United States of America v. Martin Velazquez

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1647
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTIN VELAZQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:16-cr-00537-1 — Elaine E. Bucklo, Judge.
ARGUED SEPTEMBER 12, 2018 — DECIDED OCTOBER 9, 2018
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
ROVNER, Circuit Judge. Martin Velazquez was arrested after
agreeing to sell twelve kilograms of cocaine to an undercover
agent. He conditionally pled guilty to one count of possession
with intent to distribute a controlled substance. He retained his
right to appeal the district court’s denial of his motion to

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2 No. 18-1647
suppress the fruits of a warrantless search for the key evidence
against him. That evidence was contained in a suitcase that he
had placed in the bed of a pickup truck parked in the driveway
of his home. We conclude that the search was supported by the
officers’ good faith reliance on then-existing circuit precedent,
and we affirm the conviction on that basis.
I.
In August 2016, a confidential informant told a law enforce-
ment official that a person named “Rafa” was a large-scale
drug dealer in the Chicago area. The informant arranged for an
undercover officer posing as a drug buyer to contact Rafa. In
a series of recorded calls and text messages, the undercover
officer agreed to meet Rafa in the parking lot of a Hobby Lobby
craft store in Elgin, Illinois to discuss the purchase of twelve
kilograms of cocaine. Rafa did not show up at the store,
however, instead sending Velazquez to act as his intermediary.
On August 22, 2016, Velazquez met twice with the undercover
agent, first in the Hobby Lobby parking lot and then at a Super
8 motel parking lot that is also in Elgin. Over the course of
those two meetings, Velazquez agreed to provide twelve
kilograms of cocaine for $33,000 per kilogram. At the second
meeting, Velazquez and the undercover officer agreed to
conduct the transaction in a room at the Super 8 motel. After
some confusion about whether the entire twelve kilogram
quantity would be provided in a single transaction, Velazquez
called a man in Mexico and handed the phone over to the
undercover agent to discuss the matter. The man in Mexico
agreed to sell the entire quantity at one time, and Velazquez
then told the undercover agent that he would retrieve the
cocaine from Hanover Park and return in ten or fifteen minutes

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No. 18-1647 3
with a suitcase containing the drugs. He asked the undercover
agent to text him the hotel room number for the exchange.
The agent conveyed all of this to his fellow officers who
were providing surveillance, including the detail that
Velazquez intended to carry the cocaine in a suitcase. But
Velazquez did not go to Hanover Park. The surveillance
officers instead followed him to his home in Streamwood.
Streamwood is a Chicago suburb that sits between Elgin and
Hanover Park. Velazquez backed his truck into the driveway
of his home, close to the door of the attached garage. He
opened the garage door and entered the house through a
regular door inside the garage, lowering the garage door
behind him. Approximately a half hour later, Velazquez
emerged from the house through the garage with a suitcase. As
the garage door went up and the light came on, a passing
surveillance officer saw Velazquez lift a weighty suitcase onto
the bed of the truck. Twelve kilograms translates to approxi-
mately twenty-six pounds, not including the weight of the
suitcase or packaging materials. Believing that they now had
probable cause to arrest, the officers converged on the scene
and took Velazquez into custody near the entrance to the
garage.
The officers had brought along a dog trained to detect the
odor of controlled substances. Within a few minutes of the
arrest and handcuffing of Velazquez, an officer led the dog
around the truck to conduct a sniff. The dog quickly alerted to
the odor of narcotics at the back of the truck where Velazquez
had placed the suitcase. The officers then opened the suitcase
and found twelve packages of cocaine weighing 11.9 kilograms
in total.

