U.S. v. Rodriguez

Decision Date23 October 1995
Docket NumberNo. 94-3935,94-3935
Citation69 F.3d 136
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Tomas RODRIGUEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Barry Rand Elden, Asst. U.S. Atty., Collen Coughlin (argued), Office of the U.S. Attorney, Criminal Appellate Division, Chicago, IL, for plaintiff-appellee.

Alexander M. Salerno, Berwyn, IL, argued for defendant-appellant.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

After entering a conditional plea of guilty to an indictment charging him with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), Tomas Rodriguez now appeals his conviction. He challenges the legality of the arrest and search that led to his indictment, the district court's determination of his suppression motion without a hearing, and the district court's application of the sentencing guidelines in determining his sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

A. Facts

On June 21 and 22, 1994, Tomas Rodriguez flew from Los Angeles to Chicago's O'Hare International Airport with a stopover in Las Vegas. On the morning of June 22, agents of the Drug Enforcement Agency ("DEA") and the United States Customs Service received a tip from a confidential informant that Mr. Rodriguez would be arriving at O'Hare that morning and that he had purchased his one-way ticket with cash. Acting on this information, two officers assigned to the DEA Airport Task Force met Mr. Rodriguez' flight and observed his activities upon arrival.

When Mr. Rodriguez arrived at the gate in Chicago, he began looking nervously around the terminal. According to the agents, he appeared to be engaging in counter-surveillance. The agents then followed him to the baggage claim area and observed as Mr. Rodriguez waited until all the other passengers from his flight had retrieved their luggage before he claimed his own bag. 1

As Mr. Rodriguez walked toward the exit of the airport, one of the agents approached Mr. Rodriguez and identified himself as a law enforcement officer. Mr. Rodriguez agreed to answer a few questions; he confirmed his name for the agent and the flight upon which he had just arrived. Also upon request, he produced his airline ticket and verified his ownership of the bag he had just retrieved. In the view of one of the officers, Mr. Rodriguez became "extremely nervous" during the course of the encounter.

The agent then asked for Mr. Rodriguez' consent to search his luggage. When Mr. Rodriguez agreed, he and the agent moved away from the doorway, and Mr. Rodriguez opened his bag. In the bag agents observed two brick-shaped packages, each of which subsequently was found to contain a kilogram of cocaine.

B. Proceedings in the District Court

Mr. Rodriguez, through counsel, filed a motion seeking additional discovery and a motion to quash his arrest and suppress evidence. The district court initially granted the motion for additional discovery and set for hearing the motion to suppress. Upon the government's motion for reconsideration, however, the district court vacated its order scheduling a suppression hearing and denied defendant's motion to quash the arrest and suppress evidence. As a result of the district court's ruling, Mr. Rodriguez' request for additional discovery was rendered moot.

The district court took the view that Mr. Rodriguez had not met his burden of making the prima facie showing of illegality necessary to entitle him to a suppression hearing. Noting that Mr. Rodriguez' motion focused on events leading up to the encounter, the court found that the record, on its face, supported a finding that the actual encounter and subsequent search was consensual.

The district court addressed Mr. Rodriguez' claim that his consent was not given voluntarily but was instead the product of trickery by officers specially trained to obtain waivers of constitutional rights. The court stated that he had not supported these allegations with definite, specific, detailed, and nonconjectural facts. Characterizing Mr. Rodriguez' allegations of illegality in this manner, the court determined that a hearing on the motion to suppress was not required.

Turning to the merits of the motion, the court determined that the lack of sufficient evidence to require a hearing on the motion to suppress foredoomed the motion itself. In reaching this conclusion, the court relied on the objective test of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980): "[A] person has been 'seized' within the meaning of the Fourth Amendment ... only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554, 100 S.Ct. at 1877. The district court took the view that, under Mendenhall, the airport encounter did not rise to the level of a "seizure." To determine whether the search was consensual, the district court applied the factors set forth in United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir.1993), and found that Mr. Rodriguez had voluntarily consented to the search.

