United States District Court, N.D. Illinois
January 22, 2004.
UNITED STATES OF AMERICA, Plaintiff
PIOTR MISIOLEK, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
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
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.
Facts Known to Government Agents before 5 p.m. on March
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
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
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
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
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
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
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 out
of the restaurant parking lot, traveling in the direction of the
Defendant's residence on Oleander and the two homes on Oriole.
Ogonowski was next observed about 12 or 13 minutes later when he was
seen driving westbound on Higgins Road when he entered the parking lot
and parked the Lexus. Agents did not observe Ogonowski from the time he
left and later returned to the parking lot.
In the parking lot, the cooperating individual walked up to Ogonowski's
vehicle with empty hands and stopped at the driver's side window for a
moment. The cooperating individual then walked around the car, opened the
passenger door, and leaned into the vehicle. The cooperating individual
took a package from the front passenger side area of Ogonowski's vehicle.
The cooperating individual then walked back towards his vehicle
carrying a black plastic bag. He opened the trunk of his vehicle, placed
the bag in the trunk, and closed the trunk. At this point, the agents
arrested Ogonowski and retrieved the plastic bag from the trunk of the
cooperating individual's vehicle.*fn1 The plastic bag contained
approximately 9,000 pills of ecstacy.
Immediately following Ogonowski's arrest, some of the agents returned
to the Defendant's Oleander residence. While there were several agents
posted at the various doors to the Oleander house, four agents went to
the front door to advise the Defendant that he was to be arrested. The
Defendant was at the window north of the front door of his residence when
the agents first arrived. The Defendant started closing the blinds to the
windows south of the front door. As is standard operating procedure, the
agents had their guns drawn. The agents identified themselves as law
enforcement officers and informed the Defendant that he was under arrest.
The agents observed the Defendant look out the clear glass doors of the
residence and then run to the back of the home. The Defendant did not
respond to the agents.
While the agents repeatedly instructed the Defendant to open the door
and submit to the arrest, the Defendant ran back and forth from the front
of the home to the back of the home a number of times. The agents
continued to advise the Defendant that he was under arrest. The Defendant
stated something about a warrant and asked, "What are you going to do,
shoot me?" The Defendant continued to run back and forth from the front
and back of his home. Within 2 or 3 minutes of their arrival, the agents
made a forced entry of the Defendant's residence.
Upon entering the Defendant's residence, Agent James Muha told the
Defendant to get down on the ground; and he placed the Defendant in
handcuffs. The agents returned their guns to their holsters upon
restraining the Defendant.
Other agents that entered the home, including Agent Thomas Mazurski,
conducted what was described as a "protective sweep" of the residence.
Agent Mazurski went into the basement as part
of his protective sweep. Upon returning from the basement, Agent
Mazurski escorted the Defendant from the living room into the kitchen.
During this time, Agent Mazurski un-handcuffed the Defendant.
In the kitchen, Agent Mazurski advised the Defendant that he was under
arrest, read aloud each line of the form, and had the Defendant read each
line of the Miranda form aloud. After he read each line of the
form, the Defendant initialed each line. He then signed the bottom of the
form indicating that he understood each line. Agents Mazurski and Muha
also signed the form. The form indicates that it was executed at 7:25
p.m., approximately 17 minutes after the agents entered the residence.
While in the kitchen, Agents Mazurski and Muha interviewed the
Defendant. The Defendant was asked about certain individuals; at which
time, he produced a telephone number for an individual named Angelo. The
Defendant stated that he could order pills from Angelo at that time but
that it would take approximately two days to get the pills.
Another agent returned from the basement and advised the agents that
there was a section of the basement floor that appeared to have been
redone. Agent Mazurski asked the Defendant if they could search the area
because the agents had received information that the Defendant had
installed a safe in his basement. The Defendant took the agents into the
basement and told the agents that he could break up the floor if they
wanted. At this time, Agent Mazurski read a consent form to the
Defendant. The Defendant then read the form and asked that the agents not
destroy any of the house. Agent Mazurski told the Defendant that he would
add a statement indicating such on the form. After adding the requested
language, the Defendant and Agents Mazurski and Muha signed the consent
form. Before the Defendant signed the consent form, Agent Muha told the
Defendant that if he did
not sign the consent, eventually the agents would come back later
with a warrant and conduct the search.
