U.S. v. Arango, 88-3135

• Decision Date: 17 July 1989
• Docket Number: No. 88-3135,88-3135
• Citation: 879 F.2d 1501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franklyn ARANGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1501

879 F.2d 1501

UNITED STATES of America, Plaintiff-Appellee, v. Franklyn ARANGO, Defendant-Appellant.

No. 88-3135.

United States Court of Appeals Seventh Circuit.

Argued March 27, 1989.

Decided July 17, 1989.

Kristina M.L. Anderson, Thomas M. Durkin, Asst. U.S. Attys., Chicago, Ill., for U.S.

John Lewis, Skokie, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and KANNE and HENLEY, Circuit Judges. ^*

KANNE, Circuit Judge.

Franklyn Arango appeals the district court's refusal to suppress evidence discovered during two warrantless automobile searches conducted after he was arrested for assaulting a police officer. He also appeals the court's decision to grant his motion to dismiss pursuant to the Speedy Trial Act without prejudice, rather than with prejudice as he had requested. We affirm.

I. BACKGROUND

On October 29, 1987, two DEA Task Force members, Detective Clifford Berti and Sergeant Thomas Martin of the Chicago Police Department, were participating in an on-going narcotics investigation on the north side of Chicago. While patrolling a neighborhood where active drug trafficking was suspected, the officers received a radio message that a white Cherokee jeep, with no license plates, had been observed in the area. The message did not link the vehicle or its occupants to any known illegal activity, but the situation was considered suspicious. The officers later saw the jeep and followed it for about nine blocks until it pulled over and parked. The officers parked their unmarked police car nearby as the jeep's driver, Tony Maldonado, and its passenger, the appellant Franklyn Arango, left the jeep and began to walk in the officers' direction.

Officers Berti and Martin, experienced narcotics investigators, immediately noticed that Maldonado and Arango each were wearing digital beepers which were activated, indicating incoming calls. They then initiated contact with Maldonado and Arango near the jeep, identifying themselves as police officers and asking the suspects for identification.

Maldonado produced a wallet, containing an Illinois driver's license, and handed the wallet and his car keys to Officer Berti. However, Arango replied that he did not have any identification with him. The two officers openly discussed that they both had seen Arango before, but were not sure under what circumstances. Officer Berti asked Maldonado if he was the owner of the jeep and received a negative response. When asked who the owner was, Maldonado hesitated, glanced at Arango, and stated that he did not know.

Throughout this exchange, Maldonado repeatedly placed his hands in his pockets and then removed them. Officer Berti instructed Maldonado to keep his hands out of his pockets, apparently fearing that Maldonado might be carrying a weapon. When Maldonado again placed his hands in his pockets, Officer Berti immediately instructed Maldonado to remove his hands and reached into Maldonado's jacket pocket, pulling out cash totalling over $2,200.00.

Thereafter, Officer Berti walked to the jeep and looked inside the window in an attempt to establish the vehicle's owner and Arango's identity. When he looked through the window, Officer Berti observed a portable telephone between the seats and a man's wallet on the passenger seat where Arango had been sitting prior to leaving the vehicle. Officer Berti opened the locked door, using the keys which Maldonado had given him earlier, picked up the wallet, and looked inside. Upon seeing Arango's photo identification, he remembered that a fellow DEA agent had told him that Arango was wanted in connection with a narcotics-related shooting which had occurred in Chicago the previous month. He also suddenly remembered that he had arrested Arango in 1985 on a cocaine-related charge. With this realization, Officer Berti immediately drew his revolver and left the jeep.

However, while Officer Berti was in the jeep, Officer Martin, who had remained nearby with the suspects, likewise remembered that Arango was wanted in connection with the recent shooting. Unfortunately for Officer Martin, he did not wait for Officer Berti to rejoin the group before he asked Arango if the police were still looking for him in connection with that shooting. With this inquiry, Arango immediately shoved Officer Martin who fell to the ground and broke his kneecap. The suspects then fled the scene of the assault as Officer Berti fired a warning shot and gave chase.

