Ochana, John v. Flores, Fernando

Court Case Details
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit


No. 02-2227




















Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 7869—James H. Alesia, Judge.














Before P





, and W

, Circuit









, Circuit Judge. John Ochana fell asleep



at the wheel of his car at a busy intersection in Chicago
during rush hour. Fortunately for Ochana, police officers
arrived in time to escort him safely out of the car. Unfortu-
nately for Ochana, the officers also conducted a search of
his car and found an unmarked bag of white powder and a
mysterious bottle labeled in Spanish. Notwithstanding his
protestations of “it’s not what you think,” Ochana was
brought in on traffic and criminal charges and spent the
better part of the weekend in jail. Laboratory test results


No. 02-2227

for the white powder later came back negative, and all crim-
inal charges were dropped. Ochana subsequently brought
this action against the officers pursuant to 42 U.S.C.
§ 1983, claiming that they had violated his Fourth Amend-
ment rights by unlawfully searching and arresting him
without probable cause. The district court granted summary
judgment in favor of the officers, and Ochana appealed. We


Around 6:00 p.m. on Friday, June 23, 2000, Ochana was

at the wheel of the first vehicle stopped at the light on
Kostner Avenue where it intersects with Irving Park Road
in Chicago, Illinois. Two Chicago police officers, Defendants
Fernando Flores and Anthony Schwocher, were in their
squad car, which was located a few cars behind Ochana’s
car. The light at the intersection changed, but Ochana’s car
did not respond, and people started honking their horns.
Someone coming from the opposite direction on Kostner told
the officers that there was a car blocking traffic, and that
the driver was either asleep at the wheel or passed out.

The officers activated their emergency equipment and

pulled up in their squad car next to Ochana’s car.
Schwocher went over to Ochana’s car and observed that
Ochana was asleep behind the wheel with his head down.
The gear of Ochana’s car was in “drive,” and his foot was on
the brake. Ochana’s window was open, and Schwocher at-
tempted to wake him by calling to him, but Ochana did not
respond. Schwocher reached in through the open window of
Ochana’s car, shifted the gear into “park,” and then at-
tempted to wake him by shaking him. Even then, Ochana
did not wake up entirely; instead, he kept waking up and
then nodding off to sleep again. It was not until the officers
knocked on the door of his car that Ochana woke up fully,

No. 02-2227


startled. Ochana thought that he had dozed off only for a
few minutes. He did not recall that cars behind him were
honking, that cars were passing in the opposite lane of
traffic, that the officers had reached in and shifted the gear
into “park,” or that they had tried to wake him.

The officers ordered Ochana to get out of his car. From

that point onward, most of the facts are disputed. According
to the officers, they physically had to help carry Ochana out
of the car; according to Ochana, he was able to get out of the
car by himself. The officers escorted Ochana to the rear of
the vehicles and asked to see his driver’s license. The
officers testified that Ochana was still groggy and incoher-
ent, but Ochana maintains that he was alert and awake.
Ochana, however, testified that he did not remember
whether he pulled out his driver’s license. Schwocher tes-
tified that because Ochana was not responding to his
request for the driver’s license, he had to reach into
Ochana’s pocket and pull it out himself. The officers asked
Ochana why he was sleeping, and Ochana responded only
that he was tired.

While Ochana was behind the vehicles with Schwocher,

Flores looked into the passenger compartment of Ochana’s
car. Flores testified that he saw a white substance in a
clear, unlabeled bag sticking out more than halfway from
inside an open, unzipped backpack. Ochana, in contrast,
testified that his backpack was closed. The clear, unlabeled
bag was a Ziplock sandwich bag; inside it was a clear plastic
scoop and a white powdery substance. According to Ochana,
the white powder also had yellow flecks and a lemon-lime
scent. The officers did not taste or smell the powder, as they
should have done according to Department policy. Based on
its appearance and packaging, and also taking Ochana’s
impaired condition into account, the officers believed that
the powder was either cocaine or heroin. Flores removed the
backpack from Ochana’s car and further discovered a brown


No. 02-2227

bottle of “Cynomel” that appeared to be a prescription drug.
The bottle was labeled in Spanish without any prescription
information on it.

