Petition for Writ of Certiorari — Arango v. United States

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, upreme Court, US,

1 \erR FILED

& mo ff i SEP 15 as

No:

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1989

FRANKLYN ARANGO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for Certiorari to the United States

Court of Appeals, Seventh Circuit

PETITION FOR CERTIORARI

Counsel for Petitioner:

John J. Lewis

O'Keefe, Lewis & Bruno,

FeGe

9239 Gross Point Road

Skokie, IL 60077

(312) 675-4790

Lynda J. Khan

202 S. State #1215

Chicago, IL 60604

(312) 939-7517

QUESTIONS PRESENTED

Whether the Appellate Court erred in

applying the search-incident-to-arrest

exception to validate the search of a

vehicle where the arrestee is brought back

to the location of the vehicle by the

arresting officers;

Whether the Appellate court erred in

affirming the District Court's dismissal

without prejudice for a three-month

violation of the Speedy Trial Act, where

the delay was due to the District Court's

misunderstanding of fundamental Speedy

Trial law;

Whether the Appellate Court erred in

affirming the District Judge's use of

defendant's self-incriminating testimony

at his suppression hearing to make his

decision to dimiss without prejudice.

r

TABLE OF CONTENTS

PAGE

rrr ter MOP eTAOS. wees ocsescces 3 1

CGE LOM ve sccccccsccesscsecsee 2

WORaeGLecien GCE This Court.ccccece 2

Constitutional Provisions and

DeeemeOD TAVOLVEG. ccc cccecccece 2

BUMeemene GL ENE CASS. ccccccscceee 7

Existence of Jurisdiction

BELOW. sccccsccccccesccccsccccces It

Reasons why Certiorari should

Di Pc cr eeeececénessestescose 17

TABLE OF AUTHORITIES

PAGE

New York v. Belton, 453 U.S. 454,

101 S. Ct. 2860, 69 L.Ed. 2d 768

CTS Do 6060000606 0660004000606000666648) 49

Chimel v. California, 395 U.S. 752,

89 Ss. Cee 2034 CTRSP dp ccecesesevsess 12

Chambers v. Maroney, 399 U.S. 42,

90 S.Ct. 1975 Bie, ) PPerererrrerrr Ts 13

Terry v. Ohio, 392 U.S. 1, 88 S.

Cee 1868 bho are yer rT ee TT ee eee 16

Bordenkircher v. Hayes, 434 U.S. 357,

98 S. Ct. 663, 54 L. Ed. 2d 604

[ Se 6 60s 66600 66606606000 SOR eE RO RS 21

OPINION BELOW

The opinion of the Court of Appeals

below (Appendix,infra, p.A-1) is reported

in 879 F 2d 1501. The opinion of the

District Court below was not reported.

JURISDICTION

The judgment of the Court below

(Appendix, infra, P. A-1) was entered

on July 17, 1989. Rehearing was not

sought. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254 (1).

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

1. The Fourth Amendment, United States

Constitution, which provides;

etn

“The right of the people to be secure

in their persons, houses, papers and

effects against unreasonable searches

and seizures,shall not be violated, and

no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation,

and particularly describing the place

to be searched, and the persons or things

to be seized."

2. The Fifth Amendment, United States

Constitution, which provides:

“No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment

of a Grand Jury, except in cases arising

in the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life, liberty,

or property without due process of law;

nor shall private property be taken for

public use, without just compensation."

3. 18 U.S.C. § 3161 (c)(1), which

provides:

"In any case in which a plea of not guilty

is entered, the trial of a defendant

a$e

is entered, the trial of a defendant

charged in an information or indictment

with the commission of an offense shall

commence within seventy days from the

filing date (and making public) of the

information or indictment, or from the

date the defendant has appeared before

a judicial officer of the court in which

such charge is pending, whichever date

last occurs. If a defendant consents

in writing to be tried before a magistrate

on a complaint, the trial shall commence

within seventy days from the date of

such consent."

4. 18 U.S.C. §3161 (h)

(h) The following periods of delay shall

be excluded in computing the time within

which an information or an indictment

must be filed, or in computing the time

within which the trial of any such offense

must commence:

* * *

(F) delay resulting from any pretrial

motion, from the filing of the motion

through the conclusion of the hearing

on, or other prompt disposition of, such

motion;

* * *

(J) delay reasonably attributable

to any period, not to exceed thirty days,

during which any proceeding concerning

the defendant is actually under advisement

by the court.

; iii

6. 18 U.S.C. § 3162, Sanctions:

* * *

(2) If a defendant is not brought

to trial within the time limit required

by section 3161 (c) as extended by section

3161 (h), the information or indictment

shall be dismissed on motion of the

defendant. The defendant shall have the

burden of proof of supporting such motion

but the Government shall have the burden

of going forward with the evidence in

connection with any exclusion of time

under subparagraph 3161 (h)(3). In

determining whether to dismiss the case

with or without prejudice, the court

shall consider, among others, each of

the following factors; the seriousness

of the offense; the facts and and

circumstances of the case which led to

the dismissal;

and the impact of a reprosecution on

the administration of this chapter and

on the administration of justice. Failure

of the defendant to move for dismissal

prior to trial or entry of a plea of

guilty or nolo contendere shall constitute

a waiver of the right to dismissal under

this section.

