United States v. Pedroza, Juan ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3762, 00-3763
United States of America,
Plaintiff-Appellee,
v.
Juan Pedroza and Hilario Pedroza,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 192--George W. Lindberg, Judge.
Argued March 29, 2001--Decided October 18, 2001
Before Easterbrook, Rovner, and Diane P.
Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. In March
1999, federal agents found two kilograms
of cocaine in Juan Pedroza’s car, $61,000
in cash and various drug paraphernalia in
his house, and $10,000 in cash and
ledgers recording drug transactions in
the home of his brother Hilario Pedroza.
After the district court denied the
brothers’ motions to suppress this
evidence, they entered conditional guilty
pleas to conspiracy to possess cocaine
with intent to distribute in violation of
21 U.S.C. sec. 846. In this appeal, the
Pedrozas challenge the district court’s
denial of their suppression motions as
well as the district court’s refusal to
dismiss their indictment for violation of
the Speedy Trial Act, 18 U.S.C. sec.
3161. We affirm both convictions.
I
On March 18, 1999, Drug Enforcement
Agency (DEA) agents were conducting
surveillance of Juan Pedroza, whom they
suspected of being involved in drug
activity. In the early afternoon, Juan
drove to Hilario’s house in a 1991 Ford
Thunderbird, parked in front of the
house, and went inside. About twenty
minutes later, he returned to the
Thunderbird and drove around to an alley
behind the house, where Hilario passed a
brown cardboard box to Juan through the
car window. Juan then drove back to his
own residence. After he stopped the car,
he sat in it for a few minutes and then
went into the house empty-handed. About
thirty minutes later, Juan left again,
this time driving a Jeep Cherokee. Agents
looked through the windows of the
Thunderbird but were unable to see the
cardboard box. This roused their
suspicions that the Thunderbird had a
secret compartment, and that Juan had
hidden the box in it.
Other agents followed Juan when he left
in the Cherokee. After awhile, it became
evident from the way Juan was driving
that he knew he was being followed, and
so the agent in charge instructed the
pursuing agents to contact Juan and
question him if possible. A few minutes
later, Agent Dan Foley pulled up next to
Juan at a stop light, showed Juan his
police badge, and said, "Police, would
you mind talking to us?" According to
Foley, Juan said, "Yes, he would," and
then drove through the intersection and
promptly pulled over to the curb. Foley
turned right and pulled over just around
the corner from Juan. At that point, a
traffic officer at the corner directed
Juan and the agents to move from the
intersection to a laundromat parking lot
a short distance away, which they did.
After Juan stopped his car in the
parking lot, a total of four DEA agents,
each in his own car, also pulled into the
lot. Although Juan testified that his car
was blocked by the agents’ cars, the
agents testified, and the district court
specifically found, that Juan’s car was
not blocked. Initially, two English-
speaking agents spoke briefly with Juan.
A bilingual agent, Agent Lou Dominguez,
then approached Juan, identified himself
as a police officer, and asked Juan if he
was more comfortable speaking English or
Spanish. Juan preferred to speak Spanish,
so Dominguez conducted the remainder of
the encounter in Spanish. Dominguez told
Juan that the agents were investigating
drug trafficking and asked Juan if he was
involved in any such activities. Juan
said he was not. Dominguez next asked
Juan if he had any contraband in the
Jeep. Juan replied that he did not and
volunteered permission for the agents to
search the vehicle.
At that point, Dominguez told Juan he
was going to pat him down for the agents’
protection. Dominguez conducted a brief
pat-down search which turned up cell
phones and pagers, but no weapons or
contraband. The cell phones and pagers
were eventually confiscated, although
Agent Dominguez could not recall whether
they were taken at the time of the pat-
down search or later. After the pat-down
search, Dominguez continued to question
Juan, and Juan continued to respond to
the agent’s questions. Three other agents
searched the Jeep while Dominguez and
Juan continued to talk. The agents found
no contraband in the Jeep.
