# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 5, 2010

Decided November 4, 2010

Before

WILLIAM J. BAUER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09

‐ 4157

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

CHRISTOPHER AGUILAR,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Indiana,

Evansville Division.

No. 3:08CR00033

‐ 002

Richard L. Young,

Chief Judge

.



### O R D E R

Christopher Aguilar appeals the district court’s denial of his motion to suppress

evidence found in his car during a warrantless search. He argues that the government did

not submit any evidence to support the facts upon which the police relied to find probable

cause for the search. Because Aguilar never contested many of the asserted facts, the

government was not required to furnish evidence of them, and the district court properly

found probable cause based on the undisputed facts. Thus we affirm the judgment.

According to the government, in 2006 Aguilar formed a methamphetamine

distribution conspiracy with his co

‐ defendant James Braden. After Braden began NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 4157 Page 2

cooperating with law enforcement, he provided a statement implicating himself and

Aguilar in the conspiracy. Then, with Braden’s help the Drug Enforcement

Administration(“DEA”) recorded a series of telephone calls between Aguilar and Braden in

which the two planned a methamphetamine purchase and delivery in Evansville, Indiana,

in October 2008. It also observed Braden’s cash payments to Aguilar, which were made

with DEA money. Having monitored and recorded Aguilar’s planned delivery of

methamphetamine to Braden in Indiana, law enforcement located Aguilar on the way to

Evansville on October 11, 2008; once he was inside the city, an Evansville Police Department

officer stopped him at the DEA’s direction. The officer also observed Aguilar speeding just

before the stop. A drug detection dog brought to the scene alerted to drugs at Aguilar’s

rental car.

The officers conducted a warrantless search of the trunk and found 371 grams of

methamphetamine concealed in false can containers. In the passenger compartment, they

located a cell phone used to make calls to Braden. Aguilar also had some of the DEA

purchase money with him. A grand jury indicted Aguilar with one count of conspiracy to

possess with intent to distribute methamphetamine and one count of possession with intent

to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii).

Aguilar moved to suppress the evidence seized from the car. He argued that the

search violated his rights because it did not fall within any exceptions to the Fourth

Amendment’s warrant requirement. Aguilar also requested an evidentiary hearing on the

motion. The government, in response, argued that Braden’s cooperation, the controlled

deliveries, and the phone calls recording the planned delivery provided ample probable

cause to search Aguilar’s car in Evansville. Alternatively, the officer had an independent

basis for probable cause based on the police dog alert after stopping Aguilar for speeding.

The government denied the need for an evidentiary hearing because Aguilar raised “no

material dispute concerning the underlying facts of the investigation, as outlined herein and

in the defendant’s motion

. . . the relevant facts are un

‐ controverted.” Aguilar did not

disagree with that assertion in a reply brief.

At the suppression hearing, the parties discussed the nature of any fact dispute.

Barbara Williams, Aguilar’s appointed attorney, explained that Aguilar did dispute that he

was speeding and the dog’s reliability:

MS. WILLIAMS: Mr. Aguilar does dispute some of the facts that are alleged

in the government’s response with respect to the circumstances of this matter.

We believe that the stop was initially without probable cause. Mr. Aguilar

questions the reliability of the police officers’ contention that he was

speeding. He indicates that he believes he was not speeding and that that

was a pretextual stop and that because of that, there was not probable causeNo. 09

‐ 4157 Page 3

to conduct a search. With respect to the fact that there was a canine at the

scene, as Mr. Brookman indicated, ran around the door, we believe that the

Court’s finding that that is sufficient when the dog alerted or finding that that

would be highly reliable would be inappropriate in this case because we

believe that the testimony of the officers will be rebutted and that there will

be evidence that the dog was not well trained, had not received a certification

in compliance with the national rules for canine training, had performed his

duties in a haphazard way, and had given numerous false positives; in fact,

we believe that the evidence would be that the canine’s skills were very

suspect

. . . .

