U.S. v. Rush

• Decision Date: 28 November 1989
• Docket Number: No. 89-1626,89-1626
• Citation: 890 F.2d 45
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J.B. RUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 45

890 F.2d 45

UNITED STATES of America, Plaintiff-Appellee, v. J.B. RUSH, Defendant-Appellant.

No. 89-1626.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 21, 1989.

Decided Nov. 28, 1989.

Thomas M. Durkin, Asst. U.S. Atty., Donna B. Moore, Chicago, Ill., for plaintiff-appellee.

James W. Reilley, Reilley & Associates, Christine Curran, Des Plaines, Ill., for defendant-appellant.

Before WOOD, Jr., EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

J.B. Rush appeals a jury verdict and the sentence imposed. The jury convicted him of one count of conspiracy to possess and distribute heroin, in violation of 21 U.S.C. Sec. 846, and one count of possession with intent to distribute heroin, in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced Mr. Rush to 140 months in prison. He submits that the conviction and sentence should be reversed because (1) the district court erred in denying his motion to suppress heroin found in his possession, (2) he was denied effective assistance of counsel, and (3) the district court erred in first admitting into evidence and then considering during sentencing the presence of a loaded gun in his car. We now affirm the defendant's conviction and sentence.

I. Background

A. The Arrest

A joint task force of the Chicago Police Department and the Drug Enforcement Administration (DEA) monitors drug trafficking at Union Station. Task Force officers on duty on June 9, 1988, had been notified that a Victoriano Ramirez, who fit the drug courier profile, was arriving on the train from Los Angeles. Officers Thomas Kinsella and Richard Boyle watched Ramirez get off the train carrying a suitcase and a shoulder bag. He walked into the terminal where he was met by the defendant, J.B. Rush. Officer Kinsella heard the defendant greet Ramirez and say, "Victor, have you got it, have you got it? Which one?" Tr. at 14. Ramirez then handed the suitcase to Mr. Rush, who said, "Come on, this way." Id. at 15-16. Mr. Rush also told Ramirez, "I've got my car right outside." Id. at 19.

The two officers approached Mr. Rush and Ramirez as the pair headed toward the exit. Officer Kinsella identified himself, and Mr. Rush agreed to talk with him. In response to Officer Kinsella's questions, Mr. Rush said he was in the real estate business and was "just hanging around" the terminal. Id. at 22-23. He admitted that he was picking up Ramirez, but maintained that their encounter was "coincidence"; he "just happened to see [Ramirez] here." Id. When Officer Kinsella inquired how he knew Ramirez, Mr. Rush asked the reason for the officer's inquiry. Officer Kinsella indicated that he was conducting a narcotics investigation. Mr. Rush then responded, "I don't know him [Ramirez] at all. I'm not with him." Id. at 23. With regard to the suitcase he was carrying, Mr. Rush pointed at Ramirez and stated, "It's his. It's not mine." Id.

While Officer Kinsella and Mr. Rush spoke, Officer Boyle talked with Ramirez. Ramirez stated that he had come to Chicago to visit his friend "J.B." Ramirez further admitted that all the luggage was his and that he was not carrying packages for anyone. He agreed to let Officer Boyle search his luggage and gave the officer the key to his suitcase.

Mr. Rush watched the search and said, "I don't know what he's got in that bag. Ain't none of it for me." Id. at 24. Officer Boyle then removed a gift-wrapped package from the suitcase, opened it, and found wrapped packets of heroin inside. Mr. Rush and Ramirez were arrested and advised of their rights. Both men then were taken to the Union Station security office.

In the office, Mr. Rush was questioned about his car. He stated that he had left it in a parking lot, located approximately one mile from Union Station, but Officer Boyle's investigation revealed that Mr. Rush's 1988 Cadillac was parked outside the exit toward which he and Ramirez had been walking before they were stopped. The government seized the car after discovering it belonged to Mr. Rush. In October 1988, a DEA agent was assigned to remove the cellular phone from the car and discovered a loaded pistol. The gun was located behind a loose rear seat backrest.

B. The Suppression Hearing

Mr. Rush moved to suppress the drugs found in the suitcase he had been carrying when arrested. The government countered that he had no expectation of privacy in the suitcase, and therefore challenged his standing to assert a fourth amendment violation. Officer Kinsella testified that Mr. Rush had disclaimed ownership of the suitcase and had stated the luggage belonged to Ramirez. Defense counsel did not ask Mr. Rush about this disclaimer during his testimony. However, in his closing statement counsel did address the standing issue. He argued that the disclaimers were not valid because Mr. Rush had possession of the suitcase and, consequently, there was a reasonable expectation of privacy in the suitcase.

