U.S. v. Riley
| Decision Date | 10 July 2007 |
| Docket Number | No. 06-2557.,06-2557. |
| Citation | 493 F.3d 803 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ralph Wesley RILEY, also known as Thomas Dancik, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Linda L. Mullen (argued), Sara Darrow, Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.
Carl M. Walsh (argued), Chicago, IL, for Defendant-Appellant.
Before EASTERBROOK, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
Ralph Wesley Riley, also known as Thomas Dancik, pleaded guilty to two counts of bank fraud and eleven counts of attempted bank fraud, in violation of 18 U.S.C. § 1344, and to one count of theft of mail, in violation of 18 U.S.C. § 1708; in his plea agreement, however, he reserved the right to appeal the district court's ruling on his motion to suppress evidence. In this court, Mr. Riley renews his arguments with respect to his motion to suppress and also challenges aspects of his sentence. For the reasons set forth in this opinion, we affirm the judgment of the district court.
On the morning of July 23, 2004, Detective Pablo Reyna of the Moline, Illinois Police Department received a report of suspicious activity at the I.H. Mississippi Valley Credit Union involving two white males and two black males, all wearing baggy shorts.1 Other officers responded to the call at the credit union, so Detective Reyna proceeded to other area banks in search of the described individuals.2
Approximately one hour after the call, Detective Reyna drove through the parking lot at the Blackhawk State Bank. After exiting the parking lot, Detective Reyna observed a green Lincoln backed into a parking space in the lot of a restaurant adjacent to the bank. The engine of the car was running, and the driver was looking in the direction of the door of the bank. It appeared to Detective Reyna that the driver was waiting for someone at the bank.
Detective Reyna continued past the bank, and, in his rearview mirror, observed a man in business dress, later identified as Mr. Riley, exiting the bank. Mr. Riley was carrying something in his hands that Detective Reyna could not see clearly. Mr. Riley walked at a brisk pace to the green Lincoln and entered the passenger side of the car; the Lincoln then pulled away, and Detective Reyna followed.
After about ten blocks, the Lincoln pulled into a gas station. The car was at the station for less than a minute, during which time the driver and the passenger switched places. Detective Reyna continued to follow the Lincoln after it left the gas station. Detective Reyna also called Detective Jeff Heist to inform Detective Heist that he was following a suspicious car; specifically, Detective Reyna told Detective Heist that he believed that the individuals in the car had been involved in a bank robbery.3
Now in the left-turn lane, the Lincoln stopped for a red light. Detective Reyna radioed that he was going to attempt to stop the car because there was not a marked police car in the area.
While the Lincoln still was stopped at the light, Detective Reyna pulled behind the car in his unmarked vehicle and turned on his emergency lights. He approached the driver's side of the car. Detective Reyna then showed his identification and asked to see the driver's license,4 registration and proof of insurance; Detective Reyna noted that the insurance was expired. After these documents were produced, Mr. Riley inquired why he had been stopped; Detective Reyna responded that he was investigating a possible crime and asked Mr. Riley if he had robbed the Blackhawk State Bank. Mr. Riley responded that he had not. Mr. Riley further explained that he had been to the bank on business, that he was interested in buying a building in which he desired to open a restaurant, but that the bank was too busy at the time so he had left without transacting any business.
At that point, Detective Reyna asked for permission to search the car. Mr. Riley politely refused. Detective Reyna then told Mr. Riley that he had observed the driver carrying something in his hand as he exited the bank; Mr. Riley produced a pouch with three vitamin bottles in it. Detective Reyna responded that the pouch was not what he had seen the driver carry out of the bank.
Detective Reyna then spoke to Detective Heist who had arrived on the scene and, apparently, had spoken with the passenger. The passenger had produced a driver's license that had been revoked. After consulting with Detective Heist, Detective Reyna decided to place the driver under arrest for operating a vehicle without insurance and to place the passenger under arrest for operating a vehicle without a license.
After arresting Mr. Riley and the car's passenger, Detective Reyna searched the front compartment of the car. Items uncovered during the search included eleven personal checks made payable to individuals other than Mr. Riley, his alias or his passenger, a black planner and a notebook with the names and addresses of five local banks written in it. At the time of the arrest, Mr. Riley possessed $1,956.95 in cash.
