Petition for Writ of Certiorari — Tolar v. United States

No.

Nreme Lourt, U.S

a Oe ae Ee

IN THE 011088 JAN -7 208

baie Court of the TAY tet “Stettes

OCTOBER TERM, 2002

CASEY J. TOLAR, JR.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN A. MEYER

Counsel Of Record

LAW OFFICES OF JOHN A. MEYER

Two First National Plaza

20 South Clark Street, Suite 2210

Chicago, Illinois 60603

(312) 3346-9000

TIMOTHY P. O’CONNOR

SUSAN A. PIPAL

ETHAN R. YORK

WINSTON & STRAWN

35 West Wacker Drive

Chicago, Illinois 60601

(312)558-5600

Counsel for Petitioner

aot

QUESTION PRESENTED

a Whether the Seventh Circuit erred by

deciding that law enforcement personnel did not need either

a warrant or the presence of a valid exception to the

warrant requirement of the Fourth Amendment when they

entered protected business premises en masse and with a

show of force?

-ii-

LIST OF PARTIES

The parties to the proceeding below were the

Petitioner, Casey J. Tolar, Jr., and the Respondent, the

United States of America.

-ili-

TABLE OF CONTENTS

‘ Page No

QUESTION PRESENTED ............s:scscssseseeeseteeseneneneees i

PARTIES. ..0ccccscocecessvccescvsvssscnsseescosvossorvsseeroosovesssorseseoes il

TABLE OF CONTENT ..........::cesessssseeeeeeeseserseseeees iil

TABLE OF AUTHORITIES ........:.:cccsseesssesseeseeeneeneees Vv

OPINIONS BELOW...........:c:cscsssesseeseesseeseeseeeseeseseseneens l

JURISDICTION ..........sccsscsssssssssoercseccssesessecsnsveesessserens l

CONSTITUTIONAL PROVISION INVOLVED........2

STATEMENT OF THE CASE...........:ccsesssesseessesseeeeees 2

I. C&I SPECIALIZED PREMISES. ...........::::s000+ 3

Il. THEENTRY OF LAW ENFORCEMENT

PERSONNEL ON TO THE C&I SPECIALIZED

PREMISES. .......cccssecossssscesecssvnvesesecessescssscsssosoosers 5

Ill. THE SUPPRESSION HEARING...........::::sse:e000 7

IV. TRIAL AND SENTENCING ..........ccscssesseseeseeees 9

V. THE DECISION OF THE

SEVENTH CIRCUIT ........:cccsscesssesssesserseeeeeeeneene 9

REASONS FOR GRANTING THE WRIT............++. 11

I. ANEN MASSE ENTRY OF ARMED OFFICERS

ON TO PRIVATE PROPERTY VIOLATES

THE FOURTH AMENDMENT IN THE

ABSENCE OF A WARRANT OR

APPROPRIATE EXCEPTION ..........:::csseeeee0 11

CONCLUSION ..........:cccscsseeessseseeeereeeenees stains 16

-iv-

APPENDIX ....cccescccevcsecervssovesoseveveesovsscscevcosersonsoonsess A-1

TABLE . ‘ AUTHORITIES

FEDERAL CASES

Page No

Bond v. United States, 529 U.S.

334 (2000)......cccseccorsorsersescescssssecserscssesenessrersseseorsoes 13

G.M. Leasing Corp. v. United States, 429

U.S. 338 (1977)..cccccccecsscsssssersscccorsacsevecerssorsnvsense 8, 11

Katz v. United States, 389 U.S. 347 (1967) .........++ 8, 13

Marshall v. Barlow's, Inc., 436 U.S. 307

(1978) ...ccrcrsacerdvorersceresousenservessnessseseneetsseensovosseossacens 11

New York v. Burger, 482 U.S. 691 (1987)... sees 10

Olmstead v. United States, 277 U.S. 438

(1928)....seccossesssrvevsescorssssacesensonrssssesersassesenoosscseseseees 15

See v. City of Seattle, 387 U.S. 541 (1967)... 1]

Smith v. Maryland, 442 U.S. 735 (1979) ..sceesseeeees 12

United States v. Mendenhall, 446 U.S. 544

(9 9GD) .ncsceresrnercovescorrrssecsincoresenesonssenseconscnaceosenes 13, 14

United States v. Swart, 679 F.2d 698

(7th Cir. 1982)...........ccoccccscrsscsecsrserssesorseseroeesers 8, 12

United States v. Tarkowski, 248 F.3d 596

(7th Cir. 2001).........ssscsseccscsrcerscsesecsssersnsesenscseeeers 10

United States v. Tolar, 268 F.3d 530

(Fils Cir. 2001 )..0..cscosescooneroreccseseneroees 1, 10, 11, 12, 14

-Vi-

CONSTITUTIONAL PROVISION

The Fourth Amendment to The United

ne NII uo isbescannnanintbecios

FEDERAL STATUTES

Ne aceiaoaion

I

ae

In The ;

Supreme Court of the United States

OCTOBER TERM, 2002

CASEY J. TOLAR, JR.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

The Petitioner, Casey J. Tolar, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit, entered in the above-entitled proceeding

on October 9, 2001.

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is published at 268 F.3d 530 (7th Cir. 2001) and is

reprinted in the appendix at page A-1. The opinion of the

district court addressing the questions presented by

petitioner Tolar is reprinted in the appendix at page A-4.

JURISDICTION

The Seventh Circuit affirmed Petitioner Tolar's

conviction and sentence on October 9, 2001. This Court

x %

has jurisdiction to review the Seventh Circuit's decision

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

I. FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

The right of the peopie 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.