7. The statutes under which petitioner

was prosecuted, although nothing turns

on their terms, were:

a. Title 21 U.S.C. § 846:

-5-

b. Title 21 U.S.C. § 841 (a)(1):

c. Title 18 U.S.C. § 111:

STATEMENT OF THE CASE

The facts necessary to place in

their setting the questions now raised

can be briefly stated:

A. Course of Proceedings

On October 29, 1987, petitioner

Franklyn Arango was arrested and charged

on October 30 in a criminal complaint

with conspiracy and possession of cocaine

with intent to distribute.

On December 28, 1987, petitioner filed

his motion to suppress any item seized

from his person or items seized as a

result of searches of the Jeep which

he had occupied just prior to his arrest.

On March 8,9, and 17, 1988 a hearing

was held on the motion to suppress. The

court denied the motion on July 15, 1988.

ofe

On August 9, 1988, the petitioner

filed a motion to dismiss the indictment

on the ground that the Speedy Trial Act

had been violated. On August 26, 1988,

the petitioner's motion to dismiss was

granted, without prejudice. On that same

date, a criminal information was filed

which was identical to the atenteout

indictment. On August 30, 1988, a jury

convicted the petitioner on all three

counts of the information. The defendant

filed a timely notice of appeal on October

31, 1988. Petitioner appealed his

conviction to the United States court

of Appeals for the Seventh Circuit,

entitled United States of America v.

Franklyn Arango, Case No: 88-315.

Petitioner's judgment and sentence were

affirmed on appeal, in an opinion decided

July 17, 1989.

B. The relevant facts surroundirg the

afin

OO

searches of petitioner prior to and after

his arrest are set forth in the opinion

of the Appellate Court.(Appendix infra

p.A-2 ).

C. Relevant Facts Concerning the

Suppression Hearing and the Hearing on

the Motion to Dismiss Under the Speedy

Trial Act.

At the hearing on petitioner's Motion

to Suppress, petitioner admitted to his

possession of the cocaine, in order to

establish his standing to challenge the

search that led to the discovery of the

cocaine.The district court denied

petitioner's motion on the grounds that:

1. the search uncovering the one kilo

of cocaine in the back of the vehicle

was a valid search incident to defendant's

arrest;

2. The subsequent search of the vehicle,

revealing more cocaine in a secret

aQn

ee LLhLDLDLUmllCLCU

compartment below the rear seat of the

vehicle was a valid inventory search.

Throughout the proceedings, District

Court Judge Moran believed that all the

time, up until he decided the motion

to suppress, was excludable under the

Speedy Trial Act.

When petitioner filed his motion to

dismiss, with supporting memorandum of

law, the judge realized his error. He

dismissed without prejudice for the

following reasons:

1. the delay was due to the court's

misunderstanding of the law, and not

to the fault of the government;and

2. he was aware of the petitioner's

incriminating testimony at the Suppression

hearing.

«tis

EXISTENCE OF JURISDICTION BELOW

Petitioner was convicted in the

District Court for the Northern District

of Illinois, Eastern Division, of

conspiring to possess and possession

with intent to distribute cocaine, in

Violation of Title 21, United States

. Code Sections 846 and 841(a)(1) and

assault on a federal officer, in violation

of Title 18 United States Code Section

111.

REASONS WHY CERTIORARI SHOULD

BE GRANTED

The Court of Appeals has decided

three federal questions in a way which

conflicts with the applicable decisions

of this court.

tiie

™

A. The Automobile Search

The first issue in this case involves

the warrantless search of an automobile.

This court has held that the passenger

area of an automobile can be legally

searched where the search is incident

to the arrest of an occupant of the

vehicle. New York v. Belton, 453 U.S.

454, 101 S. Ct. 2860, 69 L. Ed. 2d 768

(1981). The underpinning of that case

was this Court's decision in Chimel v.

California, 395 U.S. 752, 89 S. Ct. 2034

(1969).The Chimel court held that when

an individual is arrested, he may become

desperate, and attempt to grab a weapon

or conceal evidence, and there is no

time to get a search warrant in such

a situation. The Belton decision went

further, and established a "bright line"

rule, whereby a search of an autombile

ai 2e

. :

is valid when an occupant of the vehicle

is arrested,no matter whether or not

the arrestee could possibly reach anything

in the car. 453 U.S. 2864. This rule

was intended to eliminate the burden

on a police officer to try to guess .

whether an arrestee could or could not

reach a weapon or other container.

However, the Belton opinion did not

overrule the long-standing principle

that once a person is arrested and in

custody, a search conducted at another

place and time cannot be upheld as

incident to the arrest. See: Chambers

v. Maroney, 399 U.S. 42, 47, 90 S. Ct.

1975, 1979 (1970).

The Appellate Court's decision,

in applying the “bright line" rule in

this case, has ignored the facts and

holding of the Belton case, where the

defendant was an occupant of the vehicle

ei Be

and the arrest took place near the

vehicle. The Appellate Court has

impermissably extended the Belton "bright

line” rule, to allow the search of a

vehicle where the arrestee is brought

to the location of the vehicle by the

arresting officer, after the arrest has

taken place.

