U.S. v. Lechuga

Decision Date22 February 1991
Docket Number90-1689,Nos. 90-1656,s. 90-1656
Citation925 F.2d 1035
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Aurelio Carrasco LECHUGA and Samuel Lechuga, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Mary Harkenrider, Michael R. Pace, Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Thomas A. Moore, Lydon & Griffin, Ken D. Valle, Chicago, Ill., for Aurelio C. Lechuga.

Sam Adam, John R. DeLeon, Daniel Radakovich, Thomas A. Moore, Lydon & Griffin, Chicago, Ill., for Samuel Lechuga.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

Defendants Samuel Lechuga and Aurelio Carrasco Lechuga were convicted of one count of conspiring to possess cocaine with intent to distribute and one count of possessing cocaine with intent to distribute. They appeal their convictions, alleging that the vehicle stop that led to the discovery of evidence introduced by the government at trial was a violation of their Fourth Amendment right to be free from unreasonable searches and seizures. They also challenge the constitutionality of subsequent searches of the vehicle in which they were driving and an apartment. We conclude that the stop and all subsequent searches were constitutionally permissible and affirm the convictions.

I. FACTS AND PRIOR PROCEEDINGS

For the past seven years, Chicago police officer Guadalupe Rodriguez has been detailed to the Drug Enforcement Administration, for whom he has conducted many narcotics-related investigations. In the course of those investigations he has utilized on no fewer than ten occasions a confidential informant who has proven himself to be highly reliable. On September 12, 1989 this informant contacted Officer Rodriguez with information that Samuel Lechuga ("Lechuga") had received a sizeable quantity of cocaine and was in the process of distributing it in the Chicago area. The informant also told Rodriguez that Lechuga would be making a major cocaine delivery on September 15, 1989.

On the strength of this information, Rodriguez and another Chicago police officer, Tom Ptacek, conducted surveillance outside Lechuga's Blue Island, Illinois home on the 15th. Late that afternoon, the two officers saw Lechuga leave his house and drive away. He proceeded to several locations in Blue Island and spoke to several people before returning home. His last stop was a local supermarket parking lot where he met with defendant Aurelio Carrasco Lechuga ("Carrasco"), who had also driven to the parking lot. Lechuga returned to his home, only to leave again a few minutes later to walk to a nearby restaurant where he made a phone call at a pay telephone. Once again Lechuga returned home, and once again he left a few minutes later when Carrasco drove up to Lechuga's house. After a brief conversation, Lechuga entered Carrasco's car, and the two men drove off. Officers Rodriguez and Ptacek followed in separate cars.

Lechuga and Carrasco stopped outside an apartment building in Alsip, Illinois. Officer Rodriguez parked in a lot outside the apartment building, saw both men enter, and saw a light go on in a second-floor window. Minutes later, both men left the building, each carrying small brown paper bags. Carrasco handed his bag to Lechuga reached for his keys, and opened the trunk of his car. Lechuga put both packages inside a plastic bag which he placed deep in the trunk. Carrasco and Lechuga entered the car and drove off, followed by Officers Rodriguez and Ptacek.

According to Officer Rodriguez, after Carrasco left the lot outside the apartment building, he began to drive erratically, slowing down to approximately ten miles per hour, then resuming a normal speed of thirty-five miles per hour before slowing down again, all in a six-block stretch of street. Rodriguez, believing that his surveillance had been detected, instructed Ptacek to stop Carrasco's car. Ptacek drove in front of Carrasco's car while Rodriguez approached it from behind, sandwiching the vehicle. After all three cars had come to a stop, Rodriguez left his car and approached the driver's side of Carrasco's vehicle. Ptacek approached the passenger side, where Lechuga was seated. It was dark when the two officers approached the car, and Rodriguez held his gun in his hands.

