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United States v. Velazquez

United States Court of Appeals, Seventh Circuit

October 9, 2018

United States of America, Plaintiff-Appellee,
Martin Velazquez, Defendant-Appellant.

          Argued September 12, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:16-cr-00537-l - Elaine E. Bucklo, Judge.

          Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.


         Martin Velazquez was arrested after agreeing to sell twelve kilograms of cocaine to an undercover agent. He conditionally pled guilty to one count of possession with intent to distribute a controlled substance. He retained his right to appeal the district court's denial of his motion to suppress the fruits of a warrantless search for the key evidence against him. That evidence was contained in a suitcase that he had placed in the bed of a pickup truck parked in the driveway of his home. We conclude that the search was supported by the officers' good faith reliance on then-existing circuit precedent, and we affirm the conviction on that basis.


         In August 2016, a confidential informant told a law enforcement official that a person named "Rafa" was a large-scale drug dealer in the Chicago area. The informant arranged for an undercover officer posing as a drug buyer to contact Rafa. In a series of recorded calls and text messages, the undercover officer agreed to meet Rafa in the parking lot of a Hobby Lobby craft store in Elgin, Illinois to discuss the purchase of twelve kilograms of cocaine. Rafa did not show up at the store, however, instead sending Velazquez to act as his intermediary. On August 22, 2016, Velazquez met twice with the undercover agent, first in the Hobby Lobby parking lot and then at a Super 8 motel parking lot that is also in Elgin. Over the course of those two meetings, Velazquez agreed to provide twelve kilograms of cocaine for $33, 000 per kilogram. At the second meeting, Velazquez and the undercover officer agreed to conduct the transaction in a room at the Super 8 motel. After some confusion about whether the entire twelve kilogram quantity would be provided in a single transaction, Velazquez called a man in Mexico and handed the phone over to the undercover agent to discuss the matter. The man in Mexico agreed to sell the entire quantity at one time, and Velazquez then told the undercover agent that he would retrieve the cocaine from Hanover Park and return in ten or fifteen minutes with a suitcase containing the drugs. He asked the undercover agent to text him the hotel room number for the exchange.

         The agent conveyed all of this to his fellow officers who were providing surveillance, including the detail that Velazquez intended to carry the cocaine in a suitcase. But Velazquez did not go to Hanover Park. The surveillance officers instead followed him to his home in Streamwood. Streamwood is a Chicago suburb that sits between Elgin and Hanover Park. Velazquez backed his truck into the driveway of his home, close to the door of the attached garage. He opened the garage door and entered the house through a regular door inside the garage, lowering the garage door behind him. Approximately a half hour later, Velazquez emerged from the house through the garage with a suitcase. As the garage door went up and the light came on, a passing surveillance officer saw Velazquez lift a weighty suitcase onto the bed of the truck. Twelve kilograms translates to approximately twenty-six pounds, not including the weight of the suitcase or packaging materials. Believing that they now had probable cause to arrest, the officers converged on the scene and took Velazquez into custody near the entrance to the garage.

         The officers had brought along a dog trained to detect the odor of controlled substances. Within a few minutes of the arrest and handcuffing of Velazquez, an officer led the dog around the truck to conduct a sniff. The dog quickly alerted to the odor of narcotics at the back of the truck where Velazquez had placed the suitcase. The officers then opened the suitcase and found twelve packages of cocaine weighing 11.9 kilograms in total.

         Velazquez moved to suppress all physical evidence seized on August 22, 2016 as well as the statements that he subsequently made. He noted that he was arrested on his property, in the threshold of his attached garage. The truck bed, he asserted, was backed up to the garage and at least fifteen feet from the public sidewalk, and the suitcase was closed. The officers had no warrant, he contended, and yet they brought the dog onto his private property to conduct the sniff of the truck that was within the curtilage of his home without his consent and without any lawful authority to do so. He argued that such a search violated the Fourth Amendment under Florida v. Jardines, 569 U.S. 1 (2013).

         The government countered that the law enforcement officers had probable cause to arrest Velazquez, that they were justified in effectuating the warrantless arrest at the entrance to his garage, and that the search of the truck and suitcase was lawful either under the automobile exception to the warrant requirement or as a search incident to a lawful arrest. In reply, Velazquez contended that the arrest at the threshold of his attached garage violated the principle of Payton v. New York, 445 U.S. 573, 590 (1980), because there were no exigent circumstances justifying the intrusion into his home to make a warrantless arrest. No crime was committed in plain view of the officers, he asserted, because the incriminating nature of the suitcase was not immediately apparent. Again invoking Jardines, Velazquez argued that the police were not entitled to conduct a search of the curtilage of his home, that they had no right to bring the drug-sniffing dog onto his driveway, and that, absent exigent circumstances, the automobile exception to the warrant requirement did not apply to a car parked on a residential driveway. For the last proposition, he relied on a Fifth Circuit case, United States v, Beene, 818 F.3d 157, 164 (5th Cir. 2016).[1] He also argued generally that the officers lacked probable cause to believe that the truck contained evidence of a crime, and that the intrusion into the truck was not a valid search incident to arrest because, once he was handcuffed, the truck bed and the suitcase were not within his immediate control.

         The district court held a hearing to determine what the officers saw before they arrested Velazquez and searched the truck. The government presented evidence that one of the surveillance officers saw Velazquez lifting the suitcase onto the truck bed using his knee to support the weight of the suitcase. Velazquez disputed that account, contending that he did not use his knee to lift the suitcase and that it was too dark for the officer to have seen this maneuver, especially because the view was obscured by another car parked in the driveway. The visible weightiness of the suitcase was important to show that the officers reasonably believed that it contained the promised cocaine and was not simply an empty suitcase. Velazquez had told the undercover agent that he was retrieving the drugs in Hanover Park, and that he did not store them at his home because his wife and daughter were there. He asserted that the officers could not have seen the heaviness of the suitcase and, because of the change in location from Hanover Park to Streamwood, could not have reasonably believed that the suitcase contained the cocaine. At the conclusion of the hearing, the district court found that the officer saw Velazquez lift a weighty suitcase onto the truck bed. The court also found that, in light of the circumstances leading up to that moment, the loading of the heavy suitcase gave the officers probable cause to arrest Velazquez. The court then held that, "[w]ith that, under the law, the vehicle exception applies." R. 49, at 272. See United States v. Hines, 449 F.3d 808, 814-15 (7th Cir. 2006). In the alternative, the court found that because the officers had probable cause to arrest Velazquez, the contents of the suitcase would have been inevitably discovered and would be admissible on that basis as well. Velazquez appeals from the denial of his motion to suppress.


         When considering a district court's denial of a motion to suppress, we review findings of fact for clear error and questions of law de novo. United States v. Borostowski,775 F.3d 851, 863 (7th Cir. 2014). In his opening brief on appeal, Velazquez contended that this court should overturn its decision in United States v. Hines,449 F.3d 808 (7th Cir. 2006), and find that the automobile exception to the warrant requirement does not apply to vehicles parked on a defendant's private property. He noted that, as of the filing of his brief, this issue was pending on the Supreme Court's docket in a case that had been argued but not yet decided. He encouraged this court to defer ruling until the Supreme Court issued its opinion. He also asserted that the government failed to develop a record that would satisfy its burden under the inevitable discovery doctrine. Finally, he argued that the search of the truck could not be supported as a valid search incident to ...

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