In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 06-4332 & 06-4334

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE A. AMARAL-ESTRADA and

EVARARDO LIRA-ESQUIVEL,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 05 CR 43—Sarah Evans Barker, Judge.

____________

ARGUED SEPTEMBER 27, 2007—DECIDED DECEMBER 5, 2007

____________

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

BAUER, Circuit Judge. Defendants-Appellants Jose A.

Amaral-Estrada and Evarardo Lira-Esquivel appeal from

the district court’s denials of their respective Motions to

Suppress Evidence. For the reasons stated below, we

affirm the district court’s denial of the motions.

I. Background

On May 9, 2005, agents of the Drug Enforcement Agency

(“DEA”) were conducting surveillance on 5352 W. Deming

Place in Chicago, Illinois in search of Freddy Adan Sosa-
2 Nos. 06-4332 & 06-4334

1 The DEA agents conducting the surveillance had been given a

wallet-sized photo of Sosa-Verdeja to identify him.

Verdeja for whom an arrest warrant had been issued.

Sosa-Verdeja was a fugitive wanted in connection with

federal drug-related crimes which involved transporting

cocaine with cars.

On May 3, 2005, the DEA sought and received a court

order from a magistrate judge for the application and use

of a pen register and trap-and-trace device, and

to determine certain telephone information using the

cellular telephone number of Sosa-Verdeja’s phone. The

DEA’s surveillance involved tracking cellular site information on Sosa-Verdeja’s cell phone, which turns a cell

phone’s emitted signal, as it searches for a cell tower, into

a tracking device. This surveillance allowed DEA agents

to pinpoint the location of the cell phone at one of the

three residential units located at 5352 W. Deming Place.

While the agents conducted surveillance on 5352 W.

Deming Place on May 9, 2005, DEA Special Agent Christopher O’Reilly was informed by another law enforcement

officer that a Chrysler M300 had been seen in the alley

north of Deming Place from Long Street and the driver of

that car resembled Sosa-Verdeja.1

 The Chrysler M300

was driven by Amaral-Estrada with a male passenger.

Amaral-Estrada pulled out of the alley and continued

for about a block before parking the car on Drummond

Street. Agent O’Reilly followed Amaral-Estrada from the

alley by 5352 W. Deming Place to Drummond Street,

where he observed Amaral-Estrada and his passenger

get out of the car, look around as if to see if they were

being watched or followed, and then proceed to walk

back around the block towards 5352 W. Deming Place.

About fifteen minutes after Amaral-Estrada and his

passenger had exited the vehicle, Agent O’Reilly parked

his car, got out and identified himself as a police officer
Nos. 06-4332 & 06-4334 3

and requested identification from the two men. Agent

O’Reilly detained Amaral-Estrada to conduct a pat-down

search of his person, during which Agent O’Reilly removed all of the items from Amaral-Estrada’s pockets,

including cell phones and a set of Chrysler keys. Agent

O’Reilly then inspected the Mexican driver’s license and

voter registration card provided by Amaral-Estrada, both

of which bore the name of Amaral-Estrada, not SosaVerdeja. At this time, Amaral-Estrada stated that he did

not speak or understand English, so Agent O’Reilly and

the other DEA Agents that had arrived at the scene

contacted Spanish-speaking DEA Task Force Officer

Mario Elias via a two-way radio so that Officer Elias could

translate Agent O’Reilly’s questions into Spanish and

Amaral-Estrada’s answers into English. In answering

these questions, Amaral-Estrada replied that he and his

passenger were walking around looking for an apartment to rent in the area, and that they came from

Bensonville, Illinois. When Agent O’Reilly asked them

how they got to Chicago from Bensonville, they could not

provide an answer. Amaral-Estrada also denied any

knowledge of the Chrysler M300 that Agent O’Reilly saw

him driving minutes earlier.

