United States v. Lopez

907 F.3d 472

UNITED STATES of America, Plaintiff-Appellee,

v.Fausto LOPEZ, Defendant-Appellant.

No. 17-2517

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2018

Decided October 18, 2018

Jeremy Daniel, Assistant U.S. Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Robert L. Rascia, Attorney, Rascia & Himel, Ltd., Chicago, IL, for Defendant-Appellant.

Before Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Law enforcement officers detained and frisked defendant-appellant Fausto Lopez after observing him and his brother load paper bags into Lopez’s garage. The officer who ordered the stop had a "hunch" that the bags contained drug-trafficking contraband. That hunch was wrong. It had been based on a tip the officers had obtained the previous night from an informant detained for suspected drug trafficking. The informant stopped cooperating with the officers as soon as he was out of their sight.

After finding no contraband, the officer who had ordered the stop realized that his hunch had been mistaken. Nevertheless, eight officers continued to detain Lopez. At one point during this detention, the lead officer told Lopez that he was "free to go."

Yet the officers kept possession of Lopez’s cellphone and keys, effectively restraining his liberty to leave and stripping the assurance of meaning. While Lopez was still detained, the officers eventually obtained his permission to search his house based on another hunch that Lopez kept drugs there. This second hunch proved correct. Officers recovered drugs and a gun from the home. A grand jury indicted Lopez for illegal possession of the heroin and illegal possession of a firearm. Lopez moved to suppress the evidence, arguing that it had been obtained by violating his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied his motion, and Lopez then pleaded guilty to both charges while reserving the right to appeal the denial of his motion to suppress.

We reverse the denial of the motion to suppress for two independent reasons. First, when the officers seized and searched Lopez, they did not have a reasonable suspicion that he was engaged in crime. Second, even if the original stop had been justified, the officers continued detaining Lopez beyond the original justification for the stop. Either violation was sufficient here to undermine the validity of Lopez’s eventual consent to the search of his house.

I. Factual and Procedural Background

A. The Tip

On February 10, 2016, law enforcement officers were conducting surveillance in a narcotics investigation in Chicago. They stopped a man whom they observed enter a business. The officers searched his car and apartment but found no drugs or paraphernalia. Only after officers found drugs in a neighboring apartment did the man confess that he transported drugs for a trafficking organization. The man drove with the officers to a house on South Laflin Street in Chicago where he said he had previously received drugs, and he explained the mechanics of the typical transaction.

He told the officers he would receive a telephone call and then pick up a white Chevrolet Malibu from a parking lot. The informant said he would then drive that car into a residential garage located on South Laflin. In the garage, a man named "Fausto" would take money out of the Malibu and replace it with cocaine. The informant would then drive the car back to the parking lot and leave it there. Although he claimed to have run this operation about five times, the informant did not provide the police with information about the most recent transaction or any information about the frequency or schedule of these exchanges.

After the informant provided this information, the officers let him go. He then stopped communicating with law enforcement and rebuffed their efforts to contact him. Even without further cooperation, the officers acted on the tip immediately.

B. The Stop, Frisk, and Eventual Search

By the next day, the police confirmed that a man named Fausto Lopez lived at the South Laflin address, obtained a picture of Lopez, and put his home and garage under surveillance. Later that same day, the officers saw a white van pull up to Lopez’s garage and saw two men get out of the van with paper shopping bags. An officer recognized Lopez from the photograph and had a "hunch" that the bags contained contraband. The officers watched Lopez get back inside the van and drive out of the garage and down the alley. The other man, who turned out to be Lopez’s brother, stayed in the garage. Lopez was seized on the basis of only the information described thus far. As Lopez drove his van down the alley, two vehicles blocked him in with their emergency lights activated. An officer ordered Lopez out of the van and immediately frisked him. Finding no weapons, the officer asked Lopez for permission to search his vehicle. Lopez consented. The officers found no drugs, drug paraphernalia, or weapons.