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Velazquez moved to suppress all physical evidence seized
on August 22, 2016 as well as the statements that he subse-
quently made. He noted that he was arrested on his property,
in the threshold of his attached garage. The truck bed, he
asserted, was backed up to the garage and at least fifteen feet
from the public sidewalk, and the suitcase was closed. The
officers had no warrant, he contended, and yet they brought
the dog onto his private property to conduct the sniff of the
truck that was within the curtilage of his home without his
consent and without any lawful authority to do so. He argued
that such a search violated the Fourth Amendment under
Florida v. Jardines, 569 U.S. 1 (2013).
The government countered that the law enforcement
officers had probable cause to arrest Velazquez, that they were
justified in effectuating the warrantless arrest at the entrance to
his garage, and that the search of the truck and suitcase was
lawful either under the automobile exception to the warrant
requirement or as a search incident to a lawful arrest. In reply,
Velazquez contended that the arrest at the threshold of his
attached garage violated the principle of Payton v. New York,
445 U.S. 573, 590 (1980), because there were no exigent circum-
stances justifying the intrusion into his home to make a
warrantless arrest. No crime was committed in plain view of
the officers, he asserted, because the incriminating nature of
the suitcase was not immediately apparent. Again invoking
Jardines, Velazquez argued that the police were not entitled to
conduct a search of the curtilage of his home, that they had no
right to bring the drug-sniffing dog onto his driveway, and
that, absent exigent circumstances, the automobile exception to
the warrant requirement did not apply to a car parked on a

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No. 18-1647 5
residential driveway. For the last proposition, he relied on a
Fifth Circuit case, United States v, Beene, 818 F.3d 157, 164 (5th
Cir. 2016).1 He also argued generally that the officers lacked
probable cause to believe that the truck contained evidence of
a crime, and that the intrusion into the truck was not a valid
search incident to arrest because, once he was handcuffed, the
truck bed and the suitcase were not within his immediate
control.
The district court held a hearing to determine what the
officers saw before they arrested Velazquez and searched the
truck. The government presented evidence that one of the
surveillance officers saw Velazquez lifting the suitcase onto the
truck bed using his knee to support the weight of the suitcase.
Velazquez disputed that account, contending that he did not
use his knee to lift the suitcase and that it was too dark for the
officer to have seen this maneuver, especially because the view
was obscured by another car parked in the driveway. The
visible weightiness of the suitcase was important to show that
the officers reasonably believed that it contained the promised
cocaine and was not simply an empty suitcase. Velazquez had
told the undercover agent that he was retrieving the drugs in
Hanover Park, and that he did not store them at his home
because his wife and daughter were there. He asserted that the
officers could not have seen the heaviness of the suitcase and,
because of the change in location from Hanover Park to
1 In Beene, the Fifth Circuit upheld the warrantless use of a dog sniff on an
open driveway under the open fields doctrine, but concluded that the
automobile exception did not apply to a vehicle parked on private property
in the absence of exigent circumstances.

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6 No. 18-1647
Streamwood, could not have reasonably believed that the
suitcase contained the cocaine. At the conclusion of the
hearing, the district court found that the officer saw Velazquez
lift a weighty suitcase onto the truck bed. The court also found
that, in light of the circumstances leading up to that moment,
the loading of the heavy suitcase gave the officers probable
cause to arrest Velazquez. The court then held that, “[w]ith
that, under the law, the vehicle exception applies.” R. 49, at
272. See United States v. Hines, 449 F.3d 808, 814–15 (7th Cir.
2006). In the alternative, the court found that because the
officers had probable cause to arrest Velazquez, the contents of
the suitcase would have been inevitably discovered and would
be admissible on that basis as well. Velazquez appeals from the
denial of his motion to suppress.
II.
When considering a district court’s denial of a motion to
suppress, we review findings of fact for clear error and
questions of law de novo. United States v. Borostowski, 775 F.3d
851, 863 (7th Cir. 2014). In his opening brief on appeal,
Velazquez contended that this court should overturn its
decision in United States v. Hines, 449 F.3d 808 (7th Cir. 2006),
and find that the automobile exception to the warrant require-
ment does not apply to vehicles parked on a defendant’s
private property. He noted that, as of the filing of his brief, this
issue was pending on the Supreme Court’s docket in a case
that had been argued but not yet decided. He encouraged this
court to defer ruling until the Supreme Court issued its
opinion. He also asserted that the government failed to
develop a record that would satisfy its burden under the
inevitable discovery doctrine. Finally, he argued that the search

