U.S. v. Fiala

• Decision Date: 28 March 1991
• Docket Number: 90-1551,Nos. 90-1489,s. 90-1489
• Citation: 929 F.2d 285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlando FIALA and John DeLuna, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 285

929 F.2d 285

UNITED STATES of America, Plaintiff-Appellee, v. Orlando FIALA and John DeLuna, Defendants-Appellants.

Nos. 90-1489, 90-1551.

United States Court of Appeals Seventh Circuit.

Argued Dec. 12, 1990.

Decided March 28, 1991.

David E. Risley, Office of the U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Michael B. Metnick, Metnick & Barewin, Springfield, Ill., for Fiala.

Jed Stone, Urban & Stone, Chicago, Ill., for DeLuna.

Before BAUER, Chief Judge, FLAUM and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Orlando Fiala was convicted in district court of conspiracy to distribute and possession of marijuana. His co-defendant John DeLuna was convicted of conspiracy to distribute marijuana and of being a felon in possession of a firearm. Both appeal the district court's denial of their motions to suppress evidence discovered by police in an automobile driven by Fiala and owned by DeLuna that was searched after a traffic stop. Fiala also appeals his sentence, contesting Sentencing Guidelines offense level enhancements levied by the district court for obstruction of justice and possession of a weapon during the commission of a drug offense. We affirm both the district court's denial of the suppression motion and the imposition of the drug offense weapons enhancement, but reverse the imposition of the obstruction of justice enhancement.

I.

On the morning of December 29, 1987, Illinois State Trooper Michael Ores observed a yellow Ford driven by defendant Fiala on Interstate 55 in Central Illinois. The Ford piqued Ores' interest because it appeared to be heavily loaded, with its tail end riding low. Ores radioed Illinois State Trooper Greg Neumann who was nearby in another car, and the two began to follow Fiala's vehicle. Soon thereafter, the troopers observed the Ford drift roughly one-half its width over the "fog line" on the right side of the highway for 5-10 seconds before returning to its proper place in the driving lane.

The troopers stopped Fiala for violating Sec. 11-709 of the Illinois Vehicle Code ("whenever any roadway has been divided into two or more clearly marked lanes for traffic ... [a] vehicle shall be driven as nearly as practicable within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.") Ill.Rev.Stat., ch. 95 1/2, Sec. 11-709. Neumann approached the car, and asked the driver, Fiala, and his passenger Susan Lucio, for their drivers' licenses. Lucio gave her license to the trooper, but Fiala replied that he had lost his license at a previous stop for gas. A radio check indicated that Fiala's license was suspended but that Lucio's was valid. The query also revealed that the Ford belonged to Reynaldo Segura, though Fiala claimed that the car belonged to his brother Charles. Segura turned out to be an alias of defendant John DeLuna.

Neumann gave Fiala a warning for improper lane usage and a citation for driving without a valid license, the latter being a Class A misdemeanor in Illinois. Ill.Rev.Stat. ch. 95 1/2, Sec. 6-303. He also radioed a request for a criminal history check on Fiala and Lucio. The check came back positive--Neumann was informed that Fiala had previously been arrested for possession of marijuana. In response, the trooper asked Fiala if there was anything illegal in the car. Fiala replied that there was not. Neumann then asked Fiala and Lucio if they would consent to a search of the car. The two gave their oral consent, but refused to sign written consent forms.

Rather than immediately search the car, Trooper Neumann radioed his superior, Sergeant Gary McConkey, for further instructions. McConkey directed Neumann not to begin his search until a K-9 unit (an officer with a drug-sniffing dog) arrived to examine the car for the scent of narcotics. The troopers waited 1 1/2 hours at the roadside with Fiala and Lucio before the dog and his handler arrived. When Kimmo the drug-sniffing dog finally made his appearance, it wasn't for naught--the canine alerted the troopers to the possible presence of drugs in the trunk and in a box in the backseat of the Ford. On the basis of the dog's sniff search, Neumann searched the car and found two large bags of marijuana in the box and two handguns in a briefcase in the rear.

Fiala, Lucio, and DeLuna, the owner of the Ford, were indicted for conspiring to distribute marijuana and possession of marijuana. DeLuna was also charged with being a felon in possession of a firearm and carrying a firearm during a drug offense. In a subsequent suppression hearing, the defendants challenged the constitutionality of the troopers' search of the Ford. They argued that the troopers' stop of their car was pretextual, that the troopers failed to obtain valid consent for the search, that the 1 1/2 hour wait for the K-9 unit at the roadside constituted an unreasonable seizure, and that the troopers lacked authority to search the closed briefcase in the Ford because Kimmo did not indicate that it might contain drugs.

