The opinion of the court was delivered by: BRIAN BARNETT DUFF
Mr. Walter Jachimko has been indicted for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 841(q)(1). The indictment is based upon the fruits of a warrantless search of Jachimko's residence conducted on June 30, 1992. Jachimko was arrested at the time of the search. Jachimko has moved to suppress the evidence seized during the search, claiming that the search was conducted without probable cause or consent. The court held a hearing on these claims on December 23, 1992, at which two witnesses testified: DEA Special Agent Scott Courtney and confidential informant Joseph Hendrickson. For the following reasons, Jachimko's motion to suppress is granted.
The court has heard the evidence and has considered the testimony, exhibits, and arguments of counsel. Now fully advised in this matter, the court finds the following facts.
2. Hendrickson mentioned to the DEA the names of defendant Robert Anhalt and his brother William Anhalt, as well as five other individuals, but never mentioned defendant Jachimko. In fact, the DEA agents assigned to the case never heard Jachimko's name until the night of the arrest, June 30, 1992. A background check on Hendrickson revealed prior convictions for delivery of cocaine and for escape. Hendrickson became a confidential informant ("CI") for the DEA, and received monetary compensation in return for his assistance.
3. The DEA began surveillance of Robert Anhalt in March 1992 in order to find corroboration for Hendrickson's information.
4. On March 24, 1992, Hendrickson arranged a meeting with Robert Anhalt at Robert's residence for the purpose of introducing Robert to DEA undercover agent Jodwalis. William Anhalt was also present at this meeting. Jodwalis told the Anhalts that he was interested in obtaining marijuana plants, and that he had plans for developing a large hydroponic growing operation and wanted Robert Anhalt to be a business partner in the venture. William stated that he had a large growing operation that he would be willing to show Jodwalis the next day.
5. On March 25, 1992, there was a meeting between Jodwalis, Robert, William, and undercover DEA agent Scott Courtney. The agents proposed to purchase plants from the Anhalts and to hire the Anhalts to set up the indoor growing operation and care for the plants. The Anhalts indicated interest at that time, but subsequently told Hendrickson that they were no longer interested in managing the growing operation.
6. The DEA, therefore, scaled back their aspirations, and decided to seek a simple purchase of marijuana plants from the Anhalts. On June 1, 1992, the CI, wearing a recording device, met with Robert at Robert's residence. The CI obtained two sample marijuana plants, and ordered 150 plants at $ 10 each. A week later, at another DEA monitored meeting, the CI gave Robert $ 150 as a down payment toward the plants, and arrangements were made for the CI to see the 150 plants that had been ordered on June 30, 1992.
7. On June 30th, DEA agents met with the CI in the vicinity of Robert's residence before he was to meet Robert to view the plants. The CI was given a recording device, which also allowed agents to monitor conversation, and an "Agent Alert button." The purpose of the alert button was to summon the surveilling DEA agents upon its activation. The CI was instructed to press the alert button only if he saw more than one hundred marijuana plants. The CI then went to Robert's residence; he stayed for ten minutes, returned to the meeting place with the agents alone, and then went back to Robert's apartment. The CI still had the recording device and the alert button, and his instructions did not change.
8. The anticipated pattern of the evening, however, did change. The CI and Robert left Robert's residence in a car, and they were followed by surveilling DEA agents. They drove to 4900 West Newport in Chicago, a location which had never been under DEA surveillance during the investigation. Agent Courtney testified that at the time the agents approached 4900 West Newport, they had no idea who lived there, or how many units were in the building. They did not know of any violations of any law taking place at that address.
9. After arriving at 4900 West Newport, Robert knocked on a basement window, and, according to the CI, Robert and the CI were admitted by Walter Jachimko through the front door, into what turned out to be Jachimko's home.