Ochana allegedly told the officers that the white powder

was “creatine” (a popular muscle builder), but according to
the officers, “He couldn’t say really anything. He just said
that it’s not what you think it is.” The officers told Ochana
that they were going to take him in so that they could
identify the white powder. The officers did not know what
was in the bottle, but they believed that it was a prescrip-
tion drug that Ochana had obtained illegally.

The officers handcuffed Ochana and took him to the police

station. Ochana’s car was towed and impounded. Later at
the police station, Ochana explained to officers what
creatine was—a dietary supplement usually purchased at
health food stores to help build muscles, and a non-con-
trolled substance. Moreover, Ochana explained to the
officers that the brown bottle contained his thyroid medica-
tion. Ochana had obtained it while in Mexico as a substitute
for the thyroid medication for which he had a valid prescrip-
tion in the United States. Ochana asked the defendants to
call Walgreens to verify his prescription. Officer Flores
called a pharmacist, and was allegedly told that Cynomel
was a prescription drug, a steroid, and a controlled sub-

Based on this incident, Ochana was charged with obstruc-

tion of traffic, in violation of the City of Chicago Municipal
Code, C

, IL, C

§ 9-40-130 (1999); possession of a



controlled substance in violation of 720 Ill. Comp. Stat.
570/402 (1998); and forging or altering a prescription, in
violation of 720 Ill. Comp. Stat. 570/406 (1998). He spent
the next two nights in jail, and was released on Sunday
morning after posting a $100,000 bond, $1,000 of which was
nonrefundable. Subsequent attorneys’ fees to clear Ochana
of the pending charges added up to another $1,000.

No. 02-2227


On July 21, 2000, both criminal charges were dismissed

after laboratory test results for the white powder came back
negative. On the obstruction of traffic charge, Ochana re-
ceived supervision and was assessed a fifty-dollar fine.

In this § 1983 action, Ochana makes two principal

allegations against the officers: first, that they searched his
vehicle and backpack without probable cause, and second,
that they arrested him without probable cause. The district
court granted summary judgment in favor of the officers,
finding that the search was incident to a custodial arrest,
and that the subsequent arrest was warranted by probable
cause. Ochana challenges the district court’s grant of sum-
mary judgment, in addition to various evidentiary rulings.


We review de novo a district court’s decision to grant

summary judgment, Remer v. Burlington Area Sch. Dist.,
286 F.3d 1007, 1010 (7th Cir. 2002), drawing all reasonable
inferences in the light most favorable to the non-moving
party, here Ochana. See Casteel v. Pieschek, 3 F.3d 1050,
1052 (7th Cir. 1993).

A. Legality of Search
Defendants raise three independent arguments to support

the legality of the search: that (1) it was incident to a
custodial arrest; (2) there was probable cause to search for
evidence of drugs or intoxicating agent; and (3) the search
was inevitable. The district court granted summary judg-
ment based on the first of those theories: that the search
was incident to a custodial arrest. We may affirm the
district court’s ruling on any basis supported by the record.
Id. Construing the record in the light most favorable to
Ochana, we depart from the district court’s analysis but
ultimately arrive at the same conclusion.


No. 02-2227

Generally, it is legal to search a vehicle incident to a

lawful custodial arrest, including the contents of any closed
containers found inside, in order to disarm the suspect or
preserve evidence of a crime. See New York v. Belton, 453
U.S. 454, 460 (1981). It is not, however, permissible to
conduct a Belton search pursuant to a traffic citation alone.
Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the Court
underscored that a Belton search may not be conducted as
part of a mere traffic stop, even if there is probable cause
for the traffic stop, or probable cause to arrest the driver for
the traffic violation. In order to conduct a Belton search, the
occupant of the vehicle must actually be held under custo-
dial arrest. Id. at 118.