At the evidentiary hearing, Amaral-Estrada stated that

he never denied driving the Chrysler M300 and that he

simply stated that he did not own the car, but that he

told Agent O’Reilly (via Officer Elias’s translation) that

he had driven the car to Chicago. Amaral-Estrada further

explained at the hearing that Sosa-Verdeja had lent him

the car about a week earlier and that Sosa-Verdeja had

instructed him to drive to a specific Walgreens, go inside,

and that while he was inside, someone would enter the

back seat of the car and put something in it. AmaralEstrada testified that he did as he was told by SosaVerdeja, and indeed upon his return to the car after

visiting Walgreens, a large black duffel bag was in the

back seat. Amaral-Estrada also testified that he did not
4 Nos. 06-4332 & 06-4334

2 A drug drop is an event in which drug-trafficking organizations leave contraband in an inconspicuous location for someone else to pick up, such as a parked car in this case. Agent

O’Reilly testified that he has witnessed approximately twenty

drug drops during his career in law enforcement.

3 At the evidentiary hearing, Amaral-Estrala stated that he

could not understand everything that was being asked by Officer

Elias over the two-way radio because the radio kept cutting out.

care about the bag in the back seat because it was not

his bag and it was not his car.

Returning to the sequence of events of May 9, 2005,

Agent O’Reilly detained Amaral-Estrada and his passenger for lying when Amaral-Estrada denied any connection with or knowledge of the Chrysler M300 that he had

seen Amaral-Estrada drive, park, and exit prior to stopping him on foot.

Agent O’Reilly placed Amaral-Estrada in the back seat

of his police car and drove back to where the Chrysler

M300 was parked. Agent O’Reilly then surveyed

the Chrysler M300 for about thirty or forty minutes

because he suspected that a “drug drop” was underway.2

When no activity involving the Chrysler M300 occurred,

Agent O’Reilly approached the car and saw the black

duffel bag on the back seat. Agent O’Reilly admitted that

nothing about the exterior of this bag indicated that it

was filled with contraband. Using the two-way radio

again so that Officer Elias could translate for Agent

O’Reilly and Amaral-Estrada, Agent O’Reilly asked about

the bag. Amaral-Estrada denied that the bag belonged to

him and again denied that he had ever been inside the car.

Using the Chrysler keys obtained from Amaral-Estrada’s

pocket during the pat-down search, Agent O’Reilly unlocked the Chrysler car door using the remote entry

device.3
Nos. 06-4332 & 06-4334 5

4 Prior to her evidentiary hearing, Verdeja-Sanchez’s contended

(in her fact recitals in court filings) that after opening the door

a little, the agents pushed the door open so quickly that it

knocked her to the floor.

After Amaral-Estrada had again denied any connection to the car, Agent O’Reilly opened the car door and

looked inside the duffel bag. The bag contained U.S.

currency in an amount later determined to be $254,947.00.

After discovering its contents, Agent O’Reilly removed

the bag from the car. Shortly thereafter, Officer Elias

arrived at the scene and read Amaral-Estrada his Miranda

rights in Spanish.

With Amaral-Estrada in custody, Agent O’Reilly and

Special Agents Gerald Dooley and Sam Ginelli returned to

the apartment building at 5352 W. Deming Place where

the agents decided to do “knock and talks” with the

residents to seek consent to search the residential units

of the building pinpointed by Sosa-Verdeja’s cell phone

signal. The agents entered through the unlocked common

entrance that led them to the common foyer and staircase.

They proceeded down to the basement unit and knocked,

but no one answered. The agents then went to the firstfloor unit and knocked, but again no one answered. The

agents then went to the second floor apartment where,

from the hallway, they could hear a television playing

inside. Agent O’Reilly knocked on the door, and Maria

Leticia Verdeja-Sanchez answered.

From this point on, the testimony of the parties

varies greatly. Verdeja-Sanchez says that as soon as

she unlocked the apartment door, the agents pushed it

open, held her at gun point, handcuffed her, and threw her

to the floor.4

 According to the agents, Verdeja-Sanchez

opened the door slightly and Agent O’Reilly asked her

if she spoke English, to which she responded “a little.”
6 Nos. 06-4332 & 06-4334

5 Verdeja-Sanchez was in fact Sosa-Verdeja’s mother.

6 It is undisputed that the agents did not have a search warrant for the apartment at the time they entered it.

Agent O’Reilly then asked her if there was anyone else in

the apartment, to which she answered “no.” Next, Agent

O’Reilly showed Verdeja-Sanchez the wallet-sized picture

of Sosa-Verdeja and asked if she knew the man in the

picture. She again responded “no.”5

 In viewing the picture,

Verdeja-Sanchez leaned forward to see the picture more

clearly and the apartment door was opened wider, providing the agents with a broader view into the apartment.

