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April 10, 2003


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge


Antoine Johnson ("Johnson") has filed a motion to suppress, as potential evidence in connection with counterfeiting charges brought against him and co-defendant Antonio Cooper ("Cooper"), a substantial number of items that he characterizes as "the direct and indirect products of an unlawful search." Because the challenged searches and consequent seizures were the ultimate result of two Markham police officers' suspicions about a parked car in a residential section of that community during the wee hours of a weekday morning on August 22, 2002, the justification for and the validity of the officers' conduct are hotly contested.

This Court has conducted an evidentiary hearing on the matter, a hearing that produced sharply disputed versions of the events involved, and the arresting officers' accounts have proved to be regrettably lacking in credibility. But because this Court's discrediting of those accounts has converted what would have been an easy denial of the motion to suppress (if the officers' testimony had instead been found to be truthful) into a substantially more difficult case in legal terms, this opinion will first set the factual framework*fn1 and then turn to its legal consequences.


Although the ultimate criminal charges here relate to the counterfeiting of United States currency, those illegal activities and illegal materials would not have been uncovered but for the sequence of events that hinges upon the officers' initial discovery of a few packets of marijuana in a parked vehicle that was occupied by Johnson in the driver's seat, Cooper in the front passenger's seat and a third individual — Tillman Batchelor ("Batchelor") — in the rear passenger seat. So the initial key to the potential success of the suppression motion lies in the validity of the searches that were undertaken incident to that discovery, for if that validity issue gets a negative answer it is possible that everything else may be barred in Wong Sun terms as the fruit of the poisoned tree.

Federal judges regularly instruct juries in criminal cases (and in civil cases as well) that law enforcement officers, when they testify, must be judged by the same standards as all other witnesses. Juries are also instructed carefully, in accordance with common sense, that any witness' self-interest must be taken into account in the evaluation of his or her testimony — and Fed.R.Evid. 609 teaches that a witness' prior criminal record is to be considered as bearing on his or her credibility. So it is not at all surprising when a swearing contest between (for example) an arresting officer and a convicted felon who offer up conflicting versions of events most frequently results in a resolution in favor of the officer's account, whether that resolution is made by a jury or by a judge (whose function as a factfinder is bound by the same rules).

But jurors are also regularly instructed, as stated in Seventh Circuit Federal Criminal Jury Instruction 1.04:*fn2

You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.
In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this "inference." A jury is allowed to make reasonable inferences. Any inferences you make must be reasonable and must be based on the evidence in the case.
And here too a judge as factfinder follows the same rules. It is especially appropriate to bring that notion into play when some objective considerations help to resolve factual disputes, rather than there being a need to choose between two otherwise unbuttressed testimonial versions. And this Court finds that to be the case here.

To begin with the hearing testimony of Markham Police Officer Patrick Righi-Barnard ("Barnard"), he described himself as having approached the parked car with Johnson occupying the driver's seat, so that Barnard stood outside of the driver's-side front door with his flashlight shining toward Johnson. Later, in an obvious effort to rehabilitate what sounded like a physical impossibility because light rays don't bend (except in the vast distances of space addressed by Einstein's theory of relativity and its progeny), later testimony was introduced by the government as to a group of photographs in which the camera lens was supposed to depict what the lenses of Barnard's eyes would have seen. But the testimony of United States Secret Service Agent Pamela Stute on that score was that she had placed the camera lens only an inch or two from the vertical plane of the front door window when those photographs were taken.

If that is thought of in terms of locating Barnard's eyes in the same position, it is wholly at odds with common sense. First and importantly, nothing that the officer himself testified to suggested that. Next, for Barnard to be positioned so that his eyes were that close to the window would require him to have held his flashlight in an extraordinarily awkward position, perhaps at or behind his side, rather than conforming to any person's normal holding of a flashlight in front of himself or herself, while standing behind it to observe what the flashlight illuminates. And in that normal situation the human eye, like the camera lens if it were placed there instead of where Agent Stute placed it, could not have seen the two small packets of marijuana where Barnard said they were, to the left of Johnson's left foot immediately inside the car door.

Moreover, that normal and common sense view is further supported by considerations that obviously affect both an officer approaching a vehicle under the circumstances involved here and a person inside the vehicle who knows that the officer is approaching and who obviously wants to get any marijuana in his possession out of sight. Only a brief discussion is necessary to demonstrate such obviousness.

From the perspective of any officer approaching a vehicle with some suspicion, as was testified to be the situation here, the officer would be disinclined to place himself or herself in peril from any sudden effort at resistance or worse at a time when the officer was in a particularly awkward position and location in terms of being able to react and defend himself.*fn3 That, as well as the normal practice of holding a flashlight out in front of oneself to be better able to focus on and see what the flashlight illuminates, would tend to place the officer's body some distance away from the outside of the car door — certainly a foot or two.

So Barnard's version was at best suspect, and at worst not at all credible, even if looked at in a vacuum. But there is additional and important evidence in terms of the objective common sense that any factfinder is called upon to apply.

Look at the situation this time from Johnson's perspective, sitting as he was in a parked car with two other individuals shortly after midnight, with two nickel bags of marijuana on him. At that time Johnson saw a plainly marked squad car, with its alley lights operating, turn the ...

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