U.S. v. Rodriguez, 86-2093

Decision Date02 October 1987
Docket NumberNo. 86-2093,86-2093
Citation831 F.2d 162
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roberto RODRIGUEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Pamela S. Menaker, Wilmette, Wis., for defendant-appellant.

Gregory A. Vega, U.S. Atty., N.D. Ind., Hammond, Ind., for plaintiff-appellee.

Before WOOD, CUDAHY and COFFEY, Circuit Judges.

CUDAHY, Circuit Judge.

The defendant-appellant, Roberto Rodriguez, was indicted with thirty-one co-defendants and, after a separate trial, found guilty of conspiring to distribute cocaine, possessing cocaine with intent to distribute, and using a telephone to facilitate the conspiracy. Rodriguez appeals the verdict on three grounds: (1) the fourth amendment requires the exclusion of evidence obtained when state police stopped Rodriguez's car without articulable suspicion; (2) insufficient evidence supports the jury's verdict of guilty of possessing cocaine with intent to distribute; and (3) the district court improperly admitted into evidence the fact that Rodriguez was once involved in an automobile accident with a co-conspirator. We affirm the conviction.

I.

This case developed out of an investigation of a drug-distribution network in northern Indiana. The Drug Enforcement Agency (the "DEA") coordinated the investigation with various local law enforcement agencies and extensively employed electronic wire intercepts and surveillance. The investigation eventually focused on Jesus Zambrana, Sr. and his family and associates; a court-authorized wiretap was placed on Jesus Zambrana's phone between March and July 1985. As a result of information gained through this wiretap, the DEA suspected that a shipment of drugs would be transported from Miami, Florida to Gary, Indiana in late April. On April 29, 1985, the DEA staked out Interstate 65 in northwestern Indiana and observed and stopped a suspicious car. The driver and passenger were arrested and a subsequent search of the car uncovered a secret compartment containing nearly six kilograms of 92% pure cocaine. Also found was a roadmap that revealed a highlighted Miami-Chicago route and a handwritten phone number later learned to be an unpublished number assigned to Rodriguez. 1

On May 14 and 15, 1985, again pursuant to information gained through the wiretap, the DEA conducted surveillance at a hotel in Hammond, Indiana, hoping to observe and discover the identity of an individual from Florida suspected of being a confederate of the Zambranas. DEA agents observed Jay Zambrana (son of Jesus Zambrana) meet with Rodriguez on May 14 and 15 at the hotel. (The DEA, however, did not then know Rodriguez's name). On May 15 Rodriguez and Jay Zambrana drove together to the residence of co-conspirator Andre Sanchez in Gary, Indiana, and shortly thereafter Rodriguez left Sanchez's house and headed south on Interstate 65. Suspecting that Rodriguez was a member of the drug conspiracy and believing that he might be leaving the area, the DEA decided to stop Rodriguez's car briefly to check his identification. The DEA asked the state police to carry out this task and they did so.

In July 1985 a federal grand jury returned a sixty-one count indictment charging thirty-two defendants, including Rodriguez, with various criminal violations. Rodriguez was separately brought to trial and convicted. He was sentenced in June 1986.

II.
A. Stop of Rodriguez's Automobile

Rodriguez contends that his fourth amendment rights were violated when the state police stopped his automobile on Interstate 65 to check his identification. Specifically, Rodriguez urges three points. First, he contends that the initial "Terry stop" of his car was accomplished without reasonable and articulable suspicion that he had committed or was about to commit a crime. Second, he suggests that, even if the DEA surveilling agent had a reasonable and articulable suspicion, the state police who stopped his car had inadequate "collective" information to justify the stop. And third, Rodriguez charges that the stop blossomed into an illegal arrest when he was questioned in the state police car without probable cause. 2

The government responds that the DEA agent did have a reasonable and articulable suspicion that Rodriguez was engaged in criminal activity, a suspicion gained by wiretap and surveillance suggesting that an individual would arrive from Florida to negotiate drug transactions with the Zambranas. The government also contends that the state police officer who actually stopped Rodriguez's car had adequate collective knowledge in relying on the DEA's presumed role in the investigation and on the admittedly skeletal message that the DEA wanted a "routine traffic stop" of Rodriguez. Finally, the government argues that the stop did not become an arrest when the officer merely sat in her patrol car with Rodriguez for a brief period while writing out a citation.

