Lead Opinion
On August 31, 1995, а federal grand jury returned an indictment against the defendant-appellant, Harry Sholola, charging him with one count of conspiracy to import heroin into the United States from India, in violation of 21 U.S.C. §§ 952(a) & 963, and ten separate counts of importing heroin from India, in violation of 21 U.S.C. § 952(a), and one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). The Government charged that Sholola maintained and used mail boxes in the Chicago, Illinois area, rented under false names, for the purpose of receiving “approximately ounce quantities” of “mixtures containing heroin” from his co-eonspirator(s) in India. The evidence against Sholola included: (1) fifteen envelopes “containing mixtures of heroin” that were seized from the mailboxes rented by the defendant; and (2) approximately 123 grams of heroin recovered by authorities from a public storage locker, also rented by the defendant.
Sholola filed a motion to suppress, arguing that the evidence should be excluded as the “direct and indirect fruit” of conduct by law enforcement officials that violated the Fourth Amendment. Specifically, Sholola argued that: (1) police officers lacked probable cause to arrest him outside of a bank in Orland Park, Illinois, on suspicion of credit-card fraud; and (2) the officers exceeded the bounds of the Fourth Amendment when they searched an automobile, incident to that arrest, and discovered, inter alia, information that led investigators to the storage locker and mailboxes rented by the defendant as part of his heroin-importation scheme. Relying on County of Riverside v. McLaughlin,
After conducting an evidentiary hearing on December 1, 1995, in connection with the federal charges against Sholola, the district judge denied the portions of the defendant’s motion to suppress which challenged the va
On February 2,1996, Sholola withdrew his plea of not guilty to the charge of conspiring to import heroin and, pursuant to a written agreement with the Government, entered a conditional guilty plea in which he admitted to the charge of conspiring to import heroin while reserving the right to appeal the district court’s ruling on his motion to suppress. Following a change-of-plea hearing, the court accepted Sholola’s conditional guilty plea and entered a judgment of conviction. On May 7, 1996, Sholola was sentenced to thirty-seven months imprisonment, to be followed by five years of supervised release, and ordered to pay a special assessment of $50. On appeal, the defendant asserts that the court improperly denied his motion to suppress.
I. BACKGROUND
At approximately 3:45 PM on the afternoon of July 11, 1995, the defendant, Harry Sholola, entered the A.J. Smith Federal Bank (the “Bank”) in Orland Park, Illinois. He was observed by Patrolman Anthony Farrell, a nine-year veteran of the Orland Park Police Department who had been employed at the Bank as a part-time security guard for more than three years.
Officer Farrell testified that even though he was in full police uniform and dress, he commenced his interview by identifying himself to Sholola as an officer of the law. Farrell inquired of the defendant as to where he was going, and he replied that he was on his way to purchase flowers. At this time, Officer Farrell requested identification from Sholola, and the defendant provided the bogus driver’s license he had used in the Bank (concerning which the California DMV had no record, as Farrell knew). Farrell asked Sholola if he had a car and, if so, where it was parked. The defendant said that he did have a vehicle and pointed to a maroon, four-door Honda Acura (the “Acura”) parked in the garden center’s parking lot. Farrell asked if he had keys to the car and could prove that it belonged to him. Instead of answering “Yes” or “No,” Sholola produced some keys from his pocket, walked towards the vehicle, opened the front driver’s side door, and stated, “See, it’s my car.” When Sholola was about to enter the vehicle, Officer Farrell directed him to move away from the door. As Sholola exited the vehicle, the officer positioned himself between the defendant and the open ear door.
Farrell asked Sholola his age, and the defendant replied that he was forty-four years of age, an answer that contrasted with the information reflected on Alejandre’s driver’s license, which showed an age of thirty-six years. Farrell repeated the age question, and Sholola changed his answer; this time he stated that he was thirty-eight years of age. The officer then asked the defendant where he lived, and Sholola identified a community other than San Bernadino, California, the residence listed on the license. Furthermore, Sholola misspelled the surname “Ale-jandre” (spelling the name differently from what appeared on the license). Finally, Officer Farrell re-phrased the age question he had asked twice previously by inquiring of Sholola his date of birth, but once again the defendant’s answer failed to correspond with the information on the driver’s license.
