as "Doris." Elliott surveilled the woman's residence and the tavern for about three hours. He saw her drive from her residence to the tavern and talk to a number of persons inside, including some who entered the tavern after double-parking outside. Within half an hour after she arrived she drove back to her residence. A short time later she drove back to the tavern and again engaged in a series of brief conversations with persons in and entering the tavern.

One month later Elliott and other officers returned to the tavern and saw her car parked nearby. They again observed the same conduct. Based upon the informant's statement and his seventeen years of training and experience as a police officer, Elliott surmised that the woman was dealing drugs. On March 18, 1993, Elliott decided that officers should stop the woman to determine her identity. At approximately 6 p.m. that evening, Elliott and other officers set up surveillance outside her house. One hour later she left the house, placed her purse in the trunk of her car, and drove to the tavern. As she began to parallel park on Cornelia Avenue outside the tavern, Elliott pulled his unmarked car in front of hers so their vehicles faced each other. Another officer stopped his unmarked car behind the woman's car at an angle. None of the officers attempted to touch or grab Chaparro or had his gun drawn. Only Elliott got out of his car. He held up his police badge and yelled, "Police, stop." At a later evidentiary hearing Elliott testified he intended to establish the woman's identity at that point, not to arrest her.

Chaparro did not stop. She quickly backed up into the other officer's car, striking its fender. She then shifted gears and accelerated quickly around Elliott's car, ran a stop sign, and fled at speeds of up to 70 miles per hour. Elliott requested assistance from the Chicago police and they pursued her with sirens blaring and lights flashing. During Chaparro's flight her car scraped and collided with a number of parked cars. After a ten-minute chase Chaparro was stopped when four police cars surrounded her and slowed down their vehicles to force her car to stop.

As Elliott attempted to arrest Chaparro for leaving the scene of an accident he saw her try to throw a cigarette package from the car. An agent took the package from Chaparro's hand. Subsequent laboratory tests revealed the package contained 27 grams of cocaine. The police asked Chaparro if she would agree to open the trunk of her car and retrieve her purse. She agreed and did so. Inside the purse were 150 grams of cocaine as well as a large amount of U.S. currency. The police arrested Chaparro on state narcotics charges.

While in jail, a security officer overheard Chaparro on the telephone instructing someone to get rid of $32,000 the person was holding for Chaparro. When interviewed about this statement Chaparro admitted her sister-in-law was hiding that amount of drug money for her because two months earlier Chaparro had had a large amount of cash stolen from her house. Authorities telephoned Chaparro's sister-in-law who turned over $32,420.00 in cash to them. The sister-in-law told authorities Chaparro obtained the money by selling cocaine and then gave it to her.

The United States filed a complaint pursuant to 21 U.S.C. § 881(a)(6) seeking forfeiture of the $32,420.00 involved in Chaparro's narcotics trafficking. Chaparro filed a claim for the money and an answer to the complaint.

Chaparro's counsel later informed the district court and government counsel that Chaparro had fled to avoid prosecution in state court for cocaine distribution. Based upon Chaparro's counsel's admission of her fugitive status, the government requested an automatic decree of forfeiture, which the district court granted. Chaparro appealed this order and this court reversed and remanded in an unpublished order (No. 94-2157, Nov. 7, 1994) based upon United States v. $40,877.59 in U.S. Currency, 32 F.3d 1151, 1157 (7th Cir.1994), which held that the fugitive disentitlement doctrine does not apply to forfeiture proceedings. ¹ Chaparro was later taken into custody. She is currently incarcerated on the state criminal charges.

Upon remand the district court held an evidentiary hearing on Chaparro's motion to suppress. At that time the parties agreed this case turned on whether or not the money seized and statements made after Chaparro's arrest should be suppressed. Chaparro argued she was illegally seized on Cornelia Avenue when, while in her car, two police cars "boxed her in." Any evidence gleaned from her after that point, Chaparro asserted, was inadmissible in the government's pursuit of civil forfeiture. The district court entered findings of fact and conclusions of law denying Chaparro's motion to suppress and forfeiting the currency to the government. The lower court distinguished between an actual stop and an attempted stop, finding that when Chaparro struck a police car as she was fleeing, she was not physically seized for Fourth Amendment purposes. The district court also found that when the officers initially attempted to stop Chaparro, if an investigatory stop had occurred, it would have been justified by numerous factors. The district court thus concluded that evidence gleaned from Chaparro at the end of the high speed chase should not be suppressed.

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1345 & 1355, and this court has jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's denial of a motion to suppress for clear error. United States v. Packer, 15 F.3d 654, 656 (7th Cir.1994).

II.

A.

First, Chaparro argues the police illegally seized her when officers surrounded her at close quarters on Cornelia Avenue. She contends the seizure was an arrest and not a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that even if it was a Terry stop, the officers lacked reasonable grounds for their actions.

"It is well-established that the Fourth Amendment does not prohibit all searches and seizures, but only those that are 'unreasonable.' " United States v. Nobles, 69 F.3d 172, 180 (7th Cir.1995) (internal quotes omitted). In California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court applied a two-part test to decide whether a person had been seized such that Fourth Amendment protections are triggered (whether that seizure be an arrest, a Terry stop, or otherwise): ² first, determine whether any physical force simultaneously accompanied the officer's show of authority, and second, determine whether the defendant failed to comply with that show of authority. If no physical force accompanied the show of authority and a person chose to ignore or reject that show of authority, the defendant is not seized until the officer applied physical force and the person submitted to the officer's show of authority. Id. at 624-27, 111 S.Ct. at 1548-51. For the Court in Hodari D., the term "seizure" "does not remotely apply ... [to] a policeman yelling 'Stop, in the name of the law!' at a fleeing form that continues to flee." Id. at 626.

This court has applied this test from Hodari D. In Kernats v. O'Sullivan, 35 F.3d 1171 (7th Cir.1994), we recognized that "[u]nder this test, a fleeing suspect--even one who is confronted with an obvious show of authority--is not seized until his freedom of movement is terminated by intentional application of physical force or by the suspect's submission to the asserted authority." Id. at 1178 n. 4 (citing Hodari, 499 U.S. 621, 111 S.Ct. 1547). We have also recognized that neither a police officer who chases a suspect unsuccessfully nor an officer who yells "stop" at a fleeing person has effected a seizure. Tom v. Voida, 963 F.2d 952, 957 (7th Cir.1992) (applying Hodari D.).

Here, Elliott and the officers did not apply physical force to Chaparro while on Cornelia Avenue. Chaparro initiated the physical contact between her car and the police vehicle during her flight by backing out of her parking spot. Such contact was not a "laying on of hands" by the officers. See Hodari D., 499 U.S. at 626, 111 S.Ct. at 1550. Moreover, the contact between Chaparro's car and the police vehicle behind her did not stop her. Her freedom of movement was not terminated, as she sped off. At best, the police made a strong but unsuccessful attempt to stop Chaparro. This...