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United States v. Sholola

August 22, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

HARRY SHOLOLA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 416 Elaine E. Bucklo, Judge.

Before COFFEY, MANION and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED JANUARY 21, 1997

DECIDED AUGUST 22, 1997

On August 31, 1995, a federal grand jury returned an indictment against the defendant-appellant, Harry Sholola, charging him with one count of conspiracy to import heroin into the United States from India, in violation of 21 U.S.C. sec.sec. 952(a) & 963, and ten separate counts of importing heroin from India, in violation of 21 U.S.C. sec. 952(a), and one count of possession with intent to distribute heroin, in violation of 21 U.S.C. sec. 841(a)(1). The Government charged that Sholola maintained and used mail boxes in the Chicago, Illinois area, rented under false names, for the purpose of receiving "approximately ounce quantities" of "mixtures containing heroin" from his co-conspirator(s) in India. The evidence against Sholola included: (1) fifteen envelopes "containing mixtures of heroin" that were seized from the mailboxes rented by the defendant; and (2) approximately 123 grams of heroin recovered by authorities from a public storage locker, also rented by the defendant. *fn1

Sholola filed a motion to suppress, arguing that the evidence should be excluded as the "direct and indirect fruit" of conduct by law enforcement officials that violated the Fourth Amendment. Specifically, Sholola argued that: (1) police officers lacked probable cause to arrest him outside of a bank in Orland Park, Illinois, on suspicion of credit-card fraud; and (2) the officers exceeded the bounds of the Fourth Amendment when they searched an automobile, incident to that arrest, and discovered, inter alia, information that led investigators to the storage locker and mailboxes rented by the defendant as part of his heroin-importation scheme. Relying on County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661 (1991), Sholola also challenged the warrantless search of the storage locker, *fn2 arguing that he consented to this search during a time frame in which he alleges that he was unlawfully detained without a hearing. Riverside makes clear that: (1) it is presumptively reasonable for police to hold an arrestee without a hearing for as long forty-eight hours; and (2) shorter periods of detention (such as Sholola's thirty-nine and one-half hours in length) are only unlawful if the arrestee can establish that he was held for an improper purpose (i.e., in order that police might collect additional evidence to justify his arrest and confinement). Id.; see also United States v. Daniels, 64 F.3d 311, 313 (7th Cir. 1995). The district court found that: (1) Sholola was held for 36 hours; *fn3 and (2) the purpose in detaining him was not to discover additional evidence to justify his arrest on state-law charges. Notwithstanding these clear and unambiguous findings of fact, Sholola argues on appeal that his consent to the storage locker search was tainted by a Riverside violation and thus invalid.

After conducting an evidentiary hearing on December 1, 1995, in connection with the federal charges against Sholola, the district judge denied the portions of the defendant's motion to suppress which challenged the validity of his arrest as well as the search of the automobile under the Fourth Amendment. The court continued the hearing to address the issue of whether the search of the defendant's storage locker was proper, and also to determine the validity of the defendant's "Terry stop" (i.e., whether the officer who initially stopped Sholola for questioning had "reasonable suspicion [of] criminal activity." Terry v. Ohio, 392 U.S. 1 (1968). Thereafter, the judge denied Sholola's suppression motion in its entirety.

On February 2, 1996, Sholola withdrew his plea of not guilty to the charge of conspiring to import heroin and, pursuant to a written agreement with the Government, entered a conditional guilty plea in which he admitted to the charge of conspiring to import heroin while reserving the right to appeal the district court's ruling on his motion to suppress. Following a change-of-plea hearing, the court accepted Sholola's conditional guilty plea and entered a judgment of conviction. On May 7, 1996, Sholola was sentenced to thirty-seven months imprisonment, to be followed by five years of supervised release, and ordered to pay a special assessment of $50. On appeal, the defendant asserts that the court improperly denied his motion to suppress. *fn4 We affirm.