The district court considered these issues at some length and concluded that adequate suspicion and collective knowledge justified the stop. On these points, we agree first that the totality of the evidence held by the DEA agent who sought the investigatory stop amounts to a reasonable and articulable suspicion that Rodriguez had committed or was committing a crime. The DEA reasonably suspected that a visitor from Florida was coming to northwestern Indiana to meet with the Zambranas in furtherance of the drug-distribution conspiracy. Over a period of two days DEA agents observed Rodriguez, with a Florida license plate on his car, meeting with several suspected members of the conspiracy. The DEA then acted on its suspicions that Rodriguez was a conspirator. This was reasonable and articulable suspicion.

The issue of collective knowledge is perhaps more challenging. The Supreme Court has approved a stop by an officer who relies on an official bulletin:

Assuming the police make a Terry stop in objective reliance on a flyer or bulletin, we hold that the evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop and if the stop that in fact occurred was not significantly more intrusive than would have been permitted the issuing department.

United States v. Hensley, 469 U.S. 221, 233, 105 S.Ct. 675, 683, 83 L.Ed.2d 604 (1985) (emphasis in original; citation omitted). We have approved a stop based on a "flash message"--eyewitness information transmitted by a police officer from the scene of a crime. United States v. Longmire, 761 F.2d 411 (7th Cir.1985). But the communication here was a request to make a "routine traffic stop" of Rodriguez's car for the purpose of identifying the driver. We do not believe that Hensley answers directly whether a police officer may rely "objectively" on such a request for a "routine traffic stop" of a car for identification. 3 Although the issue may therefore be novel, we think that, at least on the unusual facts of this case, the officer making the investigatory stop might reasonably rely on the request of another investigator. The requesting DEA agent had good grounds for articulable suspicion and the detaining officer had a reasonable basis for believing the request to be well-founded--even though she did not personally know the facts giving rise to the suspicion. Unlike Hensley, here the automobile to be stopped with its occupant was pointed out specifically by the requesting officer, and the detaining officer knew the requesting officer was coordinating a large investigation with local agencies. The state trooper was therefore merely acting as an "extension" or agent of the DEA agent and she could act on the DEA agent's suspicions.

The third issue--whether an arrest occurred when the police officer requested that Rodriguez sit in the patrol car with her for several minutes--is also interesting and perhaps close. Cf. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (routine traffic stop is "more analogous" to Terry stop than to formal arrest). Several factors are relevant in deciding whether a Terry stop has become an arrest including the officer's intent in stopping the individual, whether there was a search, whether, or how much, questioning occurred, whether there was a show of force and whether the person stopped could be said to have been taken into custody. Considering the particular circumstances under which the stop had to be made here, sitting in the patrol car for several minutes was merely a normal part of traffic police procedure for identifying delinquent drivers. The steps taken did not connote an intent to take Rodriguez into custody and do not seem to have gone beyond their ostensible purpose--to establish identification.

In any event, the questions surrounding collective knowledge and the possible occurrence of an arrest need not be decided because the information resulting from the stop (and used at trial) would inevitably have been discovered by the DEA by other means. Rodriguez contends that all of the evidence resulting from the Terry stop should have been excluded from his trial. The only substantial evidence gained by the allegedly unconstitutional stop, however, was the identification of the driver, Rodriguez. 4 The district court concluded that the totality of evidence adduced at trial rendered the evidence gained by the allegedly illegal stop harmless. Specifically, the court stated:

[T]he evidence of the telephone number on the map found in the car containing the six kilograms of cocaine, registered to an individual named Roberto Rodriguez; evidence of the presence of an unidentified male, registered as Roberto Rodriguez in the Holiday Inn shortly after telephone intercepts indicated that an individual from Florida was scheduled to meet with members of the Zambrana organization; as well as codefendant Andre Sanchez's testimony identifying Roberto Rodriguez, as the...

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