This holding injects a dangerously

subjective element into the objective

test of Belton , granting to law

enforcement officers virtually unlimited

discretion to search a vehicle when they

arrest an individual, no matter what

the crime is alleged to be.

We believe that both the District

Court and the Appellate Court were highly

sensitive to the fact the petitioner

was dealing in illegal drugs, and that

this knowledge clouded their reasoning

in this case. However, the case law

= Riles

applies to everyone, and not only those

who deal in illegal drugs; the Appellate

Court's decision will be applied to all

citizens, innocent or guilty, no matter

what they are accused of doing.

From the officers' testimony at

trial, as well as the facts as stated

by the Appellate Court, it is clear that

the officers in this case intended to

search the vehicle as soon as they spotted

it. The area was a known drug-trafficking

area, and the officers received a call

over their radio, to the effect that

petitioner's vehicle was "seen." In

addition, the behavior of the officers

prior to the time petitioner ran,

indicates that neither officer was

following any of the major rules of the

law of search and seizure that have

been enunciated by this court. The

officers admittedly approached petitioner

o)S~

and his companion, reached into their

pockets, went into the locked van, and

searched through petitioner's wallet.

This behavior illustrates the fact that

the officers acted randomly, and seek

to justify the search at issue after

the fact. In addition, it also illustrates

the pressing need to adopt at jena

minimum standards, to deter such conduct

against private citizens.

The suppression of illegally obtained

evidence is necessary in order to deter

unlawful police conduct, which in turn

protects the highly valued privacy rights

of individuals.Terry v.Ohio, 392 U.S.

1,12, 88 S.Ct. 1868, 1875 (1968).In

enacting the Fourth Amendment, the

drafters refused to assume the good faith

of law enforcement officials, and knew

that an officer investigating crime must

have legal restraints on his power;

white

TT ee

without such restraints, the government

becomes oppressive, and the rights of

the individuals are lost. Id.

The Belton rule effectively abolished

the requirement that an arrestee be

physically able to reach anything in

the vehicle, since an auto search is

now valid even if the arrestee is

handcuffed, and sitting in the police

vehicle. The Appellate Court has now

extended this holding too far; the arrest

need not even take place near the vehicle,

as long as the arrestee is brought back

to the area of the vehicle, even though

he is handcuffed and detained in the

back of a squad car.This decision carves

out a completely new exception to the

requirement of a search warrant, and

permits the automatic search of any

vehicle the arrestee has ever occupied.

There is no rationale in any of this

ai?a

Court's decisions that would support

such an exception to the warrant

requirement of the Fourth Amendment.

The officers in this case were in no

position to have to judge distances or

petitioner's ability to grab anything

in the vehicle, when the arrest was made

petitioner and all of the ebtioere were

over a block away. There were at least

three officers in this case, and they

would have had time to get a search

warrant, help the fallen officer, and

transport defendant to a place of

confinement, all safely and without any

need to search the vehicle immediately.

The officers in this case did not

bother to try to get a warrant; they

would have been unsuccessful if they

had tried at the time of arrest, since

they had no probable cause to believe

there was anything in the jeep. They

-18-

|

had not followed petitioner long enough

to even have an “articulable' suspicion

of criminal activity when they stopped

petitioner on foot, as the district judge

so found.

If this case is allowed to stand,

the result will be an eroding of the

fundamental rights of U.S. citizens

everywhere, and will abolish the

protections of the Fourth Amendment,

as it applies to citizens and their

automobiles.

B. Use of petitioner's self-incriminating

testimony from his Suppression hearing

as a reason to allow reprosecution.

The Appellate Court never reached

the issues raised by petitioner, that

the use of his incrimiating testimony

at his Suppression hearing, to deny him

dismissal with prejudice, violated his

| be. : |

Fifth Amendment right to due process,

and his right not to be forced to

incriminate himself. The Court merely

stated that the judge considered the

petitioner's testimony as it related

to seriousness of the offense, but a

reading of the entire transcript clearly

shows that the judge was disturbed by

the fact that petitioner openly admitted

that he was a drug dealer, in order to

establish his standing to challenge the

search of the vehicle he was riding in.

The Appellate court affirmed the

District Court's use of petitioner's

incriminating testimony at his suppression

hearing, in order to allow the

reprosecution of petitioner after

dismissal. We could find no case law

that would support this proposition.

This holding now requires a criminal

defendant charged with a possessory crime

20>

to make a "Hobson's choice"; he can choose

to assert his Fourth Amendment rights,

but must forego his statutory right to

a speedy trial. See: Bordenkircher v.

Hayes, 434 U.S. 357, 363, 98 S. Ct. 663,

54 L. Ed. 2d 604 (1968).

In addition to the rights of this

defendant, this holding further undermines

the deterrent purposes of the exclusionary

rule. By putting too high a price on

defendant's challenge of the searches,

the court discourages such challenges,

thereby opening the door to:increasing

lawless conduct on the part of police

officers.