I. BACKGROUND

At approximately 3:45 PM on the afternoon of July 11, 1995, the defendant, Harry Sholola, entered the A.J. Smith Federal Bank (the "Bank") in Orland Park, Illinois. He was observed by Patrolman Anthony Farrell, a nine-year veteran of the Orland Park Police Department who had been employed at the Bank as a part-time security guard for more than three years. *fn5 Farrell testified that he had been employed as a security officer prior to becoming a policeman, and that in all he had approximately eleven years' experience working as a security guard, mostly at retail establishments. His duties at the Bank included "patrol[ling] the inside of the bank and keep[ing] an eye on the parking lot . . . to ensure the safety of the employees in the Bank." Farrell took note of the defendant, whom he did not recognize as a regular customer, as well as the defendant's appearance (the defendant's shirt was soiled and his necktie was improperly knotted). Farrell watched Sholola approach the teller's window, where he produced a VISA credit card and a California driver's license. The teller, Carina Julian, made eye contact with Officer Farrell and nodded toward a back room. *fn6 Farrell and Julian met in the back room, leaving Sholola at the teller's window. Because Julian was suspicious, she displayed the credit card and driver's license to Farrell that Sholola had presented. She also informed Officer Farrell that Sholola had requested a cash advance of $1,900. The name on the credit card and the driver's license presented was "Joeh Alejandre," and Sholola's picture was on the driver's license. While in Julian's presence, Farrell telephoned the Orland Park Police Station and asked the dispatcher to run a computerized check on the driver's license, using both the number on the license and the name Joeh Alejandre. The dispatcher accessed the records of the California Department of Motor Vehicles ("DMV") and reported that the California DMV had no record on file of a driver's license issued to Joeh Alejandre. Officer Farrell suggested to Julian that she run the necessary checks on the credit card and consult with her supervisor. Julian contacted the credit card company and determined that the card was valid and that a $1,900 cash advance was authorized. With regard to whether Julian should process the transaction, Farrell "told her to do whatever the bank told her to do." Farrell returned to the lobby, and observed Sholola signing a cash advance slip and receiving the $1,900. Sholola placed the money in his pocket and exited through the Bank's front entrance onto the parking lot.

Officer Farrell followed Sholola, and observed him walking toward a pick-up truck in the Bank's parking lot. Farrell temporarily lost sight of the defendant behind the truck, and shortly thereafter noticed Sholola "peek[ing] out from alongside of [the] pick-up truck." As Farrell started to walk towards him, Sholola began to walk away from the officer. Officer Farrell described his gait as being "a very quick, fast-paced walk." Sholola made his way to the south exit of the Bank's parking lot and, as he was about to cross a heavily-travelled highway, Officer Farrell initiated "verbal contact," raising his voice and directing the defendant to stop. Sholola did not respond initially, and continued to cross the street and enter upon a garden supply store's parking lot. Once in this lot, Sholola stopped and Officer Farrell approached and questioned him.

Officer Farrell testified that even though he was in full police uniform and dress, he commenced his interview by identifying himself to Sholola as an officer of the law. Farrell inquired of the defendant as to where he was going, and he replied that he was on his way to purchase flowers. At this time, Officer Farrell requested identification from Sholola, and the defendant provided the bogus driver's license he had used in the Bank (concerning which the California DMV had no record, as Farrell knew). Farrell asked Sholola if he had a car and, if so, where it was parked. The defendant said that he did have a vehicle and pointed to a maroon, four-door Honda Acura (the "Acura") parked in the garden center's parking lot. Farrell asked if he had keys to the car and could prove that it belonged to him. Instead of answering "Yes" or "No," Sholola produced some keys from his pocket, walked towards the vehicle, opened the front driver's side door, and stated, "See, it's my car." When Sholola was about to enter the vehicle, Officer Farrell directed him to move away from the door. As Sholola exited the vehicle, the officer positioned himself between the defendant and the open car door.

Farrell asked Sholola his age, and the defendant replied that he was forty-four years of age, an answer that contrasted with the information reflected on Alejandre's driver's license, which showed an age of thirty-six years. Farrell repeated the age question, and Sholola changed his answer; this time he stated that he was thirty-eight years of age. The officer then asked the defendant where he lived, and Sholola identified a community other than San Bernadino, California, the residence listed on the license. Furthermore, Sholola misspelled the surname "Alejandre" (spelling the name differently from what appeared on the license). Finally, Officer Farrell re-phrased the age question he had asked twice previously by inquiring of Sholola his date of birth, but once again the defendant's answer failed to correspond with the information on the driver's license.

Considering the knowledge he had gained through his observations of the defendant, including the i.d. discrepancies revealed during his questioning of Sholola, Officer Farrell requested that the Orland Park Police dispatcher run a computerized check on the Acura's Illinois license plate. This check revealed that the vehicle was registered to a woman residing in Tinley Park, Illinois, and that there were no outstanding warrants for the owner of the vehicle, nor any reports of the vehicle being stolen. At the time Farrell requested the Acura's license plate check, he also asked for back-up assistance. During the evidentiary hearing, Officer Farrell was asked whether Sholola was "free to leave" at this point in the encounter (even though he had not been placed under arrest) and the officer answered "No." Shortly after Farrell's request for assistance, Officer Joseph Swearingen arrived on the scene, followed shortly by Sergeant Thomas Lynch, Farrell's superior officer, a sixteen-year veteran of the Orland Park Police Department. Farrell related to Sergeant Lynch a summary of the events that had transpired up until this point, including his interview with Sholola and the defendant's inability to provide answers that corresponded with the information set forth on the California driver's license. When Farrell was asked on cross-examination if the information available to Lynch, at this juncture, was the same as his own, Farrell replied that it was. Having thus acquired Officer Farrell's knowledge of the situation, Sergeant Lynch took the driver's license and commenced to interview the defendant concerning the information set forth thereon. Like Officer Farrell, Sergeant Lynch received from the defendant answers that were at variance with the information on the license. Specifically, Sergeant Lynch recounted:

I looked at [the license], and then I walked over by the defendant and asked him for his name, which he provided, which was the same as on the driver's license. I asked for a date of birth, and he did not give me the same date of birth that was on the driver's license, and then I asked him what his age was, and his age was quite drastically different from the date of birth that he provided.

