In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-1132 & 07-1152

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTONIO FIASCHE and ANTONIO VITAGLIANO,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 765—David H. Coar, Judge.

____________

ARGUED FEBRUARY 15, 2008—DECIDED MARCH 21, 2008

____________

Before FLAUM, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Two Antonios—Vitagliano and

Fiasche—entered conditional guilty pleas to charges that

they conspired to possess, with intent to distribute, various controlled substances, namely, methylenedioxymethamphetamine (MDMA or ecstasy), methylenedioxyamphetamine (MDA), and marijuana. They now appeal

their convictions, arguing that their motions to suppress

evidence were wrongly denied. We start with the facts.

Sometime during the last week of August 2005, a fellow

named Lars Bjerga was arrested, somewhere in Kentucky,
2 Nos. 07-1132 & 07-1152

1 Those who watch the acclaimed HBO hit series, The Wire,

know that these phones (usually called “burners”) are difficult

to trace and a favored tool of drug dealers.

with a lot of marijuana. Like many people caught in his

sort of jam, he decided to roll over and spill the beans on

others involved in the illicit drug business. On

September 2, 2005, a DEA agent in Louisville called a

DEA agent in Chicago (Jennifer Traud) and reported to

her what was learned from Bjerga.

According to the information received, Bjerga had, a

week or so before his arrest, delivered $134,000 in drug

money to “Tony” who lived in a white brick house with

an attached garage, a fenced-in backyard, and a gazebo.

The residence was in the vicinity of Lawrence and Maria

Streets in Chicago. According to Bjerga, “Tony” and

another man were trafficking drugs out of the residence

and were going to be taking some $500,000 in drug money

from Chicago to New York either on September 2 (the

very day Agent Traud received the call) or the following

day. The trip to New York would be either in “Tony’s”

black Lexus or a rental car.

Bjerga also provided two phone numbers, one for Tony’s

“house phone” and a second for his “dope phone.” Agent

Traud soon learned that the “dope phone” was a prepaid cellular phone1

 with no subscriber information. The

“house phone” was registered to Antonio Fiasche, at

4738 North Maria Court in Chicago, Illinois. The address

matched, to a tee, the description of a house “in the

vicinity” of Lawrence and Maria Streets.

With this information in hand, the DEA sprang into

action, setting up surveillance of “Tony’s” house on North
Nos. 07-1132 & 07-1152 3

2 Although there is no other record of a phone call from

Vitagliano’s Motorola Razr phone, Vitagliano testified that he

had made a call on another cell phone during his drive. Phone

records show that the call was made at 1:50 p.m.

Maria. Shortly after arriving there, around 12:30 p.m., the

agents saw a black Lexus, with who would later be identified as Antonio Fiasche at the wheel, drive off. The Lexus

made two mundane stops and returned home an hour

later, around 1:30 p.m.

When Fiasche returned, another car was parked in the

driveway—a silver Chevrolet Malibu—which had arrived

approximately 15 minutes earlier. A man (later identified

as Vitagliano) exited the car when it arrived, opened

the garage door using an electronic security keypad,

and entered the house. At around 1:45 p.m., Vitagliano

left the house carrying a white box and a brown bag. His

hold on the box and bag was rather odd, as he carried them

“in his hands like he was carrying a cake.” Vitagliano

placed the box and the bag on the passenger side of the

Malibu and drove away, heading east on Lawrence Avenue. Several agents, in separate cars, followed.

After following Vitagliano for some time, one of the

surveillance officers pulled next to Vitagliano’s Malibu.

The agent noticed that Vitagliano appeared to be talking

on a silver Motorola “Razr” cellular phone.2

 This led the

agents to be concerned that Vitagliano may have discovered that he was being followed and alerted Fiasche to

the fact that the house might be under surveillance.

Following this encounter, according to testimony found

to be credible by the district judge, Vitagliano began

“[w]eaving in and out of traffic at a high rate of speed,” in

an apparent attempt to evade surveillance. Based on these
4 Nos. 07-1132 & 07-1152

observations—coupled with the fact that Vitagliano had

left what they thought was a drug house at 4738 North

Maria only moments ago carrying two packages—the

agents decided to make an investigatory stop.

At 2 p.m., some 15 minutes after Vitagliano left the

Maria Street residence, the agents activated their lights

and sirens and stopped the Malibu. The agents then

confronted Vitagliano, told him he was observed leaving

the Maria Street residence, and that they were conducting

a drug investigation. The agents patted Vitagliano down

for weapons and asked for permission to search the

Malibu. He consented. The search turned up 107 MDA

tablets and 157 MDMA tablets in the bag Vitagliano

carried from the Maria Street residence. The box he

carried contained a Hewlett Packard palm pilot.

