919 F.2d 1193 (7th Cir. 1990), 89-2939, United States v. Chaidez

Docket Nº:89-2939, 89-2940 and 89-2941.
Citation:919 F.2d 1193
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Armando CHAIDEZ, Lilia Silva, and Manuel Chavira, Defendants-Appellants.
Case Date:October 25, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1193

919 F.2d 1193 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Armando CHAIDEZ, Lilia Silva, and Manuel Chavira,

Defendants-Appellants.

Nos. 89-2939, 89-2940 and 89-2941.

United States Court of Appeals, Seventh Circuit

October 25, 1990

Argued May 11, 1990.

Rehearing and Rehearing In Banc

Denied Jan. 7, 1991.

Page 1194

Patrick S. Layng, Barry R. Elden, Canella Hendricks, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

David S. Mejia, Oak Park, Ill., for Armando R. Chaidez.

Kenneth J. Wadas, Nicholas A. DeJohn, Chicago, Ill., for Lilia Silva.

Frank E. Stachyra, Riverside, Ill., for Manuel Chavira.

Page 1195

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Armando Chaidez, Manuel Chavira, and Lilia Silva (Chavira's step-daughter) were convicted of conspiracy to possess heroin, cocaine and marijuana, with intent to distribute. Chaidez and Chavira were also convicted of possessing these drugs with intent to distribute them (the jury acquitted Silva of this charge), and Chaidez was convicted on a third count of possession with intent to distribute cocaine. The Chicago police found most of the drugs in a stash house leased by Chavira and Silva, after obtaining Silva's consent to search the house. The principal question is whether the detention leading to the discovery of the drugs was a "reasonable" seizure.

I

The Chicago police received a tip (from a source "proven reliable in the past") that Chaidez was a large-scale heroin dealer. The tipster provided no details. A check revealed that Chaidez' name came up in a drug investigation involving two others unrelated to this case. The police decided to set up a "moving surveillance" of Chaidez, a procedure involving multiple vehicles in radio contact.

Surveillance began at 8:30 a.m. when Chaidez left his home. He carried a small plastic bag; no agent could see its contents. Chaidez got into the passenger side of a car and was driven to a west side restaurant, La Fonda del Requeredo. Chaidez spoke briefly with the driver, then got out of the car and entered the restaurant through the back door. He emerged minutes later through the front door. Still carrying a plastic bag, Chaidez walked to his car, a white Cadillac parked nearby. He drove circuitously for awhile, going south, then west, then north. After gassing up his car, he eventually settled on north, driving to a north side lounge, La Hacienda. According to police testimony, drug dealers frequent both La Fonda del Requeredo and La Hacienda.

Chaidez stayed at La Hacienda for less than five minutes, emerging with two unknown associates. Agent Guadalupe Rodriguez observed the three "looking around a lot at cars going by. More than the normal way most persons do." He assumed they were looking for surveillance (wisely, but unsuccessfully, as it turns out). After a brief conversation Chaidez again drove evasively, frequently changing directions. He managed to grope northward, however, and stopped in the middle of a side street. Chavira and Silva then entered the picture.

Chavira and Silva spoke to Chaidez through the window of the Cadillac. They then got into their own car (a Pontiac) and drove off, with Chavira driving. Chavira and Silva drove to a gas station; Chaidez followed. Chaidez got out of his car and walked over to the Pontiac to converse briefly with Chavira. No one bought fuel, although Chavira checked the air in his tires. They left after a few minutes, driving in different directions. The surveillance stayed with Chaidez.

Chaidez drove east for a few minutes. He then abruptly made a U-turn and proceeded west. He entered the Kennedy Expressway, where he varied his speed considerably (driving at the speed limit for awhile, then switching to the right lane and dropping to 40 m.p.h., then repeating the process). The police had some trouble with this technique, for they either had to pass or to change speed suddenly and reveal the tail. Chaidez turned off on the Edens Expressway, which he left at Lake-Cook Road. Here the Pontiac rejoined Chaidez' Cadillac.