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No. 18-1647 7
of the truck could not be supported as a valid search incident
to arrest. The government countered that the search was
justified (1) by good-faith reliance on then-existing circuit
precedent; (2) under the exigent-circumstances exception to the
warrant requirement; or (3) under the principles of inevitable
discovery.2
We begin with Hines, which controlled at the time of the
search here. In that case, the defendant was on supervised
release and was not allowed to leave the country without prior
permission. Late in 2003, customs officials notified the proba-
tion office that Hines had crossed the border from Canada into
New York the previous day. Hines had used a fake Ohio
driver’s license (bearing a false name) in making the crossing
and was traveling in a dark blue van with Illinois license
plates. 449 F.3d at 810. The probation office notified the FBI,
which began to surveil Hines’s two residences in Peoria,
Illinois.
On the third day of surveillance, two agents arrived outside
one of the residences and found the house dark and the
driveway empty. The agents left for a short time and returned
to find a dark blue Chevrolet Suburban with Illinois license
plates in the driveway. The side doors of the vehicle were ajar,
and it was backed into the driveway adjacent to the residence,
giving the impression that it was being unloaded. Seeing no
one outside, the agents approached the house and told Hines’s
wife that they had a warrant for her husband’s arrest. When
2 Because we rest our decision on good-faith reliance on circuit precedent,
we will not address the government’s alternate arguments except to note
that both theories suffer significant weaknesses on this record.

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8 No. 18-1647
she denied knowing her husband’s whereabouts, they searched
the house. A set of car keys on a bunk bed beneath an attic
hatch-door led them to believe that Hines was hiding in the
attic. When they announced that they would bring in a dog,
Hines emerged from the attic. After officers arrested and
handcuffed him, they searched the home on the basis of a
warrant issued for the violation of the terms of supervised
release. 449 F.3d at 810–11.
The agents then walked Hines out of the home past the blue
van and secured him in the backseat of a police car. As he was
walking past the van, one of the agents shined a light into the
driver’s side window and saw what appeared to be a hatchet
on the floor. After Hines refused a request for consent to search
the van, the agent sought advice from an Assistant United
States Attorney. The AUSA advised the agent to impound the
vehicle, inventory its contents and then obtain a warrant for a
more thorough search. When Hines learned of this plan, he
consented to the search so that his wife would be able to retain
the vehicle. The search turned up the fake driver’s license and
a few other items that subsequently led to evidence of bank
fraud. 449 F.3d at 811.
In the prosecution for bank fraud, Hines moved to suppress
the evidence recovered from the blue van, including the fake
driver’s license and the evidence obtained as a result of finding
that license. The district court upheld the search of the van as
a valid search incident to arrest. On appeal, we remarked that
we did not need to consider whether the search of the van
could be justified as a search incident to arrest or whether
Hines’s consent was voluntarily provided. Instead, we held
that the search was supported by probable cause and was