The district court rejected Mr. Rodriguez' argument that his consent had been obtained through subtle psychological coercion employed by officers specially trained to employ such tactics. The district court held that, because the test is an objective one, and the focus is on what a reasonable suspect would have felt free to do, the agents' subjective motivation and training are immaterial. The court found no evidence in the record to support the conclusion that Mr. Rodriguez had not voluntarily consented to the search.

On September 1, 1994, the district court accepted Mr. Rodriguez' conditional plea of guilty to the indictment. Prior to sentencing, Mr. Rodriguez petitioned the district court to sentence him below the statutory mandatory minimum as permitted by Sec. 5C1.2 of the Sentencing Guidelines. At sentencing, however, the district found that Rodriguez had not furnished all the information within his knowledge concerning the offense, as required for downward departure under Sec. 5C1.2, and sentenced him to the statutory minimum five years' imprisonment.

A. Denial of Hearing

We first address whether the district court properly denied Mr. Rodriguez' motion to quash his arrest and suppress evidence without an evidentiary hearing.

Mr. Rodriguez characterizes the June 22 encounter at O'Hare as a "seizure" of his person as that term is employed in our Fourth Amendment jurisprudence. He contends that his rights were violated because the agents lacked reasonable suspicion or other articulable basis that would justify their approaching and detaining him. See Terry v. State of Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). In support of this contention, Mr. Rodriguez tendered an affidavit and investigator's report to establish: 1) that the officers could not have known that he purchased his one-way ticket with cash; and 2) that his luggage was placed last on the baggage carousel at the request of the government.

Mr. Rodriguez first offered the affidavit of Ms. Verity McGregor, the travel agent who had sold him the airline ticket to Chicago. In her affidavit, Ms. McGregor stated that she was not the confidential informant who provided information about Mr. Rodriguez' travel plans or ticket purchase to law enforcement personnel in Chicago. The second document offered by Mr. Rodriguez is the report of Thomas C. Scrivener, an investigator with the Federal Defender Program, summarizing interviews his office conducted with baggage handlers for Mr. Rodriguez' flight. The report indicates that one of the baggage handlers, Scott Mattson, told the investigator that he had been approached by a large agent and instructed to look out for a particular bag. After Mr. Mattson found the luggage, according to the report, the agent then asked him to place the luggage on the conveyor belt last.

According to Mr. Rodriguez, these documents establish that the agents could not have had any valid ground to detain him; the encounter, therefore, violated his rights under the Fourth Amendment. Because Mr. Rodriguez characterizes the airport encounter as a nonconsensual stop, 2 he contends that he met his burden of making a prima facie showing of illegality in the district court and was thus entitled to additional discovery and an evidentiary hearing to develop his allegations.

The government takes a decidedly different view of the matter. It contends that the Fourth Amendment was not implicated by the encounter leading up to Rodriguez' arrest. In its view, the objective, uncontested facts with respect to the encounter--the circumstances under which Mr. Rodriguez was approached, the questions asked by the agent and the answers given by Mr. Rodriguez--establish that the consent was voluntary and that no coercion took place. The government emphasizes that Rodriguez' subjective feeling that he was not free to leave is irrelevant under the objective Mendenhall test. It further argues that the district court correctly applied the McCarthur factors and concluded that the search was voluntary and non-coercive. As such, concludes the government, the encounter was not a "seizure" subject to the strictures of the Fourth Amendment. Mr. Rodriguez' efforts to establish that the agents lacked reasonable suspicion to detain him are, therefore, ineffectual to impeach the holding of the district court.

1. Standard of Review

This circuit has not had occasion to state definitively the applicable standard of appellate review when scrutinizing a district court's determination that a hearing is unnecessary on the issue of whether an individual's encounter with police amounts to a "seizure." As the government suggests, however, this situation involves many of the...

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