While the Jeep was being searched,
Dominguez asked Juan where he lived and
if he owned any other cars. Juan gave his
address and said he owned a Ford
Thunderbird. Dominguez asked if Juan had
any contraband at home or in the
Thunderbird, and Juan again said that he
did not. Juan then volunteered permission
for the agents to search his home and the
Thunderbird and said that his wife was at
home and could give the agents the keys
to the Thunderbird. Dominguez radioed an
agent who was conducting surveillance at
Juan’s house and notified him of the
consent to search the house and the
Thunderbird. Agents at the house knocked
on the door and informed Mrs. Pedroza
that Juan had given them consent to
search the Thunderbird; she gave them the
keys. The search of the Thunderbird
revealed that the missing cardboard box
was in fact hidden in a secret
compartment, and the box turned out to
hold two kilograms of cocaine.
The agents at the house then radioed
back to Dominguez and had him arrest
Juan. Dominguez read Juan his Miranda
rights in Spanish, and Juan said that he
understood them. The agents next
transported Juan back to his house,
unhandcuffed, where they conducted the
search of the house to which Juan had
previously consented. Agents found drug
paraphernalia, a gun, and approximately
$61,000 in cash in the house.
After Juan was arrested, he told the
arresting agents that he had obtained the
two kilograms of cocaine from Hilario. On
the basis of this information, the agents
decided to arrest Hilario also. About
five agents met at a parking lot near
Hilario’s home to carry out the arrest.
The agents wore gun belts and bullet-
proof vests with the word POLICE
emblazoned on them. Three of the agents
approached Hilario’s front door while the
other two went around to the back. When
the agents approached the door, it was
ajar, although the storm door was closed.
The agents could see Hilario walking
toward the front of the house. Agent
Dominguez, who was the first one on the
porch, knocked and said, "Police, we’d
like to talk to you," to which
Hilarioreplied, "Come on in." The agents
entered the house and immediately
arrested Hilario. Agent Dominguez asked
Hilario in Spanish if he would mind if
the agents looked around for any other
individuals, and Hilario said no. The
agents then conducted a security sweep of
the house while Dominguez explained to
Hilario why he was being arrested and
read Hilario his Miranda rights. Hilario
waived his rights and agreed to speak to
the agents. Dominguez asked Hilario if he
had any drugs, guns or contraband in the
house; Hilario said he did not. Dominguez
asked Hilario if the agents could search
the house, and Hilario gave his consent.
Dominguez also asked Hilario if the
garage attached to the house and the
vehicles in it were his and if the agents
could search them; Hilario indicated that
they were his and gave his permission for
the search. Ultimately, the search of
Hilario’s home and garage turned up
$10,000, which Hilario admitted was drug
money. The agents also found several
ledgers detailing drug transactions.
II
In the district court, both Juan and
Hilario moved to suppress the evidence
seized from the Thunderbird and from
their homes. Juan argued that the agents
effectively arrested him without probable
cause when they initially stopped him,
and that his subsequent consent to the
search of his home and the Thunderbird
was the fruit of the illegal arrest.
Hilario argued only that he did not
voluntarily consent to the search of his
home. The district court, relying on the
recommendation of a magistrate judge,
found that Juan’s encounter with the
agents was consensual and that Hilario
voluntarily consented to the search of
his home.
Many of the arguments that the Pedrozas
make in this appeal are nothing more than
challenges to the factual findings and
credibility determinations of the
magistrate judge. Such arguments are
almost always fruitless on appeal. As
there is nothing physically impossible or
otherwise disqualifying about these
findings and determinations, we reject
those arguments here. The magistrate
judge held two days of hearings at which
he heard testimony from both brothers and
from several of the agents who were
involved in the searches. The story that
the Pedrozas told about the events of
March 18 differed markedly from the
agents’ description of the events. At the
conclusion of the hearings, the
magistrate judge expressly found that the
agents all gave testimony that was non-
evasive and internally consistent and
that each agent’s testimony was
consistent with that of the other agents.
