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United States v. Fiasche

March 21, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTONIO FIASCHE AND ANTONIO VITAGLIANO, DEFENDANTS-APPELLANTS.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 765-David H. Coar, Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED FEBRUARY 15, 2008

Before FLAUM, WOOD, and EVANS, Circuit Judges.

Two Antonios-Vitagliano and Fiasche-entered conditional guilty pleas to charges that they conspired to possess, with intent to distribute, various controlled substances, namely, methylenedioxymethamphetamine (MDMA or ecstasy), methylenedioxy-amphetamine (MDA), and marijuana. They now appeal their convictions, arguing that their motions to suppress evidence were wrongly denied. We start with the facts.

Sometime during the last week of August 2005, a fellow named Lars Bjerga was arrested, somewhere in Kentucky, with a lot of marijuana. Like many people caught in his sort of jam, he decided to roll over and spill the beans on others involved in the illicit drug business. On September 2, 2005, a DEA agent in Louisville called a DEA agent in Chicago (Jennifer Traud) and reported to her what was learned from Bjerga.

According to the information received, Bjerga had, a week or so before his arrest, delivered $134,000 in drug money to "Tony" who lived in a white brick house with an attached garage, a fenced-in backyard, and a gazebo. The residence was in the vicinity of Lawrence and Maria Streets in Chicago. According to Bjerga, "Tony" and another man were trafficking drugs out of the residence and were going to be taking some $500,000 in drug money from Chicago to New York either on September 2 (the very day Agent Traud received the call) or the following day. The trip to New York would be either in "Tony's" black Lexus or a rental car.

Bjerga also provided two phone numbers, one for Tony's "house phone" and a second for his "dope phone." Agent Traud soon learned that the "dope phone" was a pre-paid cellular phone*fn1 with no subscriber information. The "house phone" was registered to Antonio Fiasche, at 4738 North Maria Court in Chicago, Illinois. The address matched, to a tee, the description of a house "in the vicinity" of Lawrence and Maria Streets.

With this information in hand, the DEA sprang into action, setting up surveillance of "Tony's" house on North Maria. Shortly after arriving there, around 12:30 p.m., the agents saw a black Lexus, with who would later be identified as Antonio Fiasche at the wheel, drive off. The Lexus made two mundane stops and returned home an hour later, around 1:30 p.m.

When Fiasche returned, another car was parked in the driveway-a silver Chevrolet Malibu-which had arrived approximately 15 minutes earlier. A man (later identified as Vitagliano) exited the car when it arrived, opened the garage door using an electronic security keypad, and entered the house. At around 1:45 p.m., Vitagliano left the house carrying a white box and a brown bag. His hold on the box and bag was rather odd, as he carried them "in his hands like he was carrying a cake." Vitagliano placed the box and the bag on the passenger side of the Malibu and drove away, heading east on Lawrence Avenue. Several agents, in separate cars, followed.

After following Vitagliano for some time, one of the surveillance officers pulled next to Vitagliano's Malibu. The agent noticed that Vitagliano appeared to be talking on a silver Motorola "Razr" cellular phone.*fn2 This led the agents to be concerned that Vitagliano may have discovered that he was being followed and alerted Fiasche to the fact that the house might be under surveillance. Following this encounter, according to testimony found to be credible by the district judge, Vitagliano began "[w]eaving in and out of traffic at a high rate of speed," in an apparent attempt to evade surveillance. Based on these observations-coupled with the fact that Vitagliano had left what they thought was a drug house at 4738 North Maria only moments ago carrying two packages-the agents decided to make an investigatory stop.

At 2 p.m., some 15 minutes after Vitagliano left the Maria Street residence, the agents activated their lights and sirens and stopped the Malibu. The agents then confronted Vitagliano, told him he was observed leaving the Maria Street residence, and that they were conducting a drug investigation. The agents patted Vitagliano down for weapons and asked for permission to search the Malibu. He consented. The search turned up 107 MDA tablets and 157 MDMA tablets in the bag Vitagliano carried from the Maria Street residence. The box he carried contained a Hewlett Packard palm pilot.

While all this was going on, surveillance on the Maria Street residence continued. Soon after the drugs were found in Vitagliano's car, agents staked out at the Maria Street residence were told about the hit. They were also told that Vitagliano had made a cell phone call while under the agents' watch and that someone in the house (Fiasche) may have been tipped off. Based on this information, the agents decided to approach the house to try to do a "consent search."

Around 2:20 p.m., Agent Traud and others, Supervisor Walters, Officer Arthur, and Special Agent Emilia Fernandez among them, approached the front door of 4738 North Maria. Officer Arthur testified that he was wearing a bullet-proof vest with "police" symbols on the front and back. The agents knocked on the door several times. After several knocks, Officer Arthur-who was positioned to the side of the door with a bay window behind him-saw the blinds move and heard someone yell "hold on," or words to that effect. When Officer Arthur looked in the bay window, he saw a man running down the hallway, covered only with a white towel.

At this time, Agent Timothy Oko was standing on the side of the house to ensure no one fled from the side door. Right around the time the agents at the door first knocked, Agent Oko heard a loud "swishing sound" from the back of the house. Agent Oko, a moment later, "heard a flushing sound coming from a [bathroom] window . . . next to th[e] patio door." At that point, Agent Fernandez entered the backyard and Oko advised her that "some-body's flushing the toilet" and requested that she alert the agents at the front door. Between 30 seconds and a minute later, Oko heard a second flush. At that point, Agent Oko "believed that somebody was destroying evidence in the residence." Moments later, Agents Traud and Walters joined Oko in the ...


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