United States v. Avila

106 F.4th 684

UNITED STATES of America, Plaintiff-Appellee, v. Refugio AVILA, Defendant-Appellant.

No. 22-3231

United States Court of Appeals, Seventh Circuit

Argued September 21, 2023

Decided July 9, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-CR-00605(1) — Steven C. Seeger, Judge.

Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael Lehr, Attorney, Kirkland & Ellis LLP, Salt Lake City, UT, Brian D. Sieve, Michael B. Slade, Esq., Attorneys, Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant.

Before Easterbrook, Rovner, and Pryor, Circuit Judges.

Pryor, Circuit Judge.

Chicago police found a loaded hand-gun underneath Refugio Avila's shirt during a series of pat-downs at a traffic stop. After the district court denied both his motion to suppress and his motion to dismiss the indictment, Avila entered a conditional plea to a felony charge of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Avila reserved his right to challenge the district court's denial of his suppression motion as well as the motion to dismiss for alleged violations of the Speedy Trial Act, 18 U.S.C. § 3161. For the reasons that follow, we affirm the court's ruling on the motion to suppress but find the court erred in denying Avila's motion to dismiss the indictment. Thus, we reverse and remand the case for further proceedings.

I. BACKGROUND

A. Factual Background

Mid-afternoon on June 17, 2020, Refugio Avila, a known Satan's Disciple gang member, and his girlfriend, Fatima Hernandez, drove to a local restaurant. When they arrived, Hernandez parked her Dodge Journey minivan in front of the restaurant and went inside to retrieve a takeout order. Avila remained seated in the front passenger seat of the minivan. While sitting in the vehicle, Avila observed two Chicago Police Officers, Anthony Fosco and Robert Cabello, in an unmarked Ford Explorer, park across the street from the restaurant's parking lot.

At an evidentiary hearing on the motion to suppress, the officers testified that they were conducting "proactive policing"¹ on Chicago's west side and were in the area as part of a tactical team focused on preventing gang violence. That day, they were on the lookout for members of the Satan's Disciples and the Latin Kings, who were allegedly feuding.

Officer Fosco parked the unmarked police vehicle and Officer Cabello went inside the restaurant to get a beverage for Officer Fosco. According to Avila, who was still sitting in the front passenger seat of Hernandez's minivan, Officer Cabello stared Avila down while entering the restaurant and again when he left. After Officer Cabello returned to the police car with Officer Fosco, the officers repositioned their vehicle to be able to conduct surveillance.

Before long, Hernandez returned to her minivan with a bag of food and pulled out of the parking lot; the officers responded by cutting through the restaurant's parking lot and pulling behind the minivan.

Although the officers could not provide an explanation for why they chose to surveil Hernandez's vehicle or follow the minivan when it pulled out of the restaurant's parking lot, the district court specifically found that the officers watched and then "deliberately followed" Avila's car.

The officers soon observed three driving infractions. First, the officers observed Hernandez turn onto Rockwell Street but fail to activate her turn signal before coming to a stop. Second, the officers noticed Hernandez fail to activate her turn signal at least 100 feet before the intersection, in violation of Chicago Municipal Code 9-40-200(b). Lastly, the officers testified that neither Hernandez nor Avila were wearing their seatbelts prior to the stop. The officers activated their body cameras and initiated a traffic stop.

Both Officer Cabello and Officer Fosco were aware that Avila was a member of the Satan's Disciples gang, and that this gang was known to carry firearms. Officer Fosco also observed Avila moving around in his seat prior to the minivan coming to a stop. Officer Fosco approached the driver's side, while Officer Cabello approached the passenger side where Avila was sitting. As Hernandez handed over her driver's license, Officer Fosco commented that he had seen Avila moving around inside the vehicle a lot and questioned whether Avila had a firearm. Avila responded, "hell no." Officer Fosco then asked Hernandez and Avila to step out of the vehicle, explaining that they had not pulled over immediately when the traffic stop was initiated. Both complied.