Considering the knowledge he had gained through his observations of the defendant, including the i.d. discrepancies revealed during his questioning of Sholola, Officer Farrell requested that the Orland Park Police dispatcher run a computerized cheek on the Acura’s Illinois license plate. This check revealed that the vehicle was registered to a woman residing in Tinley Park, Illinois, and that there were no outstanding warrants for the owner of the vehicle, nor any reports of the vehicle being stolen. At the time Farrell requested the Acura’s license plate cheek, he also asked for back-up assistance. During the evidentiary hearing, Officer Farrell was asked whether Sholola was “free to leave” at this point in the encounter (even though he had not been placed under arrest) and the officer answered “No.” Shortly after Farrell’s request for assistance, Officer Joseph Swearingen arrived on the scene, followed shortly by Sergeant Thomas Lynch, Farrell’s superior officer, a sixteen-year veteran of the Orland Park Police Department. Farrell related to Sergeant Lynch a summary of the events that had transpired up until this point, including his interview with Sholola and the defendant’s inability to provide answers that corresponded with the information set forth on the California driver’s license. When Farrell was asked on cross-examination if the informatiоn available to Lynch, at this juncture, was the same as his own, Farrell replied that it was. Having thus acquired Officer Farrell’s knowledge of the situation, Sergeant Lynch took the driver’s license and commenced to interview the
I looked at [the license], and then I walked over by the defendant and asked him for his name, which he provided, which was the same as on the driver’s license. I asked for a date of birth, and he did not give me the same date of birth that was on the driver’s license, and then I asked him what his age was, and his age was quite drastically different from the date of birth that he provided.
Sergeant Lynch and Officer Farrell held “a brief conference” to discuss the situation, in light of all of Sholola’s suspicious conduct up to this point in time, including his disheveled appearance, his use of the fraudulent i.d. to obtain cash from the Bank, his elusive behavior immediately following the transaction when he was followed by Officer Farrell, and finally his inconsistent statements and his repeated failure to provide answers that corresponded with the information on his purported license. Based on the officers’ collective knowledge about the suspect at this point in time, “it was determined that Mr. Sholola was going to be placed under arrest for further investigation.” Sergeant Lynch directed that Sholola be “take[n] into custody for investigation of deceptive practices at the bank.”
At thе time of his arrest, Sholola was standing near the open driver’s side door of the Acura. Immediately following the arrest, Officer Swearingen handcuffed Sholola and escorted him to a squad car that was about two car-lengths away from the maroon Acura. Sholola was searched, and on his person were found the credit card he used in the Bank (reflecting the name “Alejandre”), as well as the $1,900 and the receipt he had obtained during the cash advance transaction. Shortly thereafter, Sergeant Lynch and Officer Farrell searched the interior of the Acura vehicle over which Sholola had claimed ownership, for, in Farrell’s words, “any possible weapons and any other information we might find relative to the credit card fraud investigation that we were involved in.” Sergeant Lynch searched the passenger side of the vehicle, while Officer Farrell searched the driver’s side. In the glove box of the car, they discovered a total of $5,400 in U.S. currency in $100 denominations. The cash was contained in an envelope, along with a cash advance receipt in the amount of $3,000. This receipt had been issued to an individual named “Alejandre” earlier the same day (7/11/95) by another bank in Orland Park. The search also yielded a second credit card and a second California DMV document with Sholola’s picture on it,
Following the search of the maroon Acura, Officer Swearingen transported Sholola to the Orland Park Police headquarters and proceeded to book him, filling out a form designated as a “scratch sheet” which noted that Sholola was being held on a charge of theft by deception.
