United States v. Luis Contreras , 820 F.3d 255 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1279
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS CONTRERAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CR-346-2 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED OCTOBER 29, 2015 — DECIDED APRIL 19, 2016
____________________
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Law enforcement stumbled upon
the then- unknown Luis Contreras when the original target
of their narcotic sales investigation drove into Contreras’
garage and the two men conducted a drug transaction with-
in view of the police with Contreras’ garage door ajar. Con-
treras eventually pleaded guilty to narcotics distribution, but
reserved the right to challenge the denial of a motion to sup-
press the evidence found in a search of his house. We affirm.
2 No. 15-1279
I. 1
As part of a larger-scale drug trafficking investigation,
the Drug Enforcement Agency and the Chicago Police De-
partment (collectively, “officers”) teamed up to investigate
drug trafficking in Chicago. On November 9, 2010, officers
observed Alejandro Soto at the residence of one of the major
drug suppliers targeted in the investigation. They began
surveillance at Soto’s house the following morning, and be-
gan following him as he entered his car with two large gar-
bage bags in tow. After Soto discarded the bags in a nearby
dumpster, the officers recovered the bags and found that
they contained clear plastic tape, latex gloves, coffee grounds
and aluminum foil molded into a brick-shape the size of a
kilogram of cocaine. Based on their experience, the officers
believed these items were drug packaging materials (coffee
grounds are often included with drug packaging material to
mask the odor). A canine called to the scene alerted to the
presence of narcotics, and indeed, subsequent laboratory
testing revealed the presence of cocaine.
Officer Raphael Mitchem, another of the officers follow-
ing Soto, received word through radio transmissions that
Soto had discarded packaging consistent with multi-
kilogram quantities of narcotics. Armed with that infor-
mation, as well as the knowledge of Soto’s earlier rendez-
vous with the known drug supplier, Officer Mitchem and
the others continued their surveillance of Soto, following
1 The facts are taken primarily from the testimony presented at the sup-
pression hearing. (R. 89, pp. 1-57) (Tr. 4-26-12, 9:30 a.m.) (PageID 516-
572); (R. 90, pp.58-231) (Tr. 4-26-12, 1:00 p.m.) (PageID 573-746); (R. 91,
pp.1-36) (Tr. 5-3-12, 1:30 p.m.) (PageID 747-782). Below we will discuss
other versions of the facts that appear in the record.
No. 15-1279 3
him until he reached Contreras’ house on the northwest side
of Chicago. The officers had never heard of Contreras, nor
targeted him until that moment that Soto led the officers to
his house. Soto entered Contreras’ garage and the door
closed behind them.
Contreras lived on a cul-de-sac and therefore, in order to
avoid suspicion, the officers spread out and set up their sur-
veillance as follows: Officer Mitchem arrived shortly after
the garage door closed and parked across the street from the
house facing the garage, approximately fifty feet away with
a straight and unobstructed view of the garage. Officer Clark
Eichman was on foot in a small park thirty to forty yards
north of Contreras’ house with a clear view of the side of the
garage, and, at an angle, a bit of the garage door. See Gov’t
Br. App. GA002. He could not see into the garage, but could
see Mitchem. Officer Ruben Briones parked his vehicle out-
side the entrance of Contreras’ cul-de-sac where he could see
Contreras’ house. Other officers accompanied the ones
above, but they did not testify and their presence and actions
are not at issue.
After Soto had been in Contreras’ house for a short while,
the garage door opened. Officer Mitchem testified at the
suppression hearing that, using his binoculars, he had a very
clear view of what was happening inside the garage. He saw
Soto’s white van on the right side of the garage and what
would later be identified as Contreras’ silver Mercedes on
the left. He then saw the two men touch hands in what he
thought indicated the passing of money or drugs, although
he could not directly see either. Contreras leaned into the
front passenger side of his Mercedes and the rear hatchback
opened. Soto opened the rear of his van, reached in and re-
4 No. 15-1279
moved an orange shoebox with tape around the outside, but
not sealing it. As Soto started walking with the box toward
Contreras’ Mercedes, Officer Mitchem saw the box begin to
buckle, fall to the ground, and a rectangular, white object
wrapped in plastic fell out. Officer Mitchem testified that he
recognized the object as a kilogram of narcotics and there-
fore radioed the other officers about his observations.
Soto then picked up the box and walked to the rear com-
partment of his minivan. Soto turned his back to Officer
Mitchem, and when he turned back around, the orange box
and narcotics were gone, but he was carrying a tan plastic
bag and walking toward Contreras. The orange box with
narcotics was not visible in the back of the van, so Officer
Mitchem surmised that it was now in the tan bag. Officer
Mitchem conveyed this information over the radio and then
he heard an order to “go, go, go … ” meaning “go into the
garage for an arrest.” Officer Mitchem pulled his car straight
ahead and was the first officer into the garage. As he jumped
out of the car, he identified himself as a police officer and
drew his weapon. Soto immediately dropped the plastic bag
to the ground. Mitchem testified that he then heard a woman
scream and saw her run from the top of the short flight of
stairs leading from the garage to the house, back into the
house. He ordered the two men to the ground with the bag
of narcotics just behind them. Later, officers determined that
the shoebox contained five individually wrapped bricks of
cocaine. 2 As the other officers arrived, Mitchem yelled out a
warning that he had seen someone at the back of the garage.