Sergeant Lynch and Officer Farrell held "a brief conference" to discuss the situation, in light of all of Sholola's suspicious conduct up to this point in time, including his disheveled appearance, his use of the fraudulent i.d. to obtain cash from the Bank, his elusive behavior immediately following the transaction when he was followed by Officer Farrell, and finally his inconsistent statements and his repeated failure to provide answers that corresponded with the information on his purported license. Based on the officers' collective knowledge about the suspect at this point in time, "it was determined that Mr. Sholola was going to be placed under arrest for further investigation." Sergeant Lynch directed that Sholola be "take[n] into custody for investigation of deceptive practices at the bank."

At the time of his arrest, Sholola was standing near the open driver's side door of the Acura. Immediately following the arrest, Officer Swearingen handcuffed Sholola and escorted him to a squad car that was about two car-lengths away from the maroon Acura. Sholola was searched, and on his person were found the credit card he used in the Bank (reflecting the name "Alejandre"), as well as the $1,900 and the receipt he had obtained during the cash advance transaction. Shortly thereafter, Sergeant Lynch and Officer Farrell searched the interior of the Acura vehicle over which Sholola had claimed ownership, for, in Farrell's words, "any possible weapons and any other information we might find relative to the credit card fraud investigation that we were involved in." Sergeant Lynch searched the passenger side of the vehicle, while Officer Farrell searched the driver's side. In the glove box of the car, they discovered a total of $5,400 in U.S. currency in $100 denominations. The cash was contained in an envelope, along with a cash advance receipt in the amount of $3,000. This receipt had been issued to an individual named "Alejandre" earlier the same day (7/11/95) by another bank in Orland Park. The search also yielded a second credit card and a second California DMV document with Sholola's picture on it, *fn7 both issued in the name of one Glenn Aby. The police thus had in their possession two separate forms of identification bearing Sholola's picture, both of which were phony, and two bogus credit cards, issued under different names, both of which had been used by the defendant to obtain cash on the very same day. The search of the vehicle also uncovered papers and documents reflecting various names and social security numbers, assorted mailbox keys, and a receipt and access card indicating that Sholola had rented a storage locker in Markham, Illinois. The officers placed these papers and other items in a bag, and conveyed them in police custody to department headquarters, where they were inventoried (and later turned over to a Secret Service Agent).

Following the search of the maroon Acura, Officer Swearingen transported Sholola to the Orland Park Police headquarters and proceeded to book him, filling out a form designated as a "scratch sheet" which noted that Sholola was being held on a charge of theft by deception. *fn8 The record reflects that at this juncture, the defendant volunteered his true identity: Harry Sholola. The booking of the defendant was completed on July 11 at about 6:00 PM. Officer Swearingen was called as a defense witness and initially testified that during the defendant's booking process, he entered on the "scratch sheet" a proposed court date of July 13 at 9:30 AM. On cross-examination, however, Officer Swearingen corrected this testimony and averred that he could not have entered the court-date information while booking Sholola on July 11 "because the investigation was still going on." Swearingen stated that he likely entered the information about Sholola's scheduled court appearance late on the following day, July 12, probably after being instructed to do so by his superior officer, Detective Thomas Kenealy. Officer Swearingen also testified that during his oneyear service as a police officer in Orland Park, he had personally arrested some twenty-nine suspects on criminal charges, and that twenty-eight of these individuals had appeared before a judicial officer for a probable cause hearing the morning following their arrest.

After the completion of Sholola's booking (July 11 at 6:00 PM), the Orland Park Police Department contacted the Secret Service in Chicago and advised them that they had recovered evidence suggesting Sholola's involvement in "a larger credit card scheme" that might warrant investigation by federal authorities, i.e., a scheme that went beyond the single transaction at the Bank. Secret Service Special Agent Mark Oliphant *fn9 was assigned to the case and arrived at the Orland Park police station around 6:45 PM, whereupon he briefly reviewed the items found in the Acura. Agent Oliphant's understanding was that Sholola was being held in state custody for the charge of theft (on the basis of the fraudulent transaction at the Bank) while the federal investigation of Sholola proceeded. Agent Oliphant, accompanied by Officers Swearingen and Farrell, left the police station around 7:00 PM and proceeded to two of the local addresses where Sholola allegedly resided. Oliphant's purpose in checking these addresses was to "determine the authenticity of the documents" discovered in the Acura. His investigation and his interviews with neighbors at each of the locations revealed that the two addresses had been "vacant for some time." Using the storage locker access card and a related receipt found in the Acura as a lead, Agent Oliphant also visited a storage locker facility in Markham, Illinois, where he gained knowledge that the defendant had in fact rented a locker, and was in arrears on his rental payments.

