None of the extreme conditions that led the reluctant
Serna-Barreto court to find that a pointed firearm was not
tantamount to an arrest are present here. Leal was ordered out
of his pick-up at gun point and put up against the side of the
truck. No reasonable person under those circumstances would
have believed that he was free to leave or that the police just
wanted to engage in conversation. Leal was under arrest and to
say he wasn't is simply nonsense. As the court observed in
Serna-Barreto, "It would be a sad day for the people of the
United States if police had carte blanche to point a gun at
each and every person of whom they had an "articulable
suspicion" of engaging in criminal activity." Id. at 967.
The appropriate remedy for arrest without a warrant and
without probable cause is well established. Evidence obtained
as the fruit of an illegal arrest must be suppressed.
Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314
(1982); Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248,
2259, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590,
95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The need to suppress the
evidence obtained by the illegal arrest is made more compelling
by the additional Fourth Amendment violations by the police in
failing promptly to take Leal before a magistrate.
It is uncontested that Leal was arrested in one venue and
transported to another without a probable cause hearing or
formal complaint. In that second venue without a probable
cause hearing or formal charge, Leal was interrogated and
information was obtained that the police felt could link Leal
to the Solis, Ramirez, Tijerina conspiracy on which the police
had very strong evidence.*fn5 Leal was then held, again
without formal charge or a probable cause hearing, for a crime
he allegedly committed in the second venue not in the first
venue where he had been arrested.
The government argues that the Holiday Court exhibit from
Kankakee County supports a finding of an independent, judicial
determination of probable cause. Granted, an independent,
judicial determination of probable cause need not have all the
trappings of a full adversarial proceeding. Gerstein v. Pugh,
420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). A Kankakee
County Assistant States Attorney testified that he told the
Holiday Court Judge what evidence there was against Leal. But
to determine probable cause, "The standard is the same as that
for arrest." Gerstein, 420 U.S. at 120, 95 S.Ct. at 866. A
probable cause determination for the issuance of an arrest
warrant would have affidavits or testimony to support it. The
only record this court has before it is a form with a check
mark on it.
All that discussion avoids the real question of why was
there no probable cause hearing in Cook County or the federal
Northern District of Illinois? Leal was arrested in Cook
County for a crime he allegedly committed there. There was no
independent, judicial determination of probable cause for that
arrest. Instead, Leal was transported to Kankakee where he was
interrogated and information elicited for charging him with a
crime in Kankakee County or the federal Central District of
The government has the burden of showing why it delayed in
securing an independent determination of probable cause.
County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct.
1661, 1670, 114 L.Ed.2d 49. The government has not borne that
burden here. In fact, the court concludes that the delay was
for the purpose of gathering additional information to justify
the arrest (Bodemer's interrogation of Leal at 2:20 a.m. in
Kankakee County). That is a reason specifically prohibited by
McLaughlin. 500 U.S. at 56, 111 S.Ct. at 1670.
Gerstein, v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54
(1975) made clear that failure to obtain an independent,
judicial determination of probable cause is a Fourth Amendment
violation. County of Riverside
v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49
(1991) teaches that the determination of probable cause
generally must be made within 48 hours. Powell v. Nevada, ___
U.S. ___, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) points out that
the question of what remedy is appropriate for this type of
Fourth Amendment violation has yet to be decided by the Court.
Id. at ___, 114 S.Ct. at 1283-84. It seems clear that in this
case the remedy should be suppression of the evidence obtained
during the unwarranted delay. The defendant's arrest was
without probable cause and nothing intervened between the
arrest and the interrogation by Sgt. Bodemer to break the
causal relationship of the statement and the illegal arrest.
More important, it is clear to the court that the delay in
obtaining a judicial validation of the arrest and Leal's
transportation to a different venue was to gain time to seek
additional information. Cf. United States v. Alvarez-Sanchez,
___ U.S. ___, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994) (delay did
not lead to suppression where the delay in going before a
magistrate was preceded by a valid arrest).
Both for violation of the defendant's Fourth Amendment
rights to be free from unreasonable seizures and to have an
independent, judicial determination of probable cause without
unreasonable delay, the defendant's motions to suppress are
granted. The defendant's statement to Sgt. Bodemer and the
pound of marijuana taken from his person at the time of his
arrest are both suppressed. The government may not introduce
that statement or the pound of marijuana against Leal in its
case in chief.