STATEMENT OF THE CASE

Tolar was convicted of possessing, with intent to

deliver, 477 kilograms of cocaine and 2,350 kilograms of

marijuana. The drugs were contained in propane tanks that

Tolar, a truck driver and the proprietor of C&I Specialized,

a transportation business, had hauled from Edinburg, Texas

to the C&I Specialized premises in Harvey, Illinois. The

drugs were seized after law enforcement agents, acting on a

tip, entered the C&I Specialized premises on November 11,

1999 and obtained Tolar's signature on a consent form

allowing a search of his truck. Tolar was subsequently

arrested and transported to the Oak Forest, Illinois police

station. At trial, the government presented witnesses who

testified that Tolar made oral and written statements at the

Oak Forest Police Station in which Tolar admitted, inter

alia, that he knew that narcotics were present in the

propane tanks. Tolar testified that he was unaware that

there were narcotics in the tanks, that he made no

statements to the contrary while in police custody and that

his signature on the written statement offered by the

government had been coerced. Prior to trial, Tolar moved

to suppress and exclude from evidence both the narcotics

cy

contained in the propane tanks and any evidence

concerning statements that he allegedly made while in

police custody. One of the principal arguments raised by

Tolar in support of suppression was that law enforcement

personnel had violated the Fourth Amendment by entering

his business premises and the curtilage of the buildings

thereon without either a warrant or the presence of any

exception to the +a" rant requirement.

The district court denied Tolar’s suppression

motions and the Seventh Circuit affirmed the ‘istrict court's

decision. As set forth more fully below, Tolar maintains

that the decisions of the district court and the Seventh

Circuit run afoul of — and substantially eviscerate —

substantial protections afforded by the Fourth Amendment

and therefore should be reversed by this Court.

I. C&I SPECIALIZED PREMISES

On November 11, 1999, C&I Specialized occupied

premises at 15212 Dixie Highway in Harvey, Illinois,

which it had leased for approximately two years. (Hr. at

255)' The premises were approximately 180 feet by 280

feet and were entirely surrounded by a six foot chain link

fence topped by three strands of barbed wire. (Hr. at 256;

Tr. at 338; SGX 10) The premises contained two

buildings: a "block building" used as a "shop" and an

adjacent "office trailer." (Hr. at 256; SGX 10) There was a

. He __" is a citation to the transcript of the suppression

hearing in this matter. "Tr. _" is a citation to the transcript

of the trial in this matter. "Sr. __" is a citation to the

transcript of the sentencing hearing in this matter. "SGX __"

and "SDX __" are citations to government and defense

exhibits at the suppression hearing in this matter. "Sr.__" is

a citation to the transcript of the sentencing hearing in this

matter. Citations to the record are denoted “R. __.”

uf.

double gate in the chain link fence, which was typically

closed and locked. (Hr. at 256-57; SDX 4) "Normally, the

only time that [the] gate [was] open [was] when [Tolar]

[was] physically there and ... walking around in the yard."

(Hr. at 257) There was a sign attached to the right side of

the gate stating:

UNAUTHORIZED VEHICLES

WILL BE TOWED AWAY

FEE 105

15332 DIXIE HWY HARVEY

708-333-6780

24 HR. 999 71999 999-9122

(Hr. at 257-58; SDX 4) Tolar testified that the sign "warns

anyone who parks in front of [the] gate ... that their vehicle

will be towed at the owner's expense." (Hr. at 258)

Between two doors, the block building had a

drawing of a guard dog surrounded by the words "Attack

Dog On Duty,” beneath which appeared the words "Open"

and "Mon. thru Fri. 8 am to 6 pm" and "Sat 9 am to | pm"

and "CLOSED SUN." (Tr. at 258; SGX 12) Neither Tolar

nor any representative of C&I Specialized placed this

language on the block building, and to the best of Tolar's

knowledge, the writing and the drawing of the dog came

from individuals who occupied the property before C&I

Specialized. (Tr. 259) Indeed, no one ever told Tolar that

he or she took the "office hours" set forth on the block

building to be C&I Specialized's hours of operation or

understood the writing on the block building to mean that

C&I Specialized was open. (Tr. at 259-60) A review of

photographs of the block building reveals that the “hours of

operation” language thereon is at best difficult to read from

outside the C&I Specialized premises with the naked eye.

(SDX4; SGX10) Indeed, one law enforcement officer

testified that he read this language from a position outside

oi

the C&I Specialized premises using binoculars and that he

was “not sure” whether this language could be read from

outside the premises without binoculars. (Hr. at 84)

The C&I Specialized premises in Harvey were

never open to the public and were not open to the public on

November 11, 1999. (Tr. at 257) No customer ever

walked in to the C&I Specialize. premises without having

called or made arrangements in advance. (Tr. at 257)

Indeed, C&I Specialized never advertised to the public.

(Tr. at 260) Nor did C&I Specialized ever put a sign on the

fence surrounding its premises announcing either its

business name or hours. (Hr. at 83; Tr. at 260, 340)

Il. THE ENTRY OF LAW ENFORCEMENT

PERSONNEL ON TO THE C&I

SPECIALIZED PREMISES

On November 11, 1999, law enforcement personnel

were surveilling the premises of C&I Specialized in Harvey

because on or about November 10 they "had received

information that there might be illegal narcotics inside the

propane cylinders" on Tolar’s truck. (Tr. at 20; R. 1,

Complaint, Affidavit of Raymond Smith, {10) Special

Agents Dwayne Killian and Anthony Policandriotes were

watching C&I Specialized from an unmarked police car in

the parking lot of a Commonwealth Edison facility across

the street from C&I Specialized. (Tr. at 20) They had

begun their surveillance at 7:00 a.m. on the morning of

November 11, when they had relieved other law ~

enforcement personnel that had been conducting

surveillance the night before. (Tr. at 21) When Agents

Killian and Policandriotes arrived to begin their

surveillance, the gates of C&I Specialized were closed.