Oliphant returned to the Orland Park Police Department at about 11:00 PM to interview Sholola about the credit card fraud. In Officer Swearingen's presence, the Secret Service Agent administered Miranda warnings to the defendant and proceeded to obtain some personal history information from the defendant. When Oliphant asked to speak with Sholola about the credit card fraud for which he had been arrested earlier in the day, the defendant stated, "I don't have an answer, I understand what you are saying." When Oliphant emphasized to the defendant that he "had a lot of information about [his] participation in credit card fraud," Sholola stated that he wished to speak with an attorney before answering any more questions, and the interview came to an end.

During the morning of July 12, Agent Oliphant, continuing his investigation of Sholola's involvement in a broader credit card scheme, made telephone inquiries regarding the credit cards found in Sholola's possession. He also telephoned the district manager of the storage locker company "to determine the status of Mr. Sholola's locker." At approximately 9:00 AM, Agent Oliphant spoke with Assistant State's Attorney Cassidy about obtaining a search warrant for the locker, but this course of action was abandoned later in the day when Detective Kenealy of the Orland Park Police Department called Oliphant and suggested that he would attempt to get the defendant to sign a voluntary consent to search form, in lieu of obtaining a search warrant (Sholola gave his written consent to the search of the storage locker only).

Agent Oliphant searched the locker on the evening of July 12, and found approximately 123 grams of heroin, as well as papers noting that the defendant had rented mailboxes at various "Mail Box, Etc." locations. As far as the record reveals, the federal investigation of Sholola up until this time had centered on his apparently extensive fraudulent credit card activity; the heroin discovered in the storage locker being the first indication of Sholola's involvement in narcotics trafficking. The information recovered from the locker, together with the mailbox keys and papers found in the Acura, led federal investigators to mailboxes that Sholola had rented (using aliases) at four different "Mail Box, Etc." locations in the greater Chicago, Illinois area. Federal investigators obtained a search warrant for these mailboxes and uncovered a total of fifteen envelopes mailed to the defendant in the United States from India, each containing quantities of heroin, in violation of federal law. Thus, what first appeared to be a state credit card scam involving the single incident at the A.J. Smith Bank evolved into a federal investigation of Sholola's apparently extensive credit card scheme or schemes and ultimately into the defendant's involvement in drug trafficking, which led to the federal drug conviction on appeal here.

At 9:30 AM on July 13, thirty-nine and one-half hours after the completion of the booking process, Sholola was brought before a state judicial officer for a hearing to determine probable cause as to the Illinois theft charge arising out of the defendant's use of fraudulent documents at the Bank. Neither the record nor the parties' briefs shed light on the details of this proceeding, but we are able to conclude from the record that probable cause was found as to the state charge of theft by deception. *fn10

On July 17, a federal magistrate filed a criminal complaint, charging Sholola with conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. sec. 846, on the basis of an affidavit, sworn to by Secret Service Special Agent Daniel Overvoll, detailing the information his agency possessed at that time concerning Sholola's heroin importation scheme. Sholola was arrested by federal authorities on August 2 and detained pending trial, after a magistrate judge determined after a hearing that there was probable cause to believe Sholola had conspired to possess with intent to distribute heroin, as alleged in the federal complaint. *fn11 A grand jury later returned the aforementioned twelve-count indictment, Count I of which charged Sholola with conspiring to import heroin from India. As set forth above, Sholola filed a motion to suppress the evidence, and the trial judge denied the same after conducting an evidentiary hearing. The defendant entered a conditional guilty plea to Count I, reserving the right to appeal the judge's suppression ruling, and was sentenced.

II. ISSUES

On appeal, Sholola asserts that the district judge's denial of his motion to suppress was erroneous and should be reversed, arguing that the evidence against him was obtained in violation of the Fourth Amendment. Specifically, the defendant-appellant argues that: (1) at the time Officer Farrell stopped him for questioning in the garden-center parking lot located near the Bank, he lacked reasonable suspicion of criminal activity; (2) Farrell and his fellow officers lacked probable cause to arrest him; and (3) the warrantless search of the Acura, which took place shortly after his arrest, violated the Fourth Amendment. Sholola also maintains, as he did before the trial judge, that the evidence gained as a result ...


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