Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 92 CR 102--Marvin E. Aspen, Judge.
Before ALDISERT, *fn* BAUER and FLAUM, Circuit Judges.
Defendants Imad Saadeh, Barbara Sudzus, and Albert Sudzus used a Chicago automobile repair shop as the center for their cocaine distribution business. After a successful drug bust by the Drug Enforcement Administration ("DEA"), a jury convicted all three defendants of violating 21 U.S.C. secs. 841(a)(1) and 846, conspiracy to possess cocaine with the intent to distribute. The defendants now raise a number of challenges to their convictions. For the reasons below, we affirm.
Albert ("Al, Jr.") and his mother, Barbara Sudzus ("Barbara") ran a Chicago car repair shop called Euro-Tech. Al, Jr. and Barbara contracted out the use of work space in the Euro-Tech building to mechanics who worked as independent contractors. Imad Saadeh, who did not receive a salary from Euro-Tech, used the Euro-Tech facilities to work on his own cars and motorcycles. Like the other workers, he used a large cabinet-sized toolbox to store his tools and other personal items.
In 1987, Al, Jr. and his father purchased 3.4 kilograms of cocaine for $10,000 per kilogram at Euro-Tech from Robert Grinnell. Three years later, Grinnell met Saadeh at Euro-Tech. Saadeh informed Grinnell that "Al" (although Grinnell was unsure whether he was referring to Al, Jr. or his father) had introduced him to the cocaine business by loaning him $100 to make his first drug buy. Over time, Grinnell learned that Dickie Lynn and a man named Bishop assisted Saadeh in the cocaine business and that they used the Euro-Tech garage to count and store their drug proceeds. On two separate occasions in 1991, Grinnell purchased cocaine from Saadeh for personal use.
Following a 1992 arrest for burglary of an automobile, Grinnell agreed to assist the police with a narcotics investigation of the defendants by selling five kilograms for $10,000 each. The "reverse" sting took place over the next two days as follows: Grinnell made six recorded calls from a Schaumberg hotel and restaurant to Al, Jr. at Euro-Tech, claiming that he and a fellow thief, who in reality was undercover Agent Perille disguised as "Mike Mason," had again found cocaine in a car. Al, Jr. initially expressed concern at Mason's presence but later agreed that Dickie would pick up the cocaine.
After two more calls on February 11, Al, Jr. and Grinnell agreed to complete the deal later that day at Euro-Tech. At 12:30 p.m., Barbara left Euro-Tech, climbed into a red Firebird registered to the company and drove slowly twice around the block. She then returned to the garage. Grinnell and Mason arrived at 1:00 p.m. While Mason waited inside the car, Grinnell entered Euro-Tech where Barbara "buzzed" him through the locked front security door. Grinnell told her that he had the five kilograms and Barbara replied, "That's good for you." Several minutes later, when Al, Jr. asked him whether he had brought "the dope," Grinnell responded that he would need at least $15,000 up front. Al, Jr. then made a call and informed Grinnell that Dickie was on his way. Barbara, after announcing that she was "gonna go check things out," again drove the Firebird several times around the block, carefully looking at Mason's car and a nearby surveillance van. Upon returning, Barbara asked who was in the car and Grinnell told her that it was Mason. Around 1:45 p.m., Saadeh, carrying a brown paper bag, exited a car and entered Euro-Tech with Dickie Lynn. After a brief conversation with Al, Jr. in his office, Saadeh and Dickie went to a toolbox on the work floor. Saadeh, Grinnell and Al, Jr. then went inside Al Jr.'s office where Saadeh pulled three stacks of cash from his pocket, claiming they equaled $15,000, and placed them inside Al, Jr.'s desk drawer. Although Grinnell suggested that he would get the cocaine and they could complete the drug deal then and there, both Al, Jr. and Saadeh objected, insisting that the deal should instead occur at a nearby yard.
DEA Agent William Maloney led a team of officers into Euro-Tech around 2:00 p.m. Upon entering the building, Maloney twice announced he was a federal agent. Barbara, still in the glass-enclosed office that controlled entry into the shop, refused to allow the police to enter and instead yelled: "Cops! The police are here." Maloney saw Saadeh running and instructed the police to break the glass door with their battering ram. Within ten minutes, the police had secured the building and directed everyone (except Barbara) into the garage area, where the police patted them down for safety purposes and ordered them to empty their pockets.
Informing Barbara that there may be drugs, guns or money in the building, Agent Maloney asked if she would consent to a search. Barbara told the agent that she had nothing to hide and signed a written consent form. The officers then searched the premises, finding three packages of currency totaling $15,000 in Al, Jr.'s desk drawer. Officer Michael Egan searched the garage work floor, where he found a toolbox with several locked drawers. Egan asked Saadeh if the toolbox was his and Saadeh responded affirmatively. Using keys that Saadeh had earlier removed from his pockets, Egan opened the toolbox and found bundles of currency totaling $35,000.