In contrast, the magistrate found that
both Juan and Hilario gave testimony that
was inconsistent, evasive, and
unreliable. Accordingly, the judge
credited the agents’ version of the
events and refused to credit the
Pedrozas’ versions. We give special
deference to such credibility
determinations, which can virtually never
be clear error. See, e.g., Clark v.
Runyon, 116 F.3d 275, 278 (7th Cir.
1997). Accordingly, we will evaluate the
legality of the stops on the basis of the
facts as the magistrate judge found them.
With that much established, we cannot
find that Juan’s consent to the search of
his house and the Thunderbird was the
product of an illegal seizure. Whether an
encounter with the police is consensual
is a factual question dependent on all
the circumstances surrounding the
encounter. Schneckloth v. Bustamonte, 412
U.S. 218, 227 (1973). Ultimately, whether
an encounter is consensual depends on
whether "a reasonable person would [have
felt] free to disregard the police and go
about his business." Florida v. Bostick,
501 U.S. 429, 434 (1991).
Juan points out that, according to the
agents’ testimony, when Agent Foley first
asked Juan if he would mind pulling over
and speaking to the agents, Juan verbally
responded, "Yes." According to Juan, this
answer signified that, yes, Juan would
mind speaking to the agents; in other
words, Juan did not want to speak with
them. Because Juan initially stated that
he did not wish to speak to the police,
his counsel reasons, the fact that Juan
nevertheless wound up pulling over and
speaking with them indicates that he was
not free to leave.
But Juan’s response was at best
ambiguous: it could just as easily have
signified, "Yes, I will speak with you."
Taken together with his conduct
immediately following the verbal
exchange, any ambiguity disappears, and
it becomes clear that Juan was agreeing
to have a conversation with the agents.
Juan did not hesitate in pulling his car
over to the curb after Agent Foley’s
request. According to the agents’
testimony, although Foley also stopped,
he did not pull up behind Juan but
instead turned a corner and stopped
there. Juan argues that, when the traffic
officer waved him away from the curb and
into the laundromat parking lot, he
believed that he was being ordered to
stop, but this conflicts with both the
magistrate judge’s credibility findings
and the objective circumstances of the
situation. It would have been clear to a
reasonable person in this situation that
the traffic officer was interested only
in keeping a busy intersection clear of
obstructions and was not ordering Juan to
do anything other than clear the
intersection. Even more telling is the
fact that the traffic officer gave Juan
no directions at all until after he had
voluntarily pulled over to the curb.
Nothing Agent Foley or any of the other
agents present did should have made Juan
feel he was being compelled to stop. A
reasonable person faced with Agent
Foley’s question whether he would mind
speaking with police would have thought
that he was free to "disregard the police
and go about his business." Bostick, 501
U.S. at 434. That Juan instead stopped to
speak with the agents indicates that the
encounter, at its inception, was
consensual.
The next phase in Juan’s encounter with
the agents was the pat-down. Early in
their conversation, Agent Dominguez told
Juan that he was going to pat Juan down
for the agents’ protection. Apparently
without giving Juan an opportunity to
object, Dominguez proceeded to do just
that. A protective pat-down search of
this nature is appropriate only if the
agents have at a minimum some articulable
suspicion that the subject is concealing
a weapon or poses a danger to the agents
or others (unless, of course, the subject
consents to the search). See Terry v.
Ohio, 392 U.S. 1, 27 (1968). Dominguez
never sought Juan’s consent to conduct
the pat-down search, and we have serious
doubts as to whether the facts the agents
chose to present at the suppression
hearing meet even the minimal standards
of articulable suspicion. If the pat-down
search had turned up incriminating
evidence, we would find the question
whether any such evidence should be
suppressed a very close one.