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No. 18-1647 9
justified under the automobile exception to the warrant
requirement. We noted that the agents had probable cause to
believe that the van contained evidence of the fake driver’s
license because the agents did not find it on Hines’s person or
in the search of the house even though Hines had very recently
arrived home. Under the circumstances, we found that
reasonable officers could conclude that the van contained
evidence of Hines’s unlawful trip out of the country. We noted
that, under the automobile exception to the warrant require-
ment, a search could be conducted so long as there was
probable cause to believe that vehicle contained contraband or
evidence of a crime. We thus upheld the warrantless search of
the van that was parked on Hines’s driveway and pulled up
close to his home solely on the basis of the automobile excep-
tion. Hines, 449 F.3d at 814–15.
Although Hines was the law of this circuit at the time the
officers searched Velazquez’s truck, before the government
filed its appellate response brief, the Supreme Court issued its
decision in Collins v. Virginia, 138 S. Ct. 1663 (2018), calling the
continued validity of Hines into question. In Collins, the
question posed was “whether the automobile exception
justifies the invasion of the curtilage.” 138 S. Ct. at 1671. The
Court responded, “The answer is no.” Id. Police officers in
Collins were searching for the driver of an extended-frame
motorcycle who had twice evaded them after committing
traffic infractions. The officers received information leading
them to believe that the motorcycle was stolen and that Collins
was in possession of it. An officer then went to Collins’s home
and saw from the street an object at the top of the driveway
that appeared to be a motorcycle with an extended frame

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10 No. 18-1647
covered by a tarp. The officer walked onto the driveway,
pulled off the tarp, and discovered that it was a motorcycle
resembling the one involved in the traffic infractions. The
officer ran a search of the motorcycle’s license plate and vehicle
identification number and confirmed that it was the one that
the police had been seeking. When Collins returned home, he
admitted to the officer that the cycle was his and that he had
purchased it without title. The officer then arrested Collins. 138
S. Ct. at 1668–69.
Collins moved to suppress the evidence that the officer
obtained as a result of the search on the driveway, arguing that
the officer trespassed onto his home’s curtilage to conduct a
warrantless search. The Virginia Supreme Court upheld the
search on the basis of the automobile exception to the warrant
requirement. The U.S. Supreme Court took up the case to
decide whether the automobile exception should apply when
the vehicle in question is parked on the curtilage of the defen-
dant’s home. The motorcycle was parked in an area of the
driveway that the Court described as an “enclosure” that was
surrounded on two sides by low brick walls and on the third
side by the home itself. The Court concluded that the enclosure
was an area adjacent to the home and to which home life
extended and so it was curtilage. The Court then considered
the interaction between the Fourth Amendment protections
provided to the curtilage of a home and the automobile
exception to the warrant requirement:
Just as an officer must have a lawful right of access
to any contraband he discovers in plain view in
order to seize it without a warrant, and just as an
officer must have a lawful right of access in order to

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No. 18-1647 11
arrest a person in his home, so, too, an officer must
have a lawful right of access to a vehicle in order to
search it pursuant to the automobile exception. The
automobile exception does not afford the necessary
lawful right of access to search a vehicle parked
within a home or its curtilage because it does not
justify an intrusion on a person’s separate and
substantial Fourth Amendment interest in his home
and curtilage.
Collins, 138 S. Ct. at 1672. The Court ultimately held that, “the
automobile exception does not permit an officer without a
warrant to enter a home or its curtilage in order to search a
vehicle therein.” 138 S. Ct. at 1675. Although Hines did not
specifically address whether the vehicle was parked on the
home’s curtilage, given the placement of the car in Hines so
close to the home itself, Collins calls the continued validity of
Hines into question.
The district court here did not assess whether the area of
the driveway where Velazquez’s truck was parked was within
his home’s curtilage and we decline to decide the issue in the
first instance. From photographs of the property provided by
Velazquez, it appears that a person wishing to approach the
front door of the home must walk either through the front
lawn or up the short driveway to the threshold of the garage
door in order to access a sidewalk to the front door. R. 36-1. It
also appears that the garage itself is fully integrated into the
house, with living space above the garage, behind it and
immediately to the left. The part of the driveway that sits
between the garage door and the public sidewalk appears wide
enough for two vehicles to be parked side by side, but not long