All three defendants were charged with conspiracy to possess cocaine with intent to distribute. Before trial, the defendants moved to suppress the currency under the Fourth Amendment. Saadeh also moved to suppress his statement about the toolbox, claiming that it had been elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966). After an evidentiary hearing, the district court denied both motions. The court found that Barbara had at least apparent authority to consent to the search and that the officers did not exceed her consent in searching the toolbox. With regard to Saadeh's statement, the court held that assuming arguendo that Saadeh was in custody, the questioning was not an "interrogation" and therefore not in contravention of the Fifth Amendment.
A jury convicted all three defendants of the charged offense. The court sentenced Al, Jr. to 180 months imprisonment, Barbara to 121 months, and Saadeh to 160 months. This appeal followed.
The defendants raise a number of issues on appeal. Barbara, Al, Jr. and Saadeh first contend that the district court erred in denying their motion to suppress evidence. Second, Saadeh argues that the district court erred in denying his motion to suppress his statement to the police officers. Third, the defendants maintain that they were denied a fair trial by prosecutorial argument and evidence of other crimes. Fourth, Saadeh contends that he was denied his due process, fair trial and confrontation rights when he was precluded from establishing that the government's primary witness had committed perjury. Fifth, the defendants claim that they were denied a fair trial by the presence of a hearing-impaired juror during the trial and jury deliberations. Finally, Barbara challenges the sufficiency of the evidence supporting her conviction.
The defendants challenge their convictions arising from the forced entry into the Euro-Tech premises, the warrantless search of the garage, and the seizure of evidence, as violative of the Fourth Amendment. Specifically, they maintain that the entry was unlawful, that Barbara did not voluntarily consent to the search, and that the scope of Barbara's consent did not include the desk drawer or the toolbox. They assert that the district court therefore should have suppressed the $15,000 recovered from Al, Jr.'s desk drawer and the $35,000 from the toolbox. We review a district court's decision on a motion to suppress for clear error. United States v. Gilbert, 45 F.3d 1163, 1165 (7th Cir. 1995). Because of the highly fact-specific nature of a motion to suppress evidence, we give particular deference to the district court that had the opportunity to observe witnesses and hear testimony on the issue. United States v. James, 40 F.3d 850, 874 (7th Cir. 1994), cert. denied, 115 S.Ct. 948 (1995). We will only reverse if we are left with the definite and firm conviction that a mistake has been made, Gilbert, 45 F.3d at 1165; United States v. Robinson, 30 F.3d 774, 781 (7th Cir. 1994).
The Fourth Amendment protects a person's right to be free from warrantless intrusions into his home, U.S. Const. amend. IV; United States v. Foxworth, 8 F.3d 540, 544 (7th Cir. 1993), cert. denied, 114 S.Ct. 1414 (1994), and we have extended this protection beyond residences to cover businesses. See United States v. Torres, 751 F.2d 875, 883 (7th Cir. 1984), cert. denied, 470 U.S. 1087 (1985). Warrantless entries and searches are presumptively unreasonable absent exigent circumstances and certain other exceptions. Payton v. New York, 445 U.S. 573, 586 (1980); Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995), petition for cert. filed (U.S. June 1, 1995) (No. 94-9540). Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509 (1978); Godinez, 47 F.3d at 856. The government bears the burden of proving that "its agents had an objectively reasonable belief that exigent circumstances existed at the time of their warrantless entry into the defendant's [premises]." United States v. Robles, 37 F.3d 1260, 1263 (7th Cir. 1994).
The defendants contend that the police should have obtained a warrant because no exigent circumstances existed that would otherwise justify their entry. We analyze the existence of exigent circumstances from the perspective of the officers at the scene, and ask not what the police could have done, but whether they had, at the time, a reasonable belief that there was a compelling need to act and no time to obtain a warrant. See Foxworth, 8 F.3d at 544. We repeatedly have held that the potential that evidence, especially drugs, will be destroyed gives rise to exigent circumstances. Robles, 37 F.3d at 1263; United States v. Talkington, 843 F.2d 1041, 1044 (7th Cir. 1988).
In the instant case, the DEA's warrantless entry was justified by exigent circumstances. The agents approached Euro-Tech knowing that the defendants used the automobile shop as a center for drug activity. Cf. Robles, 37 F.3d at 1263. Grinnell's reports and information, police surveillance, and the recorded telephone conversations reliably led the police to this information. Grinnell also had told the police that he had seen guns at Euro-Tech on prior occasions and that Dickie Lynn always carried a gun. At the time of the entry, the undercover drug deal that was to occur at Euro-Tech had been altered, with the defendants unilaterally changing the location to a different yard owned by Al, Jr. This sudden shift in plans, coupled with Barbara's counter-surveillance, reasonably could have concerned the police and suggested that the defendants might be planning an armed "rip-off" of the cocaine.
Up to the point of entry, the officers had been able to arrange surveillance outside Euro-Tech. However, the officers had no way of knowing what awaited them inside. When they requested entry, Barbara shouted out warnings, raising the possibility that evidence would be destroyed or that the defendants would grab their guns. Behind the doors, the officers could see commotion and people running around. The officers were "facing circumstances that were rapidly progressing and, for the most part, out of their control," Foxworth, 8 F.3d at 544-45, and it was reasonable for them to believe that they needed to act immediately.
