U.S. v. Herrera

• Decision Date: 13 March 1985
• Docket Number: No. 84-2498,84-2498
• Citation: 757 F.2d 144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel HERRERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 144

757 F.2d 144

UNITED STATES of America, Plaintiff-Appellee, v. Manuel HERRERA, Defendant-Appellant.

No. 84-2498.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1985.

Decided March 13, 1985.

Nicholas A. DeJohn, Nicholas A. DeJohn & Assoc., Ltd., Chicago, Ill., for defendant-appellant.

Thomas J. Scorza, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and JAMESON, Senior District Judge. ^*

JAMESON, District Judge.

Manuel Herrera appeals his conviction of conspiracy to distribute heroin and to possess heroin with intent to distribute it, in violation of 21 U.S.C. Sec. 846 (Count One), and two counts of possessing with intent to distribute heroin, in violation of 21 U.S.C. Sec. 841(a)(1), (Counts Two and Four). We affirm the conviction on Counts One and Two and reverse on Count Four.

I. Factual Background

On January 16, 1984, Sgt. Maurice Dailey and other Chicago police officers assigned as agents of the Drug Enforcement Administration (DEA) Chicago Police Task Force, arrested Roberto Herrera and Miguel Cano in Hanover Park, Illinois, after Herrera had delivered about 250 grams of a brown heroin mixture in a white plastic bag to Cano. On January 17, pursuant to a search warrant, a search was conducted of Roberto Herrera's apparent residence. Brown heroin, heroin diluents, plastic bags and beige masking tape were discovered in a footlocker.

On March 26 or 27, 1984, Sgt. Dailey received an anonymous telephone call at the DEA offices in Chicago from a female with a Latin accent. She asked Sgt. Dailey if he was the officer who had arrested Roberto Herrera. When he replied "Yes," she said that they were still selling heroin and that they had just gotten a big load of heroin. When Sgt. Dailey asked who "they" were, the caller said, "The Herreras." She then said that the heroin was at 8143 Northway Drive in Hanover Park, Illinois, and that "Javier" had the house there. The caller then hung up.

Sgt. Dailey contacted the utility companies and learned that Javier Lechuga was the subscriber for the telephone and electricity at the address which the informant had given. A DEA NADDIS ¹ computer check revealed that Javier Lechuga was believed to be a heroin source-of-supply in the Chicago area. The 8143 Northway Drive address is about one-half mile from the scene of the January 16, 1984 arrest of Roberto Herrera and Cano.

On March 28, 1984, at about 7:00 A.M., Sgt. Dailey and several other DEA agents began surveillance at 8143 Northway Drive. After several drives up and down the street, Sgt. Dailey saw four white plastic garbage bags on the lawn at 8143 Northway Drive. Garbage was similarly placed in front of other homes in the area. When the garbage truck came to pick up the garbage around 10:00 A.M., Sgt. Dailey asked the driver to pick up the garbage bags at 8143 Northway Drive as usual but to keep them separate and give them to Sgt. Dailey further down Northway Drive. The driver did as requested.

Sgt. Dailey went through the garbage and found numerous open plastic bags and bag pieces. The bags taped with beige masking tape resembled the heroin packages that had been recovered from Roberto's footlocker at his residence on January 17. A closer inspection of the bags revealed traces of brown powder. Sgt. Dailey field tested the powder which showed a positive reaction for the presence of heroin. Sgt. Dailey estimated that the bags had once contained 500 grams of heroin. Sgt. Dailey then went to his office to begin the process of obtaining a search warrant for 8143 Northway Drive for narcotics. He assigned several agents, including Robert Irwin, to remain on surveillance.

At about 2:00 P.M. two cars drove into the driveway at 8143 Northway Drive within moments of each other. The driver of each car entered the house through the front door. At about 2:15 P.M. both left the house. Irwin saw one, later identified as Manuel Herrera, carrying a brown paper bag which he was putting under his jacket. Irwin saw the other man carry a clear plastic bag. Each got into his car and drove off. The agents on the scene stopped the cars. Herrera was ordered out of the car. The brown paper bag was seized from the ground in front of Herrera where it had fallen from his jacket. Inside the bag was a plastic bag which contained brown heroin. The drivers of both cars were arrested. Miguel Santana-Ortiz was the other man arrested. The plastic bags seized from Santana-Ortiz also contained brown heroin. A key was found on Santana-Ortiz which fit the front door at 8143 Northway Drive.