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12 No. 18-1647
enough for one vehicle to be parked behind another without
impinging on the sidewalk. Although the view of the garage
interior from the side is partially obstructed by a small bush on
the left and by a tree on the right, a person standing on the
public sidewalk or street directly in front of the garage would
have an unobstructed view of the entire driveway and, when
the door is up, the interior of the garage. At the back of the
garage is a door leading into the living space of the house.
That the warrantless arrest itself took place on the driveway
is not problematic. In United States v. Santana, 427 U.S. 38, 42
(1976), the Supreme Court held that the police may conduct a
warrantless arrest upon probable cause on the threshold3 of a
defendant’s open front door, where she “was not merely
visible to the public but was as exposed to public view, speech,
hearing, and touch as if she had been standing completely
outside her house.” Velazquez does not challenge on appeal
the district court’s conclusion that the officers had probable
cause to believe that he was in the process of committing a
crime when they saw him load a weighty suitcase onto his
truck bed shortly after agreeing to deliver a suitcase full of
cocaine from his Mexican supplier to an undercover agent. If
we were to assume for the sake of argument that the threshold
of Velazquez’s garage door is equivalent to the threshold of a
home’s front door, the officers were entitled to effectuate the
arrest in a place where Velazquez was as exposed to public
3 In Santana, the Court clarified the position of the defendant as “directly
in the doorway,” noting that “one step forward would have put her
outside, [and] one step backward would have put her in the vestibule of her
residence.” 427 U.S. at 40 n.1.

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No. 18-1647 13
view and touch as if he had been standing completely outside
his house. See also Illinois v. McArthur, 531 U.S. 326, 335 (2001)
(citing Santana for the proposition that a person standing in the
doorway of a house is in a public place, and hence subject to
arrest without a warrant permitting entry of the home).
At the time the officers brought the dog onto Velazquez’s
driveway to conduct the sniff, Hines permitted the warrantless
search of a vehicle parked close to a house on the defendant’s
private driveway so long as there was probable cause to
believe that the search would uncover contraband or evidence
of a crime. Hines, 449 F.3d at 814. Velazquez concedes in his
reply brief that the officers had probable cause to believe that
the suitcase contained cocaine. The district court here denied
the motion to suppress after concluding that there was proba-
ble cause to search the truck and that the automobile exception
therefore applied under controlling precedent. Velazquez asks
us to overturn Hines but overturning Hines does not resolve the
admissibility of the evidence. Courts generally do not suppress
unlawfully obtained evidence when the police acted on an
objectively good-faith belief that their conduct was lawful at
the time of the search.4 Davis v. United States, 564 U.S. 229, 241
(2011) (when binding appellate precedent specifically autho-
4 We reject Velazquez’s contention that the government waited too long to
raise the issue of good-faith reliance on then-existing circuit precedent. The
district court ruled on Velazquez’s motion to suppress on April 21, 2017.
The Supreme Court granted certiorari in Collins five months later, and did
not decide the case until May 29, 2018, after briefing on Velazquez’s appeal
was underway. The government timely raised good-faith reliance in its
August 1, 2018 appellate brief, having no reason before then to make the
argument.

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14 No. 18-1647
rizes a particular police practice, the exclusionary rule should
not apply if that precedent is later overruled by the Supreme
Court); United States v. Leon, 468 U.S. 897, 918–21 (1984)
(evidence obtained in objectively good-faith reliance on a
subsequently invalidated search warrant should not be
excluded); United States v. Jenkins, 850 F.3d 912, 918 (7th Cir.
2017) (unlawfully obtained evidence should not be suppressed
when police officers acted with an objectively good-faith belief
that their conduct was lawful). That is exactly what happened
here. Velazquez’s assertion that the officers here showed no
particular awareness of Hines is irrelevant; the test is an
objective one which assesses “whether a reasonably well
trained officer would have known that the search was illegal”
in light of binding appellate precedent. Leon, 468 U.S. at 922
n.23. See also United States v. Martin, 807 F.3d 842, 847 (7th Cir.
2015) (same). Because Hines was the law of the circuit when the
officers conducted the dog sniff of Velazquez’s truck and
search of the suitcase, the court properly denied the motion to
suppress.
AFFIRMED

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