914 F.2d 950 (7th Cir. 1990), 89-3232, United States v. Fazio

Docket Nº:89-3232.
Citation:914 F.2d 950
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank L. FAZIO, Defendant-Appellant.
Case Date:September 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 950

914 F.2d 950 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank L. FAZIO, Defendant-Appellant.

No. 89-3232.

United States Court of Appeals, Seventh Circuit

September 28, 1990

Argued May 11, 1990.

Page 951

R. Jeffrey Wagner, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Steven M. Epstein, Milwaukee, Wis., for defendant-appellant.

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This is a direct appeal from a criminal conviction. Frank L. Fazio appeals the district court's denial of his pretrial motion to suppress certain incriminating statements he made to the police. He also challenges the applicability of the Federal Sentencing Guidelines to his case. For the following reasons, we affirm the judgment of the district court.

I

BACKGROUND

  1. Facts

    The pertinent facts of the case are derived from the magistrate's findings of fact, which were based on the testimony of the police and Mr. Fazio at the suppression hearing. The facts were disputed in some respects. To facilitate our later discussion, we shall begin with the government's rendition of the facts and follow by summarizing Mr. Fazio's version of the facts to the extent that version differs from the government's version.

    1. Government's version of the facts

    Mr. Fazio owned and operated the Excalibur Restaurant in Lake Geneva, Wisconsin. On the strength of a police officer's affidavit that recited information from confidential informants that Mr. Fazio was involved in the possession and distribution of cocaine through his restaurant, the police obtained a search warrant for the restaurant. On the afternoon of December 2, 1988, several law enforcement officers searched the restaurant pursuant to the warrant. Mr. Fazio was not present when the search began. After the search was in progress, Mr. Fazio twice called the restaurant to find out what was happening there. He was told that the police were executing a search warrant and that the officers had a copy of the warrant if he had any questions

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    about the search. When Mr. Fazio arrived at the restaurant at approximately 5:00 p.m., he was met at the entrance by a police officer who escorted him to Chief Newberry of the Lake Geneva Police Department. Chief Newberry directed Mr. Fazio to the office in the back of the restaurant where Officers Swart and Maves and Agent Kelly had been searching. When Mr. Fazio entered the office he placed to the side a briefcase he was carrying. 1 At the officers' request, Mr. Fazio began to open the safe in the office. While opening the safe, Mr. Fazio told the officers that there was a marijuana joint in a sealed envelope in a drawer inside the safe. After Mr. Fazio opened the safe, he left the office pursuant to Chief Newberry's direction and stayed in a small room adjacent to the office.

    At some point during the search of his office, Mr. Fazio indicated to the police that he wanted to cooperate. When asked whether he wanted to make a statement, Mr. Fazio replied affirmatively. The police arranged to have the statement taken at the Lake Geneva Municipal Building, which houses both the Police Department and the City Hall. It was decided that Mr. Fazio would drive his own vehicle to the municipal building and that Officers Meinel and Swart would drive their vehicle. The officers and Mr. Fazio left the restaurant at approximately 6:00 p.m. While they were in the restaurant parking lot, Mr. Fazio asked Officer Swart if he wanted to look inside Mr. Fazio's vehicle. Officer Swart looked in the front seat, in the glove compartment, and behind the seat. Mr. Fazio then left the parking lot in his own vehicle and met the officers at the municipal building.

    Upon entering the municipal building, the defendant and the two officers went to a conference room. Before Mr. Fazio gave his tape recorded statement, he had a five to ten minute conversation with Officer Swart, who told Mr. Fazio that, if he cooperated, the fact of his cooperation would be relayed to the district attorney and perhaps to the judge. Officer Swart also informed the defendant that he was not under arrest and that he was free to leave. Mr. Fazio also met with District Attorney Koss prior to giving the statement and explained that he wanted to cooperate in any way possible.

