NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2010
Decided November 4, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐4157
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Evansville Division.
v. No. 3:08CR00033‐002
CHRISTOPHER AGUILAR, Richard L. Young,
Defendant‐Appellant. Chief Judge.
ORDER
Christopher Aguilar appeals the district court’s denial of his motion to suppress
evidence found in his car during a warrantless search. He argues that the government did
not submit any evidence to support the facts upon which the police relied to find probable
cause for the search. Because Aguilar never contested many of the asserted facts, the
government was not required to furnish evidence of them, and the district court properly
found probable cause based on the undisputed facts. Thus we affirm the judgment.
According to the government, in 2006 Aguilar formed a methamphetamine
distribution conspiracy with his co‐defendant James Braden. After Braden began
No. 09‐4157 Page 2
cooperating with law enforcement, he provided a statement implicating himself and
Aguilar in the conspiracy. Then, with Braden’s help the Drug Enforcement
Administration(“DEA”) recorded a series of telephone calls between Aguilar and Braden in
which the two planned a methamphetamine purchase and delivery in Evansville, Indiana,
in October 2008. It also observed Braden’s cash payments to Aguilar, which were made
with DEA money. Having monitored and recorded Aguilar’s planned delivery of
methamphetamine to Braden in Indiana, law enforcement located Aguilar on the way to
Evansville on October 11, 2008; once he was inside the city, an Evansville Police Department
officer stopped him at the DEA’s direction. The officer also observed Aguilar speeding just
before the stop. A drug detection dog brought to the scene alerted to drugs at Aguilar’s
rental car.
The officers conducted a warrantless search of the trunk and found 371 grams of
methamphetamine concealed in false can containers. In the passenger compartment, they
located a cell phone used to make calls to Braden. Aguilar also had some of the DEA
purchase money with him. A grand jury indicted Aguilar with one count of conspiracy to
possess with intent to distribute methamphetamine and one count of possession with intent
to distribute methamphetamine, in violation of
21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii).
Aguilar moved to suppress the evidence seized from the car. He argued that the
search violated his rights because it did not fall within any exceptions to the Fourth
Amendment’s warrant requirement. Aguilar also requested an evidentiary hearing on the
motion. The government, in response, argued that Braden’s cooperation, the controlled
deliveries, and the phone calls recording the planned delivery provided ample probable
cause to search Aguilar’s car in Evansville. Alternatively, the officer had an independent
basis for probable cause based on the police dog alert after stopping Aguilar for speeding.
The government denied the need for an evidentiary hearing because Aguilar raised “no
material dispute concerning the underlying facts of the investigation, as outlined herein and
in the defendant’s motion . . . the relevant facts are un‐controverted.” Aguilar did not
disagree with that assertion in a reply brief.
At the suppression hearing, the parties discussed the nature of any fact dispute.
Barbara Williams, Aguilar’s appointed attorney, explained that Aguilar did dispute that he
was speeding and the dog’s reliability:
MS. WILLIAMS: Mr. Aguilar does dispute some of the facts that are alleged
in the government’s response with respect to the circumstances of this matter.
We believe that the stop was initially without probable cause. Mr. Aguilar
questions the reliability of the police officers’ contention that he was
speeding. He indicates that he believes he was not speeding and that that
was a pretextual stop and that because of that, there was not probable cause
No. 09‐4157 Page 3
to conduct a search. With respect to the fact that there was a canine at the
scene, as Mr. Brookman indicated, ran around the door, we believe that the
Court’s finding that that is sufficient when the dog alerted or finding that that
would be highly reliable would be inappropriate in this case because we
believe that the testimony of the officers will be rebutted and that there will
be evidence that the dog was not well trained, had not received a certification
in compliance with the national rules for canine training, had performed his
duties in a haphazard way, and had given numerous false positives; in fact,
we believe that the evidence would be that the canine’s skills were very
suspect . . . .