With this broader view, the agents were able to see a

person’s arm on the couch inside the apartment. Agent

O’Reilly then pushed open the door, entered the apartment, approached the man on the couch, and asked him

to present identification.6

 That man was DefendantAppellant Lira-Esquivel, the husband of Verdeja-Sanchez.

At the same time that Agent O’Reilly entered the

apartment, Agent Dooley called Sosa-Verdeja’s cell phone

number that the agents were monitoring to locate SosaVerdeja. Immediately, a cell phone on the coffee table

in the apartment began to ring. At this point, the other

agents entered the apartment and detained Lira-Esquivel

and Verdeja-Sanchez so they could conduct a protective

sweep of the apartment to determine if anyone else,

particularly Sosa-Verdeja, was in the apartment. When

they found no one else in the apartment, one of the agents

searched the couch area where Lira-Esquivel had been

sitting, and discovered a loaded nine millimeter handgun

tucked into the cushions.

About twenty minutes later, Officer Elias arrived at the

apartment to translate for the agents, Lira-Esquivel, and

Verdeja-Sanchez. In Spanish, Officer Elias advised Lira-
Nos. 06-4332 & 06-4334 7

7 Agent O’Reilly also interviewed the apartment’s landlord, who

stated that he rented the apartment and garage to Sosa-Verdeja.

The landlord was able to identify the man in the wallet-sized

photo as Sosa-Verdeja.

Esquivel and Verdeja-Sanchez of their Miranda rights

both orally and in writing, and presented them with

consent forms to search the apartment. Lira-Esquivel

asked if he was required to agree to the search of the

apartment; Officer Elias told him in Spanish that he could

refuse, but that the agents could seek a search warrant.

Lira-Esquivel then agreed to allow the search and signed

the Spanish consent to search form. Verdeja-Sanchez

also signed the consent to search form, but claims she

did so because she was scared.

After receiving consent to search the apartment and

conducting a thorough search, the agents recovered about

twelve kilograms of cocaine and more than 300 used

kilogram wrappings for cocaine from the premises. Several

notebooks of drug ledgers and $20,000 in U.S. currency

were also found.7

 Lira-Esquivel and Verdeja-Sanchez

were both taken into custody, although Verdeja-Sanchez

was later released.

On July 12, 2005, a five-count superceding indictment

was filed in the Southern District of Indiana. Count One

charged Defendants-Appellants Amaral-Estrada and LiraEsquivel with conspiracy to possess with intent to distribute five kilograms or more of a mixture or substance

containing a detectable amount of cocaine, a Schedule II

Narcotic Controlled Substance, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Both Amaral-Estrada and LiraEsquivel moved to suppress the evidence obtained during

their arrests and the searches of the car and apartment,

respectively, alleging Fourth Amendment violations.

Specifically, Amaral-Estrada claimed that the DEA
8 Nos. 06-4332 & 06-4334

agents lacked probable cause to search the car, or stop,

question, detain, and arrest him. Lira-Esquivel also

argued that the DEA agents lacked probable cause to enter

his apartment and to search and arrest him. He also

challenged the government’s use of the cell site information to track Sosa-Verdeja’s cell phone.

In an unpublished opinion dated June 30, 2006, the

district court found that Amaral-Estrada lacked standing

to challenge the search of the Chrysler M300 because

he did not have a legitimate privacy interest in the car

under the facts presented by the parties. The district

court also found that the agents had reasonable suspicion to stop and question Amaral-Estrada to determine

whether he was Sosa-Verdeja. Based on Amaral-Estrada’s

failure to present documentation of his legal status in the

United States, in addition to his lie to the agents about

not having knowledge of the Chrysler M300 they saw

him park just moments earlier, the district court concluded that the agents had probable cause to suspect that

Amaral-Estrada was illegally in the country and that he

had lied to federal agents. The district court held that the

agents acted constitutionally when they detained and

arrested him.

