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January 22, 2004.


The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


Defendant, Piotr Misiolek, was charged in a three-count superseding indictment of knowingly and intentionally distributing a controlled substance; transporting vehicles known to have been stolen; and receiving, possessing, concealing, storing, selling, and disposing of motor vehicles which had crossed a state boundary after being stolen.

Subsequently, Defendant filed a Motion to Quash Arrest and Suppress Evidence; and the parties filed briefs in support of their respective arguments. An evidentiary hearing on the motions was held, which consisted of the testimony of two of the arresting agents. Following the hearing, the parties submitted argument in post-hearing memoranda and responses.

  The facts underlying the arrest and the search of the Defendant's residence at 5768 Oleander on the evening of March 5, 2003, are generally not in dispute and are summarized below based on the parties' briefs and the evidentiary hearing. Page 2

Facts Known to Government Agents before 5 p.m. on March 5, 2003
  Agents, working with several confidential sources, were investigating individuals, including the Defendant, believed to be involved in the distribution of controlled substances and stolen motor vehicles.

  On February 19, 2003, agents conducted "trash pulls" at the Defendant's residence of 5768 Oleander in Chicago. Items recovered in the trash pull included twelve pages of what appeared to be a drug ledger. FBI Agent James Muha avers that the ledger contained "details of pill and money amounts and customer names." The factual basis for this conclusion is not provided in Muha's affidavit. Other items recovered included copies often checks all drawn on one checking account in amounts payable ranging from $1,000 to $9,000 and an Illinois Department of Revenue vehicle tax record for a 2002 Cadillac Escalade.

  On March 4, 2003, Marzena Gabiga gave a proffer interview to the U.S. Attorney for the Northern District of Illinois regarding her knowledge of drug trafficking and stolen vehicles in the Chicago area. Several agents were also present at the proffer interview. Gabiga stated, in pertinent part, that she met the Defendant two or three years ago and that she learned that the Defendant made money by selling ecstasy that he obtained in Canada. As recently as December 2002, Gabiga received ecstasy pills from the Defendant at his Oleander residence. Gabiga also became involved in stolen cars with the Defendant in December 2002. The Defendant told Gabiga that he had received approximately 20,000 to 25,000 pills from his Canadian source at one time and that she had delivered packages from the Defendant to people at a Hooters Restaurant near Cumberland and Higgins in Chicago, Illinois.

  Also on March 4, 2003, the Defendant and Andrzej Ogonowski, a co-defendant, left Page 3 Fort Lauderdale, Florida. The Defendant and Ogonowski drove continuously to Chicago, Illinois, arriving in Chicago on March 5, 2003. While driving to Chicago, Ogonowski and Defendant gave directions to a Hooters restaurant on Higgins Road to a cooperating individual via a cell phone.

  On March 5, 2003, federal agents believed that the Defendant and Ogonowski would be involved in the sale of a large quantity of ecstasy. The agents had been working with the assistance of a cooperating individual, who was attempting to make a purchase of 10,000 pills. The Government did not obtain a search warrant based on these facts.

Facts Known to Government Agents After 5 p.m. on March 5, 2003
  At approximately 5:00 p.m., agents took three surveillance posts: (1) near the Defendant's main residence of 5768 Oleander, (2) at Ogonowski's main residence at 4221 Osceola, and (3) at a location near Cumberland and Higgins Road. In addition to the Defendant's main residence on Oleander, the Defendant owned a house he was rehabbing at 5832 Oriole. In addition to Ogonowski's main residence on Osceola, he owned a house he was rehabbing at 5840 Oriole. The two houses on Oriole were within a block of Defendant's Oleander residence.

  At approximately 5:50 p.m., a Jeep Cherokee with a Canadian license plate pulled into a parking lot at the Cumberland/Higgins location. A white male was alone in the driver's seat of the Jeep. The Jeep stayed at that location until approximately 6:18 p.m. The driver did not leave the vehicle and appeared to be talking on a cell phone for approximately half of the time.

  After leaving the parking lot, the Jeep proceeded east on Higgins Road in the general direction of the Defendant's residence on Oriole Avenue. A few moments later, the Jeep was observed driving past the Defendant's Oriole house, making a u-turn, and parking in front of the Defendant's Oriole house. Agents then observed the Defendant exit the Jeep, walk towards his Page 4 house on Oriole, and appear to enter the front door. The Defendant was then seen exiting the front area carrying a construction-type trash bag that he threw into a nearby dumpster. The Defendant and Ogonowski deny that the Defendant was in the Jeep.

  Agents then observed a white Lexus drive by the Defendant's Oriole house and circle the block a few times. Two white males were inside the white Lexus. The agents identified the driver of the Lexus as Ogonowski. Ogonowski parked the Lexus behind the Jeep that the Defendant had been driving. The Defendant was standing in the street when the Lexus parked.

  Ogonowski exited the Lexus and met with the Defendant behind the Jeep. The passenger of the Lexus exited the Lexus and entered the driver's side of the Jeep. The Defendant ran towards the front door of his Oriole house with Ogonowski following him. The Lexus passenger then exited the Jeep, walked back to the Lexus, leaned into the passenger side of the Lexus, shut the door and went to the front door area of the Defendant's Oriole house. The three individuals were out of the agents' view for about three minutes and then appeared to come from the Defendant's Oriole house. Ogonowski entered the driver's side of the Lexus, and the Defendant got into the passenger side of the Lexus. The Lexus passenger entered the Jeep and drove south. The Lexus pulled away after the Jeep was out of sight and headed to the Defendant's residence on Oleander, about a half block away.

  At the Defendant's Oleander residence, Ogonowski stopped the Lexus and popped the trunk. The Defendant exited the Lexus, stood next to the car, and looked up and down the street for a few moments. The Defendant then reached into the trunk of the Lexus and pulled out a duffel bag. The Defendant went towards his Oleander residence. Before entering his residence, the Defendant turned and looked around carefully. Ogonowski stayed a few moments and then pulled away from the residence when the Defendant was inside. At this time, the Jeep circled the blocks around the Page 5 Defendant's two homes.

  The agents next observed Ogonowski traveling west on Higgins Road. After driving past the parking lot where the Jeep was first spotted, Ogonowski parked in a parking lot further down on Higgins Road, and he met with the cooperating individual for about three minutes. Ogonowski told the cooperating individual that he wanted him to follow Ogonowski to "the house" to do the deal. The cooperating individual refused and indicated that he wanted to do the deal "here". Ogonowski then drove ...

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