U.S. v. Cardona-Rivera

• Decision Date: 12 June 1990
• Docket Number: Nos. 89-2095,CARDONA-RIVERA and G,89-2179,s. 89-2095
• Citation: 904 F.2d 1149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jairoustavo Luna Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1149

904 F.2d 1149

UNITED STATES of America, Plaintiff-Appellee, v. Jairo CARDONA-RIVERA and Gustavo Luna Sanchez, Defendants-Appellants.

Nos. 89-2095, 89-2179.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1990.

Decided June 12, 1990.

Thomas M. Durkin, William V. Gallo, Asst. U.S. Attys., Chicago, Ill., for U.S.

Mitchell D. Kreiter, Gerda N. Barker, Kreiter & Associates, Chicago, Ill., for Jairo Cardona-Rivera.

William J. Stevens, Thomas J. Royce, Chicago, Ill., for Gustavo L. Sanchez.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Jairo Cardona-Rivera and Gustavo Luna Sanchez entered conditional pleas of guilty to federal drug offenses, were sentenced to prison, and now appeal, challenging the denial of their motions to suppress evidence used against them. At the hearing on their motions Judge Nordberg found the following facts, and his findings are not clearly erroneous. A reliable informant led Chicago narcotics officers to Luna, whom the informant described as a drug dealer, and the officers set a watch on Luna's apartment house. One day they saw him arrive in a car, and as he got out, another car, driven by (it was later discovered) Cardona, the other defendant, pulled up behind Luna's car and stopped. Cardona got out and went up to Luna. They had a brief conversation, at the end of which Luna went into the apartment building while Cardona returned to his own car, opened the front passenger door, did "something at the floor or passenger seat area" (as one of the officers testified), emerged from the car holding a shopping bag, and entered the same building Luna had just entered. The officers could see that the bag that Cardona was carrying contained a bulky object or objects, which they suspected was a package or more of cocaine. Cardona emerged from the building a few minutes later, without the bag; opened the front passenger door again and again fussed a bit in the passenger area; then entered the car on the driver's side and drove away, followed by several officers in two cars. Other officers remained behind to keep watch on the apartment house.

The officers following Cardona saw him commit several traffic violations, such as speeding and running a stop sign. When Cardona finally reached his destination, stopped the car, and got out, one of the officers approached him, identified himself as a police officer, and asked to speak with him. Cardona bolted, but found his way blocked by his own car. By now there were three officers at the scene. The one who had first accosted Cardona asked him for identification. Cardona had none, but told the officer that he was driving on a ticket and that the ticket was in his car. It is the custom in Chicago that when a driver receives a ticket for a moving violation the policeman takes his license and until it is returned the driver "drives on the ticket," that is, uses the ticket as a temporary license. The officer entered the car to get the ticket and saw it lying on the floor in front of the passenger seat. He bent over to pick it up and as he did so saw a package underneath the seat and recognized it as a kilo brick of cocaine. The officers arrested Cardona and before leaving the scene tested the brick ("field tested" it) for cocaine. It tested positive.

The officers who had arrested Cardona returned to the apartment house to join the surveillance of Luna. Within minutes of their arrival Luna emerged, carrying a leather briefcase with zippered compartments. The officers accosted him, identified themselves, and asked whether he would be willing to speak with them. He said yes. One of the zippers on the briefcase happened to be open and an officer who had an unobstructed view inside the unzippered compartment saw two packages that he recognized as kilo bricks of cocaine. He arrested Luna, gave him his Miranda warnings, and asked him what was in the packages. Luna replied, "coke." The officers took the packages back to the federal building, and several hours later, without having tried to get a search warrant, opened the packages and tested the white powder inside them; it was indeed cocaine.

