U.S.A v. Tapia

• Decision Date: 06 July 2010
• Docket Number: No. 09-1426.,09-1426.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jose F. TAPIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

610 F.3d 505

UNITED STATES of America, Plaintiff-Appellee,v.Jose F. TAPIA, Defendant-Appellant.

No. 09-1426.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2010.

Decided July 6, 2010.

As Amended on Denial of Rehearing Aug. 16, 2010.

Monica Mallory (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Sarah O'Rourke Schrup, Attorney, Abigail Pringle and Russell Shankland, Law Students (argued), Northwestern University School of Law, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

CUDAHY, Circuit Judge.

Jose Tapia, a member of the Latin Counts street gang, was arrested at his home on May 19, 2008, after his estranged wife reported him to the police for battery and informed a detective of his involvement in a gang shooting. During the arrest, officers performed a “protective sweep,” which entailed checking the basement and downstairs bathroom for individuals who may have posed a threat. The sweep revealed a handgun, which was subsequently found to have been used in an attack on a rival gang's house. Tapia was convicted of being a felon in possession of a firearm. Having determined that the defendant had used the firearm in connection with another felony, the district court increased his base offense level by four levels pursuant to U.S.S.G. § 2K2.1(b)(6). Tapia was sentenced to 120 months' imprisonment.

On appeal, Tapia contends that the firearm was discovered pursuant to an unconstitutional search, since the sweep incident to his arrest was unreasonable. He also argues that the district court committed reversible procedural errors by failing: (1) to explain why it credited one contradictory statement over another and (2) to identify the elements of the other offense or to explain how the government's evidence supported those elements. Finally, Tapia submits that the district court abused its discretion in relying upon unreliable statements when finding that the defendant had used the weapon in connection with another felony offense.

Since the police had ample evidence reasonably to believe that armed gang members may have been in the house, and because a sweep of the basement and attendant bathroom was reasonable, the manner in which the firearm was discovered was constitutional. Although the process by which the district court weighed the inculpatory and exculpatory evidence of Tapia's involvement in the shooting was imperfect, it was sufficient. In addition, the elements of that other offense were clear and the court's explanation why the evidence revealed the defendant's involvement in the shooting was similarly adequate. For these reasons and the reasons that follow, we affirm.

I. BACKGROUND

Jose Tapia, a convicted felon and member of the Latin Counts street gang, was arrested at his home at 129 Ridgeview Avenue in Rockford, Illinois, on May 19, 2008. His arrest followed from the decision of his estranged wife, Verta Rodriguez, to file a battery complaint against him on May 3, 2008. Tapia, she alleged, had bitten her upper arm. While at the police station, Rodriguez also spoke with Detective Randall Peraza, an officer in the gang unit. Peraza had already been investigating Tapia, a member of the Latin Counts street gang, in relation for a number of gang-related shootings. During their discussion, the defendant's wife informed Peraza that Tapia had been involved in a shooting at 809 South Greenview Avenue (the “Greenview” shooting), which she explained had occurred in retaliation for the shootings of two Latin Count gang members at 716 Loomis. Rodriguez also informed the detective that Tapia had been present at a meeting just prior to the Greenview shooting where one of his associates, Jacob Larsen, had distributed guns and discussed the retaliatory nature of the shooting. Finally, she told him that Tapia had been living at 129 Ridgeview, a location where Latin Count gang members hung out and stored drugs, guns and other potential evidence.

On the day that Tapia was arrested, eight police officers armed with an arrest, but not a search, warrant were sent to 129 Ridgeview. Upon arrival, the officers noticed a Lincoln Navigator, which they had not noticed during prior surveillance of the residence, parked in the front of the house. The police were aware that one of Tapia's associates, also a gang member, owned a Navigator. After a few minutes of knocking at the front door, Deputy Daniel Freedlund, who was situated at the front of the house, notified the other officers that someone was coming out of the basement. Moments later, having walked out of the basement stairwell and through the empty living room, Tapia opened the front door. The police then arrested Tapia without incident and performed a protective sweep of the rest of the residence, including the basement. During the sweep of the basement bathroom, Officer Nick Cunningham spotted a gun on top of some heating ducts approximately seven-and-a-half feet from the ground. Police later returned to 129 Ridgeview with a warrant to conduct a complete search of the house.

