United States v. Contreras, 041916 FED7, 15-1279

Docket Nº:15-1279
Opinion Judge:Rovner, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Luis Contreras, Defendant-Appellant.
Judge Panel:Before Flaum, Manion, and Rovner, Circuit Judges.
Case Date:April 19, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Luis Contreras, Defendant-Appellant.

No. 15-1279

United States Court of Appeals, Seventh Circuit

April 19, 2016

Argued October 29, 2015

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-CR-346-2 - Samuel Der-Yeghiayan, Judge.

Before Flaum, Manion, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Law enforcement stumbled upon the then- unknown Luis Contreras when the original target of their narcotic sales investigation drove into Contreras' garage and the two men conducted a drug transaction within view of the police with Contreras' garage door ajar. Contreras eventually pleaded guilty to narcotics distribution, but reserved the right to challenge the denial of a motion to suppress the evidence found in a search of his house. We affirm.

I.1

As part of a larger-scale drug trafficking investigation, the Drug Enforcement Agency and the Chicago Police Department (collectively, "officers") teamed up to investigate drug trafficking in Chicago. On November 9, 2010, officers observed Alejandro Soto at the residence of one of the major drug suppliers targeted in the investigation. They began surveillance at Soto's house the following morning, and began following him as he entered his car with two large garbage bags in tow. After Soto discarded the bags in a nearby dumpster, the officers recovered the bags and found that they contained clear plastic tape, latex gloves, coffee grounds and aluminum foil molded into a brick-shape the size of a kilogram of cocaine. Based on their experience, the officers believed these items were drug packaging materials (coffee grounds are often included with drug packaging material to mask the odor). A canine called to the scene alerted to the presence of narcotics, and indeed, subsequent laboratory testing revealed the presence of cocaine.

Officer Raphael Mitchem, another of the officers following Soto, received word through radio transmissions that Soto had discarded packaging consistent with multikilogram quantities of narcotics. Armed with that information, as well as the knowledge of Soto's earlier rendezvous with the known drug supplier, Officer Mitchem and the others continued their surveillance of Soto, following him until he reached Contreras' house on the northwest side of Chicago. The officers had never heard of Contreras, nor targeted him until that moment that Soto led the officers to his house. Soto entered Contreras' garage and the door closed behind them.

Contreras lived on a cul-de-sac and therefore, in order to avoid suspicion, the officers spread out and set up their surveillance as follows: Officer Mitchem arrived shortly after the garage door closed and parked across the street from the house facing the garage, approximately fifty feet away with a straight and unobstructed view of the garage. Officer Clark Eichman was on foot in a small park thirty to forty yards north of Contreras' house with a clear view of the side of the garage, and, at an angle, a bit of the garage door. See Gov't Br. App. GA002. He could not see into the garage, but could see Mitchem. Officer Ruben Briones parked his vehicle outside the entrance of Contreras' cul-de-sac where he could see Contreras' house. Other officers accompanied the ones above, but they did not testify and their presence and actions are not at issue.

After Soto had been in Contreras' house for a short while, the garage door opened. Officer Mitchem testified at the suppression hearing that, using his binoculars, he had a very clear view of what was happening inside the garage. He saw Soto's white van on the right side of the garage and what would later be identified as Contreras' silver Mercedes on the left. He then saw the two men touch hands in what he thought indicated the passing of money or drugs, although he could not directly see either. Contreras leaned into the front passenger side of his Mercedes and the rear hatchback opened. Soto opened the rear of his van, reached in and removed an orange shoebox with tape around the outside, but not sealing it. As Soto started walking with the box toward Contreras' Mercedes, Officer Mitchem saw the box begin to buckle, fall to the ground, and a rectangular, white object wrapped in plastic fell out. Officer Mitchem testified that he recognized the object as a kilogram of narcotics and therefore radioed the other officers about his observations.

