U.S. v. Ingrao

• Decision Date: 30 April 1990
• Docket Number: No. 89-2117,89-2117
• Citation: 897 F.2d 860
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angelo INGRAO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 860

897 F.2d 860

UNITED STATES of America, Plaintiff-Appellee, v. Angelo INGRAO, Defendant-Appellant.

No. 89-2117.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1990.

Decided Feb. 27, 1990.

Rehearing Denied April 30, 1990.

Thomas M. Durkin, Asst. U.S. Atty., Donna B. More, Office of the United States Attorney, Chicago, Ill., for plaintiff-appellee.

Peter J. O'Malley, James A. Graham, Glenn Seiden, Chicago, Ill., Angelo Ingrao, Park Ridge, Ill., for defendant-appellant.

Before POSNER, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

On June 24, 1988, Angelo Ingrao was observed by agents of the Federal Bureau of Investigation (FBI) and officers of the Chicago Police Department walking down a gangway, previously used in a suspicious transaction, carrying an opaque black bag. The agents and officers followed Ingrao and stopped him while driving in his car. He was immediately removed from the car, placed face down on the ground and handcuffed. Members of the FBI and police then proceeded to remove his keys from the ignition and to open the trunk of his car. Once the trunk was open, the agents removed a black opaque bag and opened it, discovering cocaine. Ingrao was later convicted of possession with the intent to distribute 4,007 grams of cocaine. Ingrao now appeals his conviction and the denial of his motion to quash his arrest and suppress the evidence seized by the agents based on the lack of probable cause to arrest him. For the following reasons, we reverse the district court's denial of his motion to quash his arrest and suppress the evidence.

I. Facts

The events leading up to Ingrao's arrest began in November of 1987, when the FBI commenced a narcotics investigation of an individual named Frank Gigliotti. On the morning of June 24, 1988, FBI agents, with the assistance of the Chicago Police, began a surveillance of Gigliotti at one of his residences. Gigliotti left that address driving a motorcycle and later stopped at a gas station to make a few telephone calls from a pay phone. The agents followed Gigliotti from the gas station to two motorcycle shops and then to a social club called the Friends of the South Club. After remaining approximately fifteen minutes at the club, Gigliotti then drove to his second residence, at 3453 Narragansett Ave., arriving at approximately 12:00 p.m. Gigliotti parked outside of the residence and disappeared from the view of the agents when he walked down a gangway between 3453 and 3459 Narragansett, presumably entering his house.

At approximately 1:00 p.m., Agent Roberts observed a red Corvette pull up in front of 3453 Narragansett. The driver of the car was male and the passenger female. As the red Corvette approached, a man came out from the gangway located between 3453 and 3459 Narragansett and met the car. That person was not Gigliotti or Ingrao. A package appearing to be a gym bag was passed from the female passenger to the unknown man standing on the side of the street. Thereafter, the Corvette left, and the man carrying the package returned down the gangway disappearing from sight. The agents testified at trial that the Corvette then circled the area. At about 1:30 p.m., another man, unknown at the time but later identified as Ingrao, was observed walking out from the gangway. Ingrao was carrying a black opaque bag, but not the bag passed from the Corvette. Agents testified that as Ingrao walked toward the curb, he looked around the surrounding area. They further testified that as he crossed the two lane street he looked both ways. Ingrao proceeded across the street to the rear of a yellow Cadillac and opened the trunk. While placing the black bag into the trunk, Ingrao again looked about. He then closed the trunk, got into his car and drove away.

Minutes after the defendant left Narragansett Ave., agents observed the same man as before emerge from the gangway carrying a small white package. The red Corvette returned and the man handed the driver the package. After a brief conversation, the car pulled away. Agents attempted to follow the Corvette but lost it in traffic.

Meanwhile, several of the agents were following Ingrao in the Cadillac. Ingrao drove directly toward the Friends of the South Club. The agents testified that while driving to that social club Ingrao looked several times in his rear view mirror. He was also observed using a car telephone while en route. Upon reaching the club, Ingrao went inside for approximately 45 minutes.

