United States v. Fiasche, Antonio ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1132 & 07-1152
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO FIASCHE and ANTONIO VITAGLIANO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 765—David H. Coar, Judge.
____________
ARGUED FEBRUARY 15, 2008—DECIDED MARCH 21, 2008
____________
Before FLAUM, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Two Antonios—Vitagliano and
Fiasche—entered conditional guilty pleas to charges that
they conspired to possess, with intent to distribute, var-
ious controlled substances, namely, methylenedioxy-
methamphetamine (MDMA or ecstasy), methylenedioxy-
amphetamine (MDA), and marijuana. They now appeal
their convictions, arguing that their motions to suppress
evidence were wrongly denied. We start with the facts.
Sometime during the last week of August 2005, a fellow
named Lars Bjerga was arrested, somewhere in Kentucky,
2 Nos. 07-1132 & 07-1152
with a lot of marijuana. Like many people caught in his
sort of jam, he decided to roll over and spill the beans on
others involved in the illicit drug business. On
September 2, 2005, a DEA agent in Louisville called a
DEA agent in Chicago (Jennifer Traud) and reported to
her what was learned from Bjerga.
According to the information received, Bjerga had, a
week or so before his arrest, delivered $134,000 in drug
money to “Tony” who lived in a white brick house with
an attached garage, a fenced-in backyard, and a gazebo.
The residence was in the vicinity of Lawrence and Maria
Streets in Chicago. According to Bjerga, “Tony” and
another man were trafficking drugs out of the residence
and were going to be taking some $500,000 in drug money
from Chicago to New York either on September 2 (the
very day Agent Traud received the call) or the following
day. The trip to New York would be either in “Tony’s”
black Lexus or a rental car.
Bjerga also provided two phone numbers, one for Tony’s
“house phone” and a second for his “dope phone.” Agent
Traud soon learned that the “dope phone” was a pre-
paid cellular phone1 with no subscriber information. The
“house phone” was registered to Antonio Fiasche, at
4738 North Maria Court in Chicago, Illinois. The address
matched, to a tee, the description of a house “in the
vicinity” of Lawrence and Maria Streets.
With this information in hand, the DEA sprang into
action, setting up surveillance of “Tony’s” house on North
1
Those who watch the acclaimed HBO hit series, The Wire,
know that these phones (usually called “burners”) are difficult
to trace and a favored tool of drug dealers.
Nos. 07-1132 & 07-1152 3
Maria. Shortly after arriving there, around 12:30 p.m., the
agents saw a black Lexus, with who would later be iden-
tified as Antonio Fiasche at the wheel, drive off. The Lexus
made two mundane stops and returned home an hour
later, around 1:30 p.m.
When Fiasche returned, another car was parked in the
driveway—a silver Chevrolet Malibu—which had arrived
approximately 15 minutes earlier. A man (later identified
as Vitagliano) exited the car when it arrived, opened
the garage door using an electronic security keypad,
and entered the house. At around 1:45 p.m., Vitagliano
left the house carrying a white box and a brown bag. His
hold on the box and bag was rather odd, as he carried them
“in his hands like he was carrying a cake.” Vitagliano
placed the box and the bag on the passenger side of the
Malibu and drove away, heading east on Lawrence Ave-
nue. Several agents, in separate cars, followed.
After following Vitagliano for some time, one of the
surveillance officers pulled next to Vitagliano’s Malibu.
The agent noticed that Vitagliano appeared to be talking
on a silver Motorola “Razr” cellular phone.2 This led the
agents to be concerned that Vitagliano may have discov-
ered that he was being followed and alerted Fiasche to
the fact that the house might be under surveillance.
Following this encounter, according to testimony found
to be credible by the district judge, Vitagliano began
“[w]eaving in and out of traffic at a high rate of speed,” in
an apparent attempt to evade surveillance. Based on these
2
Although there is no other record of a phone call from
Vitagliano’s Motorola Razr phone, Vitagliano testified that he
had made a call on another cell phone during his drive. Phone
records show that the call was made at 1:50 p.m.
4 Nos. 07-1132 & 07-1152
observations—coupled with the fact that Vitagliano had
left what they thought was a drug house at 4738 North
Maria only moments ago carrying two packages—the
agents decided to make an investigatory stop.
At 2 p.m., some 15 minutes after Vitagliano left the
Maria Street residence, the agents activated their lights
and sirens and stopped the Malibu. The agents then
confronted Vitagliano, told him he was observed leaving
the Maria Street residence, and that they were conducting
a drug investigation. The agents patted Vitagliano down
for weapons and asked for permission to search the
Malibu. He consented. The search turned up 107 MDA
tablets and 157 MDMA tablets in the bag Vitagliano
carried from the Maria Street residence. The box he
carried contained a Hewlett Packard palm pilot.