The district court denied defendants' suppression motions. Fiala and DeLuna then entered conditional guilty pleas (conditioned on their right to appeal the denial of their suppression motion): Fiala pled guilty to the conspiracy and possession charges and DeLuna pled guilty to the conspiracy and firearm charges. The district court sentenced Fiala to concurrent terms of 96 months for the conspiracy and possession counts, and sentenced DeLuna to concurrent terms of 84 months for the conspiracy count and 60 months for the firearm count.

Fiala and DeLuna now appeal the district court's denial of their suppression motion. Fiala also appeals his sentence.

II.

A. Constitutionality of the Traffic Stop

Defendants' first argument is that the troopers' traffic stop of the Ford was a mere pretext to facilitate the search for narcotics. ¹ See, e.g., United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932) ("An arrest may not be used as a pretext to search for evidence."); United States v. D'Antoni, 856 F.2d 975, 979 (7th Cir.1988) ("an arrest may not be used as a mere pretext to avoid the warrant requirement of the fourth amendment"). They contend that the troopers' motivation in stopping the Ford was not the minor traffic infraction committed by Fiala (weaving over the fog line for 5-10 seconds), but rather an "inarticulable"--and constitutionally insufficient--"hunch" that the occupants of the car were engaged in illegal activity.

In United States v. Trigg, 878 F.2d 1037 (7th Cir.1989), we explained that our fourth amendment inquiry in cases involving allegedly pretextual stops is a narrow one: "so long as the police are doing no more than they are legally permitted and objectively authorized to do, an arrest [or stop] is constitutional." 878 F.2d at 1041. We eschewed in Trigg the subjective motive examination in which the defendants ask us to engage, because of the obvious and very significant difficulties that inhere in such attempts to peer into the minds of law enforcement officers. Id. at 1040; see also Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1722, 56 L.Ed.2d 168 (1978). Instead, we articulated a two-pronged objective inquiry into the lawfulness of an allegedly pretextual stop or arrest: we ask first, whether law enforcement authorities had reasonable suspicion to make the stop or probable cause to make the arrest, and second, whether the officers involved were authorized under state or municipal law to effect the stop or arrest in question. 878 F.2d at 1041. ²

Applying the Trigg test in this case, we find that the troopers' stop of Fiala's car did not violate the fourth amendment. Under Sec. 11-709 of the Illinois Vehicle Code, the troopers did indeed have cause to stop the Ford for partially swerving off the roadway. The district court found the troopers' testimony regarding Fiala's erratic driving credible, and we defer to that finding. The second prong of the pretext inquiry is easily met as well: under Sec. 16-102 of the Vehicle Code, state troopers are authorized to enforce the Illinois traffic laws as they did in this case. See Ill.Rev.Stat. ch. 95 1/2, Sec. 16-102. We conclude that the stop of Fiala's car was not pretextual and did not violate the fourth amendment.

B. Constitutionality of the Search

Defendants tender a number of challenges to the troopers' search of the car. They contend that their consent to the search was deficient, that they were unreasonably seized during the 1 1/2 hour roadside wait for the drug-sniffing dog, and that the troopers did not have probable cause to search the closed briefcase in the backseat of the car in the absence of a positive sniff from their trusty mastiff, Kimmo.

The facts here present a variety of grounds on which to affirm the district court's denial of defendants' suppression motion. The most straightforward involves the search incident to arrest doctrine. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Under Belton, a police officer who has made a lawful custodial arrest of the occupant of an automobile may "as a contemporaneous incident of that arrest, search the passenger compartment of that automobile [as well as] ... the contents of any containers found within the passenger compartment ... whether [the container] is open or closed...." Id. at 460-61, 101 S.Ct. at 2864.

Belton, of course, sanctions only those searches that are incident to full custodial arrests. Trooper Neumann, in this case, was in fact authorized under Illinois law to arrest Fiala for driving without a valid license. See People v. Hampton, 52 Ill.Dec. 330, 333, 422 N.E.2d 11, 14, 96 Ill.App.3d 728 (1981); People v. Garcia, 2 Ill.Dec. 213, 357 N.E.2d 190, 43 Ill.App.3d 757 (1976); Ill.Rev.Stat. ch. 38, Sec. 107-2(1)(c). Illinois law required...