2 All of the physical evidence in this case was missing at the time of the
suppression hearing and was still missing at the time of oral argument,
although photographs of the evidence were entered into evidence and
No. 15-1279 5
Officer Eichman arrived fifteen to twenty seconds behind
Officer Mitchem and handcuffed Contreras, noting the over-
stuffed Nike shoebox with suspected narcotics sticking out
of the box. Agent Briones also entered within seconds of the
call to move in. Once inside the garage, Agent Briones be-
lieved that he heard a rustling from inside the house, and
heard someone yell “door, door.” Consequently, almost im-
mediately he and the other officers kicked in the door con-
necting the garage to the house and performed a brief pro-
tective sweep lasting less than a minute. The officers testified
that they did not search any drawers, containers, or other
places for evidence or contraband, but merely looked for
people so that they could ensure the safety of the arresting
officers. Indeed they uncovered no evidence in the course of
the protective sweep.
The officers did discover another person in the house—
Contreras’ sister-in-law. After confirming that no one else
was in the house, they brought Contreras inside. 3 The offic-
ers read Contreras his Miranda rights in Spanish and English
and he signed a written consent to search in both languages.
Contreras expressed a willingness to cooperate with the of-
ficers, telling them that he had cooperated with law en-
forcement in the past. He then admitted that he had been
selling drugs with Soto for about one year and that Soto had
brought him the five kilograms of cocaine which he and Soto
were going to break down and store in a garage in Chicago.
can be viewed at R. 188 and in the appendices of both of the briefs in this
case. See Def. Br. App. 14, 40. Gov’t Br. App. pp. GA001-2.
3They also discovered Contreras’ two-year-old son sleeping in the car
and eventually turned him over to Contreras’ sister-in-law.
6 No. 15-1279
Contreras provided the officers with the combination to a
safe in his bedroom where the officers found $99,153 in cash,
two guns and ammunition just as Contreras had described
they would. He also told them where to find 2.5 kilograms of
cocaine in a closet. When the officers could only find two of
the kilograms, Contreras gave them additional instructions
to find the remaining half kilogram. In other words, he ap-
peared to have been fully cooperative and forthcoming at
the time of the search and seizure.
On September 6, 2011, Contreras filed a motion to sup-
press, claiming that the government obtained the evidence
in violation of his Fourth Amendment rights and sought to
suppress the seized evidence. Contreras asserted that the ini-
tial entry into the garage and the protective sweep were both
illegal and that Contreras’ consent to search the house was
not consensual as it was tainted by the illegal acts. The court
denied the motion to suppress on June 26, 2012, and subse-
quently, Contreras entered a conditional plea of guilty to
Count One of the indictment which charged him with con-
spiracy to knowingly and intentionally possess with intent
to distribute and to distribute 500 grams or more of cocaine
in violation of 21 U.S.C. § 846. Contreras reserved the right
to appeal the district court’s denial of his motion to sup-
press. On January 19, 2015, the district court sentenced Con-
treras to 148 months’ imprisonment. He appeals the denial
of the motion to suppress.
II.
A. The search of the garage.
Contreras urges this court to overturn the district court’s
finding that the entry and search of the garage was a reason-
No. 15-1279 7
able one. To do so, we would be required to overturn both
the district court’s legal finding, which we review de novo,
and its factual findings which we review for clear error only.
United States v. Borostowski, 775 F.3d 851, 863 (7th Cir. 2014).
Turning first to the legal argument, Contreras makes a
generalized Fourth Amendment argument about the right of
people to be secure in their homes. See U.S. Const. amend.
IV. It is true that in Fourth Amendment jurisprudence, the
home is sacrosanct. Contreras makes many arguments about
the curtilage of the house, but these are red herrings. This is
not a case about the curtilage of the house, nor even one
where officers knocking at a door peer through the opened
crack and see contraband in plain view. See, e.g., Hadley v.
Williams, 368 F.3d 747, 750 (7th Cir. 2004). In this case Con-
treras and Soto conducted their drug transaction in an at-
tached garage with the door wide open—in essence with one
whole wall of the house removed by their choice and dis-
playing their drug transaction in plain view. Officer
Mitchem did not need to step foot on Contreras’ property or
enter the curtilage to see what he saw in plain view. He
could see it from his car parked approximately fifty feet
away. (He did use binoculars to aid his view, but the use of
binoculars or lighting to improve the visibility of an object
already in plain view has long been held to be constitutional.
See Texas v. Brown, 460 U.S. 730, 740 (1983)).
Once Contreras entered the garage with its wide-open-to-
any-passer-by view, he no longer had an expectation of pri-
vacy. “What a person knowingly exposes to the public, even
in his own home or office, is not a subject of Fourth
Amendment protection.” Florida v. Riley, 488 U.S. 445, 449,
(1989) quoting Katz v. United States, 389 U.S. 347, 351 (1967).
