United States of America v. Anibal Pineda-Areola

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2010
Decided April 6, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐1105
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANIBAL PINEDA‐AREOLA,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
New Albany Division.
No. 4:07CR00007‐005
David F. Hamilton,
Judge.
O R D E R
Anibal Pineda‐Areola pleaded guilty to conspiracy to distribute methamphetamine,
cocaine, and marijuana. See 21 U.S.C. §§ 846, 841(a)(1). In his plea agreement, he waived his
right to appeal the conviction and sentence, but reserved the right to appeal the denial of a
motion to suppress evidence regarding a mobile phone seized from him during his arrest.
He was sentenced to 120 months’ imprisonment. Pineda‐Areola filed a notice of appeal, but
his appointed counsel now seeks to withdraw because he cannot identify any nonfrivolous
ground for appeal. See Anders v. California, 386 U.S. 738 (1967). We confine our review to the
potential issues identified in counselʹs facially adequate brief, see United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002), and Pineda‐Areola’s submission in response, see CIR. R.
51(b).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1105 Page 2
As part of an investigation into suspected drug trafficking in Louisville, Kentucky
and southern Indiana, law enforcement officers tapped the phone of a drug dealer who
made drug‐related calls to a mobile phone used by Pineda‐Areola. During these calls
Pineda‐Areola was identified only as “Japo.” In a sequence of these calls, the drug dealer set
up a transaction with Pineda‐Areola at a McDonald’s parking lot in Mumfordville,
Kentucky. Officers carried out a surveillance of the transaction and saw the drug dealer’s
courier remove a blue cooler from Pineda‐Areola’s truck and place it in the courier’s vehicle.
The officers approached Pineda‐Areola (and others) and asked them for identification. The
agents checked with the Bureau of Immigrations and Customs Enforcement and were told
that Pineda‐Areola was in the United States illegally and that he should be brought to
Louisville for questioning. After the officers patted‐down Pineda‐Areola, they seized a
mobile phone that was in his front pants pocket. When an officer used another phone to dial
the phone number used by “Japo,” the phone vibrated. Pineda‐Areola was arrested for
being in the United States illegally, and was subsequently charged with conspiracy to
distribute controlled substances. He moved to suppress evidence related to the phone on
grounds that the officers did not have reasonable suspicion to stop him, probable cause to
arrest him, and permission to “search” his phone by dialing “Japo’s” number. He later
pleaded guilty to the charges.
Pineda‐Areola suggests in his Rule 51(b) response that he is dissatisfied with his plea
agreement and did not understand its significance. But any challenge to Pineda‐Areola’s
plea would be frivolous. The district court conducted a thorough colloquy under Fed. R.
Crim. P. 11, and we see no error, plain or otherwise. (Our review would be for plain error
because Pineda‐Areola did not move to withdraw his plea in the district court. United States
v. Vonn, 535 U.S. 55, 59 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir. 2008).)
Counsel considers whether Pineda‐Areola can raise any challenge to the district
court’s denial of his motion to suppress. He first examines whether Pineda‐Areola could
argue that the district court wrongly refused to suppress evidence of the phone because the
stop and search were not supported by reasonable suspicion as required by Terry v. Ohio,
392 U.S. 1 (1968). Counsel correctly concludes that this argument would be frivolous given
the circumstances leading to the stop. It is proper for an officer to conduct a Terry stop when
the officer is “able to point to ‘specific and articulable facts’ that suggest criminality so that
he is not basing his actions on a mere hunch.” United States v. Booker, 579 F.3d 835, 838 (7th
Cir. 2009) (quoting Jewett v. Anders, 521 F.3d 818, 823 (7th Cir.2008)). Here the law
enforcement officers had tapped phone conversations between “Japo” and the drug dealer
concerning drug transactions. From these calls they learned that “Japo” had set up a drug
transaction to occur at the McDonald’s parking lot on June 5, 2007. At the parking lot the
officers saw the drug dealer’s courier transfer a cooler from Pineda‐Areola’s vehicle to his

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No. 09‐1105 Page 3
own vehicle. Given that the officers knew the day and location of a planned drug deal,
followed the drug dealer’s courier to the location on that day, and observed the drug
dealers exchange a cooler, the officers had much more than a “mere hunch” on which to
conclude that a crime was being committed.
Counsel next examines whether Pineda‐Areola could challenge the district court’s
conclusion that the officers had probable cause to arrest him for an immigration violation.
But any such challenge would be frivolous. An officer was informed by an agent with
Immigration Customs Enforcement that Pineda‐Areola was in the United States illegally
and consequently should be taken into custody. Once the officer had reasonably
trustworthy information (from the ICE agent) that Pineda‐Areola was committing a crime
(being in the United States unlawfully), the officers had probable cause to arrest him. United
States v. Burnside, 588 F.3d 511, 517‐18 (7th Cir. 2009); United States v. Brown, 366 F.3d 456,
458‐59 (7th Cir. 2004).
Counsel also examines whether Pineda‐Areola could challenge the district court’s
finding that dialing the phone number associated with “Japo” (and thereby identifying him
as Pineda‐Areola) was not a search under the Fourth Amendment. But counsel correctly
concludes that any such challenge would be frivolous. Even if dialing a phone were
considered a search, the officers were entitled to search Pineda‐Areola and the phone
incident to his lawful arrest. See United States v. Robinson, 414 U.S. 218, 235 (1973); United
States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding search of contents of pager as
incident to lawful arrest); United States v. Finley, 477 F.3d 250, 258‐60 (5th Cir. 2007)
(upholding search of mobile phone’s call records and text messages as incident to lawful
arrest).
Finally, Pineda‐Areola suggests in his Rule 51(b) response that he was dissatisfied
with counsel’s performance in the district court. To the extent, however, that he wishes to
pursue a claim of ineffective assistance, that is best done in a collateral proceeding where
the record can be more fully developed. See Massaro v. United States, 538 U.S. 500, 504‐05
(2003); United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005).
The motion to withdraw is G RANTED, and the appeal is D ISMISSED.

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