U.S. v. Jimenez, 78-1948

• Citation: 602 F.2d 139
• Decision Date: 16 July 1979
• Docket Number: No. 78-1948,78-1948
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jane Nadia JIMENEZ, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 139

602 F.2d 139

UNITED STATES of America, Plaintiff-Appellant, v. Jane Nadia JIMENEZ, Defendant-Appellee.

No. 78-1948.

United States Court of Appeals Seventh Circuit.

Argued Feb. 12, 1979.

Decided July 16, 1979.

Thomas P. Sullivan, U. S. Atty., Joan Bainbridge Safford, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.

Raymond D. Pijon, Chicago, Ill., for defendant-appellee.

Before CUMMINGS and PELL, Circuit Judges, and MORGAN, Chief District Judge. ^*

PELL, Circuit Judge.

This is an appeal by the Government ¹ from a pretrial order of the district court suppressing testimonial evidence in a case in which the defendant is charged with unlawful possession with intent to distribute 1,109.49 grams of a substance containing heroin in violation of 21 U.S.C. § 841(a)(1). The suppressed evidence consisted of a statement made by the defendant shortly after she exited from her car after being stopped by police officers. The statement was made in response to a question by a Government agent and without the benefit of Miranda warnings. The legality of the stop and the circumstances in which she made the suppressed statement are critical to our review of the suppression order. Accordingly, we will first recount the facts leading up to and including the stop and questioning.

In December 1976, Drug Enforcement Administration (DEA) agents and Chicago Police officers recovered records of wholesale narcotics transactions in excess of $2 million from a trailer in Oak Lawn, Illinois. The name "Pollo," subsequently determined to be a nickname for Guillermo Jimenez, was found on several of these records. One had on it the name Pollo and a telephone number. Telephone company records showed that number to be subscribed to by an Alicia Jimenez, later determined to be the defendant.

In early 1977, DEA Special Agent Irwin contacted neighbors of the defendant and learned that Guillermo Jimenez lived in the same residence as the defendant. Irwin and other agents then observed the defendant periodically during August, September, and October, 1977. Irwin learned that the defendant drove a 1972 red Toyota with license plates registered to an Alicia Jimenez. During early October 1977, Irwin followed the defendant to the Maribu Club in Chicago which had been the subject of three narcotics investigations over the previous two years. He observed her meet with Anthony Kimas, who was a part owner of the bar and whom Irwin recognized from previous narcotics investigations.

On October 25, 1977, Irwin was on surveillance duty in the vicinity of 4747 West 19th Street, Cicero, Illinois, the residence of Alicia Jimenez. At approximately 5:00 p. m., the defendant left the apartment, entered her 1972 red Toyota and drove to the Town and Country Restaurant on North Avenue, Chicago, followed by Irwin and other officers. Irwin, as well as other agents acting in an undercover capacity, had previously participated in narcotics transactions at that restaurant.

The defendant parked in the northwest portion of the Town and Country parking lot in a spot which had unoccupied parking spaces on either side. She remained in her car. After approximately fifteen minutes, a 1970 gold Oldsmobile, driven by a male who appeared to the agent to be of Mexican ancestry, entered the parking lot and passed through the part of the lot where the defendant was seated in her car. He then exited the lot, reentered and passed through a second and a third time, each time passing the part of the lot where the defendant was parked. Then he reentered the parking lot and parked next to the defendant's car on the passenger side.

The driver got out of his car carrying a brown paper bag approximately 12 X 18 inches with the top crumpled over and entered the passenger side of the defendant's car. A few moments later, he emerged without the brown paper bag. While the driver of the Oldsmobile went back to his car, the defendant walked to the rear of her car, opened the trunk, placed the bag on the left side, and closed the lid. She then returned to her car and left the parking lot almost simultaneously with the departure of the individual who had provided the bag.