(Tr. at 21) Subsequently, the gates were opened and

Agents Killian and Policandriotes observed people enter

ee

and depart the premises of C&I Specialized in various

vehicles. (Hr. at 57; Tr. at 21)

At approximately 10:00 a.m., Agents Killian and

Policandriotes observed Tolar and Johnny Moore, an

associate of Tolar's who had arrived at the C&I Specialized

lot that morning looking for-a load of freight, use a forklift

to remove one of the propane tanks from the rear of the

truck and place it on the ground. (Hr. at 7, 14, 19; Tr. at

24) Killian did not see any illegal activity on the C&l

Specialized premises concerning the trailer or the removal

of the propane tank or anyone with a firearm. (Hr. at 87)

Killian "contacted [his] supervisor" and "informed him that

... it appeared that they were unloading the truck, they had

taken one cylinder off and placed it on the ground." (Tr. at

24) Killian and his supervisor "came to the conclusion that

[they] were going to enter the business and attempt to

locate the owner." (Tr. at 25) Previously the agents’ plan

had been to try to stop Tolar's truck on the highway and

then seek consent to search the truck, but now they decided

to enter the lot, confront Tolar and ask for permission to

search his truck. (Hr. at 85, 127) Agents Killian and

Policandriotes did not attempt to obtain a search warrant.

(Hr. at 127-28) Neither Agent Killian nor Agent-

Policandriotes nor any other law enforcement personnel

asked for or obtained consent from any representative of

C&I Specialized to enter the premises. (Hr. at 88, 134,

266-67) ;

Agents Killian and Policandriotes then donned

bullet proof vests and "proceeded across Dixie Highway

and entered" the premises of C&I Specialized, which agent

Killian described as a "parking lot." (Tr. at 25) All told,

three law enforcement vehicles entered the C&l

Specialized premises at this time. (Hr. at 24) Agent

Killian exited his vehicle and approached Johnny Moore.

i, a

(Hr. at 60-61) Agent Killian drew his gun as he did so.

(Hr. at 60-61) Agent Policandriotes approached Tolar.

(Hr. at 120-21) Agent Policandriotes testified that he did

not draw his gun as he approached Tolar (Hr. at 120, 124),

but both Moore and Tolar testified that Policandriotes

indeed drew his gun. (Hr. at 25-26, 28, 37, 265-68) Tolar

and Moore were both patted down for weapons. (Hr. at 61,

122) Tolar thereafter signed a consent form allowing a

search of his truck. (Hr. at 63-67, 276-78; SGX 1) The

search unearthed narcotics in the propane tanks on the truck

and Tolar was later taken into custody. (Tr. at 32, 45-59)

Ill. ©THE SUPPRESSION HEARING

Tolar was charged in a one-count Indictment with

possession of cocaine and marijuana with intent to

distribute in violation of 21 U.S.C. §841(a)(1). (R. 9,

Indictment) On May 23, 2000, Tolar filed, inter alia,

motions to suppress statements, suppress illegally obtained

evidence and quash arrest. (R. 23, Motion To Quash Arrest

And To Suppress Evidence; R. 25, Motion To Suppress

Statements; and R. 26, Motion To Suppress Illegally

Obtained Evidence). A principal argument raised by Tolar

in these motions was that law enforcement personnel had

violated the Fourth Amendment by entering the C&l

Specialized premises without a warrant. (/d)

On August 21 and 22, the district court held an

evidentiary hearing on Tolar's suppression motions. On

September 5, 2000, the district court denied Tolar's motions

and held, inter alia, that law enforcement was not required

to obtain a warrant to enter the C&I Specialized premises

and that in any event law enforcement's entry on to the

premises was justified by exigent circumstances and Tolar's

subsequent consent:

-8-

In his various motions to suppress, Mr. Tolar and

his counsel raise other matters in support thereof.

The first of them is that the entry by law

enforcement personnel on to the C&I property

was itself an illegal search. As the Supreme

Court has declared, "what a person knowingly

exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment

protection." Katz v. United States, 389 U.S. 347,

351 (1967). There is simply no expectation of

privacy in an exposed business parking lot. The

gate to the business parking lot was open at the ©

time of the officers’ entry on to the premises, and

there was no indication that permission was

required to enter. Additionally, the Supreme

Court has recognized that a business, by its

nature, may open itself to intrusions that would

not be permissible in a purely private context.

United States v. Swart, 679 F.2d 698, 701 (7th

Cir. 1982) (citing G.M. Leasing Corp. v. United

States, 429 U.S. 338, 353 (1977).

Law enforcement officers had information drugs

were on the tractor/trailer which was situated on

the C&I lot. They observed one of the tanks

being removed from the trailer. Not knowing

what would happen next and not wanting to risk

the disappearance of objects believed to contain

drugs, exigent circumstances existed sufficient to

warrant entry onto the lot to further investigate

the circumstances. The combination of prior

information and present observation combined to

supply them with a reasonable and articulable

basis to investigate further and to enter the

property. The defendant's lawful consent to

search his truck, the trailer and attached tractor,

-9-

also validated their presence on the scene. Under

these circumstances, no judicially authorized

search warrant was required and no attempt to

secure one was necessary.

(R. 47, September 5, 2000 Findings Of Fact And

Conclusions Of Law, pp. 10-11; App., Tab B at Al1-12)

The district court also found, among other things, that

"[t}he evidence overwhelmingly establishes that the

consent to search was knowingly and voluntarily given"

and that "[i]t is equally clear that Mr. Tolar was given his

constitutional rights on a number of occasions and that he

knowingly, voluntarily and freely waived those rights. No

other conclusions are reasonably possible." (R. 47,

September 5, 2000 Findings Of Fact And Conclusions Of

Law, p. 10; App., Tab B at Al1)

IV. TRIAL AND SENTENCING

Trial commenced on November 6, 2000. (Tr. at 1,

2) The jury returned a verdict of guilty on November 9,

2000. (R. 75, Minute Order Entering Judgment On Guilty

Verdict) On February 8, 2001, the district court sentenced

Tolar to a term of life imprisonment. (R. 86, Judgment

And Sentencing Order; App., Tab D at A43-48)

V. THE DECISION OF THE SEVENTH CIRCUIT

Tolar appealed both his conviction and his sentence.

