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March 31, 1995

RUFUS SIMS, et al., Defendants.

The opinion of the court was delivered by: JAMES H. ALESIA

 Before the court is defendant Rufus Sims's Amended Motion to Suppress. The motion questions the Fourth Amendment legality of three separate searches and/or seizures. This court has previously dealt with Fourth Amendment issues before the trial of certain of Rufus Sims's codefendants. United States v. Sims, 808 F. Supp. 596 (N.D. Ill. 1992). The court refers to that opinion for background facts of this case and background law on the Fourth Amendment. Each of the three challenged police procedures is considered in turn.


 One of the challenges is to a February 7, 1989, search of a house at 2606 South Boeger Avenue, Westchester, Illinois. The court described and discussed this search in its previous opinion, Sims, 808 F. Supp. 596. Those defendants who challenged the Boeger Avenue search in 1992 did not have standing to do so. Id. at 603. Therefore the court did not reach the substance of the legality of the search. The court, however, did reach the legality of another February 7, 1989, search that raised one of the primary issues on the Boeger Avenue search. The search previously discussed was at 1615 South 16th Avenue, Maywood, Illinois. See id. at 606-07.

 The primary issue for both the 16th Avenue and Boeger Avenue searches arose from a (now admitted) falsehood in the affidavit supporting the warrants for each of the searches. As this court previously noted, under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), a search warrant may be voided if three conditions exist: (1) a factual statement in the affidavit is false; (2) the false statement was made knowingly and intentionally; and (3) "without the false statement, the remainder of the affidavit is insufficient to establish probable cause." United States v. McNeese, 901 F.2d 585, 594 (7th Cir. 1990). As with the 16th Avenue search, the government for the Boeger Avenue search only contests the third element of the test. The situation with which the court is now faced is similar to that in the previous motion regarding the 16th Avenue search, so those facts bear repeating. The instant facts are most easily analyzed in comparison to the 16th Avenue search.

 Regarding the 16th Avenue search, this court described what was left after the falsehoods were excised from the affidavit:

The CI [Confidential Informant] had known Rufus Sims for more than five years; the CI had seen Rufus Sims store firearms at the 1615 South 16th Avenue residence; the CI knew Rufus Sims was a member of the street gang known as the "Four Corner Hustlers"; Rufus Sims had taken the CI to the 1615 South 16th Avenue residence and shown him firearms including a fully loaded UZI machine gun; Rufus Sims told the CI that he kept the guns at the house to protect the house against rival gangs; and the CI knew Rufus Sims transacted narcotics out of the 1615 South 16th Avenue residence. Other information in the affidavit established that Rufus Sims had several felony convictions.

 Sims, 808 F. Supp. at 606. The falsehood regarding the 16th Avenue address was that the CI had seen firearms at the 16th Avenue residence two days before executing the supporting affidavit, whereas in reality the CI had actually seen firearms only at 16th Avenue, and only one year (not days) earlier. Id. at 606. For the 16th Avenue search, the problem was time, and the court resolved the staleness issue in the government's favor. Id. at 606-07. With Boeger Avenue the problem is not just time, but place as well. The CI's statement that the CI ever saw firearms at Boeger Avenue was a lie. No doubt the government's argument regarding Boeger Avenue is relatively weaker than its argument regarding 16th Avenue. But ultimately the distinction does not undermine the Boeger Avenue warrant. The information in the affidavit included that Sims owned the Boeger Avenue residence *fn1" and conducted narcotics trafficking out of the residence. Given that information, probable cause to believe Sims illegally owned weapons naturally leads to probable cause to believe Sims would store illegal weapons in the Boeger residence, based upon the supporting affidavit. The falsehood regarding specific information on Boeger Avenue is a red herring; under the circumstances here, a warrant authorizing search of Sims residence would survive without any more specific information connecting the weapons to the residence. See United States v. Lamon, 930 F.2d 1183, 1190 (7th Cir. 1991); McNeese, 901 F.2d at 595-96. And, in any event, information that narcotics trafficking was occurring out of a residence leads to the fair inference of weapons being stored at the residence. Cf. United States v. Ramirez, 45 F.3d 1096, 1103 (7th Cir. 1995) ("Weapons are tools of the narcotics trade ...."). Examining the totality of the circumstances, Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983), the court finds the search warrant was supported by probable cause despite any alleged Franks problem.

 Defendant's motion is denied insofar as it seeks suppression of items seized from the Boeger Avenue residence on February 7, 1989.


 Rufus Sims also challenges the recovery by Oak Park, Illinois, police of a black pouch and its contents on November 27, 1986. Sims's Amended Affidavit states that officers searched a certain vehicle, located a black pouch, and searched the pouch. Police discovered a drivers license and telephone bill in Sims's name, as well as a notebook (or "ledger"). Oak Park police and other state and federal agents searched the notebook, and submitted it for expert examination, all without a warrant or under a valid exception to the warrant requirement, states the defendant. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). The government has a number of arguments why the Oak Park incident and related subsequent police activity were legal. The court's task now is to determine whether any of the arguments go the government's way based on the briefing, such that a hearing will not be required to resolve the motion as to the Oak Park search. The court so resolves a threshold issue, abandonment, in favor of the government, as discussed below.

 Like other aspects of Fourth Amendment law, for a defendant to contest the search of a vehicle and its contents the defendant must have a legitimate and reasonable expectation of privacy in the vehicle, United States v. Garcia, 897 F.2d 1413, 1417 (7th Cir. 1990); United States v. Torres, 32 F.2d 225, 230 (7th Cir. 1994), cert. denied, 130 L. Ed. 2d 794, 115 S. Ct. 912 (1995), or, put differently, the defendant must have standing to challenge the search, id. The defendant bears the burden of proving a legitimate expectation of privacy. Id.

 The government's first contention here is abandonment. The Seventh Circuit discussed the law of abandonment under the Fourth Amendment in United States v. Rem, 984 F.2d 806, 810-11 (7th Cir.), cert. denied, 126 L. Ed. 2d 248, 114 S. Ct. 300 (1993). "Fourth Amendment protection," the court explained, "does not extend to abandoned property." Id. (citing Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698, 4 L. Ed. 2d 668 (1960)). "'When a person voluntarily abandons property ... he forfeits any reasonable expectation of privacy that he might have had in the property.'" Id. (quoting United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990)). "'The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. This determination is to be made by objective standards.'" Id. (quoting United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859, 104 S. Ct. 184, 78 L. Ed. 2d 163 (1983)).

 Here the government argues that the uncontested facts give rise to abandonment of the vehicle (a Chevrolet Blazer). In his reply brief defendant states, "The Defendant was asked whether he had been in the auto, and honestly replied that he had not been in the auto." *fn2" (Defendant's Reply to Government's Brief in Opposition to Suppression at 16.) Similarly, there is no dispute that defendant denied ownership in the vehicle. (Id. at 19.) Defendant's arguments focus on whether those facts lead to abandonment of any interest in the pouch in the Blazer, which the court will address below. For now, the court concentrates on abandonment of the vehicle. There can be no dispute, and defendant does not truly attempt to dispute, that for Fourth Amendment purposes the vehicle was abandoned. Defendant said he did not own it and he had not been inside it. From where, one ...

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