8 No. 15-1279
Thus a defendant does not have an expectation of privacy
from a police helicopter flying over his greenhouse, even
when he has taken great pains to hide the greenhouse by en-
closing it on two sides, obscuring 80% of the roof, and hiding
it from view on the other sides with trees, shrubs, and his
nearby home. Riley, 488 U.S. at 448, 450-51. The police do not
violate the Fourth Amendment by viewing anything in plain
sight “from a public vantage point where they have a right
to be,” Id. at 449. And they may walk up to any part of pri-
vate property that is otherwise open to visitors or delivery
people. United States v. LePage, 477 F.3d 485, 488 (7th Cir.
2007). And, when they are legally in a place that they may
be, they may look through windows and doors and other
openings into homes and other places protected by the
Fourth Amendment. United States v. Dunn, 480 U.S. 294, 303-
04 (1987). Of course, then, they may also look into an open
garage from a vantage point on the public way.
We need not resolve whether an attached garage is a suf-
ficiently integral part of a house or its curtilage such that of-
ficers cannot enter without either a warrant or exigent cir-
cumstances—although it seems fairly certain that Contreras’
attached garage would be protected as part of his home, and
at least one of our unpublished decisions has suggested so.
See United States v. Craig, No. 93-1761, 1993 WL 498029, at *5
& n.3 (7th Cir. Dec. 2, 1993) (unpublished table decision) (po-
lice could not enter the garage without a warrant or exigent
circumstances), amended Dec. 3, 1993. See also, Siebert v. Sev-
erino, 256 F.3d 648, 654 (7th Cir. 2001) (people have a reason-
able expectation of privacy in a barn located in a fenced-in
area, within 60 feet of their home, with doors which were
frequently kept locked). But in this case, the defendant,
along with his former co-defendant, were engaged in a drug
No. 15-1279 9
transaction in a garage with the door wide open in plain
view of the public way. The police did not enter his property
without a warrant, consent, or exigent circumstances. In fact,
the police officers all remained at least 30-50 feet away until
they saw evidence of contraband and a crime. It was not un-
til they saw the contraband that they entered. If a police of-
ficer, through an open door, sees evidence of a crime, or a
person whom they have probable cause to believe has com-
mitted a crime and should be arrested, or contraband, and
“the police reasonably fear that before they can obtain a war-
rant the contraband or evidence will be destroyed or the
criminal flee the nest, the case becomes one of ‘exigent cir-
cumstances’ and the police can take steps to secure the evi-
dence or the person.” Hadley, 368 F.3d at 750. See also Coolidge
v. New Hampshire, 403 U.S. 443, 465-68 (1971). In this case, the
officers saw, in plain view, evidence of a crime in progress
and contraband. The officers were justified in taking steps to
secure the evidence and arrest the suspects.
In essence then, in this way the concept of plain view and
exigent circumstances merge. It is, in fact, what the officers
see in plain view that can trigger the exigent circumstances
that require them to act without a warrant. This was precise-
ly the case here.
The Supreme Court has articulated three requirements
for a warrantless seizure of incriminating evidence. First, the
officer may not have violated the Fourth Amendment in ar-
riving at the place from which the evidence could be plainly
viewed. Second, the item must have been in plain view, and
third, its incriminating character must also be immediately
apparent. Horton v. California, 496 U.S. 128, 136 (1990); United
States v. Curlin, 638 F.3d 562, 566 (7th Cir. 2011).
10 No. 15-1279
The officers here were on public property where they
were entitled to be and witnessed the drugs fall to the
ground in plain view. Based on their experience with drug
packaging, they testified, it was immediately apparent to
them that they were witnessing a drug transaction. Adding
to that knowledge, the police also knew that Soto had recent-
ly visited the home of a major drug supplier, had just dis-
carded drug packaging materials, and had just engaged in
what looked to be a hand-to-hand drug transaction with
Contreras. The police did not violate the Fourth Amend-
ment, therefore, by entering the garage after the drugs in
plain view gave rise to exigent circumstances. Consequently,
there is no reason to delve into the question of the level of
expectation of privacy a person has in her garage—and
whether it matters whether the garage was attached, not at-
tached and how far it may be from the house. In this case, of
course, the garage was attached to the house and one could
enter the house through an interior door just as readily as
one could cross between any other rooms in the house. But
in any event, none of that matters, for once Contreras re-
moved the fourth wall of his garage (by opening the garage
door), he had no reasonable expectation of privacy in any-
thing he displayed to the public through that open door.