Two nearby uniformed police officers apprehended Arango about a block away. At that time, Officer Berti formally arrested Arango for assaulting a police officer and conducted a pat-down search. Immediately thereafter, the officers returned Arango to the scene of the assault where Officer Martin was in need of medical attention.

Once there, Officer Berti conducted a more detailed search of Arango's person, discovering and seizing about $3,800.00 in cash, the previously observed digital beeper, and some car keys. Berti then searched the jeep, finding $16,000.00 behind the passenger's seat, a package of cocaine under a jacket in the back seat, a portable telephone between the jeep's front seats, and several documents bearing Arango's name in the glove compartment.

Thereafter, the agents drove the jeep to the DEA garage in downtown Chicago and conducted a second search of the vehicle. This search revealed a secret compartment underneath the carpet between the front and rear seats which contained four additional packages of cocaine.

Arango made his initial appearance the next day. October 30, 1987, and was formally arraigned on November 30, 1987. On December 28, 1987, Arango filed a motion to suppress which the court denied on July 15, 1988. On August 9, 1988, Arango filed a "Motion to Dismiss with Prejudice" because of an alleged violation of the Speedy Trial Act. The court granted the motion, but without prejudice, rather than with prejudice as Arango had requested. Thereafter, Arango waived his right to reindictment and was convicted. The district court denied Arango's posttrial motion to reconsider the court's earlier decision to dismiss the indictment without prejudice.

II. DISCUSSION

Arango raises two issues on appeal. First, Arango argues that the district court erroneously denied his motion to suppress the evidence discovered during two warrantless searches of the jeep. He also contends that the district court erroneously granted his motion to dismiss for a Speedy Trial Act violation without prejudice, rather than with prejudice as he had requested.

A. Fourth Amendment Violations

Officers Berti and Martin conducted several separate searches in this case. ¹ The district court found that Officer Berti's search of the jeep immediately following Arango's arrest qualified as a proper warrantless search incident to arrest. The court also found that the subsequent search of the jeep at the DEA garage was justified as a warrantless auto search based upon probable cause supported in part by the evidence seized during the search incident to arrest. We will address the legality of each of these searches separately.

1. Search Incident to Arrest

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court held that police officers, subsequent to a lawful arrest, may search the person of an arrestee, and any area into which he might reach in order to grab a weapon or evidentiary items, without a search warrant and as merely an incident to arrest. 395 U.S. at 762-63, 89 S.Ct. at 2039-40; see also United States v. Karlin, 852 F.2d 968, 970 (7th Cir.1988) (discussing the search incident to arrest exception in the context of automobile searches). In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court extended this exception to searches of automobiles following a lawful arrest. The Court held "that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile...." 453 U.S. at 460, 101 S.Ct. at 2864 (footnote omitted), quoted in Karlin, 852 F.2d at 970.

Arango argues that the officers could not search the vehicle incident to his arrest because of the special circumstances surrounding the arrest. Arango contends that this exception to the fourth amendment's warrant requirement does not apply when (1) the crime for which an arrest is made, and which forms the basis for the search incident to arrest, does not directly involve the vehicle itself or (2) when the actual arrest does not occur while the arrestee is an occupant of the automobile or at least within immediate "grabbing distance" of the vehicle. He thus concludes that, because he was arrested for the crime of assault upon a police officer and was arrested approximately a block from the scene of the assault and returned there prior to the search, the search of the jeep cannot qualify as a legal search incident to arrest.

Initially, we reject Arango's attempt to distinguish Belton based upon the nature of the offense and the manner in which it was committed. Chimel and Belton are premised upon the need to protect police officers and citizens who may be standing nearby from the actions of an arrestee or his confederate who might gain access to a weapon. These cases also recognize the need to prevent an arrestee or a confederate from destroying evidence located in the area. We believe that the proper focus must be upon the presence of an arrestee, not the offense or the manner in which it was committed. We recently rejected an arrestee's attempt to distinguish Belton upon grounds very similar to those advanced by Arango here.

In Karlin, a police officer received a radio report of a burglary suspect being chased by citizens. 852 F.2d at 970. When he arrived on the scene, he found two citizens standing over the defendant who was lying on the ground with his foot inside the open driver's...