Construing the record in the light most favorable to

Ochana, we find insufficient evidence that Ochana was
under custodial arrest at the time of the search. A suspect
is under custodial arrest when “a reasonable person in the
suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree
which the law associates with formal arrest.” United States
v. Ienco,
182 F.3d 517, 523 (7th Cir. 1999). For example, in
Smith v. Ball State Univ., 295 F.3d 763, 768-69 (7th Cir.
2002), we found that the removal and detention of an
unconscious person at the wheel of a running vehicle was
merely investigatory and was not equivalent to a custodial
arrest, even if the officers reasonably believed that the
person was impaired by drugs or alcohol. Similarly, in this
case, even if Officers Flores and Schwocher reasonably
believed that Ochana was intoxicated, a reasonable person
in Ochana’s shoes would have thought that he was merely
being detained for a traffic citation. Ochana had no reason
to believe that he was under custodial arrest for any
offense. He was not told that he was under arrest; he was
not handcuffed or frisked; and no sobriety test was con-
ducted. Officers Flores and Schwocher did not ask Ochana
any questions that would signal to a reasonable person that

No. 02-2227


he was suspected of having committed any other offense.
For these reasons, we find insufficient evidence in the
summary judgment record to support a conclusion as a
matter of law that this search was incident to a custodial

Nonetheless, we agree with the district court that sum-

mary judgment was proper because we find that there was
probable cause to search the vehicle for evidence of drugs or
other intoxicating agents. Unlike searches incident to a
custodial arrest, which turn on the objective belief of a
reasonable person in the suspect’s position, see Ienco, 182
F.3d at 523, probable cause determinations turn on the
objective belief of a reasonable person in the officers’
position. See Marshall v. Teske, 284 F.3d 765, 770 (7th Cir.

Even limiting ourselves to the undisputed facts that took

place before Ochana emerged from his vehicle, the record
permits only the conclusion that the officers had reason to
believe that Ochana was unlawfully impaired. Ochana did
not just doze off; he was passed out for several minutes at
an intersection during rush hour; his window was open and
cars were honking at him. He admits that he recalls none
of this. He did not wake up, even though an officer shook
him, verbally tried to wake him, and reached in and
changed the gear to “park.” At that point in time, the
officers had probable cause to search Ochana’s car for an
intoxicating agent. See Smith, 295 F.3d at 769-70 (officers
had probable cause to search the car of an unconscious
driver for intoxicating agents, even though the driver was
actually in diabetic shock). Thus, the warrantless search of
Ochana’s car (and the backpack inside, whether it was open
or not) for evidence of an intoxicating agent was not
unconstitutional. See Valance v. Wisel, 110 F.3d 1269, 1279
(7th Cir. 1997) (Fourth Amendment permits the war-
rantless search of a vehicle when there is “probable cause


No. 02-2227

to believe that the vehicle contains contraband or evidence
of criminality”); United States v. Ross, 456 U.S. 798, 818-19
(1982) (rule applies to closed containers inside the car).

For these reasons, we find that the officers’ search of

Ochana’s car was constitutional. We therefore need not, and
do not, reach the question whether the search was inevita-

B. Legality of Arrest
The presence of probable cause to arrest Ochana for any

offense with which he was charged (or any closely-related
charge) also bars his unlawful arrest claim under § 1983.
See Jones v. Webb, 45 F.3d 178, 183 (7th Cir. 1995);
Calusinski v. Kruger, 24 F.3d 931, 935-36 (7th Cir. 1994);
Marshall, 284 F.3d at 771; Biddle v. Martin, 992 F.2d 673,
676 (7th Cir. 1993). Here, Ochana does not challenge his
obstruction of traffic charge. On the obstruction of traffic
charge alone, the officers could lawfully have arrested
Ochana. See Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (Fourth Amendment permits custodial arrests
for non-jailable traffic offenses). Because there was probable
cause to arrest Ochana for obstruction of traffic (or commit-
ting a closely-related offense of driving under the influence,
driving recklessly, or driving negligently), the district court
found that his unlawful arrest claim could not succeed.