Williams urged the court to apply Arizona v. Gant

, 129 S. Ct. 1710 (2009) (holding that a

warrantless car search is constitutional only if the arrestee can still access the car or the

police have reason to believe it contains evidence of a crime), to render the search

unconstitutional. The district court reasoned, however, that even without the speeding and

the police dog, the government had probable cause based solely on the recorded phone

conversations with Braden:

THE COURT: But here there was reasonable belief that there would be drugs

or contraband found in the vehicle, based upon the recorded phone

conversations, so it seems to me that [ Gant ] wouldn’t apply.

MS. WILLIAMS: Well, Your Honor, we would ask the Court to consider

applying this case because the search was because of a speeding violation.

And even though there were telephone conversations that were made before

that, I don’t believe that that would give the police officer who made the stop

initially probable cause to stop the car for speeding.

The district court decided that “based upon the pleadings and the arguments of counsel,”

the government had probable cause to search Aguilar’s car. It denied the motion to

suppress on two alternative bases: The combination of the statement from Braden, the

delivery of cash to Aguilar, and the recorded phone conversations “provided more than

enough probable cause”; also, the police dog alert after the speeding stop “provided an

independent basis for probable cause.”

Aguilar then replaced his appointed attorney, and the district court allowed new

counsel to supplement the suppression motion. Aguilar’s amended motion to suppress

raised three arguments. First, he maintained that reliance on Braden’s cooperative

statement to law enforcement was not sufficient: “[T]he information provided by James

Braden, standing alone, did not provide cause to allow the stop of [Aguilar’s] vehicle”

because “there is no evidence that Braden had a previous track record with the officers.”

Within this argument, Aguilar inserts one sentence about the recorded phone calls, assertingNo. 09

‐ 4157 Page 4

that in those calls “there is nothing but the corroboration of innocent travel plans” to visit a

dying relative in Indiana. Second, he disputed the police dog’s alert because the

government had not shown the dog’s reliability. Finally, Aguilar claimed that if the dog’s

alert was reliable, it still did not provide probable cause to search the car’s trunk. After the

government’s response, the district court denied the amended motion, adopting its earlier

reasoning.

Aguilar then entered a conditional guilty plea to one count of conspiracy to

distribute methamphetamine. He retained his right to appeal the decision on the motion to

suppress. Based on a criminal history category of VI and a total offense level of 34,

Aguilar’s guidelines range for imprisonment was 262 to 327 months. The district court

sentenced him to 262 months’ imprisonment, and Aguilar timely appealed.

On appeal Aguilar argues that a district court’s finding of probable cause must be

based on evidence, and the finding in this case was not. Since law enforcement did not

have a warrant to search Aguilar’s car, “the government must show by a preponderance of

the evidence that the search fell within one of the recognized exceptions to the warrant

requirement.” United States v. Zahursky

, 580 F.3d 515, 521 (7th Cir. 2009) (citing United States

v. Basinski

, 226 F.3d 829, 833 (7th Cir. 2000)). But the burden is on the defendant to show the

need for an evidentiary hearing, United States v. Rodriguez

, 69 F.3d 136, 141 (7th Cir. 1995),

by disputing the facts at issue, United States v. Martin

, 422 F.3d 597, 602 (7th Cir. 2005). A

dispute exists “only ‘when the allegations and moving papers are sufficiently definite,

specific, non

‐ conjectural and detailed enough to conclude that a substantial claim is

presented and that there are disputed issues of material fact which will affect the outcome

of the motion.’” United States v. McGaughy

, 485 F.3d 965, 969 (7th Cir. 2007) (quoting United

States v. Villegas

, 388 F.3d 317, 324 (7th Cir. 2004)).

Aguilar maintains that he disputed key factual issues below in both motions, and

thus, the government failed to establish probable cause because it did not offer evidence to

substantiate the factual assertions in its brief. But the record tells a different story: At no

time did Aguilar deny that his recorded phone calls with Braden described his planned

drug deal and that Braden later delivered cash to Aguilar. Indeed, Aguilar’s original

suppression motion did not even mention Braden. And when the government asserted in

its response to Aguilar’s motion that the parties agreed to the relevant facts, Aguilar did not

disagree in a reply. Martin

, 422 F.3d at 603 (“when the State responded to his motion by

arguing that no evidentiary hearing was necessary because no material facts were in

dispute, Mr. Martin did not reply.”).