Tolar's central argument was that the warrantless entry of

law enforcement personnel on to the C&I Specialized

premises violated the Fourth Amendment and, therefore,

Tolar's consent to search and any subsequently obtained

evidence (including his alleged statements) should have

been suppressed.

On October 9, 2001, the United States Court of

Appeals for the Seventh Circuit affirmed Tolar's conviction

ns

- and sentence. A-l. The Seventh Circuit rejected Tolar's

principal argument that the warrantless entry of law

enforcement personnel on to the C&I Specialized premises

had been illegal. Appendix at A-2, 3. The Seventh Circuit

concluded that the entry was neither a search nor a seizure

and therefore did not violate the Fourth Amendment, even

if Tolar had a reasonable expectation of privacy in the C&I

Specialized premises and even if law enforcement

personnel committed a civil trespass by entering the

premises without his permission:

Only a rule equating trespass with a violation of

the Constitution could support Tolar's position.

Yet a trespass is neither necessary nor sufficient

for constitutional purposes.

* eee *

Businesses such as C&lI's lot that can be

observed by anyone passing on the street lack

any comparable privacy interest. An open gate

invites entry, and a chain-link fence does little

to assert a privacy interest (as opposed to a

property interest) in details visible from outside

the fence. Agents would have needed cause,

and perhaps a warrant or equivalent order, to

enter in order to open containers, take soil

samples, or otherwise investigate aspects of the

lot that the public could not observe from

outside. Compare New York v. Burger, 482

U.S. 691 (1987), with United States v.

Tarkowski, 248 F.3d 596 (7th Cir. 2001). But

they did none of these things — did not conduct

any form of search — and so did not violate the

fourth amendment by entering the lot in order to

find the owner and ask his permission to do

more.

Ii.

268 F.3d at 532; Appendix at A-2.

REASONS FOR GRANTING THE WRIT

I, AN EN MASSE ENTRY OF ARMED

OFFICERS ON TO PRIVATE PROPERTY

VIOLATES THE FOURTH AMENDMENT IN

THE ABSENCE OF A WARRANT OR

APPROPRIATE EXCEPTION

The Seventh Circuit erred in deciding that the entry

of law enforcement personnel on to the C&I Specialized

premises was a mere civil trespass that does not implicate

the Fourth Amendment, requiring neither a warrant nor the

presence of an appropriate exception. In fact, it is

undisputed that law enforcement personnel entered the C&I

Specialized premises in large numbers (three vehicles) and

with a display of force (bullet proof vests and at least one

drawn pistol). Such an en masse, armed entry constitutes,

by itself, a seizure in violation of the Fourth Amendment.

This Court should grant certiorari and reverse the decision

of the Seventh Circuit to prevent the erosion of Fourth

Amendment rights contained within the decision. As

explained more fully below, the decision will — if allowed

to stand — eviscerate a substantial part of the protections

afforded by the Fourth Amendment.

First, it is beyond dispute that the C&I Specialized

premises were protected by the Fourth Amendment. As a

general matter, it is well established that the Fourth

Amendment protects business premises such as those of

C&lI Specialized from unreasonable searches and seizures.

Marshall v. Barlow's, Inc., 436 U.S. 307, 311-13- (1978);

G.M. Leasing Corp. v. United States, 429 U.S. 338, 353

(1977); See v. City of Seattle, 387 U.S. 541, 545 (1967).

The Fourth Amendment applies to premises in which a

person can claim a reasonable expectation of privacy.

a.

Smith v. Maryland, 442 U.S. 735, 740 (1979). The

existence of a reasonable expectation of privacy turns upon

whether a person has exhibited a subjective expectation of

privacy in the premises and whether that expectation is

objectively justifiable. Smith, 442 U.S. at 740. Tolar

clearly manifested a subjective expectation of privacy in

the C&I Specialized premises that was objectively

justifiable. The premises were enclosed by a six foot chain

link fence topped with three strands of barbed wire. (Hr. at

256; Tr. at 338; SGX 10) The gate was typically locked.

(Hr. at 256-57; Tr. at 12-14; SDX 4) The sign on the gate

indisputably stated "unauthorized vehicles will be towed

away." (SDX 4) There was no sign on the fence setting

forth C&I Specialized's name or hours of operation. (Hr. at

83; Tr. at 260, 340) C&I Specialized did not advertise to

the public. (Tr. at 260) No customer had ever entered the

premise without having called or made arrangements in

advance. (Tr. at 257) The premises had never been open to

the public. (Tr. at 257) In addition, even if the entire C&I

Specialized premises was not protected by the Fourth

Amendment, the curtilage of the buildings on the premises

— the area where Tolar and Moore were first confronted by

the en masse entry of law enforcement — was protected.

See United States v. Swart, 679 F.2d 698 (7th Cir. 1982).

In sum, the area where Tolar and Moore were confronted

by the en masse entry of law enforcement personnel was

protected by the Fourth Amendment both because it was on

the C&I Specialized premises and it was within the

curtilage of the buildings thereon.

Second, the Seventh Circuit characterized the entry

of law enforcement officers on to the C&I Specialized

premises as a mere "entering [of] the lot in order to find the

owner and ask his permission" to search (268 F.3d at 532,

Appendix at A-2) and concluded that the entry did not

implicate the Fourth Amendment and, at most, constituted a

-}3.

mere civil trespass. The Seventh Circuit erred in this

decision. It is well established that a person may open

himself up to certain types of intrusions while maintaining

an objectively reasonable expectation that he will not be

subjected to other types of intrusions. See Bond v. United

States, 529 U.S. 334 (2000) (bus passenger who placed bag

in compartment above his seat expected that the bag "may

be handled" but had a reasonable expectation that no one

would "feel the bag in an exploratory manner"); Katz v.

