U.S. v. Serna-Barreto

Decision Date29 March 1988
Docket NumberNo. 87-1441,SERNA-BARRET,D,87-1441
Citation842 F.2d 965
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Aidaefendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Michael Wilkie, Steven B. Muslin, Ltd., Chicago, Ill., for defendant-appellant.

Zaldwaynaka L. Scott, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

Aida Serna-Barreto was convicted of possession of cocaine with intent to distribute (21 U.S.C. Sec. 841(a)(1)) and sentenced to seven years in prison. The only question raised by her appeal is whether the government exceeded its right under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to stop a suspect briefly for investigative purposes even if probable cause is lacking for an arrest. The cocaine that Serna-Barreto was convicted of possessing was seized in the course of a "Terry stop" that, she contends, was really an arrest.

Narcotics agents in Chicago were following Rodrigo Cleves, whom they suspected of smuggling cocaine into this country from Colombia. One evening, shortly after the agents saw Cleves drive up to and enter a restaurant, a car registered to another suspected cocaine trafficker and driven by a third person, Germain Valencia, arrived at the restaurant. Valencia went in and shortly afterward Serna-Barreto and a male companion arrived on foot and went in too. Chicago Police Lieutenant Maurice Dailey recognized Serna-Barreto because he had arrested her several years previously for possession of cocaine.

An agent entered the restaurant to keep watch on the four suspects, all of whom sat down at the same table and began passing a small plastic box back and forth among them, both under and over the table. Drawing on his general experience as a narcotics investigator, the agent surmised that either negotiations for a narcotics purchase were in progress or a sample of the merchandise was being passed around for inspection. The agent went to a telephone, called the radio dispatcher, and told him to tell the agents outside, "It looks good."

The four suspects left the restaurant about an hour after they had arrived. They stood outside the restaurant for several minutes, then split up. Cleves and Valencia drove away in Cleves' car. Serna-Barreto and her companion went to the car that Valencia had arrived in. She slid into the driver's seat and her companion into the front passenger's seat. As soon as they were seated, Officer Dailey, who was in plainclothes, approached the driver's side of the car, apparently with his gun pointed at the occupants (although the record is sketchy on this point and the details uncertain, the government concedes and we shall assume that the gun was indeed pointed at them), showed his police identification, and told Serna-Barreto to get out. As she did so, she tossed a plastic cassette box (the same box that had been passed around in the restaurant) under the car. Dailey retrieved the box, discovered cocaine in it, and arrested Serna-Barreto. The district judge held that Dailey had not exceeded the lawful scope of a Terry stop in ordering Serna-Barreto out of the car and that therefore the cocaine seized as a result of the stop was admissible in evidence against her.

The Fourth Amendment has been interpreted to forbid police to arrest a person without probable cause, which is to say a high degree of suspicion that the person has committed a crime. An arrest is a profound and deeply resented interference with the liberty of the person, and to allow police to arrest people on anything less than a high degree of suspicion would restrict personal liberty more than has been thought justified by the needs of public security. When the restriction is less than that involved in a full-fledged arrest, the degree of suspicion required is less. If all that is involved is a police officer's accosting a person and asking him whether he would be willing to answer a few questions, the degree of suspicion required is zero. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (plurality opinion). The intermediate case is that of the investigatory stop. If the police have enough suspicion to be able to articulate it ("articulable suspicion")--that is, if they have more than a pure hunch--they can stop a person briefly to ask him a few questions or to pat him down if they think he may have a weapon. They cannot take him down to the station house; that would be an arrest.

The reason for creating the intermediate category, the investigatory stop, is not merely the appealing symmetry of a "sliding scale" approach--though that is relevant, since it is common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint. But beyond that, it is hard to see how criminal investigations could proceed if the police could never restrict a suspect's freedom of action, however briefly, without having probable cause to make an arrest. The facts of this case illustrate the problem as well as any. Knowing what they did about two of the four people sitting around that table at the Mateos Restaurant, about the person in whose name the car driven by Valencia was registered, and about the modus operandi of drug traffickers, the police had a reasonable suspicion that when Serna-Barreto and her companion (bodyguard?) left the restaurant and got into the car that had been driven there by Valencia, she was carrying cocaine just purchased from a smuggler. The objective basis for their belief may not have been strong enough to allow them to arrest her, but if they let her drive away there was a...

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