Williams urged the court to apply Arizona v. Gant,
129 S. Ct. 1710 (2009) (holding that a
warrantless car search is constitutional only if the arrestee can still access the car or the
police have reason to believe it contains evidence of a crime), to render the search
unconstitutional. The district court reasoned, however, that even without the speeding and
the police dog, the government had probable cause based solely on the recorded phone
conversations with Braden:
THE COURT: But here there was reasonable belief that there would be drugs
or contraband found in the vehicle, based upon the recorded phone
conversations, so it seems to me that [Gant] wouldn’t apply.
MS. WILLIAMS: Well, Your Honor, we would ask the Court to consider
applying this case because the search was because of a speeding violation.
And even though there were telephone conversations that were made before
that, I don’t believe that that would give the police officer who made the stop
initially probable cause to stop the car for speeding.
The district court decided that “based upon the pleadings and the arguments of counsel,”
the government had probable cause to search Aguilar’s car. It denied the motion to
suppress on two alternative bases: The combination of the statement from Braden, the
delivery of cash to Aguilar, and the recorded phone conversations “provided more than
enough probable cause”; also, the police dog alert after the speeding stop “provided an
independent basis for probable cause.”
Aguilar then replaced his appointed attorney, and the district court allowed new
counsel to supplement the suppression motion. Aguilar’s amended motion to suppress
raised three arguments. First, he maintained that reliance on Braden’s cooperative
statement to law enforcement was not sufficient: “[T]he information provided by James
Braden, standing alone, did not provide cause to allow the stop of [Aguilar’s] vehicle”
because “there is no evidence that Braden had a previous track record with the officers.”
Within this argument, Aguilar inserts one sentence about the recorded phone calls, asserting
No. 09‐4157 Page 4
that in those calls “there is nothing but the corroboration of innocent travel plans” to visit a
dying relative in Indiana. Second, he disputed the police dog’s alert because the
government had not shown the dog’s reliability. Finally, Aguilar claimed that if the dog’s
alert was reliable, it still did not provide probable cause to search the car’s trunk. After the
government’s response, the district court denied the amended motion, adopting its earlier
reasoning.
Aguilar then entered a conditional guilty plea to one count of conspiracy to
distribute methamphetamine. He retained his right to appeal the decision on the motion to
suppress. Based on a criminal history category of VI and a total offense level of 34,
Aguilar’s guidelines range for imprisonment was 262 to 327 months. The district court
sentenced him to 262 months’ imprisonment, and Aguilar timely appealed.
On appeal Aguilar argues that a district court’s finding of probable cause must be
based on evidence, and the finding in this case was not. Since law enforcement did not
have a warrant to search Aguilar’s car, “the government must show by a preponderance of
the evidence that the search fell within one of the recognized exceptions to the warrant
requirement.” United States v. Zahursky,
580 F.3d 515, 521 (7th Cir. 2009) (citing United States
v. Basinski,
226 F.3d 829, 833 (7th Cir. 2000)). But the burden is on the defendant to show the
need for an evidentiary hearing, United States v. Rodriguez,
69 F.3d 136, 141 (7th Cir. 1995),
by disputing the facts at issue, United States v. Martin,
422 F.3d 597, 602 (7th Cir. 2005). A
dispute exists “only ‘when the allegations and moving papers are sufficiently definite,
specific, non‐conjectural and detailed enough to conclude that a substantial claim is
presented and that there are disputed issues of material fact which will affect the outcome
of the motion.’” United States v. McGaughy,
485 F.3d 965, 969 (7th Cir. 2007) (quoting United
States v. Villegas,
388 F.3d 317, 324 (7th Cir. 2004)).
Aguilar maintains that he disputed key factual issues below in both motions, and
thus, the government failed to establish probable cause because it did not offer evidence to
substantiate the factual assertions in its brief. But the record tells a different story: At no
time did Aguilar deny that his recorded phone calls with Braden described his planned
drug deal and that Braden later delivered cash to Aguilar. Indeed, Aguilar’s original
suppression motion did not even mention Braden. And when the government asserted in
its response to Aguilar’s motion that the parties agreed to the relevant facts, Aguilar did not
disagree in a reply. Martin,
422 F.3d at 603 (“when the State responded to his motion by
arguing that no evidentiary hearing was necessary because no material facts were in
dispute, Mr. Martin did not reply.”).