Ochana argues, however, that the presence of probable

cause to arrest him for a mere traffic violation should not
bar his unlawful arrest claim. He asserts that only the
presence of probable cause to arrest for a more serious
offense, such as possession of cocaine or forgery or alter-
ation of a prescription, should bar a § 1983 unlawful arrest
claim. In Ochana’s view, adopting the district court’s rule
opens the door to a parade of horribles, by giving free rein
to the police to arrest drivers for trumped-up criminal

No. 02-2227


offenses without probable cause, so long as there is probable
cause to believe that a minor traffic violation was also

Ochana’s argument fails for at least two reasons. If we

were persuaded that Ochana would not have been arrested
on the traffic violation alone, then we might address the
issue of whether probable cause for any charge—no matter
how minor or unlikely to have been the basis of the custo-
dial arrest—bars a § 1983 unlawful arrest claim. We decline
to reach that issue today, because those facts are not before
us. It seems clear that Ochana, who had passed out and
appeared drugged (at least prior to emerging from his
vehicle), would not have been allowed back into his car and
onto the road by any reasonable officer.

Even if at this juncture we were to believe that Ochana

was sufficiently alert to be allowed back into his car, there
was probable cause to arrest Ochana for a more serious
offense—possession of cocaine. Cocaine can come in a
yellowish color, see, e.g., United States v. Linton, 235 F.3d
328, 330 (7th Cir. 2000), and its scent can be masked, see,
e.g. United States v. Koenig, 856 F.2d 843, 845 (7th Cir.
1988). Here the appearance of the powder was not all that
roused the officers’ suspicion. The officers were also entitled
to take into account the powder’s packaging, Ochana’s im-
paired behavior, and his failure to give a coherent explan-
ation of what was in the bag at the time of the arrest.
Taken together, these facts were enough to establish
probable cause. The fact that Ochana later gave a coherent
explanation for the powder does not alter the probable
cause determination. See Garcia v. City of Chicago, 24 F.3d
966, 969-70 (7th Cir. 1994).

C. Other Evidentiary Rulings
Finally, Ochana challenges a number of evidentiary

rulings made by the district court that he believes affected


No. 02-2227

its summary judgment ruling. We review these only for
abuse of discretion. Jenkins v. Chrysler Motors Corp., 316
F.3d 663, 664 (7th Cir. 2002).

The district court denied Ochana’s motion in limine to bar

any reference to the officers’ subjective belief that they had
probable cause, stating that the officers’ subjective belief of
probable cause is “central” to this case. Ochana is correct
that the district court misstated the governing law. It is
well-established that an arresting officer’s personal knowl-
edge of facts sufficient to constitute probable cause is
significant, but an arresting officer’s subjective beliefs are
not relevant. Whren v. United States, 517 U.S. 806, 813
(1996). The determination whether a sufficient legal basis
existed for an arrest is an objective one. Therefore, the
subjective belief of the officers here that they had probable
cause is not “central” to any issue before us.

Although the district court was incorrect to place signifi-

cant weight on the officers’ subjective belief that they had
probable cause, its error was harmless. There was probable
cause to arrest Ochana based on the facts known to the
officers, and their testimony did indicate what information
they actually possessed prior to making the arrest.

Ochana’s other challenges are equally unavailing. It was

not an abuse of discretion for the court to grant the officers’
motion in limine to bar the negative laboratory results or
the disposition of the underlying criminal charges, because
these were not facts within the officers’ knowledge at the
time of the arrest and thus could not be considered even at
the summary judgment stage. Moreover, the district court
did not abuse its discretion in refusing to take judicial
notice of the nature of Ochana’s thyroid medications
(Synthroid, Cynomel, and Cytomel), because this informa-
tion was also not known to the officers at the time of the
arrest. Even if the district court erred, Ochana cannot
demonstrate prejudice. Harmless errors do not warrant

No. 02-2227


reversal. See Gusman v. Unisys Corp., 986 F.2d 1146, 1148
(7th Cir. 1993).


For the reasons discussed, the judgment of the district

court is A



A true Copy:



Clerk of the United States Court of

Appeals for the Seventh Circuit


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