Soto then picked up the box and walked to the rear compartment of his minivan. Soto turned his back to Officer Mitchem, and when he turned back around, the orange box and narcotics were gone, but he was carrying a tan plastic bag and walking toward Contreras. The orange box with narcotics was not visible in the back of the van, so Officer Mitchem surmised that it was now in the tan bag. Officer Mitchem conveyed this information over the radio and then he heard an order to "go, go, go … " meaning "go into the garage for an arrest." Officer Mitchem pulled his car straight ahead and was the first officer into the garage. As he jumped out of the car, he identified himself as a police officer and drew his weapon. Soto immediately dropped the plastic bag to the ground. Mitchem testified that he then heard a woman scream and saw her run from the top of the short flight of stairs leading from the garage to the house, back into the house. He ordered the two men to the ground with the bag of narcotics just behind them. Later, officers determined that the shoebox contained five individually wrapped bricks of cocaine.2 As the other officers arrived, Mitchem yelled out a warning that he had seen someone at the back of the garage.

Officer Eichman arrived fifteen to twenty seconds behind Officer Mitchem and handcuffed Contreras, noting the overstuffed Nike shoebox with suspected narcotics sticking out of the box. Agent Briones also entered within seconds of the call to move in. Once inside the garage, Agent Briones believed that he heard a rustling from inside the house, and heard someone yell "door, door." Consequently, almost immediately he and the other officers kicked in the door connecting the garage to the house and performed a brief protective sweep lasting less than a minute. The officers testified that they did not search any drawers, containers, or other places for evidence or contraband, but merely looked for people so that they could ensure the safety of the arresting officers. Indeed they uncovered no evidence in the course of the protective sweep.

The officers did discover another person in the house- Contreras' sister-in-law. After confirming that no one else was in the house, they brought Contreras inside.3 The officers read Contreras his Miranda rights in Spanish and English and he signed a written consent to search in both languages. Contreras expressed a willingness to cooperate with the officers, telling them that he had cooperated with law enforcement in the past. He then admitted that he had been selling drugs with Soto for about one year and that Soto had brought him the five kilograms of cocaine which he and Soto were going to break down and store in a garage in Chicago. Contreras provided the officers with the combination to a safe in his bedroom where the officers found $99, 153 in cash, two guns and ammunition just as Contreras had described they would. He also told them where to find 2.5 kilograms of cocaine in a closet. When the officers could only find two of the kilograms, Contreras gave them additional instructions to find the remaining half kilogram. In other words, he appeared to have been fully cooperative and forthcoming at the time of the search and seizure.

On September 6, 2011, Contreras filed a motion to suppress, claiming that the government obtained the evidence in violation of his Fourth Amendment rights and sought to suppress the seized evidence. Contreras asserted that the initial entry into the garage and the protective sweep were both illegal and that Contreras' consent to search the house was not consensual as it was tainted by the illegal acts. The court denied the motion to suppress on June 26, 2012, and subsequently, Contreras entered a conditional plea of guilty to Count One of the indictment which charged him with conspiracy to knowingly and intentionally possess with intent to distribute and to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846. Contreras reserved the right to appeal the district court's denial of his motion to suppress. On January 19, 2015, the district court sentenced Contreras to 148 months' imprisonment. He appeals the denial of the motion to suppress.

II.

A. The search of the garage.

Contreras urges this court to overturn the district court's finding that the entry and search of the garage was a reasonable one. To do so, we would be required to overturn both the district court's legal finding, which we review de novo, and its factual findings which we review for clear error only. United States v. Borostowski, 775 F.3d 851, 863 (7th Cir. 2014).

Turning first to the legal argument, Contreras makes a generalized Fourth Amendment argument about the right of people to be secure in their homes. See U.S. Const. amend. IV. It is true that in Fourth Amendment jurisprudence, the home is sacrosanct. Contreras makes many arguments about the curtilage of the house, but these are red herrings. This is not a case about the curtilage of the house, nor even one where officers knocking at a door peer through the opened crack and see contraband in plain view. See, e.g., Hadley v. Williams, 368 F.3d 747, 750 (7th Cir. 2004). In this case Contreras and Soto conducted their drug transaction in an attached garage with the door wide open-in essence with one whole wall of...

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