After the consent form was signed, Agent Mazurski asked the Defendant
if there were any narcotics in the home. The Defendant informed the
agents that there was ajar of pills in an upstairs bedroom. The Defendant
showed the agents where the jar of pills was located upstairs. The
Defendant stated that the jar of pills represented all the different
types of pills he had received over a period of time.
During the Defendant's conversations with the agents, the Defendant
spoke English and did not appear to have difficulty speaking, reading, or
understanding English. The Defendant spoke in a conversational tone
during the conversations. The Defendant was not re-handcuffed until he
was leaving the residence to be placed in a vehicle. The agents never
redrew their weapons after the Defendant was restrained.
Motion to Quash Arrest
"[S]earches and seizures inside a home without a warrant are
presumptively unreasonable." Payton v. New York, 445 U.S. 573,
586 (1980). However, such searches and seizures are permitted when
probable cause and exigent circumstances exist. See Kirk v.
Louisiana, 536 U.S. 635, 637 (2002).
Probable cause exists "when the facts within the officer's knowledge
and of which the officer has reasonably trustworthy information are
sufficient to warrant a prudent person in believing the suspect has
committed or is committing an offense." United States v. Sawyer,
224 F.3d 675, 678-79 (7th Cir. 2000). Probable cause does not require an
actual showing of criminal activity but merely
a substantial chance of criminal activity. See United States v.
Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003 (Schaafsma).
When determining whether probable cause exists in a given situation, the
court examines the totality of the circumstances in a commonsense manner.
See Schaafsma, 318 F.3d at 722.
The Government argues facts known before the Defendant's arrest on
March 5 support a finding of probable cause. At the time of the arrest,
the agents knew that the Defendant had made prior drug dealings and that
the Defendant and Ogonowski had prior financial and other criminal
relationships. The agents knew that the Defendant had previously
possessed drugs for distribution in a prior residence and that he had
possessed drug distribution records in the residence in which he was
arrested. However, this information, if it can be said to support the
conclusion asserted by the Government, involved conduct by the Defendant
which had occurred at least several weeks earlier when it was discovered
during an inspection of trash at the Defendant's residences. The
Government also argues that the day before the Defendant's arrest, Gabiga
had informed the agents that she knew that the Defendant dealt with large
quantities of drugs and stolen vehicles. However, the last time she could
remember such alleged transactions was in December 2002, three months
prior to the arrest. Also, while the Government submitted evidence that
the agents knew that the Defendant gave directions by cell phone to a
cooperating individual earlier on the day of Defendant's arrest to the
restaurant location that was the site of the drug buy, there is no
evidence that during this telephone conversation any drugs or illegal
matters were discussed.
Furthermore, the agents never saw the Defendant, Ogonowski, or the
third individual enter any of Defendant's residences and retrieve any
type of bag or parcel. While the agents observed the Defendant retrieve
one duffel bag from the Lexus, the presence of this bag is reasonably
with the fact that the Defendant had just returned from out of
state travel, which was also known by the agents. Nothing was presented
by the Government which would reasonably connect the Defendant with the
presence of the drugs in the Lexus occupied only by Ogonowski later
during the delivery to the cooperating individual.
Most significantly, the agents did not follow nor in anyway observe
Ogonowski during the 12 or 13 minutes after he left the restaurant
parking lot and before he returned to the scene of the drug delivery with
the drugs. There is no evidence that Ogonowski went to any of the
Defendant's two residences to retrieve these drugs. Lastly, while
Ogonowski wanted to conduct the drug transaction at "the house," there
was no specific indication as to which of the houses on Oriole/Oleander
he was referring. It is at least equally reasonable to conclude that
Ogonowski's reference to "the house" was to his own home on Oriole, which
is within a block of where the Defendant was arrested. Importantly, the
agents had Defendant's Oleander residence under surveillance at this
time, yet, presented no evidence that Ogonowski returned to the
Defendant's Oleander residence during this 13-minute period after first
meeting with the cooperating individual and before returning to the
restaurant parking lot to deliver the drugs.
Based on these facts, probable cause cannot be found to arrest
Defendant at his home on March 5, 2003.