The district court agreed with the government's position in all respects and denied Mr. Rush's motion. The district court found that Ramirez had consented to the search of the luggage. The court also held that police officers are not required to obtain consent to search from a person who has disclaimed ownership of an item and therefore rejected Mr. Rush's claim that the government needed his consent before it could search Ramirez' suitcase.

C. The Trial

At trial, the government established the facts set out above. Through the testimony of Murny Miller, keeper of the records for the Illinois Bell Telephone Company, the government also admitted (without objection) three phone number listings in Mr. Rush's name. The records revealed that, on June 5 and 6, 1988, calls were made from one of those numbers to a number in California (818-768-4351). On cross-examination, defense counsel questioned Ms. Miller about Government Exhibit 2B, a card with the number "768-4351" written on it that was found in Ramirez' wallet. The witness testified that, without the area code, she could not state conclusively that the number was from California. The government ultimately introduced its Exhibit 2B into evidence, without objection, through the officer who had removed the contents of Ramirez' wallet.

The last government witness, a Cadillac salesman, stated that he could not specifically recall selling a car to Mr. Rush. The salesman identified a buyer's order for a 1988 Cadillac in the name of Gloria Long, and testified that it is not unusual for someone to buy a car and put it in someone else's name.

The defense called two witnesses. On direct examination, Gloria Long stated that she was Mr. Rush's niece and that she knew he had purchased the 1988 Cadillac in her name. On cross-examination, she testified that the defendant "customarily" purchased his cars in her name. Ms. Long also testified that Mr. Rush was in the real estate business, occasionally drove a cab, and had recently won approximately fifteen thousand dollars in the Illinois State Lottery.

The defense called Glenda Gray, a real estate attorney. Ms. Gray testified that no license was required to buy, sell, or manage your own property. The parties stipulated that the defendant had never been licensed as a real estate salesperson or broker.

The jury returned a verdict of guilty. Mr. Rush subsequently moved for a new trial based on ineffective representation by his defense counsel. The district court determined that defense counsel was not ineffective and therefore denied the motion.

D. Sentencing

In calculating the defendant's sentence under the Federal Sentencing Guidelines, the probation officer recommended a two level enhancement pursuant to guideline Sec. 2D1.1(b) (possession of a firearm). Mr. Rush argued he did not possess the weapon at the time of arrest. The district court found there was a clear inference from the evidence that Mr. Rush and Ramirez were walking to Mr. Rush's car, which contained a gun. Therefore, the court held the evidence established that the defendant possessed a gun in the commission of the offense, and thus imposed the enhancement.

II. Discussion

A. The Motion to Suppress

Mr. Rush claims that the district court should have granted the motion to suppress the drugs found in the suitcase that Ramirez had given Mr. Rush upon their meeting in Union Station. Mr. Rush was carrying the suitcase through the terminal at the time of the encounter with the police officers. There is no dispute that Mr. Rush disclaimed ownership when the officers inquired. Nevertheless, he submits that the officers were obliged to disregard this disclaimer and seek his permission to search the bag because they had overheard him ask Ramirez which bag contained the drugs and had observed him carry that bag from the station. Mr. Rush further submits that the government should not be allowed to take the "inconsistent position" that Mr. Rush cannot assert an expectation of privacy in the suitcase because of his disclaimer, but that he can be found guilty of the knowing possession of the narcotics.

In assessing Mr. Rush's contentions, we begin by reiterating that the denial of a motion to suppress will not be overturned on appeal unless it is clearly erroneous. See United States v. Dunigan, 884 F.2d 1010, 1014 (7th Cir.1989); United States v. D'Antoni, 856 F.2d 975, 978 (7th Cir.1988). We shall accept the findings of fact of the district court unless they are clearly erroneous. D'Antoni, 856 F.2d at 978.

Law enforcement officers seeking to search private property must respect a "legitimate expectation of privacy" in that property. Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 429-30, 58 L.Ed.2d 387 (1978). As this court noted in United States v. Peters, 791 F.2d 1270, 1281 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986), the Supreme Court has stated that the determination of whether an individual has such a "legitimate expectation of privacy"

"normally embraces two...