After the completion of Sholola’s booking (July 11 at 6:00 PM), the Orland Park Police Department contacted the Secret Service in Chicago and advised them that they had recovered evidence suggesting Sholola’s involvement in “a larger credit card scheme” that might warrant investigation by federal authorities, i.e., a scheme that went beyond the single transaction at the Bank. Secret Service Special Agent Mark Oliphant
Oliphant returned to the Orland Park Police Department at about 11:00 PM to interview Sholola about the credit card fraud. In Officer Swearingen’s presence, the Secret Service Agent administered Miranda warnings to the defendant and proceeded to obtain some personal history information from the defendant. When Oliphant asked to speak with Sholola about the credit card fraud for which he had been arrested earlier in the day, the defendant stated, “I don’t have an answer, I understand what you are saying.” When Oliphant emphasized to the defendant that he “had a lot of information about [his] participation in credit card fraud,” Sholola stated that he wished to speak with an attorney before answering any more questions, and the interview came to an end.
During the morning of July 12, Agent Oli-phant, continuing his investigation of Sholo-la’s involvement in a broader credit card scheme, made telephone inquiries regarding the credit cards found in Sholola’s possession. He also telephoned the district manager of the storage locker company “to determine the status of Mr. Sholola’s locker.” At approximately 9:00 AM, Agent Oliphant spoke with Assistant State’s Attorney Cassi-dy about obtaining a search warrant for the locker, but this course of action was abandoned later in the day when Detective Ken-ealy of the Orland Park Police Department called Oliphant and suggested that he would attempt to get the defendant to sign a voluntary consent to search form, in lieu of obtaining a search warrant (Sholola gave his written consent to the search of the storage locker only).
Agent Oliphant searched the locker on the evening of July 12, and found approximately 123 grams of heroin, as well as papers noting
At 9:30 AM on July 13, thirty-nine and one-half hours after the completion of the booking process, Sholola was brought before a state judicial officer for a hearing to determine probable cause as to the Illinois theft charge arising out of the defendant’s use of fraudulent documents at the Bank. Neither the record nor the parties’ briefs shed light on the details of this proceeding, but we are able to conclude from the record that probable cause was found as to the state charge of theft by deception.
On July 17, a federal magistrate filed a criminal complaint, charging Sholola with conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, on the basis of an affidavit, sworn to by Secret Service Special Agent Daniel Overvoll, detailing the information his agency possessed at that time concerning Sholola’s heroin importation scheme. Sholola was arrested by federal authorities on August 2 and detained pending trial, after a magistrate judge determined after a hearing that there was probable cause to believe Sholola had conspired to possess with intent to distribute heroin, as alleged in the federal complaint.
II. ISSUES
On appeal, Sholola asserts that the district judge’s denial of his motion to suppress was erroneous and should be reversed, arguing that the evidence against him was obtained in violation of the Fourth Amendment. Specifically, the defendant-appellant argues that: (1) at the time Officer Farrell stopped him for questioning in the garden-center parking lot located near the Bank, he lacked reasonable suspicion of criminal activity; (2) Farrell and his fellow officers lacked probable cause to arrest him; and (3) the warrantless search of the Acura, which took place shortly after his arrest, violated the Fourth Amendment. Sholola also maintains, as he did before the trial judge, that the evidence gained as a result of the search of the storage locker should be suppressed because he gave his consent to that search while allegedly being held by police in violation of Riverside,
1. Standard of Review
In reviewing a district judge’s ruling on a motion to suppress, this court reviews questions of law de novo and questions of fact for clear error. United States v. Liss,
2. Officer Farrell’s “Investigatory Stop” of the Defendant
