U.S. v. Sandoval-Vasquez

• Decision Date: 26 January 2006
• Docket Number: No. 03-1238.,03-1238.
• Citation: 435 F.3d 739
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel SANDOVAL-VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 739

435 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, v. Daniel SANDOVAL-VASQUEZ, Defendant-Appellant.

No. 03-1238.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2005.

Decided January 26, 2006.

COPYRIGHT MATERIAL OMITTED

Manish Shah (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joseph R. Lopez (argued), Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

After the district court denied his motion to suppress evidence police officers obtained after entering his business, Daniel Sandoval-Vasquez entered a conditional guilty plea to possessing, with the intent to distribute, over five kilograms of cocaine. He now appeals the denial of his motion to suppress and raises challenges to his sentence. We agree with the district court that the officers' entry into his open business did not violate the Fourth Amendment, and we do not find the district court's finding that Sandoval-Vasquez consented to the officers' subsequent search of a van located on his premises clearly erroneous. Therefore, we uphold the denial of his motion to suppress. We also decline to reverse the district court's determination that Sandoval-Vasquez should not receive a minor role adjustment to his sentence. In light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), however, we order a limited remand of his sentence pursuant to the procedure we set forth in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I. BACKGROUND

On the afternoon of April 10, 2002, law enforcement personnel conducting a narcotics investigation observed Miguel Morales deliver six kilograms of cocaine. Chicago Police Department officers detained Morales, and Morales told the officers he obtained the cocaine from a van parked inside an iron works business located at 4337 South Kildare Avenue in Chicago. Morales described the van as a blue panel van with faded white writing. Morales also stated that the van contained numerous bricks of cocaine hidden in a trap compartment. He did not state whether any weapons were present at the location.

Armed with this information, Officer Steven DeSalvo drove to 4337 South Kildare, finding a business there named Custom Fit Iron Works. He saw that the business had a large, open garage door and that a blue van matching the description given by Morales was inside the garage. While on surveillance for about an hour, he noticed that about ten people appeared to be working inside the business, and he also saw people periodically enter and leave the business. Around 4:30 p.m., Officer DeSalvo thought that the business would probably soon be closing for the day, so seven or eight Chicago Police Department officers then entered the business through the open garage door and a pedestrian entrance. At least two or three officers entered with their weapons drawn, yelling "Chicago police." The officers then handcuffed the nine persons inside. Daniel Sandoval-Vasquez, the defendant, identified himself as the owner of the business. Officer DeSalvo later testified that he asked Sandoval-Vasquez whether there were any weapons on the premises, and Sandoval-Vasquez told him there was a handgun in his office. Officers recovered a gun from the office.

Chicago Police Department Sergeant John McHugh then arrived and took Sandoval-Vasquez outside. Sergeant McHugh questioned Sandoval-Vasquez, but he did not first advise him of his Miranda rights. Sandoval-Vasquez told Sergeant McHugh that he was an informant for the Chicago Police Department and was working on a marijuana deal with an undercover officer. Sergeant McHugh responded that the police were conducting a different investigation, one concerning the van. Sandoval-Vasquez replied that the persons who had brought the van to his business had been removing cocaine out of a trap inside the van.

FBI agents arrived on the premises at approximately 5:20 p.m. FBI Special Agent Jay Emigh presented Sandoval-Vasquez with consent to search and advice of rights forms in Spanish. Another officer read the forms to Sandoval-Vasquez in Spanish, and, after acknowledging he understood his rights, Sandoval-Vasquez signed the forms. He told Agent Emigh he was paid $10,000 to store the van, which had initially contained 42 kilograms of cocaine, at his business. While Agent Emigh and the defendant were speaking, an officer interrupted the two to explain that the officers were having difficulty opening the trap compartment inside the van. After Agent Emigh asked Sandoval-Vasquez if he knew how to open the trap, Sandoval-Vasquez explained how he believed the trap worked. He then tried to help the officers open the trap compartment. The officers eventually opened the trap and recovered 24 kilograms of cocaine located inside.

Sandoval-Vasquez later filed a motion to suppress statements he made to law enforcement officials and the cocaine and handgun recovered at his business. The district court suppressed statements made to Sergeant McHugh because Sandoval-Vasquez did not first receive Miranda warnings. However, the district court ruled that Sandoval-Vasquez voluntarily waived his rights and consented to the search when he spoke with Agent Emigh. The district court also concluded that the officers had probable cause to believe that the van contained cocaine and that the officers did not begin to search the van until after Sandoval-Vasquez gave his consent. The district court held that the gun and cocaine recovered at Custom Fit Iron Works, in addition to Sandoval-Vasquez's statements to Agent Emigh, were admissible. Sandoval-Vasquez then entered a conditional guilty plea to possessing, with the intent to distribute, over five kilograms of cocaine, in violation of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He now appeals.

II. ANALYSIS

A. Motion to Suppress

When we review a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error. United States v. Hagenow, 423 F.3d 638, 642 (7th Cir.2005). We review its determination of the reasonableness of a search de novo. United States v. Husband, 226 F.3d 626, 629 (7th Cir.2000).

1. Entry into Sandoval-Vasquez's Business

Sandoval-Vasquez first contends the officers' warrantless entry into his business violated the Fourth Amendment. As a result, he maintains, the district court should have granted his motion to suppress evidence seized after the officers entered the business as the fruit of an unlawful entry. See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir. 2003).

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." In addition to protecting private homes, the Fourth Amendment also affords protection to businesses and commercial facilities. Dow Chemical Co. v. United States, 476 U.S. 227, 235, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In either case, "[t]he touchstone of Fourth Amendment analysis is whether a person has a `constitutionally protected reasonable expectation of privacy.'" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. 507.

Here, the government maintains that the officers' entry into the business did not violate the Fourth Amendment, and we agree. As we have said before, "[a]n open gate invites entry." United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001). In Tolar, we held there was no violation of the Fourth Amendment when police officers entered an open business to ask the owner's permission to conduct a search. Id. We noted that a chain link fence surrounding the property did not engender a reasonable expectation of privacy in items visible from beyond the fence. Id. As in Tolar, the officers in this case entered an open business to seek the owner's permission to conduct a search, and nothing about the property asserted an expectation of privacy. During the hour before the officers' entry, an officer had observed persons entering and leaving the building. Significantly, at the time of entry, the door through which customers entered was open, the garage door was open, and the establishment was still open for business.

That Sandoval-Vasquez's business may have been in the process of closing does not help him, as the fact remains that the business was still open when the officers entered. Our decision in United States v. Swart, 679 F.2d 698 (7th Cir.1982), therefore, does not assist Sandoval-Vasquez. There, we ruled that officers' entry into a business they knew was closed violated the Fourth Amendment. In this case, however, the officers entered an open business.

Sandoval-Vasquez also attempts to distinguish Tolar on the basis that the officers here entered the premises with their weapons drawn, yelling that they were police officers and ordering the occupants against a wall. The officers' entry in Tolar, in contrast, was peaceful. Sandoval-Vasquez thus maintains that in addition to entering the business shortly before it closed, the officers' manner of entry into his business rendered the entry unlawful. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (holding that knock-and-announce principle is an element of the Fourth Amendment reasonableness inquiry because "we have little doubt that the Framers of the Fourth Amendment thought that...