suppress in a prior case to have either conclusive or presumptive effect in a later case, there must be an identity of parties." Id. Defendant does not suggest there was a suppression ruling in the state proceedings, only that there was a finding of no probable cause for the arrest. Professor LaFave's analysis does not become less applicable, however, by virtue of the fact that the prior proceeding (even as characterized by defendant) did not go all the way to a suppression order. If anything, that variation would tend to assign even less effect to the prior proceeding. In any event, the court agrees with the government, and finds the prior state court finding referenced in defendant's motion does not preclude this court's independent examination of the legality of the arrest of Clement Messino.
2. Legality of the Arrest of Clement Messino
According to the testimony of Officer Jarocki, Sergeant Jacobson informed the TAC Unit officers of what he had observed. Sergeant Jacobson left the scene since he was in uniform, and the TAC Unit officers began surveillance to see who would enter the parked car. Officer Jarocki saw a male approach the car from the driver's side, and a female approach the car from the passenger side. Officer Jarocki saw the man, whom he identified in court as defendant Clement Messino, open the door of the car and begin to enter the car.
At that time the TAC Unit officers arrested Clement Messino for unlawful possession of a weapon. It was reasonable, under the totality of the circumstances, for the arresting officers to believe Clement Messino had committed a crime. The officers, therefore had probable cause for this arrest, and the arrest consequently was not in violation of the Fourth Amendment. See, e.g., United States v. Robinson, 30 F.3d 774, 785 (7th Cir. 1994). Pursuant to that arrest defendant was detained in the Chicago Police Department First District lockup.
C. Fruits of the Arrest
Finally at issue is whether any Fourth Amendment violations occurred in the course of and after Clement Messino's arrest. Defendant here makes arguments based on an assumption of the legality of the arrest, and those arguments must be considered.
Clement Messino when arrested had in his possession a briefcase, which the police officers took custody of when arresting him. This custody was lawful. The police also conducted an inventory search of the briefcase, the legal scope of which is disputed. Officers wrote up an inventory sheet (Government Exhibit 2). Police investigators also photocopied a notebook and address book retrieved from the briefcase. Those photocopies are Government Exhibit 3. Inventory search is the only exception to the warrant requirement that the government forwards to avoid suppression of Exhibit 3.
Having lawfully taken custody of defendant's property, the police were entitled, as a general matter, to a warrantless routine inventory search. Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739 (1987); Illinois v. Lafayette, 462 U.S. 640, 646, 103 S. Ct. 2605, 2609, 77 L. Ed. 2d 65 (1983); United States v. McGuire, 957 F.2d 310, 314-15 (7th Cir. 1992). As a general matter, some sort of inventory was routine practice for the Chicago Police Department. The basis for this finding is Officer Jarocki's testimony and the information on the inventory form itself (Government Exhibit 2).
What is troublesome is not the inventory of property, but the opening of the briefcase. There was no record made that a policy regarding the opening of inventoried containers existed. This was the case in Florida v. Wells, 495 U.S. 1, 3, 110 S. Ct. 1632, 1634, 109 L. Ed. 2d 1 (1990). According to the lower court there, "the record contained no evidence of any . . . policy on the opening of closed containers found during inventory searches." Id. That was also the case here; the issue was not addressed by either government witness.
The Wells Court held that "absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment," and the evidence found upon the opening of an inventoried suitcase was properly suppressed. Id. at 5, 110 S. Ct. at 1635. For the same reason, defendant's motion regarding Exhibit 3 is granted and Exhibit 3 is suppressed as evidence.
Even assuming arguendo that the opening of the briefcase was routine and lawful, there is no indication that a further examination of the pages of the address book and notebook would be routine. The government has not proven that. Indeed such an investigatory search beyond the inventory violates the Fourth Amendment. "An inventory search must not be a ruse for a general rummaging in order to discovery incriminating evidence." Wells, 495 U.S. at 4, 110 S. Ct. at 1635. Officer Jarocki, in fact, acknowledges that the further investigation of the notebook and address book were outside the inventory, as was the photocopying that created Government Exhibit 3, attributing that further search to the efforts of the Intelligence Division. Significantly, defendant elicited from Officer Jarocki that he had no knowledge why the Intelligence Division extended the search beyond routine inventory. (Tr. 38.) Thus, there was no record made to justify the warrantless search, which created Government Exhibit 3. This independent reason leads to suppression even without the failure of the government to establish a routine inventory policy of opening containers.
Defendant Clement A. Messino's Motion to Suppress Illegally Seized Evidence is granted in part and denied in part as stated in this Memorandum Opinion and Order. Government Exhibit 3 from the hearing on defendant Clement A. Messino's motion is suppressed as evidence. Further evidence attributable to leads from said exhibit is suppressed according to law.
On the court's own motion for reconsideration, its Memorandum Opinion and Order dated December 16, 1994, is stricken and vacated. Defendant Christopher Richard Messino's Motion to Suppress is granted in part and denied in part as stated in this Memorandum Opinion and Order. Government Exhibits 3, 4, 5, 6, and 7 from the hearing on defendant Christopher Richard Messino's motion are suppressed as evidence. Defendant Clement A. Messino's Motion to Suppress Illegally Seized Evidence is granted in part and denied in part as stated in this Memorandum Opinion and Order. Government Exhibit 3 from the hearing on defendant Clement A. Messino's motion is suppressed as evidence. Further evidence attributable to leads from said exhibits is suppressed according to law.
Date: JAN 03 1995
JAMES H. ALESIA
United States District Judge