C. Reasons for allowing reprosecution.

And finally, the Appellate Court

found that the three month delay in this

case, beyond the permissable time allowed

by the Speedy Trial Statute, resulted

from the District's Court's

ae

misapprehension of the “status” of various

motions before the Court. (Appendix

infra p.A-13 ). This finding is clearly

inaccurate; the District Court judge

admitted that he was wrong about the

law of the Speedy Trial Statute, and

thought that all the time was excludable,

from the time defendant filed his motion,

until the court rendered its decision.

The reasons for the delay in this

case are exactly what the legislature

was trying to prevent by enacting the

Speedy Trial Statute, that is, studied

incompetence within the system of criminal

justice. This is not a case of excusable

neglect, where the government misses

a deadline by a few days or weeks due

to inadvertence. Instead, this case

involves lack of knowledge on the part

of the court and the government, of basic

law surrounding the speedy trial act;

o2%=

—_— i =

such lack of knowledge should not be

rewarded by allowing reprosecution of

this petitioner, especially in light

of the three month delay and the fact

that petitioner was incarcerated the

entire time.

CONCLUSION

The facts of this case, from the

illegal, investigatory searches conducted

by the officers, right through the

dismissal and reprosecution of petitioner

by the District Court, exhibit a

disturbing picture of the crimial justice

system. Should this opinion be allowed

to stand, the Fourth Amendment as it

applies to automobiles will exist only

as an abstract idea. This outcome would

serve to encourage lawless police conduct,

by granting officals discretion to search

at random, and by discouraging defendants

nite

from challenging the search. And a

District Court will be held to a much

lower standard than the average American,

who has long been presumed to know the

law.

-24-

No:

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1989

FRANKLYN ARANGO,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

Petition for Certiorari to the United States

Court of Appeals, Seventh Circuit

APPENDIX TO PETITION FOR CERTIORARI

Inu the

United States Court of Appeals

For the Seventh Circuit

No. 88-3135

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

FRANKLYN ARANGO,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 88 CR 715-1—James B. Moran, Judge.

ARGUED MARCH 27, 1989—DeEcIDED JULY 17, 1989

Before BAUER, Chief Judge, and KANNE and HENLEY,

Circuit Judges.*

KANNE, Circuit Judge. Franklyn Arango appeals the

district court’s refusal to suppress evidence discovered

during two warrantless automobile searches conducted

after he was arrested for assaulting a police officer. He

also appeals the court’s decision to grant his motion to

dismiss pursuant to the Speedy Trial Act without preju-

dice, rather than with prejudice as he had requested. We

affirm.

* The Honorable J. Smith Henley, Senior Circuit Judge of the

United States Court of Appeals for the Eighth Circuit, sitting by

designation.

a

2 No. 88-3135

I. BACKGROUND

On October 29, 1987, two DEA Task Force members,

Detective Clifford Berti and Sergeant Thomas Martin of

the Chicago Police Department, were participating in an

on-going narcotics investigation on the north side of Chi-

cago. While patrolling a neighborhood where active drug

trafficking was suspected, the officers received a radio

message that a white Cherokee jeep, with no license

plates, had been observed in the area. The message did

not link the vehicle or its occupants to any known illegal

activity, but the situation was considered suspicious. The

officers later saw the jeep and followed it for about nine

blocks until it pulled over and parked. The officers parked

their unmarked police car nearby as the jeep’s driver,

Tony Maldonado, and its passenger, the appellant Frank-

lyn Arango, left the jeep and began to walk in the offi-

cers’ direction.

Officers Berti and Martin, experienced narcotics inves-

tigators, immediately noticed that Maldonado and Arango

each were wearing digital beepers which were activated,

indicating incoming calls. They then initiated contact with

Maldonado and Arango near the jeep, identifying them-

selves as police officers and asking the suspects for iden-

tification.

Maldonado produced a wallet, containing an Illinois driv-

er’s license, and handed the wallet and his car keys to

Officer Berti. However, Arango replied that he did not

have any identification with him. The two officers open-

ly discussed that they both had seen Arango before, but

were not sure under what circumstances. Officer Berti

asked Maldonado if he was the owner of the jeep and re-

ceived a negative response. When asked who the owner

was, Maldonado hesitated, glanced at Arango, and stated

that he did not know.

Throughout this exchange, Maldonado repeatedly placed

his hands in his pockets and then removed them. Officer

Berti instructed Maldonado to keep his hands out of his

No. 88-3135 3

pockets, apparently fearing that Maldonado might be car-

rying a weapon. When Maldonado again placed his hands

in his pockets, Officer Berti immediately instructed Mal-

donado to remove his hands and reached into Maldonado’s

jacket pocket, pulling out cash totalling over $2,200.00.

Thereafter, Officer Berti walked to the jeep and looked

inside the window in an attempt to establish the vehicle’s

owner and Arango’s identity. When he looked through the

window, Officer Berti observed a portable telephone be-

tween the seats and a man’s wallet on the passenger seat

where Arango had been sitting prior to leaving the vehi-

cle. Officer Berti opened the locked door, using the keys

which Maldonado had given him earlier, picked up the

wallet, and looked inside. Upon seeing Arango’s photo

identification, he remembered that a fellow DEA agent

had told him that Arango was wanted in connection with

a narcotics-related shooting which had occurred in Chicago

the previous month. He also suddenly remembered that he

had arrested Arango in 1985 on a cocaine-related charge.