This leads to Contreras’ main argument in which he
questions whether the police actually saw the drug contra-
band in plain view in the garage. But as the standard of re-
view dictates, we must accept the district court’s credibility
determination unless the facts, as testified to by the police
officers, were so unbelievable that no reasonable factfinder
could credit them. United States v. Pineda-Buenaventura,
622 F.3d 761, 774 (7th Cir. 2010), as amended on denial of reh'g
(Oct. 6, 2010). The court is fond of describing attacks on fac-
No. 15-1279 11
tual findings as uphill battles, and nowhere is this more true
than when it comes to credibility determinations. “The dis-
trict court is best situated to make credibility determinations
in light of the totality of the evidence, including the witness’s
statements and behavior, other witness statements, and cor-
roborating or contrary evidence.” United States v. Austin,
806 F.3d 425, 431 (7th Cir. 2015). A credibility determination
will be overturned only if credited testimony is internally
inconsistent, implausible, or contradicted by extrinsic evi-
dence. Blake v. United States, No. 15-1239, 2016 WL 762068, at
*3 (7th Cir. Feb. 26, 2016). As the defendant himself pointed
out, “unless the trial court has credited testimony that is con-
trary to the laws of nature or so internally inconsistent or
implausible on its fact[s] that no reasonable factfinder would
credit it, we defer to the trial court’s finding.” Pineda-
Buenaventura, 622 F.3d at 774. Where there are two permissi-
ble views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous. Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 574 (1985). On the other hand,
our decision is not a rubber stamp. “[S]imply affixing the la-
bel ‘credibility determination’ will not insulate a decision
from review, and the court must base a finding on evidence,
not mere speculation. Blake, 2016 WL 762068, at *3. This court
has carefully reviewed the transcripts and evidence before
the district court, and can find no reason to upset the factual
findings.
Contreras focuses on several discrepancies in the officers’
stories, but at the evidentiary hearing, the officers offered
explanations for the discrepancies and they were not so far-
fetched as to defy all plausibility. Officer Mitchem, the key
witness, testified that he saw the garage door open, that he
had a clear view from the street from which to see a hand-to-
12 No. 15-1279
hand transaction followed by Soto carrying and then drop-
ping an orange shoebox from which a package, that he rec-
ognized as typical of narcotics, fell to the ground. Officer
Eichman corroborated Mitchem’s testimony. He was listen-
ing in on the radio as Mitchem was reporting what he saw,
and heard that the garage door was opening as he saw it
happen from his vantage point on the side of the house. He
entered the garage just seconds after Mitchem and testified
that when he arrived, he saw Mitchem trying to detain Soto
and then saw the bag with the narcotics on the ground.
Agent Briones also heard Mitchem relay over the radio that
the garage door had opened and that there were two men
inside, and arrived within seconds to see just that. The pho-
tographic evidence also aligns with the testimony. Photo-
graphs taken at the scene show an orange shoebox with nar-
cotics as all three testifying officers described.
Contreras does not argue that there is no basis for the
district court’s factual findings, but instead states that Of-
ficer Mitchem’s testimony was not a credible basis for the
district court’s factual findings, that he was dishonest and
that it was “improbable to believe” and “implausible.” Def.
Br. pp.18-26. The district court had before it these same criti-
cisms of Mitchem and yet rejected the argument, finding,
“[t]o the extent that Contreras pointed to inconsistencies in
prior statements and testimony by Agent Mitchem, Agent
Mitchem adequately and credibly explained why he made
the prior statements and gave the prior testimony.” D. Ct.
Order p.3 (R. 85, p.3).
The defendant argues that the evidence is “manifestly
against such a ruling” Def. Br. p.18. and that “there is an
abundance of evidence that controverts the district court’s
No. 15-1279 13
finding that Officer Mitchem was entirely credible, that he
adequately explained his prior inconsistent statements and
testimony, and that his testimony was corroborated by the
other government witnesses.” Def. Reply Br. p.21. But none
of these attacks meets the standards set forth for overcoming
a credibility determination by a district court judge. Such a
determination cannot be disturbed on appeal “unless it is
completely without foundation.” United States v. Freeman,
691 F.3d 893, 900 (7th Cir. 2012). “Testimony is not incredible
as a matter of law … only because the witness may have
been impeached by certain discrepancies in [her] story, by
prior inconsistent statements, or by the existence of a motive
to provide evidence favorable to the government.” Id. at 900.
To find a witness’s testimony to be incredible as a matter of
law, it must have been “physically impossible for the wit-
ness to have observed that which he claims occurred, or im-
possible under the laws of nature for the occurrence to have
taken place at all.” United States v. Taylor, 701 F.3d 1166, 1174
(7th Cir. 2012). We stress that we do not take our review of
the inconsistencies lightly. As we noted before, we empha-
size that a trial judge cannot “insulate his findings from re-
view by denominating them credibility determinations, for
factors other than demeanor and inflection go into the deci-
sion whether or not to believe a witness.” Anderson, 470 U.S.
at 575. “But when a trial judge's finding is based on his deci-
sion to credit the testimony of one of two or more witnesses,
each of whom has told a coherent and facially plausible sto-
ry that is not contradicted by extrinsic evidence, that finding,
if not internally inconsistent, can virtually never be clear er-
ror.” Id.
Indeed Officer Mitchem’s statements and testimony were
not entirely consistent. On the night of the seizure, Officer
14 No. 15-1279
Mitchem filled out a complaint for a search warrant that
stated that when the garage door opened, “Soto was stand-
ing in the garage holding a large white shopping bag, with
another male, since identified as Luis Contreras. When offic-
ers approached, Soto immediately dropped the bag, and of-
ficers could see items inside the bag which, consistent with
their expertise and training, were multi-kilograms of narcot-
ics.” (R. 51-1, p.2) (pageID 109).