When Ingrao left the club, he was accompanied by an unknown man. They entered Ingrao's car and drove to the Cacciatore Club. Both individuals entered that social club and came out about five minutes later. Ingrao and the man entered the car again and proceeded to drive south. A few minutes later, the police and FBI moved in and stopped Ingrao's vehicle.

The agents and officers arrested Ingrao removing him from his car and placing him face down on the ground, handcuffing him behind his back. Officer Harris removed the keys from the ignition, opened the trunk and looked inside the black bag where he viewed four "brick-like" objects wrapped in duct tape, which he concluded appeared to be kilograms of cocaine. Inside the glove compartment, agents seized four or five packages of money bound together with rubberbands and slips of paper which had names and amounts of money written on them. Ingrao requested to speak with an attorney, at which time all questioning stopped, and he was transported to the Metropolitan Correction Center.

Prior to trial, Ingrao moved to quash his arrest and to suppress all of the evidence seized, arguing the warrantless arrest and search were not supported by probable cause. After a two-day hearing, the trial court denied Ingrao's motion, concluding the agents had probable cause to arrest and search.

After waiving a jury trial, Ingrao was convicted by the district court of possession with the intent to distribute 4,007 grams of cocaine. Ingrao now appeals his conviction and the denial of his motion to quash his arrest and suppress the evidence seized by the agents.

II. Standard of Review

It is undisputed that the stop of the defendant was a warrantless arrest. Ingrao was stopped in his car, immediately removed, and placed face down on the ground and handcuffed. Such an arrest is valid under the fourth amendment only if supported by probable cause. Beck v. Ohio, 379 U.S. 89, 90, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Therefore, the primary issue raised on appeal is whether the facts in this case are sufficient to establish probable cause to arrest Ingrao and search his car. For purposes of review, we must rely on the district court's factual findings unless they are clearly erroneous. United States v. Price, 888 F.2d 1206, 1208 (7th Cir.1989); United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987). Review of the district court's determination of probable cause, however, is de novo. United States v. Jaramillo, 891 F.2d 620, 626 (7th Cir.1989); Price, 888 F.2d at 1208; United States v. Patino, 862 F.2d 128, 132 (7th Cir.1988).

The test for probable cause to arrest without a warrant was established by the Supreme Court in Beck. See also United States v. Hairston, 763 F.2d 233 (7th Cir.1985). In Beck, the Court held, "the police have probable cause to arrest an individual where 'the facts and circumstances within their knowledge and of which they [have] reasonable trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.' " United States v. Goudy, 792 F.2d 664, 668 (7th Cir.1986) (quoting Beck, 379 U.S. at 91, 85 S.Ct. at 225). See also Price, 888 F.2d at 1208-1209. While probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity," mere suspicion is not enough. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988). See also Price, 888 F.2d at 1209. Rather, as Judge Posner stated in Serna-Barreto, there must exist a high degree of suspicion to arrest without a warrant: "An arrest is a profound and deeply resented interference with the liberty of the person, and to allow police to arrest people on anything less than a high degree of suspicion would restrict personal liberty more than has been justified by the needs of public security." Serna-Barreto, 842 F.2d at 966. We now turn to an analysis of those facts the government alleges support the district court's finding of probable cause.

III. Probable Cause to Arrest

We do not dispute nor do we disturb the trial court's finding of facts. Indeed as the district court noted, there is not any real dispute over the events in the case. Instead, we address whether the court's finding that under these set of circumstances there was sufficient probable cause. The district court appropriately noted before making its eventual determination that defendant's motion was a "serious, nonfrivolous motion with respect to ... the government's actions here," thus recognizing the potential difficulties attendant the law enforcement agents' conduct. The trial court, however, after carefully weighing and considering all the evidence of the events surrounding Ingrao's arrest, concluded that, when viewed as a whole, the agents' actions were supported by probable cause.

The district court looked to a series of several factors to determine that the arrest of Ingrao was supported by probable cause. These included: (1) Gigliotti was a known narcotics trafficker, (2) Gigliotti had two residences but stopped to use a pay phone, (3) the arrival of the Corvette, the passing of a package, the subsequent return of the car, and the passing of another package, (4) Ingrao walked out of the gangway carrying a black bag, and (5) furtive gestures and cautious driving by Ingrao. The court concluded that as a whole...