The two cars drove, Pontiac in the lead, to a house on Weiland Road. All three defendants went inside. Chaidez again held a small plastic bag in his hand. More than a half hour later, Chaidez left the house (sans plastic bag, this time) and drove north, followed in five minutes by Chavira and Silva. Both cars stopped in a parking lot. Chaidez made a telephone call, and then the defendants drove off again "at a high rate of speed". The police, thinking their cover blown, decided to

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stop the cars. They did so by blocking the narrow road in both directions by turning their cars sideways. The five agents got out of their cars, guns drawn but pointed downwards, and proceeded to interrogate the defendants.

Agent Rodriguez, the only Spanish-speaking agent at the scene, went to the passenger side of the Pontiac to question Silva. He identified himself and asked Silva her name. She answered truthfully, and he asked if she lived in the Weiland Road house. She said she rented it for her father, and had come to do his laundry. He read her Miranda warnings, which she understood, and then asked if she would consent to a search of the house. She said yes, so he took her over to a police van, where she signed a consent to search form. At some point the agents conducted a pat-down search. Agent Rodriguez radioed to another agent at the house that consent had been obtained and the search could begin. The police found more than just dirty linen.

What happened to Chaidez and Chavira is less clear, and less relevant. If the seizure of Silva was justified, and her consent valid, then all three are sunk. Silva's consent cannot be the fruit of an illegal seizure of Chaidez or Chavira, since that seizure did not lead to the questioning of Silva. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). Still, the treatment of Chaidez and Chavira sheds light on the environment surrounding Silva, and Chaidez does challenge a subsequent search of his own apartment, so we glean what we can from the record. Chaidez and Chavira were ordered out of their cars and "searched". Whether it was a pat down or a more intrusive search is not clear. Chaidez' license was taken away. Both cars were searched, and the keys were taken from the ignition. (The road was blocked in both directions anyway.) The police found nothing in any of these searches.

All three were detained for the 10 or 15 minutes it took to search the house. When the drugs were found, all three were arrested. Chaidez was asked to consent to a search of his apartment. After he expressed concern that his family would be frightened by a search, Agent Rodriguez agreed to go to the apartment himself to calm the family. Chaidez then consented; the search turned up more drugs.

The district court held that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1966), supports the stops. We review the district court's findings of fact deferentially. The standard of review for the conclusion that the seizures were reasonable, either because probable cause existed or for some other reason, is in transition in this circuit. Several cases hold that review is de novo. See United States v. Ingrao, 897 F.2d 860, 862 (7th Cir.1990); United States v. Jaramillo, 891 F.2d 620, 626 (7th Cir.1989); United States v. Sophie, 900 F.2d 1064, 1072 (7th Cir.1990). Recently doubts have been expressed, United States v. Malin, 908 F.2d 163, 169-70 (7th Cir.1990) (concurring opinion). Ordinarily application of law to fact is reviewed for abuse of discretion, and the fact-specific determination that behavior was "suspicious enough" to permit the intrusion is little different in quality from, say, a fact-finder's conclusion of negligence. The Government does not ask for deferential review in this case, so we conduct our own analysis without taking sides on the proper approach.

II

A

The Fourth Amendment provides that searches and seizures shall not be "unreasonable". The Supreme Court often treats a search without probable cause as "unreasonable", drawing on the requirement in the second clause of the Fourth Amendment that no warrant may be issued without probable cause. But this starting point is riddled with exceptions. For a stop and search of the person, Terry requires only "reasonable suspicion". Administrative

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searches, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), inventory searches, South Dakota v. Opperman, 428 U.S. 364, 369-76, 96 S.Ct. 3092, 3097-01, 49 L.Ed.2d 1000 (1976), school searches, New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-43, 83 L.Ed.2d 720 (1985), border searches, United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (1985), drug-testing programs, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and searches incident to arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for various reasons all require less than probable cause; in each case the Court emphasized that the fundamental question is reasonableness. If some factor makes it reasonable for the police to act on suspicion short of probable cause, then the Fourth Amendment does not ignore that factor and insist on probable cause. As the Court in Camara noted, "reasonableness is still the ultimate standard." 387 U.S. at 539, 87 S.Ct. at 1736.

The extent of the intrusion is one such factor. It is "common sense that if the...

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