Seven hours later, Officer Mitchem drafted his supple-
mentary report in which he stated that he observed Soto
“engage in a hand to hand narcotics exchange with another
Hispanic male. Soto dropped a box to the ground and a large
white object, which was wrapped in clear plastic, fell out.
Soto picked the object up and placed it back into the shoe
box.” (R. 53-2, p.1) (pageID 122). Then about a month later,
Mitchem testified before the grand jury that Soto removed a
white bag from the back of the vehicle, and, as he walked
toward the Mercedes, the bag broke and fell to the ground,
revealing a shoebox from which two rectangles, wrapped in
clear plastic, fell out. Def. Br. App. pp.26-27.
On June 11, 2011, Officer Mitchem met with a DEA agent
and the assistant U.S. attorney to file a supplemental report
of the investigation. This report stated that Mitchen saw Soto
retrieve from the rear of his van, a Nike shoebox which gave
way revealing a one-kilogram sized package of presumptive
narcotics. Mitchem then saw Soto place the shoebox into a
plastic bag. (R. 53-3, p. 2) (pageID 125).
At the evidentiary hearing on April 26, 2012, Mitchem
testified that a minute or two after the garage opened, he ob-
served Soto grab an orange shoebox with grey tape on it
from inside the minivan. He then stated that “the box that
No. 15-1279 15
[Soto] was carrying gave way. It fell to the ground. When it
fell to the ground, I observed a rectangular-shaped object
wrapped in plastic with a white content fall out of the box.”
(R. 90, p.75) (pageID 590). Then, he continued, Soto picked
up the box, returned to the minivan, and placed the box and
its contents into a tan plastic bag. Id. at 75-76 (pageID 590-
91).
Although Contreras never specifically sets forth the exact
inconsistencies that he believes are so damning to Mitchem’s
credibility, we can surmise that he believes the changes from
the white bag to the tan bag and whether and if the shoebox
was in the bag when it dropped are significant. In order to
explore the inconsistencies, we simplify the various descrip-
tions in the statements and testimony as follows:
1. The search warrant: Soto was holding a large white shop-
ping bag which he dropped revealing items that looked like
narcotics;
2. The supplementary report: Soto dropped a box to the
ground and a large white object, which was wrapped in
clear plastic fell out. Soto picked the object up and placed it
back into the shoe box;
3. The grand jury testimony: Soto removed a white bag from
the back of the vehicle, and as he walked, the bag broke, re-
vealing a shoebox from which two rectangles, wrapped in
clear plastic, fell out;
4. DEA Report: Soto removed a Nike shoebox from the back
of his van, which gave way revealing a one-kilogram sized
package which Soto put into a plastic bag.
5. The evidentiary hearing: While Soto was carrying an or-
ange shoebox, the box gave way and fell to the ground re-
16 No. 15-1279
vealing a rectangular shaped object wrapped in plastic with
a white content, all of which Soto picked up and placed into
a tan plastic bag.
It is true that the details surrounding the container of the
narcotics vary slightly from iteration to iteration, but the dis-
trict court was entitled to conclude that the variations were
not significant nor even contradictory. The tan bag, for ex-
ample, appears to be a very light tan in the exhibits and
therefore easily confused for white. (See R. 188-4, 188-5, 188-
6) (PageID 2358-60). Officer Mitchem also explained that he
confused the tan bag found outside with a white bag con-
taining narcotics found inside the house. In some descrip-
tions the bag falls. In some the box falls. In some the descrip-
tion of the bag is omitted. Officer Mitchem gave his most
through explanation at the time of the evidentiary hearing.
He also then explained his prior inconsistencies by stating
that previously he may have confused the order in which
things happened, thinking that Soto first placed the box into
the bag before the drop, but then realizing that Soto placed
the contents into the bag after they dropped. Some descrip-
tions were merely incomplete rather than inconsistent. And
in any event, they were not so inconsistent as to require the
district court to conclude, as a matter of law, that Officer
Mitchem was not telling the truth at the evidentiary hearing.
Contreras also makes much ado about Officer Mitchem’s
testimony that the shoebox gave way and crumpled as it hit
the garage floor. Contreras argues that the tape wrapped
around the shoebox in the exhibits does not appear to be
stretched or torn in a manner consistent with the box giving
way. Instead, he notes, it was clearly cut by a sharp item like
a knife or razor blade. Indeed this appears to be supported
No. 15-1279 17
by the photographic evidence (R. 188-5) (pageID 2359). All of
the officers testified that they did not cut the shoebox open.
Contreras does not explain why he believes it was the offic-
ers rather than Soto or Contreras who cut the box open. In
fact, it seems just as plausible, or at least equally so, that
Contreras or Soto cut the tape so that the drugs could be in-
spected before the exchange. In the end, neither our specula-
tion nor Contreras’ matters, as the district court was entitled
to believe the testimony of the officers that they did not sev-
er the duct tape.
Contreras also points to other inconsistencies in his at-
tempt to deem the testimony inconsistent and improbable.
