# Petition for Writ of Certiorari — Arango v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1069

## Text

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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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EE ht

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0496%3A1. Public record. Not legal advice.