With this realization, Officer Berti immediately drew his

revolver and left the jeep.

However, while Officer Berti was in the jeep, Officer

Martin, who had remained nearby with the suspects, like-

wise remembered that Arango was wanted in connection

with the recent shooting. Unfortunately for Officer Mar-

tin, he did not wait for Officer Berti to rejoin the group

before he asked Arango if the police were still looking

for him in connection with that shooting. With this in-

quiry, Arango immediately shoved Officer Martin who fell

to the ground and broke his kneecap. The suspects then

fled the scene of the assault as Officer Berti fired a warn-

ing shot and gave chase.

Two nearby uniformed police officers apprehended Aran-

go about a block away. At that time, Officer Berti for-

mally arrested Arango for assaulting a police officer and

conducted a pat-down search. Immediately thereafter, the

officers returned Arango to the scene of the assault where

Officer Martin was in need of medical attention.

r

4 No. 88-3135

Once there, Officer Berti conducted a more detailed

search of Arango’s person, discovering and seizing about

$3,800.00 in cash, the previously observed digital beeper,

and some car keys. Berti then searched the Jeep, finding

$16,000.00 behind the passenger’s seat, a package of co-

caine under a jacket in the back seat, a portable telephone

between the jeep’s front seats, and several documents

bearing Arango’s name in the glove compartment.

Thereafter, the agents drove the jeep to the DEA ga-

rage in downtown Chicago and conducted a second search

of the vehicie. This search revealed a secret compartment

underneath the carpet between the front and rear seats

which contained four additional packages of cocaine.

Arango made his initial appearance the next day, Oc-

tober 30, 1987, and was formally arraigned on November

30, 1987. On December 28, 1987, Arango filed a motion

to suppress which the court denied on Say 15, 1988. On

August 9, 1988, Arango filed a ‘Motion to Dismiss with

Prejudice” because of an alleged violation of the Speedy

Trial Act. The court granted the motion, but without pre)-

udice, rather than with prejudice as Arango had requested.

Thereafter, Arango waived his right to reindictment and

was convicted. The district court denied Arango’s post-

trial motion to reconsider the court’s earlier decision to

dismiss the indictment without prejudice.

II. DISCUSSION

Arango raises two issues on appeal. First, Arango ar-

gues that the district court erroneously denied his mo-

tion to suppress the evidence discovered during two war-

rantless searches of the jeep. He also contends that the

district court erroneously granted his motion to dismiss

for a Speedy Trial Act violation without prejudice, rather

than with prejudice as he had requested.

A~4

No. 88-3135 5

~,

A. Fourth Amendment Violations

Officers Berti and Martin conducted several separate

searches in this case.! The district court found that Officer

Berti’s search of the jeep immediately following Arango’s

arrest qualified as a proper warrantless search incident

to arrest. The court also found that the subsequent search

of the jeep at the DEA garage was justified as a war-

rantless auto search based upon probable cause supported

in part by the evidence seized during the search incident

to arrest. We will address the legality of each of these

searches separately.

1. Search Incident to Arrest

In Chimel v. Culifornia, 395 U.S. 752, 89 S. Ct. 2034,

23 L. Ed. 2d 685 (1969), the Supreme Court held that po-

lice officers, subsequent to a lawful arrest, may search

the person of an arrestee, and any area into which he

might reach in order to grab a weapon or evidentiary

items, without a search warrant and as merely an inci-

dent to arrest. 395 U.S. at 762-63, 89 S. Ct. at 2039-40;

see also United States v. Karlin, 852 F.2d 968, 970 (7th

Cir. 1988) (discussing the search incident to arrest excep-

tion in the context of automobile searches). In New York

v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d

1 Arango alleges that the officers conducted six separate “searches,”

including (1) Officer Martin’s reaching into Maldonado’s jacket

pocket, (2) Officer Berti’s unlocking of the jeep door to gain ac-

cess to the wallet on the front seat, (3) Officer Berti’s pat-down

search of Arango following Arango’s apprehension following his

assault on Officer Martin, (4) Officer Berti’s more thorough search

of Arango’s person once he returned Arango to the scene of the

crime, (5) Officer Berti’s search of the jeep’s interior at the scene

following Arango’s arrest, and (6) the officers’ search of the jeep

after it was removed to the DEA . The district court opined

that the search of the jeep which yielded Arango’s wallet was not

based upon probable cause and that no exception to the fourth

amendment justified the officers’ conduct. However, the district

court found that various exceptions to the fourth amendment’s

warrant requirement applied to justify the other searches.

6 No. 88-3135

768 (1981), the Supreme Court extended this exception

to searches of automobiles following a lawful arrest. The

Court held “that when a policeman has made a lawful cus-

todial arrest of the occupant of an automobile, he may,

as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile .. . .” 453 U.S.

at 460, 101 S. Ct. at 2864 (footnote omitted), quoted in

Karlin, 852 F.2d at 970.

