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U.S. v. LEAL

February 6, 1995

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EDUARDO LEAL, DEFENDANT.



The opinion of the court was delivered by: Baker, Senior District Judge.

ORDER ON MOTIONS TO SUPPRESS

Eduardo Leal and three other defendants, Felix Ernesto Solis, Ignasio Ramirez, and Raul Garza Tijerina, are charged with conspiracy to possess and to distribute more than 100 kilograms of marijuana. Solis is a fugitive and Ramirez and Tijerina have entered guilty pleas and are awaiting sentencing.

Leal has moved the court to suppress the statements he made to Illinois State Police Sergeant Robert Bodemer*fn1 at 2:30 a.m. on November 19, 1994 at the police station in Bradley Illinois. As grounds, Leal says his rights under the Fourth Amendment were violated by the police who did not take him before a magistrate for a probable cause hearing until 72 hours after his arrest. As an additional ground for suppression, Leal says that his arrest in Hoffman Estates was without probable cause.

FACTS

Solis, Ramirez and Tijerina entered into transactions with Sgt. Bodemer, acting in an under cover capacity, for the sale of large quantities of marijuana. Three meetings, November 2, November 9 and November 18, took place in Kankakee County between Bodemer and Solis, Ramirez and Tijerina. Delivery of some marijuana was made and arrangements for further sales were negotiated.

Ramirez and Tijerina were arrested at 2:30 p.m. on November 18, 1994 after their third drug transaction with Bodemer. Following their arrests, Ramirez and Tijerina made statements to the police about a stash house, 4485 Harbor Circle, Hoffman Estates, Cook County Illinois, that was used in connection with their drug business. Through surveillance of Solis, Ramirez and Tijerina, the police were aware of the connection between Solis, Ramirez, Tijerina and the Harbor Circle address. The police had observed the three confederates visit that address prior to the delivery of marijuana to Bodemer in Kankakee County. The police inferred that the residence at Harbor Circle was where the three had warehoused the marijuana. Sgt. Bodemer relayed that information to cooperating police officers from the DuPage Metropolitan Enforcement Group (DUMEG) who were maintaining surveillance on the Harbor Circle address.

The DUMEG officers during their wait outside 4485 Harbor Circle observed activity involving a pick-up truck and a gray van. The van and pick-up were in the driveway outside the garage with people moving around but the police could not see what the people were doing. The pick-up truck belonged to the defendant Leal, and the police had observed Leal come and go from the residence during the days they maintained surveillance. Leal resided in the Harbor Circle home with his aunt and uncle and cousin. The police had no first hand knowledge about Leal or his activities, and his name was never mentioned by Solis, Ramirez or Tijerina in their dealings with Sgt. Bodemer.*fn2

At about 3:55 p.m. the police observed Leal and two other persons come out of the residence. Leal got into his pick-up; the other two got into the van; and both vehicles drove away together. The DUMEG agents following in unmarked cars requested the Hoffman Estates police to effect a traffic stop on the pick-up and the van. Marked squad cars on patrol from the Hoffman Estates police department joined the DUMEG cars following the pick-up and van. The marked cars turned on their emergency lights and the pick-up and the van pulled over immediately.

A marked squad car driven by Hoffman Estates police officer Douglas Zboril stopped behind Leal's truck. A DUMEG car stopped in front of Leal, effectively trapping his pick-up. Officer Zboril "exited" his squad car, drew his service weapon and ordered Leal out of the pick-up with his hands up and to put his hands on the truck. Leal was searched and handcuffed. He had no weapons but the police officer felt a soft, crinkly package in Leal's jacket that later was identified as marijuana. The truck was searched and no contraband was found.*fn3

The court finds that Leal was taken from the truck at gun point. Officer Zboril testified that he held his gun out at an angle with the muzzle pointed down. Leal testified that the police had their guns drawn and pointing at him. At least that was his perception of what was taking place. The court believes Leal's account is more accurate than that of the police officer.

Leal was transported to the Hoffman Estates police station where Inspector Barber of the Illinois State Police gave him Miranda warnings and obtained a written waiver of rights. But no statements were taken from Leal at that time. Neither was he charged or a warrant secured for his arrest. Two agents from the Drug Enforcement Administration appeared on the scene. They put Leal in the back of their government van and transported Leal to the police station at Bradley, in Kankakee County, Illinois. Leal was handcuffed and in custody on the ride to Bradley although there was no charge made against him in Hoffman Estates and no warrant secured for his arrest.

Leal was interviewed by Sgt. Bodemer at the Bradley police station at 2:30 a.m. and was asked for a statement. He was warned about his Miranda rights and signed a written waiver. He then made an incriminating statement about transporting cannabis from Texas to Chicago in October, 1994. Sgt. Bodemer wrote the statement out and Leal signed it. See, Government Exhibit # ?. During the period of time between his arrest and his meeting with Bodemer, there is no evidence of serious mistreatment of Leal. His handcuffs were uncomfortable, he says, because of a pre-existing injury. Leal says that Bodemer treated him well. The Hoffman Estates police may have shoved Leal around a bit but nothing extreme or outrageous took place.

Leal was booked into the Kankakee County Jail in the early morning of November 18, 1994. The Holiday Court Disposition Order, dated November 19, 1995, Government Exhibit # 2, shows a charge of "Conspiracy/Man/Del/ of Cannabis" although no warrant was issued and no complaint filed. It is uncontested that Leal was not taken before the Kankakee County judge who held Holiday Court. A check mark on the exhibit in the space labeled "Probable Cause Found" is the only indication of a judicial determination of probable cause for Leal being in custody. According to the testimony of Kankakee County Assistant States Attorney, Frank Astrella, he told the judge what evidence there was against Leal. The judge checked the probable cause box on the form, set no bail, in fact made no effort to determine a reasonable bail, and signed the form. Leal continued to be held in the Kankakee County jail.

On November 21, 1994, law enforcement officers appeared before United States Magistrate Judge Charles H. Evans in Springfield, Illinois and swore to a criminal complaint charging seven individuals, including the four defendants in this case, with conspiracy to possess and to distribute in excess of 100 kilograms of marijuana.*fn4 The magistrate judge found probable cause existed for Leal's arrest and issued a warrant for his arrest. An initial appearance for Leal was then held before Judge Evans. ...


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