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United States v. Cherry

United States Court of Appeals, Seventh Circuit

April 8, 2019

United States of America, Plaintiff-Appellee,
v.
Deandre Cherry, Defendant-Appellant.

          Argued December 5, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:12-cr-00415-l - Ronald A. Guzman, Judge.

          Before Flaum, Rovner, and Scudder, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         Deandre Cherry's heroin customers had been complaining about the poor quality of his supply, so on a rainy night in May 2012, he drove into a parking lot in Markham, Illinois hoping to exchange his inventory of low-quality heroin for a better supply of cocaine that his supplier had just picked up at O'Hare airport. Unbeknownst to Cherry, however, his supplier had just been arrested picking up the cocaine and, since his hopes were for a better deal for himself, decided to cooperate and help the Drug Enforcement Agency (DEA) agents ensnare another dealer down the line. Instead of the exchange, Cherry was arrested mid-deal and eventually sentenced to 240 months' imprisonment. Cherry appeals, claiming the agents lacked probable cause to arrest him and search his vehicle. He also claims they failed to preserve exculpatory evidence. We affirm the holding of the district court in all respects.

         I.

         In the course of an investigation into cocaine importation from Mexico to Chicago, DEA agents arrested a man who was attempting to take possession of twenty-six kilograms of cocaine near Chicago's O'Hare airport. During an interview after that arrest, the man told Drug Enforcement Agency (DEA) agents that he was scheduled to deliver thirteen kilograms of cocaine to a man he called "Mo" that night. "Mo" was later identified as Cherry. According to the arrested man, Cherry was a high-ranking member of the Black P Stone street gang in Chicago who distributed many kilograms of cocaine each month. The arrested man agreed to become a confidential informant for the DEA and help the agents execute a sting operation.

         The confidential informant told the agents that, through prior conversations, he and Cherry had agreed that the informant would drive the cocaine to a residence in Harvey, Illinois, that Cherry would meet him there, take custody of the cocaine, and then a few hours later another member of Cherry's organization would pay the informant for the cocaine. The confidential informant provided agents with Cherry's cell phone number and a physical description: an average height black man, weighing about 200 pounds, and driving a white Mercedes SUV.

         The agents formulated a plan for a sting operation in which the confidential informant would drive his own car to meet Cherry with sham cocaine concealed in the car's drug-hiding trap compartment. Under the plan, the informant would signal the agents by stepping out of the car once he and Cherry had engaged in a conversation about the exchange of the cocaine. For their own safety, the agents had the confidential informant change the meeting spot to a parking lot further away from gang activity. They then outfitted the informant with hidden audio and video recording equipment, and searched and inventoried the informant's vehicle (as is the protocol for such operations).

         At around 7:50 p.m. on May 31, 2012, the confidential informant placed a recorded call to Cherry. The informant told Cherry that he was approximately ten minutes away from the agreed upon meeting place in Harvey, and Cherry responded that he would meet him there. A few minutes later the confidential informant, under direction of the agents, called Cherry and changed the rendezvous spot to a parking lot in nearby Markham, Illinois. Shortly thereafter, a 2012 white Mercedes SUV (later determined to be registered to Cherry) entered the nearly empty parking lot, circled the lot, and then parked next to the confidential informant.[1]

         In a conversation that was recorded, but not monitored in real time by agents, the confidential informant told Cherry that "it" (meaning the thirteen kilograms of cocaine) was in the "spot"-the hidden compartment in the back of the car. Once Cherry responded affirmatively that he wanted to see the drugs, the informant opened the compartment and then exited the car-the pre-arranged signal to law enforcement. Cherry did not handle nor take physical possession of the drugs.

         The district court credited the testimony of the DEA agents at the scene who testified that as they approached the car and Cherry saw them, he dashed the short distance between the informant's car and his SUV, opened the front door of the SUV, and attempted to get in. One agent testified that Cherry opened the door and "tried to get into the vehicle as we jumped on him so- ... [h]e had his hand and his arm got into it, but we pulled him back out." Tr. 11/27/12 at 77 (R. 58).