Sholola initially claims that he was subjected to an unreasonable seizure in violation of the Fourth Amendment because, at the time that Officer Farrell stopped him for questioning (i.e., a Terry stop), the officer lacked a reasonable suspicion of criminal activity. The trial judge rejected this argument after inquiring, during the evidentiary hearing, into all the facts and circumstances known to Officer Farrell and the Orland Park Police at the time Farrell stopped Sho-lola for questioning, including the officer’s observations of and about the defendant before, during, and immediately following the fraudulent credit card transaction at the Bank. The trial judge’s review of the evidence included a thorough inquiry into the reliability of the computerized check procedure which Officer Farrell (through the Or-land Park Police dispatcher) utilized to determine that the California DMV had “no record on file” of any driver’s license issued to Joeh Alejandre. In addition to Farrell’s testimony, the court heard testimony from: (1) an expert on law enforcement information systems (including computer databases); (2) the Orland Park Police dispatcher who actually ran the cheek on “Alejandre” at Officer Farrell’s request; and (3) a California DMV official who worked in a special unit responsible for making DMV records available to law enforcement agencies nationwide. Farrell testified that, in his understanding, “ ‘no record on file’ means that the license has not been issued, there is no record of the license ever being issued.” Similarly, the DMV official testified that when a computerized search yields the result, “no record on file” (or “record unavailable”), “[t]hat means there is no current record in our system. So it’s either, if it was ever a good number, it has been purged, or it may not have ever been a good number.” The DMV official further testified that as of December 1995 (the month prior to the evidentiary hearing), there was still no record of the “Alejandre” license in the DMVs records. After hearing all of the testimony concerning the computerized search, the trial judge stated that she “[didn’t] have any doubt” that the information generаted by the computer search was “reliable” and “correct,” describing the “regular business records of driver’s license authorities” as the most reliable information available concerning the validity of a license. Based in part on the fact that Farrell “had run a routine inquiry on a system that should be rehable and it came back without any information,” the district judge concluded that Farrell “had a basis ... for stopping [the defendant].” Referring to the defendant’s behavior following the suspicious credit card transaction, the judge also noted that
Since the Supreme Court’s decision in Terry v. Ohio,
The requirement that the officers’ suspicion be articulable prevents the police from stopping a person on the basis of pure, even if inspired, hunch. The police must be able to give a rational explanation for why they suspected the person they stopped. This is an important requirement because without it the police could stop people at will, a carte blanche that has been thought inconsistent with the limitations that the Fourth Amendment places on the power to search and seize....
United States v. Feliciano,
Applying the dictates of the Supreme Court, we have consistently held that “[r]easonable suspicion is to be determined in light of the totality of the circumstances.” United States v. Duguay,
The Supreme Court has held that in assessing whether an officer had reasonable suspicion, the “evidence ... must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Cortez,
Even if we accept Sholola’s argument that the computerized “no record on file” result was ambiguous, we observe that the “reasonable suspicion” standard, by its very nature, allows for some degree of ambiguity or uncertainty. See, e.g., Cortez,
Finally, we wish to emphasize that the knowledge possessed by Farrell at the time
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Id. (emphasis added); see also Feliciano,
3. The Arrest of the Defendant
In addition to аsserting that Officer Farrell lacked “reasonable suspicion” to stop him for questioning, Sholola maintains that there was not probable cause to arrest him. The trial court determined that the driver’s license and credit card with corresponding information as to the identity of the owner were falsified documents and not the property of the defendant, and that this-combined with Sholola’s previous suspicious behavior— was sufficient to establish probable cause.
It is axiomatic that “[a] warrantless arrest ... must be supported by probable cause.” United States v. Navarro,
In order to make an arrest without a warrant, the police must have probable cause, under the totality of the circumstances, to reasonably believe that a particular individual has committed a crime.... While probable cause requires more than mere suspicion, we do not require it to reach the level of virtual certainty.
In examining the conduct of investigating police officers, we have held that police officers have probable cause to make an arrest where the facts and circumstances within their knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.