First, he points to discrepancies between what Mitchem
claims to have said on the radio and what other officers re-
called hearing. If, however, the district court judge was able
to believe that Mitchem saw narcotics in plain view and en-
tered the garage to preserve the evidence and arrest the sub-
jects before both were out of reach, then the testimony about
who said what and when over the radio is irrelevant. Once
Mitchem entered the garage on legitimate grounds, the other
police officers were entitled to follow suit as back-up wheth-
er they knew the reason for Mitchem’s entrance or not.
Moreover, our review of the testimony did not reveal any
material inconsistencies in the accounts of the radio trans-
missions. For example, Officer Mitchem claims that after he
described the drugs in plain view, he heard someone, other
than himself, on the radio, say “go, go, go.” (R. 90, p. 76)
(pageID 591). Officer Briones testified that he heard Officer
Mitchem say “move in.” (R. 90, p.200) (pageID 715). Eich-
man could not understand anything on the radio at all. (R.
90, p.173) (pageID 688). Police radio transmission can, in
fact, be garbled and difficult to attribute to particular speak-
18 No. 15-1279
ers. A district court could certainly find these facts to be im-
material, or even not contradictory at all.
Next Contreras expresses skepticism about why Officer
Mitchem only took a single photograph “of the objects giv-
ing rise to probable cause that could remotely corroborate
his story.” Def. Brief p.24. But this is factually untrue. As Of-
ficer Mitchem explained at the evidentiary hearing, he took
three pictures of the narcotics that formed the basis of the
search, in their various containers— two wider angle photo-
graphs of the bag with the shoebox inside and one close up
with the buckled and open shoebox visible. See also (R. 90,
pp.134-35) (pageID 649-50). Those three pictures appear in
the record at R. at 188-4, 188-5, 188-6. (pageID 2358-2360).
Finally, Contreras points to Officer Eichman’s testimony
about bumping into the back of the Mercedes as he turned
the corner into the garage. Contreras claims that if Eichman’s
testimony were true, he would have fallen into the trunk of
the car —a fact that he certainly would remember but about
which there was no testimony. But of course we have no in-
formation about how quickly Eichman was moving at the
moment he turned the corner into the garage and whether
physics would necessitate that he consequently fall into the
open hatch. This argument carries no weight and neither
adds to nor detracts from the veracity of Mitchem’s reasons
for entering the garage. Finally, Contreras argues that his sis-
ter-in-law was never in the garage as Mitchem claimed, a
controverted fact we discuss in more detail below.
In the end, there is nothing inherently implausible about
Officer Mitchem’s story as backed up by the other officers:
Soto and Contreras met to exchange money for drugs. The
drugs were in one car and needed to be transferred to the
No. 15-1279 19
other, but neither could open the rear hatchback without
first opening the garage. Once the garage door was opened,
Officer Mitchem had a clear view of Soto carrying the drugs,
which at some point dropped to the ground in a manner that
made them visible to Officer Mitchem. The story is not so
implausible, nor the reports and testimony so inconsistent,
that no reasonable factfinder could believe it. Anderson,
470 U.S. at 575.
It is true that cases in which defendants drop drugs in
plain view invite skepticism. Indeed, after the exclusionary
rule in Mapp v. Ohio, 367 U.S. 643 (1961), legal scholars start-
ed to notice an increase of “dropsy” cases in which police
began to testify that rather than recovering narcotics on the
defendant’s person, the defendant “dropped” the narcotics
to the ground in plain view. See United States v. Janis,
428 U.S. 433, 447, n.18 (1976) (citing scholarly articles on the
influx of “dropsy” cases following Mapp). Skepticism, how-
ever, “does not suffice to supersede the trial court's credibil-
ity determination.” Rice v. Collins, 546 U.S. 333, 342-43 (2006).
And in fact, the defendant had five kilograms (over eleven
pounds) of cocaine packed into a shoebox designed to hold
under one pound of athletic shoes. It is not beyond the laws
of nature to believe that the box buckled and fell to the
ground revealing drugs in plain view. In fact, in the photo-
graphs in the record, the box does appear to have buckled in
just this way. (R. 188-5, p.1) (PageID 2359).
The district court considered and rejected all of the ar-
guments regarding the factual inconsistencies finding that,
“[t]o the extent Contreras pointed to inconsistencies in prior
statements and testimony by Agent Mitchem, Agent
Mitchem adequately and credibly explained why he made
20 No. 15-1279
the prior statements and gave the prior testimony.” D. Ct.
Order, p.3. (R. 84 p.3). The district court’s reasoned credibil-
ity determination cannot be overturned by this court.
The district court did not err when it found that the of-
ficer’s initial entry into the garage was not an unreasonable
search and seizure under the Fourth Amendment.
B. The warrantless search of the residence.
1. The protective sweep.
Although we have determined that the entry into the
garage was lawful, Contreras also asks us to review the dis-
trict court’s determination that the search of the rest of the
house did not violate the Fourth Amendment. Contreras
signed a consent to search the house, but at the suppression
hearing claimed that his consent was coerced by the initial
entry and protective sweep of the house. The officers did not
uncover any evidence during that protective sweep, and so,
as the defendant concedes, the only relevance of the protec-
tive sweep is whether it affected the voluntariness of Contre-
ras’ consent. The district found that it did not, and we agree.