Having determined that the DEA officers legally entered Euro-Tech, we must now examine whether their subsequent search was justified by an exception to the warrant requirement. Robles, 37 F.3d at 1264 (citing United States v. Rivera, 825 F.2d 152, 157 (7th Cir.), cert. denied, 484 U.S. 979 (1987)). As we recently noted in Robles, "[t]he exigent circumstances only permitted their entry and securing of the residence, and once this was complete any threat of evidence being destroyed was eliminated. Therefore, we must continue our analysis of the seizure. . . ." 37 F.3d at 1264 (citations omitted).
After the police secured the premises, they returned to Barbara and asked for her consent to their search. Barbara told Agent Maloney that she had nothing to hide and signed a written consent form. The form, entitled "CONSENT TO SEARCH," stated: "1. I have been asked to permit special agents of the drug enforcement administration to search . . . 2. I have not been threatened not forced in any way. 3. I freely consent to this search."
The district court concluded that Barbara voluntarily consented to the search and found that "the facts as adduced at the suppression hearing support the conclusion that Barbara Sudzus possessed apparent authority to consent to the search of Euro-Tech." The court also found that the search did not exceed the scope of Barbara's consent. The defendants challenge these findings, arguing that Barbara did not have the authority to consent to a search and that even if she did, her consent was tainted by the prior forcible entry. Because the prior forcible entry did not run afoul of the Fourth Amendment, we turn to the issue of Barbara's authority to consent. The government bears the burden of proving by a preponderance of the evidence that consent was freely and voluntarily given. United States v. White, 979 F.2d 539, 542 (7th Cir. 1992); United States v. Duran, 957 F.2d 499, 502 (7th Cir. 1992). We review the district court's determination of Barbara's consent for clear error. United States v. Kozinski, 16 F.3d 795, 810 (7th Cir. 1994).
While a warrantless entry for the purpose of conducting a search ordinarily violates the Fourth Amendment, see Payton, 445 U.S. at 585, a well settled exception to this general rule permits authorities to conduct a search without a warrant if they obtain voluntary consent either from the individual whose property is to be searched, Schneckloth v. Bustamonte, 412 U.S. 218 (1973), from a third party possessing common authority or joint control over the premises, Florida v. Jimeno, 111 S.Ct. 1801, 1803 (1991); United States v. Matlock, 415 U.S. 164 (1974), or from an individual with the apparent authority to consent to the search. Illinois v. Rodriguez, 497 U.S. 177, 187 (1990).
We conclude that the district court did not err in finding that Barbara had the requisite apparent authority to consent to the search. In Rodriguez, the Supreme Court held that apparent authority could provide a basis for consent when the police, at the time of the search, reasonably believed that that person had common authority over the premises, even though the person did not in fact possess such authority. 497 U.S. at 188. To assess whether apparent authority exists, we look for indicia of actual authority. See Rosario, 962 F.2d 733, 737 (7th Cir. 1992) (citing United States v. Miller, 800 F.2d 129, 134 (7th Cir. 1986)). As the district court specifically found, and the record more than supports, as the agents entered the premises, they first encountered Barbara behind the window next to the door. She clearly monitored the entry and exit of customers and employees. Furthermore, she informed Agent Maloney that she maintained control over the premises, including access into the building. "The question is not who comes to the door so much as it is whether whoever appears there projects an aura of authority upon which one can reasonably rely." Rosario, 962 F.2d at 738. Barbara's physical placement, her statements, her known relationship to Al, Jr., and the officer's knowledge of her control over entry into and exit from the premises made it reasonable for the police to believe she had the authority to consent to the search of the premises. See United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990), cert. denied, 501 U.S. 1234 (1991).
We also require the government to prove by a preponderance of the evidence that someone who consents to a search does so freely and voluntarily. See Schneckloth, 412 U.S. at 222; United States v. Durades, 929 F.2d 1160, 1163 (7th Cir. 1991). We look to the totality of the circumstances to determine whether consent arose from coercion and duress, or from voluntariness. Rosario, 962 F.2d at 738; United States v. McGuire, 957 F.2d 310, 314 (7th Cir. 1992); United States v. Quinones-Sandoval, 943 F.2d 771, 773 (7th Cir. 1991). We will not reverse the finding of the district court on voluntariness unless it is clearly erroneous. Rosario, 962 F.2d at 738.
The defendants argued that Barbara's consent was not voluntary because: (1) the officers informed her that if she did not sign the consent form they would come back with a warrant; (2) the agents did not advise Barbara of her right to refuse to consent; and (3) the agents did not ask Barbara for consent until after they had searched the building and recovered the currency. The totality of circumstances, however, supports the district court's finding that the agents voluntarily obtained Barbara's consent to the search. The agents never threatened Barbara with the availability of a search warrant, cf. White, 979 F.2d at 542, and the police were not constitutionally required to advise Barbara that she had the right to refuse a search before procuring her consent, so their failure to do so presents no problem. United ...