Arango argues that the officers could not search the

vehicle incident to his arrest because of the special cir-

cumstances surrounding the arrest. Arango contends that

this exception to the fourth amendment’s warrant require-

ment does not apply when (1) the crime for which an ar-

rest is made, and which forms the basis for the search

incident to arrest, does not directly involve the vehicle

itself or (2) when the actual arrest does not occur while

the arrestee is an occupant of the automobile or at least

within immediate “grabbing distance” of the vehicle. He

thus concludes that, because he was arrested for the crime

of assault upon a police officer and was arrested approx-

imately a block from the scene of the assault and returned

there prior to the search, the search of the jeep cannot

qualify as a legal search incident to arrest.

Initially, we reject Arango’s attempt to distinguish Bel-

ton based upon the nature of the offense and the man-

ner in which it was committed. Chimel and Belton are

premised upon the need to protect police officers and citi-

zens who may be standing nearby from the actions of an

arrestee or his confederate who might gain access to a

weapon. These cases also recognize the need to prevent

an arrestee or a confederate from destroying evidence

located in the area. We believe that the proper focus

must be upon the presence of an arrestee, not the of-

fense or the manner in which it was committed. We

recently rejected an arrestee’s attempt to distinguish

Belton upon grounds very similar to those advanced by

Arango here.

In Karlin, a police officer received a radio report of a

burglary suspect being chased by citizens. 852 F.2d at 970.

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No. 88-3135 7

When he arrived on the scene, he found two citizens

standing over the defendant who was lying on the ground

with his foot inside the open driver’s door of a van. Id.

The citizens indicated that the defendant was the man

they had chased and that they had removed him from the

van. Jd. After arresting and handcuffing the defendant,

the officer placed him in the rear of the squad car. Id.

Thereafter, the officer searched the van, finding a gun

which formed the basis of a charge for which the defen-

dant eventually was convicted. Jd.

On appeal, the defendant argued that Belton did not

apply because at the time the officer searched the vehi-

cle the defendant was secured in the squad car and could

not reach any weapon or evidence, the justifications for

the exception originally formulated by the Supreme Court

in Chimel. Id. We specifically rejected this argument,

refusing to determine the applicability of Belton based

upon the degree to which the officer secured the defen-

dant prior to conducting the search. We stated:

If those differences in degree are to control, the

Court’s preference for a straightforward rule for

guidance of police officers and avoidance of hindsight

determinations in litigation would be frustrated. It

seems quite likely that, in instances where occupants

of a car are arrested, they will be outside the car

and will have been placed under some measure of

security before the car is searched.

Id. at 970-71. We noted that decisions from this and other

courts supported our reasoning. See United States v.

Queen, 847 F.2d 346, 353-54 (7th Cir. 1988), and cases

cited therein.

We believe that our holding in Karlin largely addresses

Arango’s contentions. Clearly, Karlin forecloses Arango’s

argument that Belton does not apply because he was se-

cured in the rear seat of a squad car following his ar-

rest. Further, it recognizes that the presence of an ar-

restee mandates the need to protect both persons and

evidence from the often imprudent and unpredictable ac-

tions of a person just arrested, or perhaps even a nearby

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8 No. 88-3135

confederate. This principle applies whenever an arrestee

is within “grabbing distance” of these items without re-

gard as to the nature of the offense committed.

It is the threat of arrest or the arrest itself which may

trigger a violent nse—regardless of the nature of the

offense which first drew attention to the subject. For ex-

ample, in search incident to arrest cases in which an ar-

rest is made inside a residence, officers clearly have a

right to search certain rooms, drawers, closets, and other

areas for their protection and the protection of evidence

without reference to the offense for which the arrest is

made. We therefore hold that Belton similarly justifies

a search of a vehicle incident to arrest without regard

to the nature of the offense supporting the arrest.

Nevertheless, we must address Arango’s argument that

Belton cannot apply because he was arrested approximate-

ly one block from where the assault occurred and returned

to the scene by the officers which only then created a

need to search the nearby vehicle. In Karlin, we stated

that Belton applied, even though the arrestee was hand-

cuffed and secured in the rear seat of a squad car, and

that the officer could search any area “into which [the

arrestee] might have reached at the time of arrest.” 852

F.2d at 972. Using a literal interpretation of this

one might argue that a search is proper only if the ar.

restee is apprehended when he is in the immediate vicin-

ity of the vehicle—and under ordinary circumstances, the

of a search may be so limited. Thus, Arango raises

a plausible ent that his capture approximately a block

away from the scene of the assault perhaps should pre-

clude an application of the search incident to arrest ex-

ception under Belton.