Irwin, followed by three other surveillance agents, trailed the defendant for approximately ten miles until she was within a few blocks of her apartment on Cicero Avenue. Irwin then radioed two Chicago Police officers, riding together in an unmarked car, to stop her car. The officers pulled alongside her car and showed their badges. As she stopped her car, the police officers parked their car in front of her, got out of their car, and moved to the rear of her car. They displayed no weapons. The defendant left her car, walked around the front and made her way along the sidewalk. By this time, Irwin had parked his car about two car lengths behind her car and was walking toward her. He did not display a weapon. Three other surveillance agents parked behind Irwin but remained in their cars. When Irwin was a few feet from her, he displayed his badge and said, "Hi Alicia, what did you place in your trunk?" The defendant replied, "You know what it is." The police officers then retrieved the car keys from her ignition and opened the trunk. Irwin removed the paper bag and examined the contents, consisting of forty-one approximately one-ounce packages of a brown, chunky, powdery substance. This was field tested positive for the presence of an opiate derivative. The defendant was then placed under arrest and her car seized. Throughout this stop and seizure, the defendant never received Miranda warnings.

After the suppression hearing, the district court suppressed the defendant's statement, "You know what it is," opining that the Government "has not convinced the Court that the statements elicited from the defendant in this case were not the direct result of physical, psychological, and emotional coercion. . . ." The court, however, denied the defendant's motion to suppress the evidence taken from the defendant's car trunk.

The basic theory of the Government's appeal is that at the time the defendant made the suppressed statement, she was not subjected to a custodial interrogation; that is, she did not make the statement after she was "taken into custody or otherwise deprived of (her) freedom in any significant way," and, therefore, Miranda warnings were unnecessary. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). In response, the defendant contends first that the arrest occurred when her car was stopped, that the stop and arrest were unlawful, and therefore that the fruits of that unlawful conduct, including the statement, were properly suppressed. Next she argues that regardless of when the arrest occurred, she made the suppressed statement in circumstances sufficiently custodial in nature to require Miranda warnings.

The district court's decision to suppress the statement was not grounded on the defendant's first argument here that the stop and arrest were illegal. That is clear from the district court's refusal to suppress the evidence seized from the defendant's trunk which it would have had to suppress on the same theory. Nevertheless, because we could affirm the district court on different grounds if we so chose, we shall address this argument. The argument is in essence one of probable cause. The defendant contends that the officers did not have probable cause either to stop or arrest her. We disagree. As we view the case, even if the officers did not have probable cause to arrest the defendant before she made the suppressed statement, they clearly had a reasonable suspicion "that criminal activity may be afoot," and thus could legally stop the defendant and make inquiries. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). ² Having legally stopped her and asked her but one question, she made the suppressed statement which, assuming Arguendo that probable cause did not already exist, provided the probable cause for the search of her trunk and seizure of the bag and her subsequent arrest.

The defendant argues that Terry cannot justify the stop in this case because in Terry the police officer stopped the defendant after only a short period of observing him engage in suspicious activity, whereas in the present case Government agents had been observing the defendant for weeks and thus had considered her a suspect. We cannot accept the defendant's unreasonably narrow reading of Terry. Neither logic nor the Constitution supports an interpretation that would preclude a Terry stop merely because the officers have observed more suspicious conduct than was observed in Terry and observed that conduct over a longer time period. Indeed, the defendant cites no authority to support her novel argument. ³

The defendant's second theory supporting the district court's suppression of the statement, and the theory on which the court apparently relied, is that the circumstances in which the defendant made the suppressed statement were sufficiently coercive to invoke the constitutional protections articulated in Miranda. Because the facts are essentially undisputed, the issue of whether Miranda warnings were required before the defendant made her suppressed statement is one of law. Thus, the Government has the burden of proving that the district court erred in its decision to suppress the statement, and we are of the opinion that the Government met that burden in this case.

We note initially that contrary to the defendant's arguments in this appeal, she was not placed under arrest before she made the suppressed statement. The record clearly indicates that the arrest occurred sometime after the officers' suspicions regarding her possession of narcotics were confirmed by her statement, "You know what it is." The point at which an arrest occurs is a factual issue that must be determined on a case-by-case basis. Rather than pointing to facts in the record to support her...