The district court similarly found that Lira-Esquivel

lacked standing to challenge the government’s surveillance

methods used on a cell phone that was not his. Finally, the

district court determined that, based on the totality of the

circumstances present at the time of the apartment entry,

the agents had probable cause to enter the apartment and

search Lira-Esquivel. Specifically, the district court

credited the agents’ testimony that they saw the arm of

another person on the couch shortly after Verdeja-Sanchez

had told them that no one else was in the apartment,

which again amounted to probable cause for lying to an

agent.
Nos. 06-4332 & 06-4334 9

After the district court denied their respective Motions

to Suppress Evidence, both Defendants-Appellants entered conditional guilty pleas maintaining their rights to

appeal the suppression rulings. They were each sentenced

to ninety months’ imprisonment.

II. Discussion

Amaral-Estrada appeals the district court’s holdings

(1) that he lacked standing to assert a Fourth Amendment violation with regard to the search of the Chrysler

M300; (2) that there was probable cause to stop, question,

detain, and arrest him; and (3) that the search of the

vehicle was supported by probable cause.

Lira-Esquivel appeals the district court’s findings

(1) that the agents had probable cause to enter the apartment and search and arrest him; (2) that he lacked

standing to challenge the government’s use of cell site

information to track a cell phone in his apartment; and

(3) that the arrest warrant for Sosa-Verdeja satisfied the

search warrant and probable cause requirements necessary to obtain the cell site information for the cell phone

found in his apartment.

We review the district court’s factual findings for clear

error and questions of law or mixed questions de novo.

United States v. Parker, 469 F.3d 1074, 1077 (7th Cir.

2006); United States v. Grap, 403 F.3d 439, 443 (7th Cir.

2005). Since the resolution of a motion to suppress is a

fact-specific inquiry, we give deference to the credibility

determinations of the district judge, who had the opportunity to listen to testimony and observe the demeanor of

witnesses at the suppression hearing. Parker, 469 F.3d at

1077; United States v. Marshall, 157 F.3d 477, 481 (7th

Cir. 1998). In other words, “a district judge’s credibility

determination will not be disturbed unless it is completely
10 Nos. 06-4332 & 06-4334

without foundation.” United States v. Huebner, 356 F.3d

807, 812 (7th Cir. 2004) (quoting United States v. Salyers,

160 F.3d 1152, 1162 (7th Cir. 1998)). “A finding is clearly

erroneous when, although there is evidence to support it,

the reviewing court is left with the definite and firm

conviction a mistake has been committed.” United States

v. Veras, 51 F.3d 1365, 1370 (7th Cir. 1995).

A. Issues Raised by Amaral-Estrada

1. The Search of the Chrysler M300

Amaral-Estrada contends that the district court erred in

finding that he lacked standing to challenge the search of

the Chrysler M300. Specifically, the district court found

that because Amaral-Estrada had borrowed the car

from Sosa-Verdeja and that Amaral-Estrada knew others

would be entering the car while he possessed it, AmaralEstrada lacked an expectation of privacy in the car. This

was evidenced by the Walgreens incident where the

duffel bag was placed in the car.

A criminal defendant cannot assert a privacy interest

on behalf of someone else. United States v. Mendoza, 438

F.3d 792, 795 (7th Cir. 2006). Rather, a defendant charged

with a crime of possession can only claim the benefits of

the exclusionary rule if his own Fourth Amendment rights

have been violated. Id. (citing United States v. Salvucci,

448 U.S. 83, 85 (1980)). A driver who borrows a car with

the owner’s permission may acquire standing to challenge

the search of the vehicle only if he can establish that he

has a legitimate expectation of privacy in it or in the area

searched. United States v. Jackson, 189 F.3d 502, 508 (7th

Cir. 1999). A reasonable expectation of privacy is present

when (1) the defendant exhibits an actual or subjective

expectation of privacy, and (2) the expectation is one that

society is prepared to recognize as reasonable. Mendoza,
Nos. 06-4332 & 06-4334 11

438 F.3d at 795 (citing Katz v. United States, 389 U.S. 347,

361 (1967)); see Kyllo v. United States, 533 U.S. 27, 33

(2001).