However, under the specific facts of this case, we be-

lieve that the search of the vehicle as incident to an ar-

rest was entirely reasonable. When Arango was appre-

hended approximately one block from where he committed

the assault, Officer Berti conducted a quick pat-down of

Arango’s person. Within only a very short time, the of-

ficers, with Arango in-tow, returned to the place where

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No. 88-3135 9

Officer Martin was in need of medical attention for his

broken kneecap. Once at the scene, and after checking

on Officer Martin’s condition, a thorough search of Aran-

go’s person and the vehicle was made. Under the circum-

stances presented here, the immediate return of Officer

Berti to the location of his injured partner necessarily put

in proximity to the jeep. Thus, consistent with

our holding in Karlin, the search of the vehicle was inci-

dent to the arrest and appropriate to protect all persons

as well as evidentiary items.

Contrary to Arango’s assertions, we do not believe our

decision here will “give arresting officers unlimited discre-

tion to search any vehicle, by merely transporting the ar-

restee to the vehicle’s location.”” We do not hold that of-

ficers may search by artificially creating a situation to fit

within an exception to the fourth amendment’s warrant

requirement. Nothing in the record indicates that the deci-

sion to return Arango to the scene of the assault was for

the purpose of — a warrantless search of the ve-

hicle; the officers had a legitimate reason and a pressing

need to return to the scene of the assault immediately.

Bringing Arango with them was certainly the sensible

thing to do. Further, although not raised by Arango as

a basis for rejecting application of Belton, we do not be-

lieve that the delay between Arango’s capture and the

initial pat-down and the subsequent search of the vehicle

was significant enough to destroy the “nearly contempora-

—, aspect of the exception. See, e.g., Queen, 847 F.2d

at 352-53.

An arrestee cannot distinguish Belton when a situation

naturally exists and fits within the recognized exception to

the fourth amendment’s warrant requirement. The search

must be ype when the officers merely did what they

were legally entitled to do under the prevailing circum-

stances. As we recognized in Karlin, both Chimel and

Belton are based upon the need for bright-line rules, rules

which will allow police “in most instances [to] reach a cor-

rect determination beforehand” and avoid “‘litigation in

every case over the supporting reasons.” 852 F.2d at 970

(discussing Belton). We also noted that the law:

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10 No. 88-3135

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

car to seize some item within, either as a weapon

or to destroy evidence, or for some altogether differ-

ent reason. The facts surrounding each arrest are

unique, and it is not by any means inconceivable

under those various possibilities that an arrestee

could F og control of some item within the automo-

bile. 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 within the meow .

United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.

1985), quoted in Karlin, 852 F.2d at 971.

We believe that our holding today furthers “the Court’s

preference for a straightforward rule for guidance of police

officers and avoidance of hindsight determinations in litiga-

tion.” Karlin, 852 F.2d at 971. We therefore hold that

the district court properly denied Arango’s motion to sup-

the evidence seized during the search conducted im-

mediately following Arango’s arrest.”

2 Even if we assume solely for the sake of analysis that the

search incident to arrest exception did not justify the officers’

search of the jeep shortly after Arango’s arrest, we believe that

the search could have qualified as a valid warrantless inventory

search. Once Arango was lawfully arrested, the officers had a right

to inventory the contents of the impounded vehicle to protect the

owner’s valuables, to protect the government from claims of lost,

stolen, or property, and to protect the officers from dan-

gerous objects therein. See, e.g., Colorado v. Bertine, 479 U.S. 367,

107 S. Ct. 738, 93 L. Ed. 2d 739 (1987); South Dakota v.

man, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).

We believe that the officers conducted such a search, if not at

the scene of the impoundment, at the DEA e a short time

later. Thus, even if the search of the vehicle conducted at the

scene immediately following the arrest were somehow illegal, the

(Footnote continued on following page)

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No. 88-3135 1]

2. The Postarrest Search and the

Automobile Exception

Having found that the search of the jeep at the time

of Arango’s arrest was legal, we easily may dispose of

Arango’s a fourth amendment argument. The dis-

trict court also held that following the search incident to

arrest the officers had probable cause to conduct a more

thorough warrantless search of the vehicle at the DEA

garage pursuant to the “automobile exception.” See Michi-

gan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed.

2d 1201 (1983); United States v. Ross, 456 U.S. 798, 102

S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Chambers v. Maro-

ney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970);

United States v. Boden, 854 F.2d 983, 994 (7th Cir. 1988).

Because we agree that the original search of the jeep in-

cident to Arango’s arrest was not illegal or “tainted,” we

must reject Arango’s “fruit of the poisonous tree” argu-

ment. We hold that the district court correctly refused

to suppress the evidence discovered during the agents’

postarrest search of the jeep at the DEA garage.

2 continued

evidence discovered during that search nevertheless would have

been admissible under the “inevitable discovery” doctrine. See Nix

v. Williams, 467 U.S. 431 (1984).

Arango asserts that the “illegality and intrusiveness”’ of the two

pre-arrest searches “illustrates the bad faith and investigatory

motives of the officers’”’ and renders the warrantless inventory

search exception per se inapplicable. He correctly states that such

searches must be conducted pursuant to standardized procedures

and not merely as a pretext for establishing ey cause to

justify further searches. Bertine, 479 U.S. at , 107 S. Ct. at

742. However, while the officers’ clearly had “investigatory mo-

tives’”” when they initiated contact with Arango and donado,

the fact remains that the inventory search was the result of

Arango’s own imprudent decision to assault a police officer, a deci-

sion reached after Officer Martin uttered the fateful question con-

cerning Arango’s involvement in a narcotics-related shooting, not

Officer Berti’s search of Maldonado’s jacket or the jeep. We there-

fore easily could base admission of the evidence upon this excep-

tion to the fourth amendment’s warrant requirement.