As Officer Fosco spoke with Hernandez and explained his reason for conducting the traffic stop, Officer Cabello dealt with Avila. Upon exiting the vehicle and without prompting, Avila raised his hands, spread his legs, and turned to face the minivan. Officer Cabello asked Avila whether he had a firearm. Avila again answered, "no." Officer Cabello then performed the first of three pat-downs. During this first pat-down, Officer Cabello discovered a large band around Avila's abdomen. Avila explained that he was wearing the medical device because of a hernia. In response, Officer Cabello discontinued searching around Avila's torso, and shifted to Avila's front pockets and waistline. Officer Cabello found nothing. This initial frisk lasted about thirty seconds. Officer Fosco then approached Avila and instructed him to walk to the rear passenger side of the vehicle. Avila complied.

Turning his attention to the minivan, Officer Cabello conducted a protective sweep of the vehicle—the search lasted about three minutes but also turned up nothing. While Officer Cabello searched the minivan, Avila remained near the back right passenger side and continued to face the vehicle without turning around.

Officer Fosco observed Avila's positioning and went over to question him while Officer Cabello was searching the minivan. Officer Fosco again asked whether Avila had anything in the vehicle because he had been moving around a lot when the officers initiated the stop. Avila offered further explanation for the movement, stating that he was simply shifting the food that was in his lap.

Officer Fosco inquired about Avila's current affiliation with the Satan's Disciples. Avila responded, "18^th Street." Officer Fosco, based on previous statements by other gang members, understood that this was a reference to Avila's membership in a faction of the Satan's Disciples. At this point, roughly a minute after the first pat-down, Officer Fosco conducted a second pat-down of Avila. He searched Avila's front pockets, legs, and groin area. Officer Fosco briefly lifted Avila's shirt and noticed the hernia strap around Avila's torso. This second search lasted about fifteen seconds and turned up nothing.

After Officer Cabello finished searching the minivan, he wrote down Avila's name and date of birth, retrieved Hernandez's driver's license from Officer Fosco, returned to the unmarked police car, and began running the information through a police database. Officer Fosco left Avila and approached Officer Cabello in the unmarked police car. While standing at the police car's open door, Officer Fosco told Officer Cabello that he thought Avila was standing in a weird position.

Officer Fosco then directed Avila to walk from the back of the minivan toward the police car. As Avila was walking over, Officer Fosco noticed a bulge in Avila's torso and asked Avila if it was a gun. Officer Cabello turned away from his in-car computer, lifted Avila's shirt, and pulled a loaded hand-gun from Avila's hernia bandage.

B. Procedural History

On September 8, 2020, the government charged Avila with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Avila made his initial appearance on September 16, 2020. Avila was arraigned and ordered detained on September 25, 2020.

The Speedy Trial Act applies to this prosecution. The Act's protections are triggered when an indictment is filed, or at the defendant's initial appearance, whichever occurs later. United States v. Chanu, 40 F.4th 528, 535 (7th Cir. 2022) (citing 18 U.S.C. § 3161(c)(1)). Because of the Speedy Trial Act challenge on appeal, we highlight several key dates of the district court's proceedings.

After Avila was charged with illegally possessing a weapon as a felon, he moved to suppress the firearm on October 23, 2020, and the government responded on November 20, 2020.² Avila filed his reply brief on December 18, 2020. Avila asserted two independent bases to suppress the hand-gun under the Fourth Amendment. First, he argued that the officers lacked reasonable suspicion to stop Hernandez and so the stop was not justified at the outset. Second, he argued that the officers unnecessarily prolonged the stop by removing him from the car, asking him questions unrelated to the traffic stop, and improperly searching him three times.

At a status hearing on January 14, 2021, the district court directed the parties to confer and propose dates for an evidentiary hearing. On March 5, 2021, the parties filed a joint status report requesting an evidentiary hearing. The parties also proposed the hearing occur during the week of May 3, 2021. In a ruling dated March 8, 2021, the district court granted the request setting the evidentiary hearing for May 6, 2021. The district court also ruled, with the parties' consent, that any Speedy Trial Act time would be excluded until Avila's motion to suppress was ruled on.

At the hearing in May 2021, Officer Fosco, Officer Cabello, and Avila each testified over the course of two days. The court also admitted multiple explanatory exhibits and the officers' body camera footage. About a month later, on June 9, 2021, the parties filed simultaneous post-hearing memorandums. On April 26, 2022—after almost ten months without a ruling on the motion to suppress—the parties filed a joint motion requesting a status...