Aguilar’s first assertion of a fact dispute occurred at the suppression hearing itself,
but even then he did not specifically dispute the contents of the recordings or delivery of
cash. At the hearing, Aguilar’s counsel urged: “Mr. Aguilar does dispute some of the facts
No. 09‐4157 Page 5
that are alleged in the government’s response with respect to the circumstances of this
matter. We believe that the stop in question was initially without probable cause.” This
assertion alone, however, did not identify a specific, definite, detailed factual dispute about
the connection with Braden. See Villegas,
388 F.3d at 324. As the hearing continued,
Williams identified a specific dispute, but limited it to Aguilar’s driving speed and the
police dog’s reliability; she still never denied the existence or content of Aguilar’s recorded
telephone conversations with Braden, the information that Braden provided to the DEA, or
the cash delivery. To the contrary, she said that “even though there were telephone
conversations that were made before that, I don’t believe that that would give the police
officer who made the stop initially probable cause to stop the car for speeding.” Essentially,
she argued that even though the phone calls occurred, they were an insufficient basis for
probable cause. This is an argument about the legal insignificance of the admitted
communications, not a denial of them. Accordingly, Aguilar did not trigger the
government’s burden to produce evidence of the recorded communications.
Nor did Aguilar sufficiently dispute the asserted contents of the recordings between
Braden and Aguilar agreeing to a drug deal in his amended motion to suppress. In
referring to Braden, his amended motion principally attacked only the reliability of Braden’s
cooperative statement to the police, contending that because he had no proven “track
record,” his statement did not furnish probable cause. Buried within this challenge to
Braden’s reliability, Aguilar briefly mentioned, for the first time, the recorded phone calls,
asserting only that they described “innocent” travel plans. It is possible that, broadly
construed and taken in isolation, this sentence disputes that Braden and Aguilar discussed
over the phone a plan to deliver illegal drugs. But this one unelaborated sentence was too
vague and conclusory, to alert the government and the court to a genuine dispute about the
recorded calls, United States v. Randle,
966 F.2d 1209, 1212 (7th Cir. 1992). See United States v.
Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than
an assertion, does not preserve a claim.”).
The district court could have asked the government to play the tapes of the phone
conversations or put an officer on the stand to describe the cash delivery. But to require the
government to prove facts that a defendant has not adequately called into dispute would
needlessly divert attention away from genuinely disputed matters. Notably, even now
Aguilar does not deny the government’s description of a recorded plan for Aguilar to
deliver drugs or the observed cash delivery. See Martin,
422 F.3d at 603 (“Even now, after
Trooper Wood testified at trial, Mr. Martin does not say what else could have been
developed at an evidentiary hearing.”). Thus, Aguilar does not deny that, had there been
an evidentiary hearing, the government would have produced telephone conversations
depicting Aguilar’s plan to sell methamphetamine and testimony detailing the execution of
that plan with a cash delivery. Without that denial, or a denial that the recorded plan to
No. 09‐4157 Page 6
deliver drugs followed by a cash transaction creates probable cause, neither of which
Aguilar makes, the conviction is sound.
Although Aguilar did not establish a need for a hearing on the recorded
conversations, Aguilar arguably said enough in his motions to suppress to trigger the need
for an evidentiary hearing on whether he was speeding and the police dog’s reliability. But
Aguilar does not deny that the contents of recorded calls, as the government describes them,
and the cash delivery, furnish probable cause. Since Aguilar did not give the district court a
sufficient reason to dispute the government’s account of these facts, and he does not dispute
them now, we can uphold the warrantless search based on those recorded calls. Green v.
CSX Transp., Inc.,
414 F.3d 758, 765 (7th Cir. 2005) (“We may affirm the judgment based on
any ground found in the record.”).
Accordingly, we AFFIRM the judgment of the district court.