Aguilar’s first assertion of a fact dispute occurred at the suppression hearing itself,

but even then he did not specifically dispute the contents of the recordings or delivery of

cash. At the hearing, Aguilar’s counsel urged: “Mr. Aguilar does dispute some of the factsNo. 09

‐ 4157 Page 5

that are alleged in the government’s response with respect to the circumstances of this

matter. We believe that the stop in question was initially without probable cause.” This

assertion alone, however, did not identify a specific, definite, detailed factual dispute about

the connection with Braden. See Villegas

, 388 F.3d at 324. As the hearing continued,

Williams identified a specific dispute, but limited it to Aguilar’s driving speed and the

police dog’s reliability; she still never denied the existence or content of Aguilar’s recorded

telephone conversations with Braden, the information that Braden provided to the DEA, or

the cash delivery. To the contrary, she said that “even though there were telephone

conversations that were made before that, I don’t believe that that would give the police

officer who made the stop initially probable cause to stop the car for speeding.” Essentially,

she argued that even though the phone calls occurred, they were an insufficient basis for

probable cause. This is an argument about the legal insignificance of the admitted

communications, not a denial of them. Accordingly, Aguilar did not trigger the

government’s burden to produce evidence of the recorded communications.

Nor did Aguilar sufficiently dispute the asserted contents of the recordings between

Braden and Aguilar agreeing to a drug deal in his amended motion to suppress. In

referring to Braden, his amended motion principally attacked only the reliability of Braden’s

cooperative statement to the police, contending that because he had no proven “track

record,” his statement did not furnish probable cause. Buried within this challenge to

Braden’s reliability, Aguilar briefly mentioned, for the first time, the recorded phone calls,

asserting only that they described “innocent” travel plans. It is possible that, broadly

construed and taken in isolation, this sentence disputes that Braden and Aguilar discussed

over the phone a plan to deliver illegal drugs. But this one unelaborated sentence was too

vague and conclusory, to alert the government and the court to a genuine dispute about the

recorded calls, United States v. Randle

, 966 F.2d 1209, 1212 (7th Cir. 1992). See United States v.

Dunkel

, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument,’ really nothing more than

an assertion, does not preserve a claim.”).

The district court could have asked the government to play the tapes of the phone

conversations or put an officer on the stand to describe the cash delivery. But to require the

government to prove facts that a defendant has not adequately called into dispute would

needlessly divert attention away from genuinely disputed matters. Notably, even now

Aguilar does not deny the government’s description of a recorded plan for Aguilar to

deliver drugs or the observed cash delivery. See Martin

, 422 F.3d at 603 (“Even now, after

Trooper Wood testified at trial, Mr. Martin does not say what else could have been

developed at an evidentiary hearing.”). Thus, Aguilar does not deny that, had there been

an evidentiary hearing, the government would have produced telephone conversations

depicting Aguilar’s plan to sell methamphetamine and testimony detailing the execution of

that plan with a cash delivery. Without that denial, or a denial that the recorded plan toNo. 09

‐ 4157 Page 6

deliver drugs followed by a cash transaction creates probable cause, neither of which

Aguilar makes, the conviction is sound.

Although Aguilar did not establish a need for a hearing on the recorded

conversations, Aguilar arguably said enough in his motions to suppress to trigger the need

for an evidentiary hearing on whether he was speeding and the police dog’s reliability. But

Aguilar does not deny that the contents of recorded calls, as the government describes them,

and the cash delivery, furnish probable cause. Since Aguilar did not give the district court a

sufficient reason to dispute the government’s account of these facts, and he does not dispute

them now, we can uphold the warrantless search based on those recorded calls. Green v.

CSX Transp., Inc., 414 F.3d 758, 765 (7th Cir. 2005) (“We may affirm the judgment based on

any ground found in the record.”).

Accordingly, we AFFIRM the judgment of the district court.