U.S. v. Cervantes

• Decision Date: 22 March 1994
• Docket Number: No. 93-2194,93-2194
• Citation: 19 F.3d 1151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto CERVANTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1151

19 F.3d 1151

UNITED STATES of America, Plaintiff-Appellee, v. Roberto CERVANTES, Defendant-Appellant.

No. 93-2194.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1994.

Decided March 22, 1994.

Barry R. Elden, Asst. U.S. Atty., John J. Tharp, Jr. (argued), John J. Tharp, Jr., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Julius L. Echeles (argued), Chicago, IL, for defendant-appellant.

Before POSNER, Chief Judge, and ESCHBACH and KANNE, Circuit Judges.

POSNER, Chief Judge.

Roberto Cervantes was convicted by a jury of the illegal sale of cocaine and sentenced to 57 months in prison. His appeal complains principally of the district judge's refusal to suppress as evidence money seized from Cervantes when he was arrested. The circumstances of that seizure were a little strange. An undercover agent, together with an informant, agreed to purchase several hundred grams of cocaine from a dealer named Diaz. They gave Diaz $9,500 in cash for the cocaine and he was to obtain it from his source and deliver it to them at the gas station where they had handed over the cash. The government had recorded the serial numbers of the bills, and the transaction was under observation by other federal agents, who followed Diaz when he left with the money. After walking a few blocks Diaz entered a blue Chevrolet driven by (it turned out) the defendant, Cervantes. They drove around for a while and then Cervantes dropped off Diaz near the gas station, where he delivered the cocaine as agreed. Cervantes drove away and the two officers who were following him stopped him after they observed him commit several traffic violations--speeding and twice failing to use his turn signal before turning. He got out of his car, and the officers out of theirs. As they approached him, they noticed that he was trying to stuff a large wad of money into the right front pocket of his tight jeans. When they asked him for his driver's license, which was in the same pocket, he had to remove the money to get at the license. The officers had been instructed by their superiors not to reveal that they were investigating a drug offense, lest they compromise the informant. They were to pretend to be stopping Cervantes merely for a traffic violation. They were to use this pretense to identify him, and having done that they were to let him go on his way all unsuspecting.

The encounter did not develop according to the script. Officer Scherr testified at the suppression hearing that he asked Cervantes "in a joking fashion 'Where is your pistol?' " to which Cervantes replied, " 'My coffee-cup holder.' " So Scherr looked through the window of the car and, sure enough, there in plain view sitting on the coffee-cup holder between the driver's and the passenger's seats was a pistol. The officers placed Cervantes under arrest for illegal possession of a weapon, seizing the pistol, the cash, and the car in the process. The serial numbers on the cash (some $7,800) taken from Cervantes were found to match (all but $375, which Cervantes must have had before he received the money from Diaz) those of the "buy" money that the undercover agent had given Diaz for the drugs. Cervantes testified that the gun had been in the car, all right, but not in plain view; it had been in a Crown Royal bag (a felt bag in which Crown Royal whiskey is sold) inside the coffee-cup holder, and the holder had a lid that was closed, so the only way Scherr could have found the gun was if he searched the car, opening any closed compartments that he encountered. And this, Cervantes testified, was precisely what had happened. Scherr, however, testified that the inventory search of the car (such a search is done routinely when a vehicle is seized) had not turned up any Crown Royal bag. The district judge believed Scherr and denied the motion to suppress the cash and the gun as evidence against Cervantes.

It turned out that Scherr's testimony about the inventory search had been inaccurate; a Crown Royal bag had been found in the car. The government advised the district judge of the mistake. Without holding a further evidentiary hearing the judge changed his mind about the respective credibility of Scherr and Cervantes. He decided that Scherr had lied about seeing the gun lying in plain view on top of the coffee-cup holder. He decided to suppress the gun but not the cash, on the ground that the officers' reason for seizing the cash had had nothing to do with the search of the car's interior. They saw the cash before they searched the car--before, so far as appears, they thought of searching the car. Although the plain-view doctrine does not authorize police to seize an innocent object in plain view to see whether it might be a guilty object after all, Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), and although a wad of cash is not in itself a suspicious object, a wad of cash in the hands of a person who the police have good reason to believe just received it in exchange for a delivery of illegal drugs is suspicious and indeed enough so to give the police probable cause to believe it evidence of criminal activity, empowering them to seize it without violence to the principle of the Hicks decision.

Cervantes, however, tenders the following syllogism: The arrest was illegal, being based on a bogus sighting of a weapon. The officers would not have seized the cash, and hence the incriminating serial numbers...