United States, 389 U.S. 347 (1967) (man in phone booth

constructed partially of glass was open to visual

observation but had reasonable expectation that his

conversation would not be overheard). Here, even

assuming the premises of C&I Specialized were open to

entry by a lone officer who displayed no force but simply

sought to speak to Tolar (and Tolar submits that the record

evidence established that the premises were not open even

to this intrusion), Tolar had a legitimate, objective

expectation that neither he nor his property would be

subjected to the en masse entry with a display of force that

occurred here.

That en masse entry and the accompanying display

of force constituted a seizure and is precisely the type of

government intrusion that the Fourth Amendment was

intended to prohibit in the absence of a warrant or an

appropriate exception. As this Court observed in United

States v. Mendenhall, 446 U.S. 544 (1980), the activities of

law enforcement in this case — a large number of officers,

a display of weapons — is precisely the type of conduct

that implicates the Fourth Amendment:

Examples of circumstances that might indicate a

seizure ... would be the threatening presence of

several officers, the display of a weapon by an

officer, some physical touching of the person or

ee

ee *

the citizen, or the use of language or tone of

voice indicating that compliance with the

officer's request might be compelled.

Mendenhall, 446 U.S. at 554. In this case, the entry of a

large number of law enforcement personnel on to the C&l

Specialized premises constituted a seizure of the entire n

premises and all persons thereon. From the moment a large

number of officers entered the C&I Specialized premises »

with a display of force, law enforcement personnel seized

control of the premises in their entirety and all individuals

thereon. The facts admit of no other conclusion.

In sum, the Seventh Circuit was incorrect when it

held that "[o}nly a rule equating trespass with a violation of

the Constitution could support Tolar's position." (268 F.3d

at 532, Appendix at A-2) In fact, only a rule equating an en

masse entry of law enforcement agents and a display of

force with a mere civil trespass could justify the Seventh

Circuit's decision. Such a rule would ignore reality and, as .

discussed below, substantially erode the protections

afforded by the Fourth Amendment.

Third, if allowed to stand, the Seventh Circuit's

decision would substantially erode the protections afforded

by the Fourth Amendment:

"The makers of our Constitution ... sought to

protect Americans in their beliefs, their thoughts,

their emotions and their sensations. They

conferred, as against the Government, the right to

be left alone — the most comprehensive of rights

and the right most valued by civilized men. To )

protect that right, every unjustifiable intrusion by

the government upon the privacy of the

individual, whatever the means employed, must

3%.

be deemed a violation of the Fourth

Amendment."

Olmstead v. United States, 277 U.S. 438, 478 (1928)

(Brandeis, J., dissenting). Under the Seventh Circuit's

decision, law enforcement personnel can enter private

property in large numbers and with a display of force

without obtaining a warrant from a detached magistrate or

establishing the existence of an exception to the warrant

requirement. Under the Seventh Circuit's reasoning, such

an entry constitutes a mere civil trespass and does not

implicate constitutional rights.

Tolar respectfully suggest that this is not, and

cannot be, the law. All private property, no matter how

carefully protected by the owner, would be subject to

intrusion by large numbers of government agents ostensibly

seeking the owner merely to ask his permission to search.

Such intrusions are precisely the type of government

conduct that the Fourth Amendment was intended to

prohibit absent a warrant or certain very limited exceptions.

ee.

CONCLUSION

For the reasons set forth above, petitioner Casey J.

Tolar respectfully requests that this Court grant certiorari,

reverse the decision of the United States Court of Appeals

for the Seventh Circuit and order this case remanded to the

district court for a new trial.

Dated: January 7, 2002.

Respectfully submitted,

PETITIONER CASEY J. TOLAR

By:

JOHN A. MEYER*

LAW OFFICES OF JOHN A. MEYER

20 South Clark

Suite 2210

Chicago, IL 60603

(312) 346-0200

TIMOTHY P. O’CONNOR

SUSAN A. PIPAL

ETHAN R. YORK

WINSTON & STRAWN

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600

* Counsel of Record

wheal

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 01-1375

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

CASEY J. TOLAR, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division, No. 99 CR

940—Charles P. Kocoras, Judge.

ARGUED SEPTEMBER 19, 2001—DECIDED

OCTOBER 9, 2001

Before EASTERBROOK, DIANE P. WOOD, and

WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge. C&I Specialized,

Inc., an apparently legitimate business, was a front for a

drug-running operation. Acting on a tip, agents entered

C&I's business premises in Harvey, Illinois, at 10 a.m. on a

Thursday morning and asked Casey Tolar, C&I's owner,

for permission to examine the cargo of a truck that had

recently arrived. Tolar signed a consent form. During the

ensuing search the agents found 477 kilograms of cocaine

and 2,350 kilograms of marijuana hidden inside a few of

the large propane tanks in the truck's cargo. Tolar has been

ee

«2.

sentenced to life imprisonment for this large-scale drug

operation.

Given the outcome of the search, Tolar's best

chance lay in asking the district court to suppress the

evidence. He offered two principal theories: first, that his

consent was the fruit of an unlawful entry by the agents;

second, that the consent was in any event involuntary.

After a hearing, the district court rejected both theories and

denied the motion to suppress. Tolar renews both

contentions on appeal, leading with the argument that,

because C&I's business premises were enclosed by a chain-

link fence (topped by barbed wire) and a sign warned

illegal parkers that their cars would be towed, the agents

were not entitled to enter even though another sign stated

that the business was open Monday through Friday from 8

a.m. to 6 p.m., and the gate to the lot was open.

Tolar's argument starts with the major premise that

the fourth amendment forbids all trespasses, adds the minor

premise that the entry was a trespass despite the open gate

and the open-for-business sign (that sign was the doing of a

prior owner, Tolar insists, and did not reflect his practices),

and concludes that the unauthorized entry therefore was

unlawful. Then Tolar treats the consent as the "fruit of the

poisonous tree" and argues that the evidence seized on its

authority must be suppressed. The "fruits" argument is a

doubtful one. The statements of a person held in unlawful

custody may be tainted, see Brown v. Illinois, 422 U.S. 590

(1975), but Tolar was not detained until after the drugs

were found, and the police did not induce the consent by

confronting Tolar with any evidence improperly seized.