Neither the initial entry displaying force nor the protective
sweep was inherently coercive.
The Supreme Court has determined “that searches and
seizures inside a home without a warrant are presumptively
unreasonable.” Kentucky v. King, 563 U.S. 452, 459 (2011),
(quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006) and
Groh v. Ramirez, 540 U.S. 551, 559 (2004)). But because the
constitution prohibits only unreasonable searches and sei-
zures, the warrant requirement is subject to certain reasona-
ble exceptions. King, 563 U.S. at 459. Those exceptions in-
No. 15-1279 21
clude, among other things, exigent circumstances and pro-
tective sweeps. In the latter case, officers may take steps to
assure themselves that the house in which a
suspect is being, or has just been, arrested is
not harboring other persons who are danger-
ous and who could unexpectedly launch an at-
tack … [A]n in-home arrest puts the officer at
the disadvantage of being on his adversary's
“turf.” An ambush in a confined setting of un-
known configuration is more to be feared than
it is in open, more familiar surroundings.
Maryland v. Buie, 494 U.S. 325, 333 (1990). Therefore the offic-
ers could lawfully enter Contreras’ house for a protective
sweep if it was a “properly limited protective sweep in con-
junction with an in-home arrest when the searching officer
possesses a reasonable belief based on specific and articula-
ble facts that the area to be swept harbors an individual pos-
ing a danger to those on the arrest scene.” Id. at 337. But the
search is not unlimited—it may not include “a full search of
the premises, but may extend only to a cursory inspection of
those spaces where a person may be found. The sweep must
last no longer than is necessary to dispel the reasonable sus-
picion of danger and in any event no longer than it takes to
complete the arrest and depart the premises. Id. at 335-36.
Officer Mitchem testified that when he entered the gar-
age he saw “a woman standing in the rear of the garage on
top of the stairs that leads back into the house,” and that
when the other officer arrived, he yelled out “somebody is at
the back of the garage.” (R. 90, pp.77, 145) (pageId 592, 660).
Briones described entering the garage and immediately hear-
ing someone call out “door, door,” and also hearing rustling
22 No. 15-1279
from within the house. (R. 90, pp.201, 218) (pageID 716, 733).
Contreras’ sister-in-law testified that she never entered the
garage, but the district court judge credited the officer’s tes-
timony over hers. D. Ct. Order, p.3. (R. 85, p.3). Briones had
sufficient articulable facts to allow for a protective sweep.
And if he alone did not, under the collective knowledge doc-
trine, the court will attribute knowledge known to one of-
ficer to the others. United States v. Gary, 790 F.3d 704, 706 (7th
Cir. 2015).
Contreras cites a district court case for the premise that
an arrest in a garage does not automatically allow an officer
to make a protective sweep of the residence. United States v.
Barrera-Martinez, 274 F. Supp. 2d 950, 964 (N.D. Ill. 2003). But
in addition to having no binding precedent on this court, in
Barrera-Martinez, the arrest took place in a garage outside of
an apartment building where the suspect’s residence was
inside another building and two floors away. Id. These facts
are far different. The garage here was attached internally to
the house. Access to the house from the garage and vice ver-
sa was as easy as opening a door, and in this way no differ-
ent than access between a bedroom and a hallway inside the
house proper. Having heard the presence of another person,
the police were entitled to sweep the house for their own
protection.
The protective sweep lasted less than a minute. The offic-
ers did not search any drawers, containers, or other places
for evidence, but merely looked for people so that they could
ensure officer safety. They found only Contreras’ sister-in-
law in the house. The sweep itself was well within the
bounds of the Fourth Amendment. In this way the case upon
which Contreras relies, Robles-Ortega, 348 F.3d 679, 680 (7th
No. 15-1279 23
Cir. 2003), is readily distinguishable as the police forcefully
and illegally entered the apartment before asking the de-
fendants to sign a consent form. The district court found,
and we concur, that neither the entry into the garage nor the
protective sweep were illegal.
Contreras complains that the district court failed to con-
sider whether the officers’ initial warrantless entry into his
house violated the Fourth Amendment. The district court
did, however, declare that “Contreras has not shown that the
written consent was obtained by coercion or any unlawful
means, nor that it was the product of an illegal search.”
D. Ct. Order at 7. (R. 85, p.7). And after all, even had the pro-
tective sweep been illegal, if it did not coerce Contreras into
signing a consent form, then it would have created no harm
to him, as the officers did not uncover any contraband dur-
ing the protective sweep. Nevertheless, as we have just
demonstrated, the search was not illegal. Nor did it coerce
Contreras to sign a consent form—as we conclude in the fol-
lowing section below.
2. Voluntariness of the confession.
The voluntariness of a consent to search is a factual de-
termination that this court reviews for clear error. Ohio v.
Robinette, 519 U.S. 33, 40 (1996). Once again, we defer to the
credibility findings of the district court. United States v.