United States v. Gilbert,
The United States Supreme Court has consistently emphasized that “probable cause” is a “eommonsense, non-technical conception[ ] that deal[s] with ‘the factual and practical considerations of everyday life on whiсh reasonable and prudent men, not legal technicians, act.’ ” Ornelas, — U.S. at-,
As noted above in our reasonable suspicion discussion, Officer Farrell was not only well-versed in law enforcement procedure, having been an officer in Orland Park for nine years, he had also been a security guard for eleven years, and a part-time guard at the Bank for some three years. The record also reflects that Sergeant Lynch, who conferred with Farrell prior to the defendant’s arrest, was a sixteen-year veteran of the Orland Park Police Department. We agree with the trial judge that the facts and circumstances known to these experienced arresting officers gave them probable cause to believe that Sholola had committed the crime of theft by deception by proffering fraudulent documents in order to obtain cash from the Bank. As previously noted, the information known to Officer Farrell prior to stopping Sholola for questioning gave rise to a “reasonable suspicion” that the defendant had been engaged in criminal activity inside the Bank. What transformed this “reasonable suspicion” into probable cause was Sholola’s inability to accurately respond to the questions of both Officer Farrell and Sergeant Lynch; specifically, his failure to provide truthful answers to correspond with the information on the driver’s license he presented as his (date of birth, age, address, as well as the spelling of the “Alejandre” surname). Sholo-la’s varied responses to the officers’ queries were not only inconsistent with the information on the driver’s license he presented, but inconsistent with each other as well. Indeed, the record reflects that his response to Sergeant Lynch’s final question concerning his age was “drastically different” from the answer he had just given Lynch concerning his date of birth. These inaccurate and misleading responses to the officers’ questions confirmed the officers’ suspicion that neither the driver’s license nor the credit card truly belonged to Sholola. We are convinced that at the time Sholola was placed under arrest, “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that the suspect had committed or was committing an offense, specifically, the crime of using false documents in order to fleece the Bank out of $1,900 in cash. Hunter v. Bryant,
Finally, we disagree with the defendant-appellant’s claim that United States v. Robinson,
4. The Search of the Defendant’s Automobile
The defendant Sholola’s third challenge to the district court’s denial of his suppression motion relates to the search of the maroon Acura, which occurred immediately after his arrest.
In Chimel v. California,
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrеstee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
[Tjhese justifications are absent where a search is remote in time or place from the arrest.
Id. at 768,
The Supreme Court in New York v. Belton was called upon to apply the principles it had previously set forth in Chimel to the frequently litigated “question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupant[s].”
Initially, we address the parties’ incorrect assumption that this case somehow falls outside the scope of the rule announced in Belton. The Government, for reasons unexplained, states in its brief that “Belton is not directly applicable to this case.” The appellant also argues that Belton is inapplicable, presumably because he was not technically an “occupant” of the vehicle immediately prior to the search, and cites our decision in United States v. Adams,
Our holding that this ease is governed by the rule in Belton obviates the need for a detailed analysis of whether the search of the Acura could be justified under the rationale of Chimel (i.e., whether the search was permissible because Sholola was within “grabbing distance” of the interior of the vehicle at the time of his arrest). When аn automobile is searched contemporaneously with the lawful arrest of the vehicle’s occupant (or, in this case, an individual “positively linked” to the vehicle):
The rule [in Belton] ... does not require the arresting officer to undergo a detailed analysis, at the time of arrest, of whether the arrestee, handcuffed or not, could reach into the ear to seize some item within it, either as a weapon or to destroy evidence, or for some altogether different reason____ The law simply does not require the arresting officer to mentally sift through all these possibilities during an arrest, before deciding whether he may lawfully search the vehicle.
United States v. Karlin,
Sholola argues that the concerns for officer safety and preserving evidence which underlie Chimel and Belton do not apply to his case, because “[a]t the time the officers conducted their search of the vehicle, [he] was handcuffed and in the rear of a locked squad car from which he could not exit.” We have consistently rejected this argument, as have other circuits,
In concluding our Fourth Amendment analysis of the automobile search, we note that although the Government has chosen to characterize this search as a “search incident to arrest,” it was also valid as a routine post-arrest “inventory search,” of the kind approved by the Supreme Court in South Dakota v. Opperman,
[An] inventory search is constitutionally permissible if (1) the individual whose [vehicle] is to be searched has been lawfully arrested, and (2) the search satisfies the Fourth Amendment standard of reasonableness, i.e., it is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures.