Just after the arrests, two agents searched 8143 Northway Drive for any other person. No one was discovered. Sgt. Dailey obtained a search warrant for 8143 Northway Drive. The search revealed a footlocker in the laundry room which contained seven packages of brown heroin, a gun, money, a scale, tape and plastic bags. In the kitchen the search revealed Santana-Ortiz' prescription medicine bottle and his receipt for a car stereo. The agents also found the registration receipt for the car which Herrera had been driving. There were also several envelopes addressed to Javier Lechuga and the lease for the house in Lechuga's name.

II. Proceedings in District Court

Herrera and Santana-Ortiz were both charged in Court One of the indictment with conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. Sec. 846. Count Two charged that on March 28, 1984, Herrera possessed with intent to distribute approximately 499.33 grams of a heroin mixture, in violation of 21 U.S.C. Sec. 841(a)(1). Count Three charged Santana-Ortiz with a similar offense. Count Four charged that both Herrera and Santana-Ortiz possessed with intent to distribute another 1114.30 grams of heroin mixture.

Herrera moved to suppress all the evidence seized in the search of his person and vehicle incident to his arrest on March 28, 1984, claiming that the officers lacked probable cause to make the arrest. Santana-Ortiz made similar motions to suppress and also to quash the search warrant. Following a two-day suppression hearing the district court denied all of the motions and subsequently entered written Findings of Fact and Conclusions of Law.

The trial court held that because neither defendant had a legitimate expectation of privacy in the garbage, citing United States v. Kramer, 711 F.2d 789, 792 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 397, 78 L.Ed.2d 339 (1983), neither could object to the admission of the evidence seized from the garbage. Likewise, neither, based on Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980), could object to the introduction of evidence seized from the other defendant.

Herrera had not moved to suppress the evidence found in the house search, so the court held that "he has waived objection to the use of that evidence," citing United States v. Jefferson, 714 F.2d 689, 693-94 & n. 3 (7th Cir.1983).

The court found probable cause to arrest both defendants and concluded that the evidence seized from Herrera was admissible because incident to a lawful arrest. The court also found the search warrant for the search of 8143 Northway Drive to be valid.

Santana-Ortiz pleaded guilty to Counts Three and Four. Herrera waived a jury trial. The court found Herrera guilty of each count with which he was charged. He was sentenced to ten years, followed by a special parole term of 25 years on Count One. On Counts Three and Four Herrera was placed on probation for five years to run concurrently with each other, as well as the special parole term.

III. Contentions on Appeal

Appellant contends that (1) he was arrested without probable cause and the search and seizure of items incident to the arrest should have been suppressed; (2) he was not proven guilty beyond a reasonable doubt on Counts One and Four; and (3) the trial court abused its discretion in imposing sentence in an improper hearing.

IV. Probable Cause to Arrest

Herrera contends that the arresting officers "did not have the requisite particularized person (sic) probable cause to arrest" him. He alleges that this is so because the totality of the circumstances does not evidence a nexus between Herrera and the house. He contends that the DEA officers had decided to make the arrest upon Herrera's entry into the house. At that time, Herrera argues, there was no connection between Herrera and the house. Herrera seems to concede that the agents did have probable cause to believe that the house was a drug trafficking center.

The Government contends that the decision to arrest was made after Agent Irwin saw Herrera carrying a brown bag when he left the house. Herrera claims that he had placed the bag under his jacket before leaving the house so that even if the agents did decide to arrest him after he left the house, there was no increased indicia of cause upon his exit.

It is unclear from the record exactly when the agents decided to make the arrest. Herrera's cite to the record to support his contention merely indicates that the agents decided to make the arrest during a radio conversation. The district court concluded that the decision was made after the suspects were seen carrying the parcels. Given the ambiguity in the record, this finding is not clearly erroneous and therefore will be upheld. See United States v. Covelli, 738 F.2d 847, 853 (7th Cir.1984). The district court also concluded that Agent Irwin had seen the brown bag as Herrera left the house. The court had the opportunity to assess the credibility of the witnesses. Its determination that Agent Irwin was more believable than Herrera is not clearly erroneous. Id. See also United States v. Mattes, 687 F.2d 1039, 1042 (7th Cir.1982).

Herrera argues further that even if the decision to arrest was made after Agent Irwin saw him carrying the brown paper bag as he left the house, that fact does not give...