         As one agent subdued Cherry and placed him under arrest, a second agent quickly looked into the Mercedes to make sure no one else was hiding in the vehicle. A third agent went through the motions of arresting the confidential informant to protect him as an informant, and after doing so returned to the Mercedes where, along with two other agents, he saw, through the open door, a black messenger-type satchel with the flap open and clear plastic bags containing what looked to be heroin or cocaine. Cherry testified at the suppression hearing that the drugs were not, in fact, in plain sight, but that they were in a black plastic bag contained within the closed and locked satchel, and the cash was also concealed in a black plastic bag stuffed under the driver's seat. Later testing confirmed that the satchel held baggies containing 348.1 grams of heroin and 13.7 grams of cocaine base (crack). Agents also found $19, 495 in cash in the SUV. Eventually Chicago Police Officer and DEA task force officer Jose Castaneda photographed the car and the satchel, taking photographs of the satchel both open and closed, the cash, and other items in the car. All of the photographs had the same time stamp-8:48 p.m. Officer Castanada testified that he could not recall the order in which he took the photographs and could not say whether the satchel was open or closed when Cherry was arrested.[2]

         After agents read Cherry his Miranda rights, Cherry agreed to talk to one of the agents and told him that three weeks earlier the confidential informant, who he knew as "Fat Man" fronted him half of a kilogram of heroin for $31, 500, but the heroin was not of good quality and his customers were complaining. On the night he was arrested, Cherry was bringing approximately 300 grams of heroin back to the confidential informant to exchange for an equivalent amount of cocaine. The government charged Cherry with possession with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1).

         Cherry filed two motions to suppress the evidence before trial. In the first motion he claimed that the agents lacked probable cause to arrest him. In the second motion he argued that the agents had no authority to search his bag within the vehicle as the drugs were not in plain view. Following a November 27, 2012 suppression hearing in which the court heard from Cherry and from four DEA agents, the district court found that the agents had probable cause to arrest Cherry and that the subsequent search of the vehicle was lawful as the drugs were in plain sight. In the alternative, the district court held that the narcotics inevitably would have been discovered after Cherry's arrest, subsequent to an inventory search of his vehicle.

         Cherry twice moved to reconsider the district court decision, arguing, on September 8, 2014, that a new Seventh Circuit decision indicated that a court must have more corroboration from an informant's tip and that an enhanced version of the recording from the confidential informant's body camera did not support an agreement by Cherry to accept the cocaine. The district court rejected both arguments.

         Almost two years after the suppression hearing, on September 8, 2014, Cherry filed another motion-this time seeking to inspect the camera used to photograph the satchel and the metadata associated with the photographs in order to determine in what order the photographs were taken. Because Castaneda took all of the photographs of the satchel, both open and closed, within the same minute (and the time stamp did not reveal seconds), the court and parties could not determine in what order the agent took the photographs. Cherry's counsel argued that the data sought would reveal the order in which the pictures were taken, and thus would uncover the truth about whether the drugs had been in plain sight in an open bag, or not visible in a closed bag when the agents arrived at the vehicle. After a search, however, the government determined that neither the camera nor any metadata was available because Agent Castaneda took the photographs with a personal camera which he subsequently sold at a yard sale in the summer of 2013. Cherry filed a renewed motion to reconsider, arguing that because the government failed to retain the metadata from the camera, the court should be precluded from relying on the photographs in making its probable cause determination. After the trial, Cherry also filed a motion to dismiss the indictment on the basis of an alleged Brady violation-that is, that the government failed to preserve the exculpatory evidence of the photographic metadata from the camera. The district court rejected this argument as well, noting that Cherry had failed to demonstrate any bad faith on the government's part, that the court had already found that the heroin was in plain view, and inevitably the drugs would have been discovered during an inventory search.

         The case proceeded to trial where the jury convicted Cherry of the single count of the superseding indictment. After trial, Cherry filed another motion in which he repeated his pre-trial arguments. The district court found no reason to alter its rulings. Cherry was sentenced to 240 months' imprisonment, and now appeals. In this court he again argues that his arrest was not supported by probable cause and that the district court erred by refusing to suppress the evidence obtained during the warrantless search of his vehicle. He also argues that the district court erred by determining that the government did not violate Brady v. Maryland, 373 U.S. 83 (1963) when it failed to preserve the potentially exculpatory metadata associated with the photographs of the evidence.

         II.

         1. Probable ...


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