United States v. Velarde,
Following the lawful arrest of Sholola, Sergeant Lynch and Officer Farrell jointly conducted the seаrch of the Acura, with Farrell searching the driver’s side and Lynch the passenger side of the vehicle. The items recovered in the search were placed in a bag, conveyed to the police station in police 'custody, inventoried, and reviewed later that evening by Secret Service Agent Oliphant as part of his investigation into the defendant’s credit card fraud. With respect to this evidence, there was no break in the chain of custody. Consistent with Belton and Opper-man, discussed supra, we are convinced that the search after arrest and/or inventory procedure in this ease were both proper and in no way violated the defendant’s rights under the Fourth Amendment.
5. The Search of the Defendant’s Storage Locker
As noted in the background section of this opinion, the Orland Park Police arrested Sholola on a state charge of theft by deception (credit card fraud) and detained him in their lock-up facility for thirty-nine and one-half hours prior to bringing him before a judicial officer for a determination of probable cause as to the theft by deception charge. It was during this period (after approximately twenty-four hours) that Sholo-la gave his written consent to a search of the storage locker, which federal investigators believed would provide further clues as to Sholola’s involvement in “a larger credit card scheme” (i.e., more extensive than the single transaction at the Bank). When searched, the storage locker contained heroin and papers relating to other mailboxes that the defendant had rented as part of his heroin-importation scheme (when those mailboxеs were later searched, pursuant to warrants, investigators discovered fifteen envelopes containing shipments of heroin from India).
We understand Sholola to make a two-part argument concerning the storage-locker
The Fourth Amendment, as the Supreme Court explained in Gerstein v. Pugh, requires that a “fair and rehable” determination of probable cause be made by a judicial officer “either before or promptly after arrest.”
if the arrested individual can prove that his or her probable cause hearing was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.
Id. (emphasis added).
The defendant has not demonstrated that he was detained beyond the morning of July 12 for any of the improper purposes identified in the Riverside decision. Most importantly, we emphasize that Sholola was not detained in order that investigators could “gather[ ] additional evidence to justify his arrest.” We are convinced that at the time Sholola was booked, the Orland Park Police already had sufficient evidence to support a charge of theft by deception and thus sufficient evidence to warrant his detention (i.e., the $1,900 credit card fraud offense commit
Sholola’s case resembles United States v. Daniels,
[The defendant’s] argument seems to interpret Riverside to preclude law enforcement from bolstering its case against a defendant while he awaits his Gerstein hearing; that is a ludicrous position. Ger-stein and its progeny simply prohibit law enforcement from detaining a defendant to gather evidence to justify his arrest, which is a wholly different matter. Probable cause to arrest Daniels already exist-ed____ We therefore reject Daniels’ contention that he did not receive a prompt Gerstein hearing.
Id. at 314 (emphasis added). Under the clear and straightforward logic of our decision in Daniels, police may conduct further investigation of a crime to “bolster” the case against a defendant while the defendant remains in custody, and they may likewise hold an individual while investigating other crimes that he may have committed, so long as they have sufficient evidence to justify holding the individual in custody in the first place.
In challenging his detention as unreasonable, Sholola relies primarily upon this Court’s decision in Willis,
The facts surrounding Sholola’s detention bring to mind the recent case of United States v. Stowe,
Finally, we note that most of the cases relied upon by Sholola (including Willis and Riverside itself) were civil rights actions brought pursuant to § 1983 and not criminal appeals, like the one before us, in which the defendant seeks to exclude evidence on the basis of an alleged Riverside violation.
IV. CONCLUSION
A series of “steps” led the officers to the incriminating evidence of Sholola’s conspiracy to import heroin from India, i.e., the initial decision to stop him for questioning (in light of Officer Farrell’s observations about him before, during, and immediately after the fraudulent transaction inside the Bank), his lawful arrest for the crime of theft by deception, the search of the automobile incident to that arrest, and finally the consensual search of the storage locker. We have reviewed the record concerning each of these events, keeping in mind the Supreme Court’s recent admonition that we “review findings of historical fact only for clear error and ... give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas, - U.S. at -,
AFFIRMED.