We need not decide that question,
however, because the pat-down search
revealed no such incriminating evidence,
and it thus contributed nothing to the
later discovery of the drugs, money, and
paraphernalia. Instead, after the pat-
down, Agent Dominguez continued to talk
with Juan, and Juan continued to answer
Dominguez’s questions freely. The
evidence that Juan wants suppressed was
discovered not as a result of the pat-
down search but during the search of the
Thunderbird and his home. As to the
latter searches, there can be no question
about the voluntariness of Juan’s
consent. On the record as established by
the district court, in fact, Juan
volunteered permission for the agents to
search his home and the Thunderbird even
before the agents asked for it. The only
question we face, then, is whether,
assuming the pat-down search was illegal,
that illegality tainted the remainder of
the encounter between Juan and the agents
and vitiated Juan’s consent to the later
searches. In our view, it did not.
As a general rule, if a seizure of a
suspect, such as the pat-down search
here, is illegal, the illegal seizure
will vitiate the suspect’s subsequent
consent to a search unless the state
proves that the consent "resulted from an
independent act of free will." United
States v. Thompson, 106 F.3d 794, 798
(7th Cir. 1997), citing Florida v. Royer,
460 U.S. 491, 501 (1983). Stated
differently, the question is "’whether,
granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at by
exploitation of that illegality or
instead by means sufficiently
distinguishable to be purged of the
primary taint.’" United States v. Green,
111 F.3d 515, 520 (7th Cir. 1997),
quoting Wong Sun v. United States, 371
U.S. 471, 488 (1963). In determining
whether the consent is sufficiently
distinguishable from the primary taint,
three factors are relevant: "(1) the time
elapsed between the illegality and the
acquisition of the evidence; (2) the
presence of intervening circumstances;
and (3) the purpose and flagrancy of the
official misconduct," id. at 521,
although none of these factors alone is
determinative.
In this case, even assuming that the
pat-down search was illegal, we believe
that there was ample evidence that Juan’s
consent to the search of his home and his
Thunderbird resulted from an independent
act of free will and not from any
exploitation of the questionable pat-down
search. As we noted above, there is no
question that Juan’s encounter with the
agents began with his voluntary consent
to speak with them; this is not a
situation in which an illegal arrest or
Terry stop is the sole reason the suspect
is talking to the police at all. Prior to
the pat-down search, Juan was apparently
willing to talk freely with the agents,
and according to Agent Dominguez, he was
equally willing to do so after the
pat-down search was concluded. Juan was
told that the pat-down was for the
agents’ protection, and the pat-down did
not turn up any weapons or incriminating
items. It is unlikely that a reasonable
person would have felt free to leave
before the pat-down search, but then
would have felt she was being restrained
after the search was concluded and the
agents found nothing incriminating.
With this context in mind, we turn to
the moment at which Juan gave the agents
permission to search his house and the
Thunderbird. At this point, it is
critical to note that Agent Dominguez
never asked Juan for permission to
conduct this search. Rather, Dominguez
asked Juan where Juan lived and whether
he had any other cars, and Juan gave his
address and told the agent he owned a
Ford Thunderbird. Dominguez asked if Juan
had any drugs or other contraband in his
house or the Thunderbird, and Juan said
he did not. At that point, without
further prompting by Dominguez, Juan not
only volunteered permission for the
agents to search his house and the
Thunderbird, but also went on to tell the
agents that his wife would be at home and
could give them the keys to the
Thunderbird. The fact that Juan offered
permission for the searches without being
asked, and even went so far as to give
the agents instructions for getting the
car keys from his wife, strongly suggests
that Juan’s consent was an independent
act of free will. The fact that the house
and car were at a remote location
bolsters this conclusion, as a reasonable
person could not have thought, based only
on the questions that Agent Dominguez
asked, that he was being required to
submit to a search of his home and all
his vehicles.
It is true that the consent followed
closely on the heels of the questionable
pat-down search, which could suggest that
the consent was a product of that search.