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12 No. 88-3135

B. The Speedy Trial Act

The district court dismissed the original indictment against

Arango based upon a seventy-two to ninety-three day (de-

pending upon whose version of the facts one chooses) vio-

lation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

The parties do not dispute that dismissal was proper under

the act. However, Arango argues that the district court

erroneously granted his motion to dismiss ‘‘without prej-

udice,” rather than “with prejudice” as he had requested.

To determine whether dismissal should be with or with-

out prejudice, the act states that a court “‘shall consider,

among others, each of the following factors: the serious-

ness of the offense; the facts and circumstances of the

case which led to the dismissal; and the impact of a re-

prosecution on the administration of [the Speedy Trial Act]

and on the administration of justice.” 18 U.S.C. § 3162(a\1).

We may reverse a district court’s decision to dismiss with

or without prejudice based upon these factors only if the

district court abused its discretion. United States v. Tay-

lor, 108 S. Ct. 2413, 2419 (1988). However:

a district court must carefully consider those factors

as applied to the particular case and, whatever its de-

cision, clearly articulate their effect in order to permit

meaningful appellate review. Only then can an appel-

late court ascertain whether a district court has ig-

nored or slighted a factor that Congress has deemed

pertinent to the choice of remedy, thereby failing to

act within the limits prescribed by Congress.

Id. at 2419. Nevertheless, the Supreme Court noted that

“the district court’s judgment of how opposing considera-

tions balance should not lightly be disturbed.” Jd. at 2420.

Arango first contends that the court abused its discre-

tion to grant the motion without prejudice because the

court ignored the substantial and prejudicial length of the

delay. We do not agree.

The district court correctly noted that possession of

large amounts of cocaine is undeniably a serious offense.

Further, the delay in this case was at most three months.

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No. 88-3135 13

We do not believe that such a delay is per se “substan-

tial’ enough to justify dismissing the charges with preju-

dice. In addition, Arango has failed to demonstrate ac-

tual prejudice from the delay; he has not demonstrated

how the delay affected his ability to defend himself or

substantially impair any of his “intangible rights.’”’ See

Taylor, 108 S. Ct. at 2421-22. Finally, we believe that the

district court properly focused upon the cause of the de-

lay. That is, because the delay resulted from the court’s

misunderstanding of the status of certain motions, includ-

ing Arango’s motion to suppress, rather than from some

fault of the government, dismissing the indictment with

prejudice would not serve any purpose of encouraging the

government to avoid the neglect or bad faith in the prose-

cution of its cases. See Taylor, 108 S. Ct. at 2420. We

therefore hold that the district court properly and correct-

ly considered all of the factors mandated by the Speedy

Trial Act.

However, Arango also contends that the district court

improperly considered factors outside the scope of those

which the act contemplates. Specifically, Arango alleges

that the court impermissibly based its decision to dismiss

without prejudice, rather than with prejudice, upon proof

of guilt elicited from Arango in his testimony during his

suppression hearing. He argues that if a court is allowed

to base its decision on this evidence then a defendant

could not assert his fourth amendment rights without

somehow tainting all subsequent proceedings, including

those under the Speedy Trial Act. Arango claims that,

in effect, the court convicts the defendant without conduct-

ing a trial and consequently refuses to grant an other-

wise meritorious motion without prejudice rather than

with prejudice.

We believe Arango’s claim is unfounded. The district

judge merely stated that he was “aware of the testimony

and the motion to suppress” which he felt he should take

into consideration under section 3162(aX1) in determining

that the offense charged ‘related to a significant amount

of cocaine.”’ He clearly was not deciding Arango’s guilt

or innocence at that stage any more than a district judge

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14 No. 88-3135

makes a decision of guilt or innocence when ruling upon

a defendant’s appeal following the denial of a motion for

release on bail. Instead, the district judge was properly

considering all of the evidence made available to him to

determine the seriousness of the offense, an inquiry which

he was required to make under section 3162(aX1). We

therefore hold that the district judge did not improperly

consider the testimony given at the suppression hearing

and did not abuse his discretion in denying Arango’s mo-

tion to dismiss with prejudice.

III. CONCLUSION

We hold that the district court properly refused to

suppress the evidence generated by the two warrantless

searches conducted after Arango’s arrest for assaulting

a police officer. Under the facts and circumstances of this

case, the first search was a legal search incident to ar-

rest. Further, the evidence discovered and seized during

this search provided in part sufficient probable cause to

conduct a second more thorough search under the auto-

mobile exception to the fourth amendment. We also hold

that the district court did not abuse its discretion to dis-

miss the original indictment ‘“‘without prejudice,” rather

than “with prejudice” as Arango requested.

The district court’s decision is AFFIRMED.

A true Copy:

Teste:

~ecee

Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co.. Inc., Chicago—7-17-89—500

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