Amaral-Estrada failed to manifest any sort of actual or

subjective expectation of privacy. Instead, Amaral-Estrada

possessed the car for the purposes of transporting contraband, such as the U.S. currency seized from the back seat.

His expectations while using the car were that others

would enter the vehicle, taking and/or leaving items

therein. Furthermore, when the federal agents asked

Amaral-Estrada about the vehicle, Amaral-Estrada

denied any knowledge of the car. Amaral-Estrada also

testified that he did not care about the bag in the back

seat of the Chrysler M300 because it was not his bag

and not his car. Under these facts reasonably relied upon

by the district court, Amaral-Estrada failed to exhibit any

legitimate privacy interest in the Chrysler M300 and

therefore lacks standing to challenge the search of the

vehicle; therefore we need not address his third issue on

appeal as to whether there was probable cause to search

the Chrysler M300.

2. The Terry Stop and Subsequent Arrest of

Amaral-Estrada

Amaral-Estrada’s second argument on appeal is that

the federal agents lacked probable cause to stop, question,

detain, and arrest him. We review this issue de novo. As

Amaral-Estrada’s brief recognized, under Terry v. Ohio,

police officers may conduct a brief investigatory stop of a

suspect if they have reasonable suspicion based on

articulable facts that a crime is about to be or has been

committed. 392 U.S. 1, 30 (1968); United States v.

Wimbush, 337 F.3d 947, 949 (7th Cir. 2003). “Reasonable

suspicion” must be based on some objective manifestation
12 Nos. 06-4332 & 06-4334

that the suspect is involved in criminal activity. Wimbush,

337 F.3d at 949. The likelihood of criminal activity need

not rise to probable cause and falls well short of a preponderance of the evidence standard. Id. at 949-50 (citing

United States v. Arvizu, 534 U.S. 266, 274 (2002)). Courts

examine the reasonableness of a stop based on the

totality of the circumstances known to the officer at the

time of the stop. Id. at 950; United States v. Jackson, 300

F.3d 740, 745-46 (7th Cir. 2002). Probable cause to

make an arrest exists where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a

prudent man’s belief that the suspect has committed or

was committing an offense. Beck v. Ohio, 379 U.S. 89, 91

(1964); United States v. Breit, 429 F.3d 725, 728 (7th Cir.

2005).

When the federal agents decided to follow AmaralEstrada in the Chrysler M300, they did so suspecting

that Amaral-Estrada was the fugitive, Sosa-Verdeja.

While following Amaral-Estrada, the agents saw him exit

the Chrysler M300, and walk around the neighborhood,

frequently looking over his shoulder as if to see if someone

was following him. Based on their suspicion that he might

be Sosa-Verdeja and that a drug drop might be underway,

Agent O’Reilly stopped Amaral-Estrada and asked for

identification. While this may have satisfied the agents’

reasonable suspicion as to Amaral-Estrada’s identity,

probable cause was established for his arrest when

Amaral-Estrada lied to them, a violation of 18 U.S.C.

§ 1001 (false statements to a federal agent). Specifically,

Amaral-Estrada denied any knowledge of the Chrysler

M300 that Agent O’Reilly had just seen him park and exit

moments earlier. For this reason alone, the agents had

probable cause to detain and arrest Amaral-Estrada. The

district court’s denial of Amaral-Estrada’s Motion to

Suppress Evidence is therefore affirmed.
Nos. 06-4332 & 06-4334 13

8 Lira-Esquivel makes no direct argument why the agents lacked

probable cause to search and arrest him, and instead focuses

his argument on the lack of probable cause to enter his apartment.