In this case, however, we find that the
other two factors indicate the
voluntariness of the consent and outweigh
the temporal proximity. First, Juan’s
decision to volunteer permission for the
search, without being asked by the
agents, can be seen as an intervening
circumstance that removed the taint of
the illegal pat-down. This was not a
situation in which the agents demanded
(or even asked) that Juan consent to a
search, and they surely were not required
to turn down Juan’s offer merely because
the encounter was possibly tainted by the
pat-down search. Similarly, we find that,
although the agents may have lacked an
articulable suspicion to justify the pat-
down search, that is also a close
question. The agents’ violation of Juan’s
rights, if one occurred, was not
flagrant. More importantly, it is clear
from Agent Dominguez’s account that the
only purpose of the pat-down search was
to determine if Juan was carrying any
weapons. There is no suggestion that the
search was a ruse to intimidate Juan or
to force him to answer the agents’
questions.
The record simply provides no indication
that the agents tried to exploit the
questionable pat-down search to secure
Juan’s consent to search his home and
Thunderbird. To the contrary, it is not
even clear that the agents would have
sought such permission had Juan not
raised the subject. On these facts, we
have no trouble concluding that Juan’s
decision to permit the search was an
independent act of free will, and we
therefore affirm the district court’s
decision not to suppress the evidence
found at Juan’s home and in the
Thunderbird.
III
We turn now to Hilario’s arguments for
suppression. The agents who arrested
Hilario did not have a warrant either for
the arrest or for a search of his home,
and the government recognizes that they
could not legally have entered the home
or conducted the search without Hilario’s
consent. See Payton v. New York, 445 U.S.
573, 586 (1980) ("[S]earches and seizures
inside a home without a warrant are
presumptively unreasonable."). The agents
maintain, and the district court found,
that Hilario freely invited the agents
into his home and consented to the
search. Hilario, on the other hand,
argues that he did not freely consent to
the entry or the subsequent search, but
instead merely submitted to an
"exuberant" show of force by the DEA
agents. Whether Hilario freely and
voluntarily consented to the search of
his home is a fact question, which we
review only for clear error. United
States v. Raibley, 243 F.3d 1069, 1076
(7th Cir. 2001).
Hilario’s argument that the agents
used an excessive amount of force in
arresting him and in coercing his
"consent" to the search is based largely
on Hilario’s own version of the facts,
not on the agents’ version. Unfortunately
for him, the magistrate judge
specifically found that the agents’
version was the more credible of the two.
In light of this finding, it is plain
that Hilario freely consented both to the
agents’ entry into his home and to their
search. According to the agents’
testimony, they approached the front door
at around 7 p.m., knocked, identified
themselves, and asked to speak to
Hilario. Hilario responded by saying,
"Come on in." No guns were drawn.
Hilario’s consent to their entry was
immediate; the agents did not make
repeated requests, and Hilario was not in
police custody at the time.
Similarly, there was ample evidence to
conclude that Hilario’s consent to search
his house was free and voluntary.
Although Hilario had been arrested when
he gave that consent, he had been in
custody only a short time, and he
immediately gave his consent the first
time the agents asked to conduct the
search. Hilario had been read his rights,
said he understood them, waived them, and
agreed to speak with the agents. No guns
were drawn. Hilario was not handcuffed,
nor was he threatened in any way. The
district court specifically found that
the agents conducted the encounter in a
cordial and professional manner and that
no coercive tactics were used. We have no
reason to believe that this conclusion
was clearly erroneous, and we therefore
affirm the denial of Hilario’s
suppression motion.
IV
Finally, we must consider the Pedrozas’
assertion that the indictment against
them should have been dismissed because
delays in the trial court violated the
Speedy Trial Act, 18 U.S.C. sec. 3161.
That statute requires that defendants be
brought to trial within 70 days of the
date of indictment, excluding certain
periods. The periods excludable from the
70-day period include all the time
between the filing of a pretrial motion
and the hearing on that motion, 18 U.S.C.
sec. 3161(h)(1)(F); Henderson v. United
States, 476 U.S. 321, 326-30 (1986), any
time between the hearing and the date on
which the district court receives the
last filing necessary to make a decision
on the motion, id. at 331, and, in the
case of a single pretrial motion, up to
thirty additional days during which the
motion is under advisement, 18 U.S.C.
sec. 3161(h)(1)(J).