While all this was going on, surveillance on the Maria
Street residence continued. Soon after the drugs were
found in Vitagliano’s car, agents staked out at the Maria
Street residence were told about the hit. They were also
told that Vitagliano had made a cell phone call while
under the agents’ watch and that someone in the house
(Fiasche) may have been tipped off. Based on this infor-
mation, the agents decided to approach the house to try
to do a “consent search.”
Around 2:20 p.m., Agent Traud and others, Supervisor
Walters, Officer Arthur, and Special Agent Emilia
Fernandez among them, approached the front door of
4738 North Maria. Officer Arthur testified that he was
wearing a bullet-proof vest with “police” symbols on the
front and back. The agents knocked on the door several
times. After several knocks, Officer Arthur—who was
positioned to the side of the door with a bay window
behind him—saw the blinds move and heard someone
Nos. 07-1132 & 07-1152 5
yell “hold on,” or words to that effect. When Officer
Arthur looked in the bay window, he saw a man running
down the hallway, covered only with a white towel.
At this time, Agent Timothy Oko was standing on the
side of the house to ensure no one fled from the side door.
Right around the time the agents at the door first
knocked, Agent Oko heard a loud “swishing sound” from
the back of the house. Agent Oko, a moment later, “heard
a flushing sound coming from a [bathroom] window . . .
next to th[e] patio door.” At that point, Agent Fernandez
entered the backyard and Oko advised her that “some-
body’s flushing the toilet” and requested that she alert
the agents at the front door. Between 30 seconds and a
minute later, Oko heard a second flush. At that point,
Agent Oko “believed that somebody was destroying
evidence in the residence.” Moments later, Agents Traud
and Walters joined Oko in the backyard and the three
agents entered the house through the patio door with
their weapons drawn. Once inside, Agent Walters let
Officer Arthur and Agent Fernandez in through the front
door.
The agents initially cleared the kitchen area and then
proceeded to secure the rest of the main floor. When
securing the house, the agents noticed a “strong odor
of marijuana.” In the bathroom next to the master bed-
room area (where Agent Oko had earlier heard the flush-
ing sounds), agents saw “pills scattered all over the
floor . . . a large duffle bag with pills . . . [a] heat sealed
bag that was open and empty laying on the ground,
along with . . . additional multiple bags containing
small pills inside that duffle bag.” Pills were also in the
toilet. The agents secured Fiasche who, after being told
what they were investigating, signed a consent to search
6 Nos. 07-1132 & 07-1152
form. The search that followed turned up over 25,000
MDMA (ecstacy) pills, MDA, and marijuana.
The evidence seized from Vitagliano’s car and Fiasche’s
house was ruled admissible by the district court (Judge
David Coar) after a hearing on their motions to sup-
press. The denial of the motions, which preceded the
defendants’ guilty pleas, is the only matter of concern on
this appeal.
The defendants’ brief, in its “Summary of Argument”
section, is “creative.” Here, word for word, is what it
says about the search of Fiasche’s house:
The government’s suppression testimonial cache
consisted of nothing more than rank speculation and
quantum leaps-of-faith as putative justification for
its intrusion into constitutionally protected privacy
zones (curtilage/home). An experienced, well-trained
and hopelessly creative federal agent raided Fiasche’s
home based on a charade—his purported hearing of
an unexplainable “swishing” sound. And, to boot,
seeing nothing . . . the same agent perpetuated the
constitutionally infirm intrusion by walking up four
or five patio stairs (within Fourth Amendment pro-
tected area) which permitted his hearing of “flushing”
sounds.
If the court please, that dearth of evidence, [even]
taking into account the seizure of a small quantity of
Ecstacy (several miles from the home), failed to pro-
vide Probable Cause and Exigent Circumstances
supporting the breach into Fiasche’s backyard and
home. Accordingly, the district court erred in rejecting
Fiasche’s suppression importunings.
Nos. 07-1132 & 07-1152 7
The defendants’ summary regarding the stop of
Vitagliano’s car is less colorful so we will not repeat it
here. But we will start with that search after briefly noting
the standard of review which governs the case.