Despite finding no contraband, the police took possession of Lopez’s van, car keys, and cellphone. Two officers escorted Lopez back to the garage on foot. By the time Lopez arrived at his garage, another group of officers had stopped his brother there for questioning. All told, at least eight law enforcement officers had crowded into or around Lopez’s garage by the time police began to question him there.

The lead officer told Lopez that the police were doing an investigation but cautioned that he was not under arrest and did not have to answer the officers’ questions. The officer also told Lopez he was free to go. Still, since Lopez was already at home and the officers had taken possession of his van, his car keys, and his cellphone, it is hard to see what practical effect this assurance might have had. The officer then asked Lopez if the garage contained drugs, guns, or large amounts of money. Lopez said no. The officer then asked Lopez for permission to search the garage. Lopez consented, and the officers searched the garage, including the paper shopping bags that the brothers had just carried in. The search turned up nothing—no drugs, no guns, no money, and no related paraphernalia.

Yet the lead officer continued to question Lopez, and the officers still kept his car keys, cellphone, and van. The same lead officer repeated the bland assurance that Lopez was not under arrest before asking him if he had guns, drugs, or large amounts of money in his house. Lopez again said no. The officer then asked Lopez "if it was okay if [the officers] went into the house and searched for those items that [Lopez] said he didn’t have." Lopez said yes, and the officers escorted him to his home before searching it. Once inside, the officers searched the house. They found a large amount of cash in Lopez’s bedroom. An officer questioned Lopez about the money, and he directed the officers to heroin stored in his kitchen and basement and to a gun in his bedroom.

C. The Prosecution

A grand jury indicted Lopez for possession of heroin with intent to distribute under 21 U.S.C. § 841(a)(1) and under 18 U.S.C. § 922(g)(5)(A) for possession of a firearm by an alien in the United States unlawfully. Lopez moved to suppress the evidence found in the search. After an evidentiary hearing, the district court determined that the search of Lopez’s house did not violate the Fourth Amendment. The district court found first that the officers had reasonable suspicion that authorized their investigative stop of Lopez and then that the officers’ searches of Lopez’s garage and house were lawful because Lopez had voluntarily consented to them. The court found that the officers had not read Lopez his Miranda rights but that the warnings were not necessary since Lopez was not in custody. The court based this finding primarily on the lead officer’s statements that Lopez was not under arrest, could leave at any time, and need not answer questions. The court found that the officers’ frisk of Lopez was unlawful, but the court determined that the unlawful frisk did not taint Lopez’s later consent to search the house.

After the district court denied his motion to suppress, Lopez pleaded guilty under a conditional plea agreement that reserved his right to appeal the court’s ruling on suppression. Lopez was sentenced to 120 months in prison.

II. Analysis

We review de novo the district court’s determination of reasonable suspicion. Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review for clear error the court’s underlying factual findings. Id. ; United States v. Johnson , 867 F.3d 737, 741 (7th Cir. 2017). The finding that Lopez voluntarily consented to the search is a factual finding that we review for clear error. United States v. Thurman , 889 F.3d 356, 367 (7th Cir. 2018), citing Schneckloth v. Bustamonte , 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures. Lopez was seized without a warrant or probable cause, but he could have been seized briefly but lawfully under Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if the officers had a reasonable suspicion that he was engaged in criminal activity. The search of Lopez’s house was carried out without a warrant, but if he voluntarily gave consent to the search, the search would also have been lawful. Florida v. Jimeno , 500 U.S. 248, 250–51, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Schneckloth , 412 U.S. at 219, 93 S.Ct. 2041.

Because Terry stops are made without warrants, they are subject to limits. Two are important here. First, officers may carry out a Terry stop only when they "have a reasonable suspicion, grounded in specific and articulable facts" that an individual has committed a felony or is about to commit a crime. United States v. Hensley , 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The...