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United States v. Tapia

July 6, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE F. TAPIA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 08 CR 50023-Frederick J. Kapala, Judge.

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

ARGUED APRIL 12, 2010

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

Jose Tapia, a member of the Latin Counts street gang, was arrested at his home on May 19, 2008, after his estranged wife reported him to the police for battery and informed a detective of his involvement in a gang shooting. During the arrest, officers performed a "protective sweep," which entailed checking the basement and downstairs bathroom for individuals who may have posed a threat. The sweep revealed a handgun, which was subsequently found to have been used in an attack on a rival gang's house. Tapia was convicted of being a felon in possession of a firearm. Having determined that the defendant had used the firearm in connection with another felony, the district court increased his base offense level by four levels pursuant to U.S.S.G. § 2K2.1(b)(6). Tapia was sentenced to 120 months' imprisonment.

On appeal, Tapia contends that the firearm was discovered pursuant to an unconstitutional search, since the sweep incident to his arrest was unreasonable. He also argues that the district court committed reversible procedural errors by failing: (1) to explain why it credited one contradictory statement over another and (2) to identify the elements of the other offense or to explain how the government's evidence supported those elements. Finally, Tapia submits that the district court abused its discretion in relying upon unreliable state-ments when finding that the defendant had used the weapon in connection with another felony offense.

Since the police had ample evidence reasonably to believe that armed gang members may have been in the house, and because a sweep of the basement and attendant bathroom was reasonable, the manner in which the firearm was discovered was constitutional. Although the process by which the district court weighed the inculpatory and exculpatory evidence of Tapia's involvement in the shooting was imperfect, it was sufficient. In addition, the elements of that other offense were clear and the court's explanation why the evidence revealed the defendant's involvement in the shooting was similarly adequate. For these reasons and the reasons that follow, we affirm.

I. BACKGROUND

Jose Tapia, a convicted felon and member of the Latin Counts street gang, was arrested at his home at 129 Ridgeview Avenue in Rockford, Illinois, on May 19, 2008. His arrest followed from the decision of his estranged wife, Verta Rodriguez, to file a battery complaint against him on May 3, 2008. Tapia, she alleged, had bitten her upper arm. While at the police station, Rodriguez also spoke with Detective Randall Peraza, an officer in the gang unit. Peraza had already been investigating Tapia, a member of the Latin Counts street gang, in relation for a number of gang-related shootings. During their discussion, the defendant's wife informed Peraza that Tapia had been involved in a shooting at 809 South Greenview Avenue (the "Greenview" shooting), which she explained had occurred in retaliation for the shootings of two Latin Count gang members at 716 Loomis. Rodriguez also informed the detective that Tapia had been present at a meeting just prior to the Greenview shooting where one of his associates, Jacob Larsen, had distributed guns and discussed the retaliatory nature of the shooting. Finally, she told him that Tapia had been living at 129 Ridgeview, a location where Latin Count gang members hung out and stored drugs, guns and other potential evidence.

On the day that Tapia was arrested, eight police officers armed with an arrest, but not a search, warrant were sent to 129 Ridgeview. Upon arrival, the officers noticed a Lincoln Navigator, which they had not noticed during prior surveillance of the residence, parked in the front of the house. The police were aware that one of Tapia's associates, also a gang member, owned a Navigator. After a few minutes of knocking at the front door, Deputy Daniel Freedlund, who was situated at the front of the house, notified the other officers that someone was coming out of the basement. Moments later, having walked out of the basement stairwell and through the empty living room, Tapia opened the front door. The police then ar-rested Tapia without incident and performed a protective sweep of the rest of the residence, including the basement. During the sweep of the basement bathroom, Officer Nick Cunningham spotted a gun on top of some heating ducts approximately seven-and-a-half feet from the ground. Police later returned to 129 Ridgeview with a warrant to conduct a complete search of the house.

Due to the discovery of the gun, the government charged Tapia with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Tapia moved to suppress evidence of the gun. At the suppression hearing, Tapia argued that the protective sweep of the basement was unreasonable and in violation of the Fourth Amendment. He also argued that the handgun was not in plain view, making a search above the ductwork outside the scope of a protective sweep.

Both Peraza and Cunningham offered testimony to support the validity of the protective sweep. Cunningham testified that the sweep was performed because the officers knew "[t]hat he was an active member of the Latin Counts street gang, that he was a higher ranking member within the organization for Rockford, that he was suspected of being involved in narcotics dealing, and that the residence itself was being used as a place where other gang members would gather and have meetings, as well as store weapons and narcotics." Cunningham also testified that he entered into the bathroom to see if it led to a connecting room. Upon leaving, he spotted the handle of the gun protruding from the ceiling ductwork. Peraza's testimony was similar, but he also noted that members of the Latin Counts had been involved in shootings within the County. Both officers agreed that the protective sweep was brief.

The district court denied Tapia's motion to suppress the gun as evidence. The court concluded that the officers had reason to believe that other Latin Count members could be present at 129 Ridgeview and pose a danger to the arresting officers. The court supported this conclusion based on six facts:

(1) the defendant was on parole for a 2005 unlawful use of weapons conviction;

(2) the defendant was a leader of the Rockford Latin Counts;

(3) the defendant was living in the basement of a residence with ...


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