Notes
. According to Sholola’s Presentence Investigation Report ("PSR”), a total of 332.87 grams of heroin were mailed to the defendant from India during the period from December 1994 through July 1995.
. Sholola first advanced this argument in a “supplemental memorandum” to his motion to suppress.
.Although the parties refer to a 36-hour period (an estimate accepted by the district court) our review of the record shows that it was more like 39.5 hours between the completion of the booking process at 6:00 PM on July 11 and 9:30 AM on July 13, when Sholola appeared before a judicial officer on the state theft charge.
. Sholola does not raise any challenges to the court's sentеncing order.
. Officer Farrell testified that during his off duty hours, he worked six-hour shifts at the Bank, between four and five times each month.
.This was a pre-arranged signal at the Bank, communicating to Bank personnel that a private conversation was needed at once.
. Officer Farrell referred to this document as a California "driver's license,” while elsewhere in the record it is mentioned as a “California state identification card.”
. In Illinois, "theft by deception” is defined as "obtain[ing] by deception control over properly of the owner.” 720 ILCS 5/16-l(a)(2).
. Oliphant had approximately seven years’ experience as an agent and had investigated about a hundred credit card fraud cases.
. Sholola’s PSR reveals that on September 1, 1995, in connection with the incident at the A.J. Smith Bank, the defendant pleaded guilty to state "charges of theft of over $300,” and that in April 1996 prosecutors entered a nolle proseguí in the case. In order for the slate case against Sholola to proceed as far as it did, we conclude that probable cause must have been found at the July 13 hearing.
. The magistrate judge’s detention order noted that "the circumstances of the defendant’s arrest in Tinley Park demonstrate that it is likely he was engaged in the use of fraudulent identification documents and credit cards."
. The LEADS system can be utilized to access the records of criminal justice agencies nationwide, or to access state records pertaining to driver's licenses, vehicle registration, titles, etc. Here, the system was used for the specific purpose of determining whethеr the California DMV had a record of the Alejandre driver’s license on file. Officer Farrell apparently did not request that the dispatcher run a broader criminal history check under the name Alejandre.
. When asked if a computerized record might be unavailable because the license has been issued too recently to show up on the computer, Farrell responded, "That has happened with motor vehicle license plates where we have found that the [Illinois] Secretary of State’s office was behind in entering them, yes.” This response, based on Farrell's experience with Illinois records for license plates (not driver’s licenses) fails to persuade us that the computerized search in this case returned results that ought to have been considered "ambiguous” by Officer Farrell.
. A "person[ ] present in [a] stolen car [does] not have a reasonable expectation of privacy in [the] car[ ]” and thus lacks standing to challenge a search of the vehicle on Fourth Amendment grounds. United States v. Garcia,
. See, e.g., United States v. White,
. The defendant-appellant has not challenged the district court’s specific factual finding that Sholola’s consent to the storage-locker search was voluntary and consensual, observing that there was “no evidence that [Sholola's consent] was not freely given.” Rather, Sholola relies on the argument that his consent was tainted by an alleged Riverside violation.
. Riverside also emphasized that "[i]n evaluating whether the delay in a particular case is unreasonable ... courts must allow a substantial degree of flexibility." Id. (emphasis added); see also Bostic v. City of Chicago,
. Illinois law does provide generally that "[a] person arrested with or without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county,” 725 ILCS 5/109-l(a), but this provision of the Illinois Code of Criminal Procedure merely reflects the holding of Riverside and does not define the term “without unnecessary delay,” 'much less require that every person arrested in the State of Illinois be brought before a judge on the morning immediately following his arrest. Sholola has introduced no evidence of an official policy on the part of the Orland Park Police Department to this effect. His case is therefore distinguishable from that of the § 1983 plaintiff in Willis v. City of Chicago, who introduced evidence that the Chicago Police Department (“CPD”). had a written policy requiring (with some exceptions) that arrestees be brought "to the first available court call after completion of processing."
. This evidence included the false credit card and driver’s license used in the transaction, the cash and accompanying receipt obtained by Sho-lola, and eyewitnesses to the fraudulent transaction.
