U.S. v. Lupo

• Decision Date: 01 July 1981
• Docket Number: No. 80-2640,80-2640
• Citation: 652 F.2d 723
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick C. LUPO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 723

652 F.2d 723

UNITED STATES of America, Plaintiff-Appellee, v. Patrick C. LUPO, Defendant-Appellant.

No. 80-2640.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1981.

Decided July 1, 1981.

James R. Glover, Shellow & Shellow, Milwaukee, Wis., for defendant-appellant.

Charles H. Bohl, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, Circuit Judge, GIBSON, Senior Circuit Judge, ^* and CUDAHY, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Patrick Lupo was convicted by a jury in the United States District Court for the Eastern District of Wisconsin on two counts of a three-count indictment. The indictment charged Lupo with (1) conspiracy to possess with intent to distribute 225 pounds of marijuana in violation of 21 U.S.C. § 846 (1976); (2) possession with intent to distribute the marijuana in violation of 21 U.S.C. § 841(a)(1) (1976); and (3) travel and interstate commerce to promote an unlawful activity in violation of 18 U.S.C. § 1952 (1976). Lupo was found guilty on the first two counts and acquitted on the third. Following the September 1980 trial, the district court on November 3, 1980, sentenced Lupo to four and one-half years' imprisonment on each count, to be served concurrently.

On appeal, Lupo contends that the district court erred in failing to suppress the marijuana and a piece of paper presumably dropped by him and admitted into evidence. Lupo also challenges the trial court's limitation on testimony concerning the number of species of marijuana, and the court's failure to provide him, prior to closing argument, with copies of the jury instructions to be given. Finally, Lupo argues that he was punished at sentencing for exercising his right to trial. We affirm the district court.

Facts ¹

In early 1980, state and federal law enforcement officers, with the assistance of an informant, were negotiating with Orville Silseth for the purchase of a large quantity of marijuana. On January 31, 1980, in Minneapolis, Minnesota, Special Agent of the Drug Enforcement Agency (DEA) Lewis and Sheriff's Deputy Donlevy met with Silseth. During this meeting they exhibited $108,000 to Silseth, who stated that this would be enough money to "break the ice" with his people in Milwaukee who had approximately 300 pounds of marijuana available.

On February 9, 1980, a caravan of automobiles left the Silseth residence for Milwaukee. Silseth and the informant were in one vehicle and Agent Lewis and Sheriff's Deputy Fontana in another. These two cars were followed by cars containing other agents, and also by a surveillance airplane operated by DEA agents. Eventually, the Silseth vehicle stopped at the Steeplechase Inn, a motel located on Interstate Highway 94 in Waukesha, Wisconsin. The vehicle containing Agent Lewis and Deputy Fontana also stopped at the same location. The officers in this vehicle were carrying $90,000.

Silseth, the informant and Deputy Fontana, operating in an undercover capacity, entered the motel. Silseth made a phone call, returned, and advised Fontana that he was not able to contact his source. Shortly thereafter, Silseth placed another phone call, returned, and then advised Fontana that his source had the 300 pounds of marijuana and that he would pick it up and return in half an hour.

When Silseth left the motel, he proceeded to a Holiday Inn parking lot and thereafter to a group of warehouses in Waukesha. ² All of this was observed by the agents who were conducting surveillance from the airplane.

DEA Agents Crosby and Love had also been proceeding from Minneapolis to Milwaukee. At the same time the aforementioned events were occurring, Crosby and Love had stopped at a restaurant on Interstate Highway 94 for lunch. While waiting for their take-out order, Crosby observed an individual, later identified as the defendant, Lupo, using the telephone. Agent Love overheard Lupo say, "Do you have the money?" "Did you see the money?" (Pause) "It's in my trunk right now." As Lupo left the restaurant and entered a gray car, Crosby wrote down the license number.

Approximately thirty-five minutes later, Crosby received a radio communication that the car Silseth was in had met a gray car at a Holiday Inn parking lot. Upon being given the location of the gray car after it left the parking lot, Crosby proceeded in that direction, observed the car, and recognized it as the same car he had previously seen at the restaurant.

