U.S. v. Vasquez

• Decision Date: 26 October 1990
• Docket Number: No. 89-1908,89-1908
• Citation: 909 F.2d 235
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aureliano Galindo VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 235

909 F.2d 235

UNITED STATES of America, Plaintiff-Appellee, v. Aureliano Galindo VASQUEZ, Defendant-Appellant.

No. 89-1908.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1990.

Decided Aug. 1, 1990.

Rehearing and Rehearing In Banc Denied Oct. 26, 1990.

Thomas M. Durkin, Sean Martin, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Thomas D. Decker, Richard H. McLeese, Decker & Associates, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

At the conclusion of his bench trial, defendant-appellant Aureliano Galindo Vasquez was convicted of possession of 112 kilograms of heroin and fifty-seven kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and knowingly using and carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). Vasquez received a 300-month sentence of imprisonment for his conviction under 21 U.S.C. Sec. 841(a)(1) and a consecutive sixty month sentence of imprisonment for his 18 U.S.C. Sec. 924(c) conviction.

I. FACTUAL BACKGROUND

On April 20, 1988, members of the Chicago Police Department's Gang Crimes South unit began surveillance of Aureliano Vasquez. The police followed Vasquez to a garage located on a grassy vacant lot that had no visible address. The garage directly abutted a public alley. The garage had an overhead door that swung out into the alley and a door that was boarded up and nailed shut. The overhead door was secured with both a standard key-lock integrated in the door and a large padlock. Vasquez unlocked the garage door with keys, raised the door only high enough so that he could enter by crouching down, and quickly closed the door behind him. Vasquez entered the garage empty-handed, but he emerged several minutes later with a partially filled green plastic garbage bag. After locking both locks to the overhead door, Vasquez drove his car to a house in Burnham and went inside carrying the plastic garbage bag. After approximately ten minutes, Vasquez left the house without his garbage bag.

Vasquez then drove to a hot dog stand and made a short phone call from a public telephone. Vasquez returned to the garage, went inside in the same furtive manner as before, and again exited with a partially filled green plastic bag. Vasquez deposited this plastic bag at an apartment building. Before terminating their surveillance for that day, the officers observed the tireless Vasquez return once more to the garage and depart with another green garbage bag with unknown contents.

On May 19, 20, and 23, the officers conducted surveillance near the garage and observed Vasquez perform the same covert ritual of entering the garage in a crouch and then transporting partially filled plastic garbage bags to the same apartment building he had visited on April 20. The officers observed no one other than Vasquez enter the garage during the entire period of surveillance.

Officer Williams had a conversation with a confidential informant on May 24, 1988, who informed him that the garage contained a large amount of cocaine. Officer Williams then enlisted the aid of Detective Thomas Kinsella of the Drug Enforcement Agency and his certified narcotics detection dog "Rex." Officer Kinsella brought Rex to the alley abutting the garage for a sniff. When Rex reached the garage, he barked excitedly and pawed at the overhead door that Vasquez had used when entering and exiting the garage. Rex's behavior was his way of indicating that narcotics were close at hand. Confident that the garage contained drugs, Officer Williams obtained a warrant to search the garage based upon Rex's alert to the presence of drugs and the confidential informant's tip.

The officers executed the warrant later that day. Inside the garage, the officers found an inoperative Ford Thunderbird with kilograms of narcotics on the floor of the passenger compartment and inside the trunk. Officer Williams testified at the defendant's trial that the trunk was stuffed with "softball size packages of drugs" and that "you couldn't have put a baseball into the trunk it was so stuffed." Williams also stated that the officers found one loaded handgun and three handguns with unloaded clips "shoved in with the narcotics in the trunk." After seizing the drug cache, the officers waited in and near the garage for Vasquez to return.

At 6:00 that evening Vasquez returned to the garage. The officers arrested him after he opened the overhead door with his key. When he was arrested, Vasquez was carrying a pager, an address book, keys to the Thunderbird's trunk ignition switch and doors, and keys for the locks on the overhead garage door. The government later determined that the seized guns were capable of being fired.

Prior to trial, Vasquez filed a motion to suppress the narcotics and guns that were seized at the scene of the crime and a motion to dismiss the section 924(c) charge on the ground that he did not "use" or "carry" the recovered firearms. On appeal, Vasquez challenges the district court's ruling on his suppression motion, the sufficiency of the evidence supporting his conviction under 18 U.S.C. Sec. 924(c), and the propriety of the district court's upward departure from Vasquez's sentencing range on the basis of the quantity of drugs involved in his offense. ¹ We affirm Vasquez's conviction and sentence for the reasons that follow.

II. MOTION TO SUPPRESS

Vasquez contends that the trial court erred when it ruled that the use of a certified narcotics detection dog to sniff the garage did not constitute a search within the meaning of the fourth amendment. Furthermore, Vasquez asserts that the trial court also erred in holding that even if the warrant in this case was invalid because of the allegedly illegal dog sniff "search," the Leon "good faith" exception to the exclusionary rule applied because the officers executed the search in objective good-faith reliance on a search warrant issued by neutral magistrate. See United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984). Of course, if we determine that a dog sniff is not a fourth amendment search or that the sniff search was supported by a reasonable suspicion, based upon articulable facts, that the garage contained contraband, Vasquez's "fruit of the poisonous tree" argument will wither on the branch.

In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court noted that a sniff test of seized luggage at an airport is not a fourth amendment search requiring probable cause and a search warrant. Id. at 707, 103 S.Ct. at 2644. The Court reasoned that a canine sniff, unlike other investigative techniques, exposes only criminality and not other legitimately private interests:

We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment entailed in less discriminate and more intrusive investigative methods.

Id. (citation omitted). In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court reaffirmed its statement in Place that official conduct such as a canine sniff of an inanimate object does not compromise any legitimate interest in privacy. The Jacobsen Court relied on Place when it held that conducting a field test to "merely disclose whether or not a particular substance is cocaine" is not a "search" within the meaning of the fourth amendment. Id. at 123-26, 124 n. 24, 104 S.Ct. at 1661-63, 1662 n. 24.

Since Place was decided, we too have consistently held that a canine sniff test that is used to detect the presence of contraband is not a fourth amendment search. See United States v. Mayomi, 873 F.2d 1049, 1054 n. 5 (7th Cir.1989); United States v. Teslim, 869 F.2d 316, 323 (7th Cir.1989); United States v. Rivera, 825 F.2d 152, 158 (7th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). See also United States v. Beale, 736 F.2d 1289, 1290-91 (9th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); United States v. Klein, 626 F.2d 22, 24-25 (7th Cir.1980) (pre-Place ). Thus, the trial court correctly ruled that subjecting the garage to a "sniff-test" from a public alley was not a warrantless search. We do not reach the issue of whether a showing of "reasonable suspicion" is necessary to initiate a dog sniff search that is more intrusive and that exposes private information other than the presence of contraband. See United States v. Colyer, 878 F.2d 469, 477-83 (D.C.Cir.1989); Horton v. Goose Creek Indep. School Dist., 690 F.2d 470, 475-80 (5th Cir.1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983); United States v. Goldstein, 635 F.2d 356, 360-62 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981).

The only challenge raised to the warrant is that the affidavit was tainted because it relied on information secured through the sniff search in violation of the fourth amendment. Because we have determined that the sniff search did not result in a fourth amendment violation, the search...