Officer Rodriguez asked Carrasco to leave his car and began to speak with him in Spanish. He asked Carrasco who owned the car he was driving in and Carrasco responded that it was his. He then asked Carrasco if there was anything in the trunk of the car. Carrasco responded that there was nothing in the trunk. Rodriguez asked if he could look for himself and Carrasco said yes, handing Rodriguez the keys. Rodriguez opened the trunk and retrieved the plastic bag from behind the spare tire well. He removed the paper bags from inside the plastic bag and, when he looked inside them, saw smaller plastic bags containing a white powdery substance. Rodriguez field-tested the substance and determined that it contained cocaine, at which point he placed Lechuga and Carrasco under arrest and read them their rights.

After Lechuga and Carrasco were placed under arrest, Officer Ptacek asked Lechuga if there was any more cocaine in the apartment the defendants had visited prior to the vehicle stop. Lechuga said that there was no more cocaine. Ptacek asked if he could take a look for himself. Lechuga said that he could, and executed a consent form worded in Spanish. Ptacek then asked Lechuga for his keys to the apartment, which Lechuga surrendered. By this point Rodriguez and Ptacek had been joined by other police officers. They left the defendants with these officers and proceeded to the apartment building. Using Lechuga's keys they entered the apartment, which was completely unfurnished. There was no food in the refrigerator or the cupboards. There was, however, an unlocked suitcase in a closet, and in that suitcase was a brown plastic bag containing more white powder and a precision electronic scale.

The bags found in the trunk of Carrasco's car proved to contain 974.7 grams of a mixture containing cocaine. The bag in the suitcase contained 1,768.2 grams of a mixture containing cocaine. Based on this evidence, a grand jury indicted Lechuga and Carrasco of one count of conspiracy to possess with intent to distribute cocaine and one count of possession with intent to distribute cocaine. Both defendants moved to suppress the cocaine and the scale. The district court denied the motion to suppress, and, after a one day bench trial, found both defendants guilty on both counts. Each was sentenced to 78 months in prison followed by five years of probation.

II. THE VEHICLE STOP

In their appeal, Carrasco and Lechuga 1 challenge the constitutionality of the investigatory stop of Carrasco's vehicle. They first contend that the stop in this case was not supported by facts that would lead a police officer "reasonably to conclude in light of his experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Next they argue that their detention by police transcended the brief and limited "stop and frisk" encounter that the Supreme Court held in Terry was allowable under the Fourth Amendment, and instead became a seizure requiring probable cause rather than the reasonable suspicion needed to support an investigatory stop. They assert that the district court erred in ruling that the stop did not violate their Fourth Amendment rights and in refusing their motion to suppress the cocaine found in the car trunk and the apartment as fruits of the allegedly unconstitutional search.

A. Presence of Reasonable Suspicion

Numerous cases have addressed the question of whether and under what circumstances a tip from a reliable informant coupled with corroboration can provide a police officer with knowledge of "specific and articulable facts which, taken together with reasonable inferences drawn from those facts," Terry, 392 U.S. at 21, 88 S.Ct. at 1880, provide a basis for the limited intrusion on individual liberty that an investigatory stop represents. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), a police officer learned from an individual known to him to be a reliable informant that Williams was carrying a weapon. Without seeking further corroboration, the police officer approached the car where Williams was seated and asked him to leave his vehicle. Williams responded instead by rolling down his window. At this point the police officer saw Williams' gun and reached in and grabbed it. The Supreme Court upheld this investigatory stop and frisk of Williams. 407 U.S. at 147-48, 92 S.Ct. at 1923-24. More recently, in Alabama v. White, --- U.S. ----, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the Supreme Court discussed the relationship between the degree of reliability of the informant and the degree of corroboration necessary to justify an investigatory stop based on the information he or she supplies. Writing for the Court, Justice White observed that "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." 110 S.Ct. at 2416.

We examined the use of a tip from a reliable informant as the basis for an investigatory stop in United States v. Ocampo, 890 F.2d 1363 (7th Cir.1989). In that case an informant who in the past had proven trustworthy informed police that defendant Luis Escobar was expecting a shipment of cocaine and might store that shipment at a building in Chicago. Police began surveillance at that location. They observed a car drive up to the building and two individuals, one carrying an opaque plastic bag, enter the building after one of them conducted what appeared to be counter-surveillance. They then left the apartment and,...

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