B. Issues Raised by Lira-Esquivel

1. Probable Cause to Enter the Apartment and

Search and Arrest Lira-Esquivel

Lira-Esquivel appeals the district court’s finding that

the agents had probable cause to enter his private residence, and to search and arrest him.8

 Specifically, LiraEsquivel contends that the district court clearly erred in

finding that the agents at the door of Lira-Esquivel’s

apartment could have seen the arm of a person on the

couch based on the positioning of the door in relation to the

couch. Lira-Esquivel also claims that Verdeja-Sanchez

could not have understood the agents’ question of whether

anyone else was in the apartment, despite her statement

that she understood English “a little” and responding “no”

to the question. Lira-Esquivel hinges his argument on the

district court’s factual determinations that he asserts

were clearly erroneous. Lira-Esquivel does not contest

that probable cause existed to enter the apartment, and

to search and arrest Lira-Esquivel under the facts determined to be true by the district court. We review this

purely factual challenge for clear error only. See Parker,

469 F.3d at 1077.

Lira-Esquivel’s first factual challenge is whether the

couch was visible from the agents’ position at the doorway of the apartment. It is undisputed that the door was

open wider than the pictures presented to the district court

illustrated, and that the couch was certainly visible when

the door was opened all the way. Based on the testimony

provided at the evidentiary hearing, it was not clearly

erroneous for the district court to conclude that the door
14 Nos. 06-4332 & 06-4334

was open far enough for the agents to see the couch. In

other words, it was not clear error for the district court to

believe the testimony of the agents. The evidence presented by Lira-Esquivel, when taken as true, may question

the accuracy of the agents’ statements, but it does not

definitively negate them. Therefore, the district court did

not clearly err in determining that the agents could have

seen an arm on the couch, and that the agents then

concluded that Verdeja-Sanchez had lied to them.

Turning to Lira-Esquivel’s second factual challenge, that

Verdeja-Sanchez could not have understood the agents’

questions, we again find no error. At the time the agents

knocked at Lira-Esquivel’s door, the agents were lawfully in the unsecured common areas of the multi-unit

building. When Verdeja-Sanchez opened the door to the

agents, she appeared to understand their question regarding her ability to speak English, appropriately responding “a little.” She also provided a coherent and

appropriate—even if untruthful—response of “no” to the

question of whether anyone else was in the apartment with

her. Based on these two responses, it was not an obvious

mistake for the district court to find that Verdeja-Sanchez

understood the questions posed to her, and that she knew

she was lying in her response to the latter inquiry.

In short, the agents lawfully entered the common areas

of 5352 W. Deming Place, and lawfully proceeded to knock

at Lira-Esquivel’s door, which was opened by his wife,

Verdeja-Sanchez. While the door was partially open, and

immediately after Verdeja-Sanchez had told the agents

that no one else was in the apartment, the agents saw

the arm of another person on a couch inside the apartment. Whether the agents believed that Verdeja-Sanchez

lied because she was being held against her will by the

person on the couch or because she was harboring the

fugitive, Sosa-Verdeja, exigent circumstances to enter

the apartment existed. Because exigent circumstances
Nos. 06-4332 & 06-4334 15

existed, the agents had probable cause to enter LiraEsquivel’s home. See Leaf v. Shelnutt, 400 F.3d 1070, 1081

(7th Cir. 2005) (“A warrantless search is permissible

under the Fourth Amendment when police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant.”);

United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003)

(Exigent circumstances exist “when the police reasonably

fear for the safety of someone inside the premises.”)

(internal quotations omitted). Therefore, all evidence

against Lira-Esquivel was lawfully obtained and the

Motion to Suppress was properly denied.

2. The Government’s Surveillance of the Cell

Phone (and the Effect of Sosa-Verdeja’s

Arrest Warrant Thereon)

Lira-Esquivel asserts that the district court erred in

concluding that he lacked standing to challenge the government’s use of the cell site information to track SosaVerdeja’s cell phone in his private residence. We need not

review this issue in light of our determination maintaining the legality of the entry to and search of LiraEsquivel’s apartment, and his subsequent arrest. Nor do

we need to address the effect of Sosa-Verdeja’s arrest

warrant on the right of entry for this same reason. Again,

all evidence obtained was done within the bounds of the

law.

III. Conclusion

For the reasons stated above, the district court did not

err in denying both Amaral-Estrada’s and Lira-Esquivel’s

Motions to Suppress Evidence. The district court’s orders

are AFFIRMED.
16 Nos. 06-4332 & 06-4334

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-5-07