Crosby kept the gray car under surveillance, and followed it to what he described as a "storage area." He then received another radio communication, based on a report from the airplane, that both the gray car and the maroon car (being driven by Silseth) had their trunk lids open and some activity was going on.

Crosby then proceeded to intercept the gray car as it was leaving the area. It was being driven by Lupo, whom Crosby placed under arrest. Lupo was searched for weapons, handcuffed, and placed in another car. After Lupo was in custody, Crosby looked in the car. He found a piece of paper containing numbers and a phone number, which he claims fell from Lupo's hand before he was taken from the car. Crosby looked in the glove compartment, removed the key from the ignition, and opened the trunk. Marijuana debris and marijuana seeds were found in the trunk.

In a similar manner, Silseth was stopped by other agents who placed him under arrest. Thereafter, the trunk of Silseth's car was opened with a key, and marijuana bales wrapped in opaque plastic were observed therein. Neither defendant gave his consent for the searches that were conducted, and no warrants had been obtained.

Both Lupo and Silseth were indicted on March 4, 1980, by a federal grand jury. They subsequently filed a motion to suppress the marijuana found in the automobile trunks and to suppress the piece of paper. On May 6, 1980, an evidentiary hearing was conducted before a magistrate who filed a written recommendation that the motion be denied. On August 18, 1980, the district court adopted the magistrate's recommendation and findings.

Prior to trial, Silseth entered into a plea bargain agreement. Lupo's case went to trial on September 24, 1980. He was convicted of conspiracy and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976). Lupo was sentenced to serve, concurrently, four and one-half years on each count, while Silseth received one year, pursuant to his plea bargain.

Suppression rulings

Lupo admits probable cause existed for the arrests, but he contends that a warrant was required in order to search the trunks of the automobiles. We begin by noting that Lupo probably does not have a "legitimate expectation of privacy" in the search of Silseth's automobile. See Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 140, 143, 148-49, 99 S.Ct. 421, 429, 430, 433, 58 L.Ed.2d 387 (1978). Silseth had rented the automobile with funds advanced by the DEA agents. At the time of the arrest, both Lupo and Silseth were in their separate cars, attempting to leave the exchange area. Lupo, under these circumstances, "would not normally have a legitimate expectation of privacy" in the trunk of Silseth's automobile. Id. at 149, 99 S.Ct. at 433. Because, however, the issue of the validity of the search of Lupo's trunk is so similar to that of the search of Silseth's, we will address the merits of both situations.

Lupo argues that the recent Supreme Court cases of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) should control this case. See also United States v. Wilson, 636 F.2d 1161, 1164 (8th Cir. 1980); II LA FAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 7.2 at 540-41 (1978 and Supp.1980). We disagree. Neither Sanders nor Chadwick involved a search of the interior of an automobile incident to an arrest. Both of those cases involved searches of containers placed inside automobiles, where no arrest was made until after the search. Sanders, 442 U.S. at 763-65 & ns. 11 & 14, 99 S.Ct. at 2592-94 & ns. 11 & 14; Chadwick, 433 U.S. at 12-14 & n.8, 97 S.Ct. at 2484-2485 & n. 8. The present case is controlled by the Supreme Court opinion in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Lupo's theory for extending the Sanders-Chadwick line of cases to the instant case rests upon his assertion that he has a reasonable expectation of privacy in the contents of the trunk, and, second, that the automobile was rendered immobile at the time of the arrest. With regard to the latter assertion, Lupo contends that a warrant could easily have been obtained; therefore, a warrant should have been obtained prior to searching the trunks. We agree that an individual may perhaps have a greater expectation of privacy concerning articles placed in a locked trunk of an automobile than in articles located in the interior of the passenger compartment. Lupo's second contention, however, that obtaining a warrant is practicable under these circumstances, must be rejected.

In Chambers v. Maroney, 399 U.S. at 51-52, 90 S.Ct. at 1981, the Supreme Court refused to find any difference between immobilizing the car until a warrant was obtained and conducting an immediate search without a warrant, if probable cause existed. In Sanders, the Court reaffirmed the application of Chambers to the present situation:

We view, however, the seizure of a suitcase as quite different from the seizure of an automobile. In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover,...