U.S. v. Pace

Decision Date15 March 1990
Docket Number87-2547,87-2568,Nos. 87-2529,87-2587,87-2606 and 87-2798,s. 87-2529
Citation898 F.2d 1218
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph PACE, Anthony Besase, Christ Savides, Donald Smith, John Cialoni, and Robert Wilson, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Anton R. Valukas, U.S. Atty., Chicago, Ill., Thomas Knight, David J. Stetler, James R. Ferguson, Victoria J. Peters, Asst. U.S. Attys., Chicago, Ill., for the U.S.

Joseph N. Dinatale, Dinatale & Montemurro, River Forest, Ill., Raymond J. Reynolds, Reynolds & Associates, Lansing, Mich., for Joseph Pace.

Marvin Bloom, Chicago, Ill., for Anthony Besase.

Sam Adam, Chicago, Ill., for Donald Smith.

Christopher Gronson, Oak Park, Ill., for John Cialoni.

Terence P. Gillespie, Genson, Steinback & Gillespie, Chicago, Ill., for Robert F. Wilson.

Edward M. Genson, Genson, Steinback & Gillespie, Chicago, Ill., for Christ Savides.

Mark Martin, for defendant-appellant.

Before WOOD, Jr. and MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

MANION, Circuit Judge.

Joseph Pace, Anthony Besase, Christ Savides, Donald Smith, John Cialoni, and Robert Wilson appeal their convictions of various cocaine distribution offenses committed between 1981 and 1987 as part of a continuing criminal enterprise headed by Savides. The defendants raise a number of issues, most of which surround searches and seizures that occurred during the investigation of the enterprise. We affirm all the defendants' convictions, but remand Savides' case to the district court for resentencing.

A. The searches and seizures

On the evening of March 8, 1986, several Chicago police officers arrived at Savides' condominium in Park Ridge, Illinois, to execute a search warrant authorizing them to search the condominium for evidence of gambling, including gambling records and money. Savides answered the door and allowed the officers to enter. Upon entering the condominium, the police saw Besase come out of the kitchen and Donald Greco (a co-defendant who pleaded guilty and did not appeal) come out of the condominium's bedroom area. The officers found Pace in the den; he was carrying a paper bag, which one of the officers took from him. The officers detained the four men in the living room, patted them down for weapons, and then searched the apartment.

The officers found nine one-kilogram packages of cocaine lying on a bed in the room that Greco had exited. The officers also found another kilogram package of cocaine in a kitchen drawer, and found $63,000 in United States currency in the room in which they had found Pace. Believing they had walked in on a major cocaine deal, the officers arrested Savides, Pace, Besase, and Greco, and searched them incident to the arrests. The officers discovered that the bag Pace had been carrying contained nearly $13,000 in cash. The officers also seized several items from Besase, including car keys and receipts from hotels in Daytona, Florida, and Lafayette, Indiana, that showed he had stayed at those hotels within the preceding few days. One of the officers found and cursorily examined Besase's car in the parking garage beneath Savides' condominium building that night; the search turned up no evidence.

The next day, March 9, Chicago police officers returned to Savides' condominium complex where they found Besase's car and a car they believed Pace had driven the day before. The officers decided to seize the two cars pursuant to state and federal forfeiture statutes because they believed that Besase and Pace had used the cars to drive to the cocaine transaction at Savides' condominium. Before taking Pace's car away, an officer inventoried the property in the car pursuant to departmental procedure. During the inventory, the officer found a record book and a personal address book. The officer paged through both books; he noticed that the record book appeared to contain some type of cryptic drug records, and that the address book contained a list matching the code numbers in the record book with initials. Based on his observations and on the events of the day before, the officer concluded that the books were evidence of drug transactions, and seized the books. In the following days, officers read the books in detail.

The officers transported Besase's and Pace's cars to a nearby police station. At the station, officers inventoried the contents of Besase's vehicle and found and seized receipts that indicated that Besase had been in Georgia and Indiana a few days earlier. A few days later, on March 13, the police learned that Besase was a reputed member of a Toledo, Ohio organized crime syndicate, and that he had been in Florida, a known drug source state, shortly before his arrest. This information, along with the receipts suggesting that Besase had traveled from Florida to Chicago, led police to suspect that Besase had brought the cocaine found in Savides' apartment from Florida. Suspecting that the car might still contain drugs or money in a secret compartment, the police brought Goldie, a trained narcotics-sniffing dog, to the car. Goldie alerted positively to the car's rear seat, where the police discovered a secret compartment that turned out to contain traces of cocaine.

