Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 536-Harry D. Leinenweber, Judge.
Flaum, Ripple, and Manion, Circuit Judges.
Defendants Juan Carlos Ocampo and Luis Alfonso Escobar were each convicted by a federal jury of conspiring to possess with intent to distribute approximately ten kilograms of cocaine (Count I), possessing with intent to distribute approximately ten kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts II and III), and the use and possession of a firearm during and in relation to the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count IV). Each defendant received a five-year term of imprisonment on Counts I and III, a ten year term of imprisonment on Count II, and a five year term of imprisonment on Count IV. The sentences on Counts I, II, and III run concurrently with each other but consecutive to the sentence imposed on Count IV. Each defendant also received a term of supervised release of six years. On appeal, Escobar and Ocampo challenge their convictions claiming that: (1) the actions of a police officer who approached their vehicle with his gun drawn to "interview" them constituted a full-blown arrest which was not supported by probable cause, and consequently, all evidence thereafter seized should have been suppressed; (2) even if the actions of the officers did not constitute an arrest, the officers did not have a reasonable suspicion to support an investigatory stop; (3) the government failed to prove beyond a reasonable doubt that defendants used and carried a firearm during and in relation to a drug trafficking crime; and (4) the trial court improperly sentenced them to an enhanced penalty for their convictions on Count II. We find no merit in any of the defendants' contentions and, therefore, affirm the convictions.
On July 18, 1987, Lieutenant Maurice Dailey of the Chicago Police Department received a tip from a paid confidential informant that Luis Alfonso Escobar, a pilot, was expecting a large cocaine shipment and might attempt to fly or drive that shipment into Chicago. The informant told Dailey that Escobar used several locations to store his cocaine, but that he knew of only one such location, 4056 North California Avenue in Chicago. The informant described Escobar as a male Columbian in his late 20's or early 30's with black hair and a large build. At trial, Officer Dailey described the informant as reliable and as one who had never given him wrong or misleading information in the past. On cross examination, Dailey testified that the informant did not receive the information directly from Escobar.
On the basis of this information, Dailey and a team of fellow officers immediately began a surveillance of the three story apartment complex located at 4056 North California. The officers continued their surveillance for a period of three days until, on July 20, at about 1:40 p.m., they observed a silver Datsun 280 ZX pull into a carport area at the rear of the apartment complex. A registration check on the vehicle's license plates revealed that the automobile was not a rental and that it was registered to a female with a last name different from Escobar. Dailey testified at trial that as a police officer with fifteen years of experience in narcotics investigations, it was his opinion that narcotics traffickers often use automobiles with fictitious license plates or vehicles belonging to someone else. He also testified that the Datsun 280 ZX is the type of automobile that drug dealers prefer to use during narcotics transactions.
The officers observed as two males exited the Datsun. Both men met the general description of Escobar provided by the informant. The driver was later identified as Luis Alfonso Escobar and the passenger as Juan Carlos Ocampo. Escobar was observed carrying a white plastic bag. The officers could not see the contents of the bag but Officer Dailey testified that narcotics dealers often use plastic bags of this sort to transport money or narcotics.
Escobar carried the white bag up a stairway to the third floor. Ocampo did not immediately follow Escobar up the stairwell but instead stopped and scanned back and forth down an alley adjacent to the parking lot. He also looked westward down the street bordering the apartment complex. Dailey testified, and the trial judge found at the suppression hearing, that based on his experience as a law enforcement officer, Ocampo was conducting "counter-surveillance."
After a brief interval, Ocampo followed Escobar up the stairwell to the third floor where Escobar opened Apartment 3-D with a key. Both men then entered the apartment. They remained in the apartment for approximately fifteen to twenty minutes and then exited together. Ocampo walked down the stairwell first to the parking lot and again engaged in counter-surveillance while Escobar remained in the stairwell. Escobar stayed in that location until Ocampo looked up in his direction, at which point he walked down the stairs and met Ocampo in the parking lot. Escobar was still carrying a white plastic bag. They then entered the Datsun with Escobar driving.
At this point, Officer Dailey decided to "interview" Escobar and Ocampo and he transmitted his intentions by radio to the other officers. Dailey and one or two other officers then approached the vehicle. As he approached, Dailey drew his gun for protection and as he came within 20 feet of the automobile he observed Ocampo bent over inside the vehicle placing an object on the floor of the passenger side. The officers were unable to identify the object as they approached but they did observe Ocampo attempting to kick it underneath the passenger seat. Officer Dailey removed Ocampo from the vehicle and Dailey recovered the object, a loaded blue steel revolver, from underneath the passenger seat. Ocampo and Escobar were then placed under arrest for the unlawful use of a weapon in violation of state law*fn1 and were immediately transported to the DEA offices in Chicago. The officers secured the Datsun and sealed the door to Apartment 3-D after performing an initial search in order to preserve evidence.
A narcotics detecting dog was then brought to the scene. Dailey testified that he had used that dog on at least six or seven previous occasions. The dog had never falsely alerted to the presence of narcotics. The dog gave a positive alert for narcotics at both the passenger and driver doors of the Datsun. Likewise, the dog gave a positive alert for the presence of narcotics at the front door to Apartment 3-D. The officers then sought and received separate search warrants for the automobile and the apartment. They executed the warrants and found 5,000 grams of cocaine in Apartment 3-D and 4,998 grams of cocaine in the Datsun. The cocaine in the vehicle was found in the white plastic bag which Escobar was observed carrying into and out of the apartment premises.
Ocampo and Escobar were indicted by the July 1989 Grand Jury in a single four count indictment. Count I of the indictment charged each with conspiring to possess with intent to distribute approximately ten kilograms of cocaine. Counts II and III charged each defendant with possessing with intent to distribute a mixture containing cocaine in the amounts of 5,000 net grams (Count II) and 4,998 net grams (Count III) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count IV charged that each defendant used and carried a firearm during and relation to the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
The defendants filed a motion to suppress, inter alia, the revolver and the nearly 10,000 grams of cocaine seized pursuant to the search warrants. At the suppression hearing, the court found that probable cause existed to support the arrest of the defendants and the search warrants for both the apartment and the Datsun. The court based its findings on the factual determinations that: (1) the confidential informant used by Dailey was reliable; (2) the location given by the informant was the location at which both defendants were observed; (3) both defendants fit the informant's general physical description of Escobar; (4) counter-surveillance techniques were used by Ocampo when entering and exiting the apartment complex; (5) a revolver was present in the automobile at the time the defendants were arrested; and (6) a certified narcotics detecting dog alerted positive for the presence of narcotics at both the apartment door and the doors of the automobile prior to the issuance of the search warrant. The court also found that Lieutenant Dailey did not see the revolver in the Datsun at the time he was approaching that vehicle.
We begin by addressing the defendants' contention that Officer Dailey effectuated a full-blown arrest without probable cause when he approached the Datsun with his gun drawn and pointed at Ocampo. The defendants argue in the alternative that even if such actions did not constitute an arrest, the officers lacked a reasonable suspicion to support an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Therefore, they argue, the resulting searches of the automobile and the apartment were tainted by the initial illegality and the fruits of the searches, namely the almost 10,000 grams of cocaine and the loaded blue steel revolver, should be suppressed. We need not evaluate whether the police had probable cause to arrest the defendants ...