During their time inside the fence (and before the consent)

they saw nothing that they had not already seen from

Outside the fence. The view from outside, which revealed

that Tolar and a companion were starting to unload the

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cylinders from the truck, did not invade any of Tolar's

privacy interests, and hence could not have violated the

fourth amendment. See Boyd v. United States, 116 U.S.

616, 628 (1886). Arguments about causation may be put to

one side, however, because the agents’ entry did not violate

the fourth amendment in the first place.

Only a rule equating trespass with a violation of the

Constitution could support Tolar's position. Yet a trespass

is neither necessary nor sufficient for constitutional

purposes. Wiretaps do not entail trespasses, but they may

invade privacy and are treated as searches; other

investigative steps, which do involve trespass, pose no risk

of invading privacy and hence are not deemed searches or

seizures. See Rakas v. Illinois, 439 U.S. 128, 143 (1978)

(remarking that the fourth amendment has been decoupled

from the law of trespass). To take one example close to the

mark, the Supreme Court has held that agents did not

violate the fourth amendment when they entered a private

parking lot to seize a car. G.M. Leasing Corp. v. United

States, 429 U.S. 338, 351-55 (1977). See also United

States v. Swart, 679 F.2d 698, 701 (7th Cir. 1982).

Likewise courts do not exclude evidence just because

police reach a suspect's door by cutting across the yard

(trampling on the rhododendrons in the process) rather than

using the pathway, or because they enter a home's curtilage

to seize garbage in which there is no privacy interest. See

United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998) (en

banc); United States v. Dunkel, 900 F.2d 105 (7th Cir.

1990), remanded on other grounds, 498 U.S. 1043 (1991),

decision on remand, 927 F.2d 955 (7th Cir. 1991).

Crossing the threshold of a home would be a different

matter, in light of the special status dwellings enjoy under

the Constitution. See Kyllo v. United States, 121 S. Ct.

2038 (2001); Sparing v. Olympia Fields, No. 00-1021 (7th

Cir. Sept. 19, 2001), slip op. 6-11. Businesses such as

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C&I's lot that can be observed by anyone passing on the

street lack any comparable privacy interest. An open gate

invites entry, and a chain-link fence does little to assert a

privacy interest (as opposed to a property interest) in details

visible from outside the fence. Agents would have needed

cause, and perhaps a warrant or equivalent order, to enter in

order to open containers, take soil samples, or otherwise

investigate aspects of the lot that the public could not

observe from outside. Compare New York v. Burger, 482

U.S. 691 (1987), with United States v. Tarkowski, 248 F.3d

596 (7th Cir. 2001). But they did none of these things—did

not conduct any form of search—and so did not violate the

fourth amendment by entering the lot in order to find the

owner and ask his permission to do more.

As for the search: The district court found that

Tolar's consent and subsequent inculpatory statements were

voluntary. Both the agents and Tolar's companion testified

that the agents entered peaceably and behaved amicably.

Tolar represented on the consent form that no threats had

been made. He testified otherwise, but the district judge

did not commit a clear error in believing the agents, Tolar's

companion, and the statements Tolar himself made when

giving consent. See Anderson v. Bessemer City, 470 U.S.

564, 570 (1985). Given the court's findings of fact, the

consent is unexceptionable. See Ohio v. Robinette, 519

U.S. 33 (1996); Schneckloth v. Bustamonte, 412 U.S. 218

(1973).

Only one decision affecting the sentence has been

contested. The district court concluded that Tolar's ability

to drive an 18-wheel rig was a special skill "that

significantly facilitated the commission or concealment of

the offense" and earned a two-level increase under

U.S.S.G. §3B1.3. Tolar recognizes that United States v.

Lewis, 41 F.3d 1209, 1214 (7th Cir. 1994), deems the

es

ability of an over-the-road truck driver a special skill that

can lead to an enhancement, but he insists that this skill did

not facilitate his particular offense. The district judge was

entitled to (and did) find otherwise. Tolar's skill enabled

him to use C&I as a front for transporting large quantities

of drugs. He was harder to catch than the normal drug

courier and able to move more per trip. On both accounts

an enhancement was proper.

AFFIRMED

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES )

OF AMERICA, )

)

Plaintiff, )

VS. ) Case No. 99 CR 940

)

CASEY J. TOLAR, JR., )

)

Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CHARLES P. KOCORAS, District Judge:

Acting on a tip, law enforcement officers were

conducting surveillance at C&I Specialized, Inc., a business

located at 15212 Dixie Highway, Harvey, Illinois, in the

early morning hours of November 11, 1999. The tip was to

the effect that there were drugs located on a trailer parked

in the lot of the business premises.

Along about 10 A.M., Casey J. Tolar, Jr., the

defendant, and one Johnny Moore, approached a tractor-

trailer containing thirty 500 gallon propane tank. With the

use of a fork-lift one of the propane tanks was unloaded

onto the ground. The surveillance agents, after consultation

with a supervisor, decided to enter the business premises.

A subsequent search of the propane tanks which had been

located on the trailer resulted in the seizure of

approximately 475 kilograms of cocaine and 2,350

kilograms of marijuana. ©

The lawfulness of the search and seizure is asserted

by the Government to be based on consent given by Casey

ee, 2

Tolar. Mr. Tolar denies having given timely or voluntary

consent and claims, among other things, that the law

enforcement officers used psychological coercion and

threats in their conduct toward him. Mr. Tolar has moved

to suppress the drugs seized and has also moved to suppress

statements he allegedly made at various times subsequent

to the search.