Later inquiries at the Blackhawk State Bank revealed that Mr. Riley had presented a $3,000 counterfeit check for deposit into an account held by another individual. The deposit slip had requested that $2,100 of that amount be deposited into the account and that the purported account holder receive $900 cash. Additionally, on the day prior to the incident at the Blackhawk State Bank, Mr. Riley had presented a $3,000 counterfeit check for deposit at the Central Bank in Andover, Illinois; this check also was made out to an account holder at the bank. In that instance as well, Mr. Riley "deposited" $2,100 and received $900 in cash.
Mr. Riley was charged with two counts of bank fraud, eleven counts of attempted bank fraud, all in violation of 18 U.S.C. § 1344, and one count of theft of mail, in violation of 18 U.S.C. § 1708.5
Shortly thereafter, Mr. Riley moved to quash his arrest and to suppress the evidence found in the green Lincoln on July 23, 2004. According to Mr. Riley, "[t]he arrest, search, and seizure in this case were made without probable cause, and were illegal and in violation of the Fourth Amendment to the Constitution of the United States." R.15 at 2.
The district court held a hearing on Mr. Riley's motion at which Detective Reyna testified to the above events.6 After hearing the testimony of Detective Reyna and argument of counsel, the district court made the following determination:
The circumstances of this case present[] a close question of [a] permissible Terry stop. As the Court understands the evidence, an experienced police detective with knowledge of fraud cases including bank fraud is on alert because he has heard that earlier in the morning there were complaints of suspicious persons from banks. And as is his routine to check out banks in the area, he passes by the Blackhawk bank and he sees a vehicle parked, you might say, facing outward with its motor running adjacent to the bank, which is suggested that that person is waiting for someone, in and of itself that certainly would not justify a police stop.
At that point Detective Reyna did not take any action except to watch, and he sees a man rapidly leaving the bank in the direction of the car with the running motor. And he sees this man get into the car. That itself may not be enough for a stop. In fact, Detective Reyna did not stop the car at that point but his suspicions were aroused and he continued to follow the car because his instincts suggested that something was amiss, then he sees the car stop and there is an exchange of drivers and the passenger.
Here, again, that by itself may not justify any stop, any legal stop but it is one of a series of facts that certainly would cause an experienced detective to wonder what is going on and he sees an opportunity when the car is stopped at a stoplight to go up to the car while it is stopped, exhibit his identification as a cop and ask for driver's license, registration and insurance card.
In light of everything that had transpired up to that point, the Court finds that that was a permissible temporary stop, or if you want to call it a seizure, although there has been no evidence that the car tried to drive away. But—and there is no evidence that Detective Reyna used any type of coercive force. He didn't have his guns drawn. All he showed was his detective shield to the occupants of the car. But even if one would construe that to be a seizure, it was one of which under the circumstances the Court feels was reasonable to allow the officer to make further inquiry as to that there was something to the suspicions which he had developed from the circumstances that proceeded [sic] it.
After the motion to suppress was denied, Mr. Riley pleaded guilty to each count of the indictment, and the case proceeded to sentencing. The Presentence Report ("PSR") calculated Mr. Riley's base offense level at 7. However, in accordance with United States Sentencing Guideline § 2B1.1, the offense level was increased to reflect the intended loss. The PSR calculated the amount of intended loss at $39,000 (thirteen counterfeit checks for $3,000 each), which translated into an offense-level increase of 6. Combined with Mr. Riley's criminal history category, this yielded a guideline range of 18 to 24 months.
The PSR also calculated a fine range of $3,000 to $13,250,000 under the advisory Guidelines. However, the PSR noted that Mr. Riley did not have the ability to pay any fine in addition to the restitution of $1,800. Indeed, the PSR suggested that Mr. Riley be ordered to pay the restitution in monthly installments from his prison earnings and his earnings while on supervised release.
In response to the PSR, Mr. Riley's counsel argued that the total loss should only be $1,800 because, at...
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