    Mr. Fazio then gave the police a tape recorded statement. At the start of the interview, he stated that he did not believe that he was under arrest and that he was appearing voluntarily to give officers information relating to the search of his restaurant. Mr. Fazio also stated that he desired to cooperate with authorities and that he had not been coerced into cooperating. During the taped interview, Mr. Fazio made incriminating statements concerning his involvement in cocaine trafficking. At the conclusion of his taped statement, he remained at the municipal building for approximately ten minutes while he repeated to the officers his intention to cooperate. Mr. Fazio did not inquire about the need for an attorney until after he gave the tape recorded statement. 2 The officers eventually told Mr. Fazio that they had all the necessary information and asked him to leave. Mr. Fazio left the municipal building at approximately 7:00 p.m.

    2. Mr. Fazio's version of the facts

    According to the defendant's testimony, a police dispatcher called Mr. Fazio's wife and relayed a message that the police chief wanted Mr. Fazio to come to the restaurant immediately. Upon calling the restaurant during the execution of the search warrant, Mr. Fazio was told by Chief Newberry to

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    come directly to the restaurant. After he arrived at the restaurant, he was escorted to the back office, where the police asked him to open the safe. After he had opened the safe, he left the office at the officers' request and was frisked by Chief Newberry and was told to wait in the small room adjacent to the office. Mr. Fazio testified that, at this point during the search, he felt that he could not leave the small room and that he was under arrest. He also testified that he was not able to have any contact with his hostess and bartender and that Chief Newberry did not respond to his inquiry concerning when he could reopen the restaurant. Chief Newberry also told him that the police knew everything and that he had better talk.

    Mr. Fazio admitted replying "yes" when asked if he wanted to make a statement. He testified, however, that he felt he had to make the statement. He felt that he could open his restaurant sooner if he went downtown to give the statement. Although he desired to discuss with the hostess and bartender the details of operating the restaurant in his absence, he testified that he felt constrained in his ability to do so.

    Contrary to Officer Swart's testimony regarding the search of Mr. Fazio's vehicle, Mr. Fazio testified that his vehicle was not searched until he arrived at the municipal building and that he was informed that such a search was a required formality. Although he admitted that he and the officers drove to the municipal building in separate vehicles, he testified that the officers followed him to the building. He further testified that, upon their arrival at the municipal building, Officer Swart reassured Mr. Fazio that "there would not be any problems" if he cooperated. R.16 at 95. Mr. Fazio also claimed that, prior to making the tape recorded statement, he asked Officer Swart whether he should get an attorney, to which Officer Swart replied, "that's up to you." R.16 at 95. Finally, Mr. Fazio testified that he gave the statement because he thought he was under arrest.

  2. Procedural Posture

    On February 7, 1989, the federal grand jury returned a two-count indictment against Mr. Fazio and a codefendant. The two counts charged conspiracy to distribute cocaine (count 1) and marijuana (count 2) in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 2. Mr. Fazio filed a motion to suppress both the physical evidence seized during the search of his restaurant and the statement he gave to the police on the night of the search. An evidentiary hearing on the matter was held before a magistrate. On the motion to suppress the physical evidence, the magistrate concluded that the police officer's affidavit, which relied on information from confidential informants, was based on stale information and failed to establish the independent reliability of the informants. Thus, the magistrate concluded that the affidavit failed to establish probable cause. The magistrate also determined that the "good faith" exception to the exclusionary rule was not available because the police officer-affiant could not have held an objectively reasonable belief that probable cause existed at the time application was made for the warrant. 3 Accordingly, the magistrate recommended that the items seized from the defendant's restaurant be suppressed.

    The magistrate then turned to Mr. Fazio's motion to suppress the statement he gave to the police at the municipal building. After making factual findings, the magistrate concluded that Mr. Fazio was not in custody at any time during either the search of his restaurant or at the municipal building where the statement was made. The magistrate also concluded that Mr. Fazio voluntarily made the statement and that the statement was "free from any police coercion or undue influence." R.17 at 18.

    The magistrate then considered whether the invalid search warrant and resulting illegal search of Mr. Fazio's restaurant, in conjunction with police questioning of Mr. Fazio, rendered Mr. Fazio's statements to the police inadmissible. He concluded that Mr. Fazio's statement was sufficiently attenuated

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    from the illegal search to purge the...

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