Groves, 530 F.3d 506, 513 (7th Cir. 2008). The government
bears the burden of demonstrating by a preponderance of
the evidence that consent to search was in fact voluntarily
given, and not the result of duress or coercion, express or
implied. The Government bears the burden of proving that
consent freely and voluntarily was given. United States v.
Johnson, 495 F.3d 536, 541 (7th Cir. 2007). To determine
24 No. 15-1279
whether a defendant voluntarily consented, a district court
should consider “the totality of the circumstances, including
[the defendant’s] age, education and intelligence; whether he
was advised of his constitutional rights; how long he was
detained prior to consent; whether he consented immediate-
ly or after police made several requests; whether the police
used physical coercion; and whether he was in custody.”
United States v. Ruiz, 785 F.3d 1134, 1146 (7th Cir. 2015).
The district court noted that the officers advised Contre-
ras of his constitutional rights, that Contreras immediately
offered to cooperate with the officers, that his handcuffs
were removed and he signed a consent form. D. Ct. Order,
p.6 (R. 85, p.6). Although the district court’s analysis is brief,
we also note that Contreras was close to forty years old at
the time and speaks and understands both English and
Spanish. Contreras was detained only a short time and con-
sented immediately after the initial request. He also stated
that he had the experience of cooperating with the police in
the past and thus we can surmise that he understood the na-
ture of consenting to a search and the ability to assess the
benefits of cooperating as opposed to remaining silent.
(R. 90, p.79) (pageID 594).
Contreras signed two consent forms—one in English and
one in Spanish. 4 The consent form stated, “I have not been
threatened, nor forced in any way. I freely consent to this
search.” (R. 51-3) (pageID 112). He spoke freely with the of-
ficers, described his drug dealings with Soto, and directed
4 The Spanish language consent form contained the wrong address, but
Contreras has never, in either the district court or in this court, raised
that as an issue affecting the voluntariness of his consent.
No. 15-1279 25
the officers where to successfully find the narcotics, drug
proceeds and firearms, including directions on how to open
the safe. The evidence more than adequately supports the
district court’s finding of fact that Contreras’ consent to
search was voluntary.
Contreras argues that the forcefulness of the entry into
the garage in combination with the protective sweep vitiated
Contreras’ ability to freely consent to a search of the house.
In United States v. Taylor, 31 F.3d 459, 463-64 (7th Cir. 1994),
we rejected just such an argument explaining,
The record shows that the initial melee of
agents, badges and weapons, necessary to pro-
tect the safety of the agents and the confiden-
tial informant, dissipated only seconds after it
had begun and that all was routine once the
premises had been secured. Though certainly
unpleasant, there is nothing so inherently coer-
cive about such tactics, commonly used where
a danger to life or limb is perceived by law en-
forcement agents, to render subsequent coop-
eration involuntary.
Id. In short, an initial display of force is not inherently coer-
cive. See, e.g., United States v. LaGrone, 43 F.3d 332, 333-34
(7th Cir.1994) (nineteen-year-old voluntarily consented to
search even after officers wearing raid masks entered the
store with weapons drawn, held the defendant in custody
for fifteen minutes prior to obtaining consent, and asked
more than once whether the defendant would consent to a
search of the store); United States v. Kozinski, 16 F.3d 795, 810
(7th Cir. 1994) (consent deemed voluntary where agents en-
tered the defendant’s home with an arrest warrant, one of
26 No. 15-1279
the agents held a gun to the defendant’s side for the first few
minutes of the arrest, and the agent then holstered her gun
after the defendant was handcuffed but before he provided
written consent); United States v. Rojas, 783 F.2d 105, 107–10
(7th Cir. 1986) (consent deemed voluntary where seven of-
ficers came to the defendant’s apartment to arrest him, dis-
played their weapons upon arrival, took the defendant into
custody, handcuffed him, and then sequestered him in a
small bathroom before requesting his consent); United States
v. Kimoana, 383 F.3d 1215, 1226 (10th Cir. 2004) (“the actions
of the officers in sweeping the room with guns drawn and
patting down the occupants” although intimidating did not
vitiate consent when the officers had holstered their weap-
ons and the atmosphere was calm at the time the consent
was given).
Although the officers approached the house quickly and
forcefully, the heat of the situation de-escalated quickly. The
defendant, immediately, upon his arrest stated that he want-
ed to cooperate. (R. 90, p. 79) (pageID 594). Within a minute
or two of entering the garage and handcuffing the men, the
officers helped the men up and brought them to the rear of
Officer Mitchem’s van while the remaining officers finished
the protective sweep. (R. 90, p.79-80) (pageID 594-95). And
then just a few minutes later, officers brought Contreras into
the house, removed his handcuffs and allowed him to sit in
the dining area while they asked him some questions. (R. 90,
pp.94, 204) (pageID 609, 719). The initial show of force dissi-
pated quickly and completely.
The district court did not err by finding, based on these
facts, that Contreras’ consent was voluntarily given. We
therefore conclude that neither the entry to the garage nor
No. 15-1279 27
the protective sweep of the house were illegal and Contre-
ras’s consent to search was freely given. Consequently, the
ruling of the district court is AFFIRMED.