United States of America v. Casey J. Tolar, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1375
United States of America,
Plaintiff-Appellee,
v.
Casey J. Tolar, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 940--Charles P. Kocoras, Judge.
Argued September 19, 2001--Decided October 9, 2001
Before Easterbrook, Diane P. Wood, and
Williams, Circuit Judges.
Easterbrook, Circuit Judge. C&I
Specialized, Inc., an apparently
legitimate business, was a front for a
drug-running operation. Acting on a tip,
agents entered C&I’s business premises in
Harvey, Illinois, at 10 a.m. on a
Thursday morning and asked Casey Tolar,
C&I’s owner, for permission to examine
the cargo of a truck that had recently
arrived. Tolar signed a consent form.
During the ensuing search the agents
found 477 kilograms of cocaine and 2,350
kilograms of marijuana hidden inside a
few of the large propane tanks in the
truck’s cargo. Tolar has been sentenced
to life imprisonment for this large-scale
drug operation.
Given the outcome of the search, Tolar’s
best chance lay in asking the district
court to suppress the evidence. He
offered two principal theories: first,
that his consent was the fruit of an
unlawful entry by the agents; second,
that the consent was in any event
involuntary. After a hearing, the
district court rejected both theories and
denied the motion to suppress. Tolar
renews both contentions on appeal,
leading with the argument that, because
C&I’s business premises were enclosed by
a chain-link fence (topped by barbed

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wire) and a sign warned illegal parkers
that their cars would be towed, the
agents were not entitled to enter even
though another sign stated that the
business was open Monday through Friday
from 8 a.m. to 6 p.m., and the gate to
the lot was open.
Tolar’s argument starts with the major
premise that the fourth amendment forbids
all trespasses, adds the minor premise
that the entry was a trespass despite the
open gate and the open-for-business sign
(that sign was the doing of a prior
owner, Tolar insists, and did not reflect
his practices), and concludes that the
unauthorized entry therefore was
unlawful. Then Tolar treats the consent
as the "fruit of the poisonous tree" and
argues that the evidence seized on its
authority must be suppressed. The
"fruits" argument is a doubtful one. The
statements of a person held in unlawful
custody may be tainted, see Brown v.
Illinois, 422 U.S. 590 (1975), but Tolar
was not detained until after the drugs
were found, and the police did not induce
the consent by confronting Tolar with any
evidence improperly seized. During their
time inside the fence (and before the
consent) they saw nothing that they had
not already seen from outside the fence.
The view from outside, which revealed
that Tolar and a companion were starting
to unload the cylinders from the truck,
did not invade any of Tolar’s privacy
interests, and hence could not have
violated the fourth amendment. See Boyd
v. United States, 116 U.S. 616, 628
(1886). Arguments about causation may be
put to one side, however, because the
agents’ entry did not violate the fourth
amendment in the first place.
Only a rule equating trespass with a
violation of the Constitution could
support Tolar’s position. Yet a trespass
is neither necessary nor sufficient for
constitutional purposes. Wiretaps do not
entail trespasses, but they may invade
privacy and are treated as searches;
other investigative steps, which do
involve trespass, pose no risk of
invading privacy and hence are not deemed
searches or seizures. See Rakas v.
Illinois, 439 U.S. 128, 143 (1978)
(remarking that the fourth amendment has
been decoupled from the law of trespass).
To take one example close to the mark,
the Supreme Court has held that agents

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did not violate the fourth amendment when
they entered a private parking lot to
seize a car. G.M. Leasing Corp. v. United
States, 429 U.S. 338, 351-55 (1977). See
also United States v. Swart, 679 F.2d
698, 701 (7th Cir. 1982). Likewise courts
do not exclude evidence just because
police reach a suspect’s door by cutting
across the yard (trampling on the
rhododendrons in the process) rather than
using the pathway, or because they enter
a home’s curtilage to seize garbage in
which there is no privacy interest. See
United States v. Redmon, 138 F.3d 1109
(7th Cir. 1998) (en banc); United States
v. Dunkel, 900 F.2d 105 (7th Cir. 1990),
remanded on other grounds, 498 U.S. 1043
(1991), decision on remand, 927 F.2d 955
(7th Cir. 1991). Crossing the threshold
of a home would be a different matter, in
light of the special status dwellings
enjoy under the Constitution. See Kyllo
v. United States, 121 S. Ct. 2038 (2001);
Sparing v. Olympia Fields, No. 00-1021
(7th Cir. Sept. 19, 2001), slip op. 6-11.
Businesses such as C&I’s lot that can be
observed by anyone passing on the street
lack any comparable privacy interest. An
open gate invites entry, and a chain-link
fence does little to assert a privacy
interest (as opposed to a property
interest) in details visible from outside
the fence. Agents would have needed
cause, and perhaps a warrant or
equivalent order, to enter in order to
open containers, take soil samples, or
otherwise investigate aspects of the lot
that the public could not observe from
outside. Compare New York v. Burger, 482
U.S. 691 (1987), with United States v.
Tarkowski, 248 F.3d 596 (7th Cir. 2001).
But they did none of these things--did
not conduct any form of search--and so
did not violate the fourth amendment by
entering the lot in order to find the
owner and ask his permission to do more.
As for the search: The district court
found that Tolar’s consent and subsequent
inculpatory statements were voluntary.
Both the agents and Tolar’s companion
testified that the agents entered
peaceably and behaved amicably. Tolar
represented on the consent form that no
threats had been made. He testified
otherwise, but the district judge did not
commit a clear error in believing the
agents, Tolar’s companion, and the
statements Tolar himself made when giving
consent. See Anderson v. Bessemer City,

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470 U.S. 564, 570 (1985). Given the
court’s findings of fact, the consent is
unexceptionable. See Ohio v. Robinette,
519 U.S. 33 (1996); Schneckloth v.
Bustamonte, 412 U.S. 218 (1973).
Only one decision affecting the sentence
has been contested. The district court
concluded that Tolar’s ability to drive
an 18-wheel rig was a special skill "that
significantly facilitated the commission
or concealment of the offense" and earned
a two-level increase under U.S.S.G.
sec.3B1.3. Tolar recognizes that United
States v. Lewis, 41 F.3d 1209, 1214 (7th
Cir. 1994), deems the ability of an over-
the-road truck driver a special skill
that can lead to an enhancement, but he
insists that this skill did not
facilitate his particular offense. The
district judge was entitled to (and did)
find otherwise. Tolar’s skill enabled him
to use C&I as a front for transporting
large quantities of drugs. He was harder
to catch than the normal drug courier and
able to move more per trip. On both
accounts an enhancement was proper.
Affirmed

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