Shortly after Savides' release on bail following his arrest, members of the Chicago Organized Crime Intelligence Unit (the "Intelligence Unit") determined that Savides was a likely candidate for assassination by the Chicago Organized Crime Syndicate because he had broken a syndicate rule against mixing gambling business with narcotics distribution. Because they suspected the syndicate might assasinate Savides, the Intelligence Unit officers decided to stake out Savides' residence.

About three weeks later, on April 3, 1986, surveillance officers saw a stranger, later identified as defendant Wilson,

drive a Ford sedan regularly driven by Savides out of the parking garage beneath Savides' condominium building. This struck the officers as suspicious because in their three weeks of surveillance they had seen nobody but Savides drive that car, except when Savides had been a passenger (and the officers had seen that but once). Because of their suspicions, the officers decided to follow Wilson.

Wilson drove to a nearby restaurant and met another unknown man, later identified as defendant Smith. Wilson and Smith walked up and down the aisles of the parking lot and appeared to be peering into car windows. Wilson and Smith then entered the Ford and rode slowly up and down the parking lot aisles while again appearing to search the parked cars. To the officers, it appeared that Wilson and Smith were checking to see if anybody was watching them. After conducting their apparent counter-surveillance, Wilson and Smith stopped behind a car with out-of-state license plates. Smith left the car, took a suitcase from the out-of-state car's trunk, and placed it in the Ford's trunk. Smith then got into the out-of-state car and followed Wilson out of the parking lot.

Wilson and Smith drove to the condominium complex. While turning into the complex, they apparently spotted the trailing officers, sped up, and made several turns; the officers considered Wilson's and Smith's driving maneuvers to be attempts to elude them. As they neared Savides' building, Wilson and Smith split up, Wilson heading for an underground parking area and Smith heading for the parking lot. Wilson opened the electronic garage door and entered the garage; one of the officers, Michael Patton, pulled his car under the descending door to wedge it open. Patton drew his gun, approached the Ford, and announced he was a police officer. Wilson dropped the car keys to the floor, kicked them under the car, and told Patton, "This isn't my car." When Patton asked whose car it was, Wilson replied, "I wasn't driving that car."

Another officer, Nick Nesis, who had followed and apprehended Smith, entered the garage with Smith. Based on what they had been told by the Intelligence Unit and on the suspicious activities of that day, Patton and Nesis believed that Wilson and Smith were hit men and that the suitcase possibly contained guns or explosives that could pose an immediate risk to the public. Nesis therefore recovered the keys, opened the Ford's trunk, and carefully opened the suitcase. Nesis found no explosives or weapons in the suitcase; he did, however, find ten kilograms of cocaine. Patton and Nesis arrested Wilson and Smith and took them to police headquarters.

After Wilson's and Smith's arrests, the police continued their surveillance of Savides. As a result of that surveillance, an Assistant United States Attorney (AUSA) presented to Magistrate Weisberg an affidavit to support a warrant to search Room 102 of a building at 1400 Renaissance Drive in Park Ridge. The affidavit, prepared by a DEA agent, included information about Savides' prior cocaine dealing, including his use of an office at 1400 Renaissance Drive. It also detailed the police's surveillance of Savides since March 8, 1986. The surveillance revealed an almost daily routine: Savides would drive circuitously to the Renaissance Drive office building, go into Room 102 (an office for which there was no phone number and which the building's directory showed no business or connection to Savides) for a brief period, leave the office, make calls on a pay phone, and meet people (some of whom were known cocaine dealers) at restaurants, bars, and parking lots.

Magistrate Weisberg studied the affidavit, conferred with his law clerk and the AUSA for an extended period, and finally informed the AUSA that he believed the affidavit did not establish probable cause to search the office. Shortly after Magistrate Weisberg ruled, the AUSA presented the affidavit to Chief Magistrate Balog. The AUSA told Chief Magistrate Balog that Magistrate Weisberg said he did not object to another...

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