In addition to the claimed coercion and threats

relied on in support of his motion to suppress the drugs,

Mr. Tolar also relies on the concept that the statements

were the "fruit of the poisonous tree." Mr. Tolar also

claims that the circumstances in which the statements were

made violated his due process rights when an attorney

retained on his behalf was not afforded a more timely visit

with the defendant:

At the evidentiary hearing on the motions to

suppress, Mr. Tolar testified, in substance as follows:

l. An unmarked police car came onto the

business property at a high rate of speed with a Mars light

operating on the dashboard.

. A plainclothes officer approached him with

an automatic in his hand, pointed the gun at the defendant

and ordered the defendant "to get the fuck off the forklift."

3. Other agents drove onto the premises and

blocked the gate, foreclosing ingress and egress.

4 Mr. Tolar was neither asked ‘o consent nor

did he do so. ‘

5. After Mr. Tolar was told by the officer

confronting him that they had a tip that there were drugs on

the trailer, he was told that the tractor/trailer was going to

be searched.

FE PRE RRS “NEE eS I De AN LTR SIPS

aA SMES HE HEA ARE RRA tT NPN) AT AST CN AOA RN IN

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6. That after the search was completed, Mr.

- Tolar was given a form to sign in order to authorize the

search. -Mr. Tolar said he signed the form because the

officers had already completed the search and out of fear

and concern for other members of his family.

7. Mr. Tolar testified that he had no knowledge

of any drugs on the trailer, that he had no involvement with

drugs, and that any written or oral statements to the

contrary were fabricated by law enforcement officers.

Mr. Tolar's hearing testimony was contradicted, in

whole or in part, by every other witness who testified,

including his friend and business associate, Johnny L.

Moore, called on the defendant's behalf. Additionally, a

variety of written documents and statements signed by Mr.

Tolar belie his essential testimonial contentions.

Johnny L. Moore, a twenty nine year veteran of the

trucking business, is a friend and business associate of the

defendant. On the morning of November 11, 1999, Moore

was on the business premises to see if the defendant had a

load for him, at which time the defendant asked Moore to

help him straighten out a load which had shifted. Moore

and Tolar were in the midst of removing a propane tank

from Tolar's trailer when the police arrived.

Moore testified that three cars pulled up - two

unmarked cars and one Illinois State Police car. None of

the cars had lights on or had lights flashing. The police

cars came onto the lot at normal speed and not at a high

rate of speed. The officers identified themselves after

which Moore was patted down for weapons. When none

were found on him, the officer with Moore holstered his

weapon. Moore was told by the officer that they had a tip

that the defendant had drugs on his truck; Moore told the

officer he did not have any drugs. Moore was asked if the

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officer could search Moore's tractor/trailer unit. Moore

testified that he consented to the search, even though he

knew he could have refused the request. Moore also

testified that the officer he dealt with treated him civilly

and that he did not hear any other officer scream or holler

at the defendant. Moore left the premises after his own

truck was searched.

Dwayne Killian, a Police Sergeant with the Joliet

Police Department, was: on assignment with the

Metropolitan Area Narcotics Squad on the morning of

November 11, 1999. He and other law enforcement

officers were on surveillance across the street from 15212

Dixie Highway, Harvey, Illinois, based on a tip that there

were drugs on a trailer at that address. Killian and others

observed two men unload one of the cylinders from the

trailer with the use of a forklift. A decision was made in

consultation with Killian's supervisor to enter the truck

yard in order to determine the owner and to attempt to get

consent to search. Killian and Anthony Policandriotes, a

Will County Deputy Sheriff also on narcotics assignment

that morning, were the first to enter the truck yard

premises.

Sergeant Killian approached Johnny Moore when

he first entered the lot and engaged him, while

Policandriotes approached the defendant Tolar. Deputy

Policandriotes testified that he approached Mr. Tolar

without drawing his weapon, told Tolar of the tip about

drugs and asked for permission to search his tractor/trailer.

Policandriotes testified that Mr. Tolar told him that there

were no drugs on his truck and that he could search the

truck.

The defendant was patted down after being advised

by Policandriotes that it was for both their safeties.

Policandriotes told Killian of Tolar's consent to search his

Pe ee

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truck and asked Killian to secure a consent to search form.

The defendant was given the form and wrote some of the

truck information in his own hand on the form, in addition

to signing it. The form was also signed by Killian and

Policandriotes, dated, and the time inserted of 10:30 A.M.

Policandriotes testified that the defendant gave oral

consent to search and also completed a written consent to

search form which was witnessed by the officers, all within

minutes of the officers' entry onto the business premises.

The consent to search form, Government Exhibit | in

evidence, was not only signed by the defendant, but

completed in part by him. Additionally, in preprinted

language above the signature, there appears language which

informs the reader of the right to refuse to consent to the

search and the right to refuse to sign the form. Below that

appears the statement that the signer below states that "no

promises, threats, force or physical or mental coercion of

any kind whatsoever have been used to cause me to consent

to the search described above or to sign this form." Mr.

Tolar's signature appears below those admonitions.

After the defendant's trailer was searched and a

substantial quantity of drugs found, the defendant was

arrested, following which he was advised of his

constitutional rights. Government Exhibit 2 is a statement

and waiver of rights form in which, significantly, the

defendant initialed each right statement separately, after

which he signed the rights form at the bottom. Killian said

he went through each right with the defendant, wha

understood each right and then initialed and signed the

form. After this was done, the defendant again denied any

knowledge of the drugs found.

After his arrest, Mr. Tolar was taken to the Oak

Forest Police Department for processing and detention.

While there, Brian Benton, another Joliet Police

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Department officer, was assigned to assist in the

defendant's processing. When officer Benton initially had

contact with Mr. Tolar, he testified that Mr. Tolar was

asking him a number of questions involving possible

charges, penalties and the like. At some later point, the

defendant was brought to an interview room, was read his

Miranda rights, was given a form in which he wrote in his

name and initialed each statement of rights after

acknowledging that he understood them and which

included a waiver provision. By the end of that day, Mr.

Tolar had executed one consent to search form and two

statements of rights and waiver form. During the

interview, the defendant made incriminating statements

regarding his narcotics activity.