We review a district court’s legal conclusions on a mo-
tion to suppress, including the question whether reason-
able suspicion existed to justify a stop, de novo, while
findings of fact are reviewed only for clear error. United
States v. Riley, 493 F.3d 803 (7th Cir. 2007). Mixed ques-
tions of law and fact, including whether exigent circum-
stances exist, are reviewed de novo. United States v. Richard-
son, 208 F.3d 626 (7th Cir. 2000). Because the resolution of
a motion to suppress is almost always fact-specific, we
give special deference to the district judge who heard
the testimony and observed the witnesses at the sup-
pression hearing. And with respect to witness testimony,
“determinations of witness credibility can virtually never
be clear error.” United States v. Biggs, 491 F.3d 616, 621
(7th Cir. 2007) (internal quotations marks and citations
omitted). Lastly, arguments advanced for the first time
on appeal are reviewed only for plain error.
Vitagliano argues, weakly we think given the facts of
this case, that the agents lacked “reasonable suspicion”
when they directed his car to a stop. “Reasonable suspi-
cion,” of course, lies in an area between probable cause
and a mere hunch. Its existence is discovered by common
sense, as the Supreme Court explains:
Reasonable suspicion is a less demanding standard
then probable cause not only in the sense that reason-
able suspicion can be established with information
that is different in quantity or content than that re-
quired to establish probable cause, but also in the
sense that reasonable suspicion can arise from informa-
8 Nos. 07-1132 & 07-1152
tion that is less reliable than that required to show
probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). “When determin-
ing whether an officer had reasonable suspicion, courts
examine the totality of the circumstances known to the
officer at the time of the stop, including the experience
of the officer and the behavior and characteristics of the
suspect.” United States v. Lawshea, 461 F.3d 857, 859 (7th
Cir. 2006). Reasonable suspicion does not deal with hard
certainties, and “behavior which is susceptible to an
innocent explanation when isolated from its context
may still give rise to reasonable suspicion when con-
sidered in light of all of the factors at play.” United States
v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005).
Armed with the information provided by Bjerga, which
so far checked out to be accurate, and their own observa-
tions of the odd way Vitagliano carried the box and bag
from the house, the agents, employing even a modicum of
common sense, had reasonable suspicion to conclude that
something was rotten in Denmark when Vitagliano’s car
sped up a bit just prior to the stop. A Terry stop (Terry v.
Ohio, 392 U.S. 1 (1968)) was clearly justified. And because
Judge Coar credited the agents’ account of how Vitagliano
was driving over the contrary testimony offered by
Vitagliano, we conclude that the motion to suppress
was properly denied.
Vitagliano’s other claims, that the pat-down search was
improper and that his consent to search the car was
involuntary (issues he didn’t quite raise in that form in
the district court and are, therefore, limited to plain
error review), are without merit. For one thing, the pat-
down yielded no weapons or drugs and was a permis-
sive ingredient of this valid Terry stop. Vitagliano’s argu-
Nos. 07-1132 & 07-1152 9
ment about his consent to search, resting as it does on
the claim that the stop itself was not supported by reason-
able suspicion, collapses when the stop is found to be
justified.
Turning to the entry into Fiasche’s house, we start with
the unremarkable observation that warrantless entries
into private homes, although per se unreasonable under the
Fourth Amendment, are subject to specific excep-
tions. Mincey v. Arizona, 437 U.S. 385 (1978). And one, the
exigent circumstances exception, provides that a “war-
rantless entry by criminal law enforcement officials may
be legal where there is compelling need for official action
and no time to secure a warrant.” Michigan v. Tyler,
436 U.S. 499, 509 (1978). The government bears the burden
of proving that its agents had an objectively reasonable
belief that exigent circumstances existed at the time of
their warrantless entry into the defendants’ residence.
United States v. Foxworth, 8 F.3d 540 (7th Cir. 1993).
Here, we think the agents had more than enough proba-
ble cause to believe that drugs—notably Ecstasy tablets
based on the Vitagliano stop coupled with the informa-
tion from Bjerga—were inside the home. The agents also
reasonably concluded (1) that Vitagliano may have alerted
Fiasche that his car was being followed, (2) that Fiasche
might well want to rid the house of drugs if Vitagliano did
not return, (3) that Fiasche, after seeing agents in police
vests at the front door, bolted down the hallway after
yelling “hold on,” and (4) that Agent Oko hearing “flush-
ing sounds” all support Judge Coar’s finding that exigent
circumstances justified the entry into the home. Given these
circumstances, time did not permit seeking out a judge and
trying to obtain a search warrant which would, of course,
easily have been issued had time not been of the essence.
10 Nos. 07-1132 & 07-1152
And had the agents waited outside for an hour or so while
a search warrant was applied for and obtained, it is certain
here that the Chicago sewage system would have been in
ecstasy after receiving some 25,000 pills flushed down the
toilet from the house at 4738 North Maria Court.
The motions to suppress were correctly denied and the
judgments of conviction are AFFIRMED.
USCA-02-C-0072—3-21-08