Due to the discovery of the gun, the government charged Tapia with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Tapia moved to suppress evidence of the gun. At the suppression hearing, Tapia argued that the protective sweep of the basement was unreasonable and in violation of the Fourth Amendment. He also argued that the handgun was not in plain view, making a search above the ductwork outside the scope of a protective sweep.

Both Peraza and Cunningham offered testimony to support the validity of the protective sweep. Cunningham testified that the sweep was performed because the officers knew “[t]hat he was an active member of the Latin Counts street gang, that he was a higher ranking member within the organization for Rockford, that he was suspected of being involved in narcotics dealing, and that the residence itself was being used as a place where other gang members would gather and have meetings, as well as store weapons and narcotics.” Cunningham also testified that he entered into the bathroom to see if it led to a connecting room. Upon leaving, he spotted the handle of the gun protruding from the ceiling ductwork. Peraza's testimony was similar, but he also noted that members of the Latin Counts had been involved in shootings within the County. Both officers agreed that the protective sweep was brief.

The district court denied Tapia's motion to suppress the gun as evidence. The court concluded that the officers had reason to believe that other Latin Count members could be present at 129 Ridgeview and pose a danger to the arresting officers. The court supported this conclusion based on six facts:

(1) the defendant was on parole for a 2005 unlawful use of weapons conviction;

(2) the defendant was a leader of the Rockford Latin Counts;

(3) the defendant was living in the basement of a residence with other Latin Counts;

(4) the Latin Counts and Latin Kings had recently been shooting at each other, including the drive-by shootings on Loomis Street and Greenview Avenue;

(5) the defendant may have been involved in the Greenview Avenue shooting, using a .45-caliber handgun; and

(6) there was a Lincoln Navigator in the driveway big enough to hold five or six people.

Considering these facts in combination with the officers' observations at 129 Ridgeview-the vacant first floor and the emergence of Tapia from the basement-the district court found that the officers had reason to believe that armed Latin Count gang members could be in the basement and, therefore, pose a threat to the officers carrying out the arrest. The district court also credited Detective Cunningham's statements regarding his discovery of the gun and found that the gun had been found in plain view while conducting a reasonable protective sweep of the basement.

On February 6, 2009, a sentencing hearing was held for Tapia's conviction on a single count of being a felon in possession of a firearm. At the sentencing hearing, the judge implemented a four-level sentence increase pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6). According to this provision, if Tapia used the firearm in the commission of another felony offense, he would be subject to an enhanced sentence. The government argued that the enhanced sentence was appropriate because Tapia had violated 720 Ill. Comp. Stat.. 5/24-1.2(a)(1), by using the gun in the Greenview shooting. The government supported this contention with forensic evidence that linked the shell casings found at Greenview with the gun found at 129 Ridgeview. It also based its contention on Peraza's testimony, which contained information about Rodriquez's and Clifford Gozdal's statements, as well as on Rodriguez's and Gozdal's statements. Tapia challenged the finding that he had used the gun found at 129 Ridgeview in the Greenview shooting by calling into question the adequacy and reliability of the evidence offered by the government to prove the crime used to augment his sentence.

More specifically, the forensic analysis of the 64 casings recovered from the Greenview house revealed that the gun found at 129 Ridgeview had been used to fire 13 rounds into the Greenview residence. Additionally, when the gun was found at 129 Ridgeview, it was loaded with the same brand of bullets as those that had been found at the Greenview residence. The gun was also linked to another shooting at 716 Blenheim Street.

Rodriquez's testimony was also used to link the gun found at 129 Ridgeview to the Greenview shooting. Prior to Tapia's arrest, Rodriquez had told Peraza that she had attended a meeting in April 2008 where Tapia and other Latin Count gang members discussed the Greenview shooting as retaliation for the 716 Loomis shooting. She claimed that Larsen had distributed guns at that meeting, which were then loaded before the gang members left the house. At the sentencing hearing, however,...