On the following day, Mr. Tolar was interviewed by

an Assistant State's Attorney. The written product of that

interview, Government's Exhibit 4, reflects the third waiver

of rights form initialed and signed by Mr. Tolar, along with

a five page handwritten statement setting forth a highly

specific factual recitation of Mr. Tolar's involvement in

drug activity. It is notable that each page of that statement

is sighed by Mr. Tolar, and that various corrections appear

in the text which were initialed by both Mr. Tolar and the

prosecutor. Attached to the statement is the consent to

search form executed by Mr. Tolar the day before, along

with the following language on page 4:

That is a copy of the consent form I signed

which allowed the police to search my truck.

I signed it voluntarily. That is my signature

on the form.

At the hearing on his motions to suppress, Mr. Tolar

claimed that the five page statement was a complete

fabrication and that he did not supply any of the

information contained therein. He testified, essentially, that

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he was coerced by the police officers and that he and his

family were all threatened with prosecution and

incarceration. In contrast to his hearing testimony,

Government Exhibit 5 recites "I have been treated well

while I have been in custody. The police and State's

Attorney have been nice to me... No one has made any

threats or promises to me."

The hearing testimony supplied by Illinois State

Trooper Anthony Hoop and Assistant State's Attorney Ted

Logerwall support the proposition that no threats were

made, that the defendant was the source of the fact specific

information in the statement, that the defendant understood

and waived his rights, that the defendant was free to change

the handwritten statement and that he actually did so in

some instances. Both those witnesses denied preparing a

fabricated statement and coercing the defendant into

signing it.

In weighing credibility, common sense and reason

are important considerations. So is motive on the part of

witnesses and their interests in the case. Mr. Tolar's

hearing testimony not only is contradicted by a host of

other witnesses, it is also belied by his own prior conduct

and statements. Defendant claims that the conduct of the

law enforcement officers were hostile and coercive, and out

of fear for the consequences for his family, he decided to be

submissive to their commands. Friend Johnny Moore

describes a different climate. The defendant is a twelve

year veteran of the trucking industry with his own

tractor/trailer. Running a transportation business and

driving an eighteen wheeler is not an occupation for the

weak and fearful. Nor does the experience of eleven years

in the Navy and later reserve duty bespeak a man who will

sign anything put in front of him. Any objective analysis of

Mr. Tolar’s character does not support the timorous

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qualities he ascribes to himself. The proposition that Mr.

Tolar signed the consent to search form, three waiver

forms, and a detailed five page statement of drug

involvement in some sort of involuntary, coerced state is

rejected. The claim that the Assistant State's Attorney

fabricated the detailed five page statement signed by the

defendant at the bottom of each page, with changes made

by and initialed by him, is ludicrous. The Government's

evidence suggests that Mr. Tolar said that he knew who

supplied the tip to the police and that he wasn't going to do

down alone. That theory is supported by the evidence.

The evidence overwhelmingly establishes that the

consent to search was knowingly and voluntarily given. It

is equally clear that Mr. Tolar was given his constitutional

rights on a number of occasions and that he knowingly,

voluntarily and freely waived those rights. No other

conclusions are reasonably possible.

In his various motions to suppress, Mr. Tolar and

his counsel raise other matters in support thereof. The first

of them is that the entry by law enforcement personnel on

to the C&I property was itself an illegal search. As the

Supreme Court has declared, "what a person knowingly

exposes to the public, even in his own home or office, is

not a subject of Fourth Amendment protection." Katz v.

United States, 389 U.S. 347, 351 (1967). There is simply

no expectation of privacy in an exposed business parking

lot. The gate to the business parking lot was open at the

time of the officers’ entry on to the premises, and there was

no indication that permission was required to enter.

Additionally, the Supreme Court has recognized that a

business, by its nature, may open itself to intrusions that

would not be permissible in a purely private context.

United States v. Swart, 679 F.2d 698, 701 (7th Cir.

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1982)(citing G.M. Leasing Corp. v. United States, 429 U.S.

338, 353 (1977).

Law enforcement officers had information drugs

were on the tractor/trailer which was situated on the C&l

lot. They observed one of the tanks being removed from

the trailer. Not knowing what would happen next and not

wanting to risk the disappearance of objects believed to

contain drugs, exigent circumstances existed sufficient to

warrant entry onto the lot to further investigate the

circumstances. The combination of prior information and

present observation combined to supply them with a

reasonable and articulable basis to investigate further and to

enter the property. The defendant's lawful consent to

search his truck, the trailer and attached tractor, also

validated their presence on the scene. Under these

circumstances, no judicially authorized search warrant was

required and no attempt to secure one was necessary.

Finally, the defendant now claims a violation of his

constitutional rights because an attorney retained by others

to represent him was somehow prevented from seeing him

before he made the incriminating statements of November

12, 1999. There is no evidence to suggest that the

defendant ever declined to be interviewed or make a

statement until a lawyer was present. Not even the

defendant testified that legal representation was his wish,

even as he acknowledged awareness that a lawyer had been

retained for him by a family member. And as discussed

earlier, the defendant was advised at least three times of his

right to an attorney and he acknowledged and waived that

right on each occasion. Federal constitutional law does not

require more for the admissibility of evidence.

In sum, Mr. Tolar's confrontation with law

enforcement officers on November 11, 1999 was not so

coercive or oppressive as to render his consent to search a

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nullity or involuntary. He had a right to refuse to consent, a

right the evidence establishes he was aware of at the time

he gave it. His written acknowledgment and waiver are

simply not refuted by his hearing testimony, so lacking in

its credibility. Nor were any statements he made on

November 11 and 12, 1999 obtained in violation of his

constitutional rights. All other arguments and contentions

raised in his papers have been considered and rejected. For

these reasons, his motions to suppress evidence and

statements and to quash his arrest are denied.

It is so ordered.

Charles P. Kocoras

United States District Judge

Dated: September 5, 2000