While all this was going on, surveillance on the Maria

Street residence continued. Soon after the drugs were

found in Vitagliano’s car, agents staked out at the Maria

Street residence were told about the hit. They were also

told that Vitagliano had made a cell phone call while

under the agents’ watch and that someone in the house

(Fiasche) may have been tipped off. Based on this information, the agents decided to approach the house to try

to do a “consent search.”

Around 2:20 p.m., Agent Traud and others, Supervisor

Walters, Officer Arthur, and Special Agent Emilia

Fernandez among them, approached the front door of

4738 North Maria. Officer Arthur testified that he was

wearing a bullet-proof vest with “police” symbols on the

front and back. The agents knocked on the door several

times. After several knocks, Officer Arthur—who was

positioned to the side of the door with a bay window

behind him—saw the blinds move and heard someone
Nos. 07-1132 & 07-1152 5

yell “hold on,” or words to that effect. When Officer

Arthur looked in the bay window, he saw a man running

down the hallway, covered only with a white towel.

At this time, Agent Timothy Oko was standing on the

side of the house to ensure no one fled from the side door.

Right around the time the agents at the door first

knocked, Agent Oko heard a loud “swishing sound” from

the back of the house. Agent Oko, a moment later, “heard

a flushing sound coming from a [bathroom] window . . .

next to th[e] patio door.” At that point, Agent Fernandez

entered the backyard and Oko advised her that “somebody’s flushing the toilet” and requested that she alert

the agents at the front door. Between 30 seconds and a

minute later, Oko heard a second flush. At that point,

Agent Oko “believed that somebody was destroying

evidence in the residence.” Moments later, Agents Traud

and Walters joined Oko in the backyard and the three

agents entered the house through the patio door with

their weapons drawn. Once inside, Agent Walters let

Officer Arthur and Agent Fernandez in through the front

door.

The agents initially cleared the kitchen area and then

proceeded to secure the rest of the main floor. When

securing the house, the agents noticed a “strong odor

of marijuana.” In the bathroom next to the master bedroom area (where Agent Oko had earlier heard the flushing sounds), agents saw “pills scattered all over the

floor . . . a large duffle bag with pills . . . [a] heat sealed

bag that was open and empty laying on the ground,

along with . . . additional multiple bags containing

small pills inside that duffle bag.” Pills were also in the

toilet. The agents secured Fiasche who, after being told

what they were investigating, signed a consent to search
6 Nos. 07-1132 & 07-1152

form. The search that followed turned up over 25,000

MDMA (ecstacy) pills, MDA, and marijuana.

The evidence seized from Vitagliano’s car and Fiasche’s

house was ruled admissible by the district court (Judge

David Coar) after a hearing on their motions to suppress. The denial of the motions, which preceded the

defendants’ guilty pleas, is the only matter of concern on

this appeal.

The defendants’ brief, in its “Summary of Argument”

section, is “creative.” Here, word for word, is what it

says about the search of Fiasche’s house:

The government’s suppression testimonial cache

consisted of nothing more than rank speculation and

quantum leaps-of-faith as putative justification for

its intrusion into constitutionally protected privacy

zones (curtilage/home). An experienced, well-trained

and hopelessly creative federal agent raided Fiasche’s

home based on a charade—his purported hearing of

an unexplainable “swishing” sound. And, to boot,

seeing nothing . . . the same agent perpetuated the

constitutionally infirm intrusion by walking up four

or five patio stairs (within Fourth Amendment protected area) which permitted his hearing of “flushing”

sounds.

If the court please, that dearth of evidence, [even]

taking into account the seizure of a small quantity of

Ecstacy (several miles from the home), failed to provide Probable Cause and Exigent Circumstances

supporting the breach into Fiasche’s backyard and

home. Accordingly, the district court erred in rejecting

Fiasche’s suppression importunings.
Nos. 07-1132 & 07-1152 7

The defendants’ summary regarding the stop of

Vitagliano’s car is less colorful so we will not repeat it

here. But we will start with that search after briefly noting

the standard of review which governs the case.

We review a district court’s legal conclusions on a motion to suppress, including the question whether reasonable suspicion existed to justify a stop, de novo, while

findings of fact are reviewed only for clear error. United

States v. Riley, 493 F.3d 803 (7th Cir. 2007). Mixed questions of law and fact, including whether exigent circumstances exist, are reviewed de novo. United States v. Richardson, 208 F.3d 626 (7th Cir. 2000). Because the resolution of

a motion to suppress is almost always fact-specific, we

give special deference to the district judge who heard

the testimony and observed the witnesses at the suppression hearing. And with respect to witness testimony,

“determinations of witness credibility can virtually never

be clear error.” United States v. Biggs, 491 F.3d 616, 621

(7th Cir. 2007) (internal quotations marks and citations

omitted). Lastly, arguments advanced for the first time

on appeal are reviewed only for plain error.