Juan and Hilario were indicted on April
13, 1999. They filed their motions to
suppress on May 20, 1999. The Pedrozas
agree that the time between April 13 and
May 20 was excludable from the speedy
trial clock because of various
continuances. On June 18, 1999, Juan and
Hilario filed motions to revoke
detention. The district court determined
that it would not hold a hearing on the
motions to revoke detention until after
the suppression motions were resolved.
The magistrate held a two-day hearing on
the suppression motions on August 18-19,
1999, and the last brief on the motions
was filed September 15, 1999. The time
between May 20 and September 15 was
properly excludable as time between the
filing of the suppression motions and the
date on which the last brief necessary to
the decision of the motions was filed.
See Henderson, 476 U.S. at 326-31. The
troublesome delay arose here because the
district court did not rule on the
suppression motions until January 14,
2000, 121 days after the last document
necessary to decide the motions was
filed. Because only the first 30 days
after the suppression motions were taken
under advisement were excludable, the
Pedrozas reason, the district court
missed the 70-day deadline by 21 days.
(The Pedrozas have not argued that any of
the time between January 14 and July 12,
when the Pedrozas entered their guilty
pleas, affects the Speedy Trial Act
calculus.)
The government argues that the time it
took for the district court to decide the
suppression motions was irrelevant,
because throughout that time, the
Pedrozas’ motion to revoke detention was
pending. It finds support for this
argument in the Henderson decision, which
held that 18 U.S.C. sec. 3161(h)(1)(F)’s
exclusion for the time between the filing
of a motion and its hearing applies to
that entire time, regardless of whether
the delay before the hearing is
"reasonably necessary." 476 U.S. at 329-
30. The Pedrozas respond, not without
reason, that the district court had
refused to act on their motion to revoke
detention until the suppression motions
were decided, and that to allow the
pendency of the motion to revoke
detention to toll the Speedy Trial Act
limitation no matter how long the court
then took to decide the suppression
motions would thwart the purposes of the
Act. While we are sympathetic to the
Pedrozas’ argument on this point, we
ultimately need not decide this question,
because we find that the district court’s
resolution of the suppression motions was
timely.
Although the Speedy Trial Act allows
only 30 days of excludable time after the
last brief on a motion is filed if only
a single pretrial motion is pending, when
a district court must contend with
multiple motions, we have held that the
30-day period can be extended as long as
the court resolves all pending motions
with "reasonable promptness." United
States v. Salerno, 108 F.3d 730, 737 (7th
Cir. 1997). While the "reasonable
promptness" standard is not susceptible
to mathematically precise definition (and
we specifically reject any mechanical
standard such as 30 days per motion), we
have found that trial courts have acted
with reasonable promptness when they have
taken 42 days to decide seven motions,
United States v. Tibboel, 753 F.2d 608,
612 (7th Cir. 1985), 68 days to decide
eight motions, United States v. Latham,
754 F.2d 747, 753 (7th Cir. 1985), and 50
days to decide 24 motions, United States
v. Cheek, 3 F.3d 1057, 1066-67 (7th Cir.
1993).
In this case, the district court was
considering a total of four suppression
motions brought by two different
defendants. Each motion raised a number
of constitutional questions, and the
hearings on the motions lasted two days.
Although the district court took 121 days
to decide the motions, we need not decide
whether the entire 121 days was
excludable. Rather, if we can consider 51
of these days to be excludable time, then
the district court resolved the motions
within the 70 days of non-excludable time
that the Speedy Trial Act allows. Taking
51 days to decide four complex
suppression motions is reasonable and is
in keeping with the time periods we have
approved in the past. Therefore, we find
that at least 51 of the days while the
suppression motions were under advisement
were excludable from the speedy trial
clock, and that the district court met
the Speedy Trial Act’s 70-day deadline.
The Speedy Trial Act was not violated in
this case, and the district court did not
err in denying the Pedrozas’ suppression
motions. Accordingly, we Affirm both
judgments of the district court.