. The appellant has not cited (nor are we aware of) any federal circuit court opinions that lend credence to his position that suppression is the proper remedy in Riverside cases. Sholola cites but three district court opinions in support of this proposition. We need not discuss the district court's decision in United States v. Clarke,
Concurrence Opinion
concurring.
I concur in the judgment of the court and with most of the analysis provided in the thorough majority opinion. Nonetheless, I consider it important to emphasize the standard of review that we are applying here, and I also have a different view of the way we should analyze some of Mr. Sholola’s claims.
My additional remarks can be brief. First, as the majority indicates both when it describes the applicable standard of review for Sholola’s Fourth Amendment claims and at the conclusion of the opinion, we are required under Ornelas v. United States, — U.S. -,
My disagreements with the way in which the majority has applied the relevant law to the facts of this case similarly reflect a concern with the fine tuning of the opinion, not its broad conclusions. First, I think the majority has not been as careful as it should be with the evidence on which it relies to uphold Officer Farrell’s initial decision to stop Sholola in the parking lot of the garden supply store. It summarizes that evidence on pages 813-814 of the opinion as follows:
The decision to stop Sholola for questioning was based on Farrell’s first-hand observations of the defendant (1) when he entered the Bank, looking disheveled in appearance, and was not familiar to Farrell as a regular customer, (2) when he used the bogus driver’s license to obtain a large cash advance from the teller, and (3) when, following the dubious transaction, Sholola attempted to elude the uniformed Officer Farrell in the parking lot by “peek[ing] out” at him from “alongside of the pickup truck,” walking briskly in the opposite direction, and initially failing to respond to the officer’s call to stop.
(Emphasis in original.) Points (1) and (3) are unobjectionable: they clearly describe facts known to Officer Farrell at the time he made his decision to stop Sholola for preliminary questioning. Point (2), however, implies that Officer Farrell already knew that Sholola’s driver’s license was bogus. As the earlier description of the facts shows, this is not true. The most we can say is that Officer Farrell knew that there was a good chance that the driver’s license was bogus, because he already knew that the California Department of Motor Vehicles (CDMV) had no record of any such license. I agree with the majority that the mere fact that there might have been some innocent explanation of this fact was not enough to render it irrelevant for Officer Farrell’s purposes; in most states, driver’s license records are entered very promptly into computer systems, and Officer Farrell was entitled to treat this piece of information as something tending to show that Sholola’s license might have been
Second, I agree with the majority that Officer Farrell had probable cause to arrest Sholola by the time he did so, and that the warrantless search of Sholola’s Honda Acura was a valid search incident to an arrest. We must be careful, however, not to extend New York v. Belton,
The “positive link” required must, in keeping with Belton, be one that requires physical proximity that is the equivalent of occupancy of the automobile. Here, of course, that is true. Sholola himself went to his car, unlocked it with his own keys, opened the door, and stood there. One more step would have made him a literal “occupant” of the car. That kind of positive link fits easily within both Belton and Adams, and on that understanding I agree with the outcome here. Other “positive links” would plainly fall outside the scope of Belton. For example, the police could observe a suspect parking a ear in an off-street legal parking lot, and then walking two blocks away from it, keeping both vehicle and suspect under constant surveillance. If they then arrested the suspect, in my view they would need something other than Belton to justify a search of the car, even though a “positive link” might be said to exist. Or the police could find a certificate of title to an automobile on the person of a suspect whom they had subjected to a lawful search incident to an arrest, positively linking the person to the car, even though it was parked halfway across town. Again, even if a search of that car might be justified on some other theory (including, obviously, pursuant to a warrant), Belton would be of no help.
Last, I am concerned that some of the majority’s discussion of County of Riverside v. McLaughlin,
Nevertheless, the majority goes on to show why Willis is easily distinguishable from this ease, and by so doing, makes it clear that the overbroad statement quoted above is dicta. In Willis, the Chicago Police Department
For these reasons, I concur in the judgment of the court.