Vitagliano argues, weakly we think given the facts of

this case, that the agents lacked “reasonable suspicion”

when they directed his car to a stop. “Reasonable suspicion,” of course, lies in an area between probable cause

and a mere hunch. Its existence is discovered by common

sense, as the Supreme Court explains:

Reasonable suspicion is a less demanding standard

then probable cause not only in the sense that reasonable suspicion can be established with information

that is different in quantity or content than that required to establish probable cause, but also in the

sense that reasonable suspicion can arise from informa-
8 Nos. 07-1132 & 07-1152

tion that is less reliable than that required to show

probable cause.

Alabama v. White, 496 U.S. 325, 330 (1990). “When determining whether an officer had reasonable suspicion, courts

examine the totality of the circumstances known to the

officer at the time of the stop, including the experience

of the officer and the behavior and characteristics of the

suspect.” United States v. Lawshea, 461 F.3d 857, 859 (7th

Cir. 2006). Reasonable suspicion does not deal with hard

certainties, and “behavior which is susceptible to an

innocent explanation when isolated from its context

may still give rise to reasonable suspicion when considered in light of all of the factors at play.” United States

v. Baskin, 401 F.3d 788, 793 (7th Cir. 2005).

Armed with the information provided by Bjerga, which

so far checked out to be accurate, and their own observations of the odd way Vitagliano carried the box and bag

from the house, the agents, employing even a modicum of

common sense, had reasonable suspicion to conclude that

something was rotten in Denmark when Vitagliano’s car

sped up a bit just prior to the stop. A Terry stop (Terry v.

Ohio, 392 U.S. 1 (1968)) was clearly justified. And because

Judge Coar credited the agents’ account of how Vitagliano

was driving over the contrary testimony offered by

Vitagliano, we conclude that the motion to suppress

was properly denied.

Vitagliano’s other claims, that the pat-down search was

improper and that his consent to search the car was

involuntary (issues he didn’t quite raise in that form in

the district court and are, therefore, limited to plain

error review), are without merit. For one thing, the patdown yielded no weapons or drugs and was a permissive ingredient of this valid Terry stop. Vitagliano’s argu-
Nos. 07-1132 & 07-1152 9

ment about his consent to search, resting as it does on

the claim that the stop itself was not supported by reasonable suspicion, collapses when the stop is found to be

justified.

Turning to the entry into Fiasche’s house, we start with

the unremarkable observation that warrantless entries

into private homes, although per se unreasonable under the

Fourth Amendment, are subject to specific exceptions. Mincey v. Arizona, 437 U.S. 385 (1978). And one, the

exigent circumstances exception, provides that a “warrantless entry by criminal law enforcement officials may

be legal where there is compelling need for official action

and no time to secure a warrant.” Michigan v. Tyler,

436 U.S. 499, 509 (1978). The government bears the burden

of proving that its agents had an objectively reasonable

belief that exigent circumstances existed at the time of

their warrantless entry into the defendants’ residence.

United States v. Foxworth, 8 F.3d 540 (7th Cir. 1993).

Here, we think the agents had more than enough probable cause to believe that drugs—notably Ecstasy tablets

based on the Vitagliano stop coupled with the information from Bjerga—were inside the home. The agents also

reasonably concluded (1) that Vitagliano may have alerted

Fiasche that his car was being followed, (2) that Fiasche

might well want to rid the house of drugs if Vitagliano did

not return, (3) that Fiasche, after seeing agents in police

vests at the front door, bolted down the hallway after

yelling “hold on,” and (4) that Agent Oko hearing “flushing sounds” all support Judge Coar’s finding that exigent

circumstances justified the entry into the home. Given these

circumstances, time did not permit seeking out a judge and

trying to obtain a search warrant which would, of course,

easily have been issued had time not been of the essence.
10 Nos. 07-1132 & 07-1152

And had the agents waited outside for an hour or so while

a search warrant was applied for and obtained, it is certain

here that the Chicago sewage system would have been in

ecstasy after receiving some 25,000 pills flushed down the

toilet from the house at 4738 North Maria Court.

The motions to suppress were correctly denied and the

judgments of conviction are AFFIRMED.

USCA-02-C-0072—3-21-08