All this is according to the officers, but the judge believed them. In a swearing contest, the trial judge's (or jury's) choice of whom to believe is conclusive on the appellate court unless the judge credits exceedingly improbable testimony, and here the officers' testimony as to what they saw and what Luna said was merely improbable. Some cases, notably United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989), and United States v. Kuzniar, 881 F.2d 466, 471 and n. 1 (7th Cir.1989), go further in formulating the principle of deference to the factfinder's resolution of questions of credibility. They say it can be overturned on appeal only if the testimony that the factfinder believed was contrary to a law of nature, as when an officer testifies that he saw around a corner (without the aid of a mirror or other reflector) or that he has X-ray vision. Other cases, illustrated by United States v. Edun, 890 F.2d 983, 989 (7th Cir.1989), formulate the test in more general terms, consistent with the Supreme Court's observation in Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985), that a witness's story may be "so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it," in which event the appellate court is not bound by the factfinder's decision to believe the story. Anderson was a civil case, but the same standards apply to the appellate review of factfindings made in deciding a motion to suppress evidence in a criminal case. Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2450, 91 L.Ed.2d 110 (1986); United States v. Grier, 866 F.2d 908, 935 (7th Cir.1989).

However the test for appellate review of credibility determinations be formulated, the defendants in this case must lose. The officers' testimony was not incredible. It did not challenge our understanding of nature. It did not even, as in Schultz v. American Airlines, Inc., 901 F.2d 621 (7th Cir.1990), challenge the unanimous testimony of disinterested witnesses. The only testimony opposed to that of the officers came from the defendants, who were of course interested parties too. The problem of dishonest police testimony is a very old one, but drug dealers are not models of rectitude. The task of determining whose testimony is more truthful is a difficult one in such cases, and it is performed by the trier of fact with little effective power of intervention by the appellate court. Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1402 (9th Cir.1986).

The only questions raised by these appeals are whether the seizure of the brick of cocaine from Cardona's car, and the search without a warrant of the packages taken from Luna's briefcase, violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Cardona does not complain about the search of his package of cocaine, for if it was properly seized, then it was lawfully searched pursuant to the automobile exception to the requirement of a warrant.

Police can accost and ask to speak with a person without any grounds at all. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988). So we need not worry ourselves over whether the officers had more than the barest suspicion that Cardona was a drug dealer when they accosted him. When he fled, they seized him and demanded identification. They were entitled to do this--to stop him briefly, short of arrest--if they had what is called in legal jargon an "articulable suspicion" that he was engaged in illegal activities: something less than probable cause to arrest, but more than mere hunch. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Serna-Barreto, supra, 842 F.2d at 966. They had more than a hunch here. Cardona had been seen in conversation with someone whom a reliable informant had fingered as a drug dealer; had been seen delivering a shopping bag at the same address a few minutes later, presumably to the suspected dealer, with whom he had just been talking; had panicked when peaceably approached by an officer, fled, and run headlong into his own car. These circumstances--the second and third of which were missing in United States v. Ingrao, 897 F.2d 860 (7th Cir.1990), where we reversed--created sufficient grounds for belief that Cardona was involved in drug trafficking to justify the officers in stopping him briefly to demand identification and a plausible account of what he was up to and why he had tried to flee.

True, the officers testified that when they first stopped Cardona, it was for traffic violations. This testimony is not worthy of belief; even less worthy of belief, given the Chicago custom of "driving on the ticket," is the government's argument to us that the officers had probable cause to arrest Cardona for driving without a license. They were not traffic officers and did not even have ticket books. It is obvious why they stopped Cardona, and they had objectively reasonable grounds for doing so. They did not need a pretext, so the fact that they offered one at trial, and the government another one on appeal, will not defeat the lawfulness of the stop and of the ensuing escalation to arrest. Cf. United States v. Trigg, 878 F.2d 1037, 1040-41 (7th Cir.1989). If the only reasonable basis for stopping Cardona had been his commission of minor traffic offenses, and the real reason for the arrest had been a pure hunch that he was carrying drugs, then we would have a true case of pretext, and several courts would hold the stop and ensuing arrest illegal. United States v. Guzman, 864 F.2d 1512, 1515-18 (10th Cir.1988); United States v. Smith, 799 F.2d 704 (11th Cir.1986). But this...