While the Government, in its briefs, seems to concede that the legality
of the entry into the Defendant's Oleander residence requires a finding
of probable cause for his arrest, it also argues alternatively that
exigent circumstances support the entry.
Assuming arguendo, that probable cause did exist, exigent circumstances
did not exist to compel entering the Defendant's home without a warrant.
Exigent circumstances exist when there is a compelling need for
official action and there is no time to secure a warrant. Such
circumstances include when the police have an objective and reasonable
belief that evidence is about to be destroyed or that there is a risk of
danger to the police or other persons inside or outside the home. See
Minnesota v. Olson, 495 U.S. 91, 100 (1990).
The government bears the burden of demonstrating that its agents had an
objectively reasonable belief that exigent circumstances existed at the
time of the warrantless entry in a defendant's home. See United
States v. Marshall, 157 F.3d 477, 482 (1998) (Marshall).
The exigent circumstances must exist at the time of the warrantless
entry; it cannot be based on evidence discovered during the search.
See United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003).
The court analyzes the situation from the perspective of the officers at
the scene. Accordingly, the court asks, "not what the police
could have done but rather whether they had, at the time, a
reasonable belief that there was a compelling need to act and no time to
procure a search warrant." Marshall, 157 F.3d at 482.
The facts, as more thoroughly discussed above, show that the agents did
not have an objectively reasonable basis, from the totality of the
circumstances, to believe that exigent circumstances existed that
required their warrantless entry into the Defendant's residence. The
agents concluded that the Defendant had a history of drug trafficking and
had previously had drugs inside a different residence. However, the most
recent date of which the agents had reason to believe drugs had been in
the home was December 2002. While the agents believed that the Defendant
took a duffel bag into his residence on March 5, 2003, it is undisputed
they knew he was returning from an out-of-town trip. In addition, while
the Defendant provided directions to the location where Ogonowski would
later deliver the drugs, no discussion of pills, drugs, drug delivery or
illegal activity was discussed during that conversation. Most
significantly, even though Ogonowski was arrested with approximately
9,000 ecstacy pills, the agents did not know where Ogonowski went to
retrieve the pills; and the Government presented no evidence that he
returned to the Defendant's residence (which was under surveillance) to
do so or which otherwise connected the Defendant to the pills.
The Defendant's refusal to let the agents into his home without a
warrant also fails to support the Government's assertion that the
Defendant may have been preparing to destroy evidence without some
showing that such evidence was known to be in the home. These facts fail
to demonstrate that the agents had a reasonable belief that there was a
compelling need to act and no time to procure a search warrant a
reasonable belief that evidence was about to be destroyed.
Furthermore, the Defendant's one statement, "What are you going to do,
shoot me?" fails to demonstrate a reasonable belief that there was a risk
of danger to the police or other persons. Other than the stray remark,
there was no evidence that the Defendant was known to possess any type of
weapon or that he previously presented any type of physical danger to
Accordingly, the Defendant's Motion to Quash Arrest is granted.
Motion to Suppress Evidence
The Defendant moves to suppress evidence that was seized subsequent to
his arrest based upon the illegality of his arrest.
Evidence that is obtained following an illegal arrest must be
suppressed unless there is sufficient evidence demonstrating a purge of
the unlawful arrest. See Kaupp v. Texas, 538 U.S. 626, ___
(2003) (Kaupp). Relevant considerations include the observance
of Miranda warnings, the presence of intervening circumstances,
the temporal proximity of the arrest and the obtained
evidence, and the purpose or flagrancy of the official misconduct.
The government bears the burden of persuasion. See Kaupp, 538
U.S. at ___.
In the instant case, the Government concedes that given the timing of
the warrantless entry, the timing of the Miranda waiver, and the
executed consent to search, the post-arrest statements made by the
Defendant and the pills recovered during the consent search must be
suppressed if the warrantless arrest is found to be unlawful. Having
found that the warrantless arrest was illegal, the statements made by the
Defendant and the pills recovered during the consent search are
After the initial warrantless entry and search, the Government obtained
a search warrant for the Oleander premises. The Government contends that
if the initial search was unlawful, the documents from the Defendant's
residence that were secured and not searched prior to the issuance of the
subsequent warrant should not be suppressed under the independent source
doctrine. The Government does not contend that the independent source
doctrine would apply to the ecstacy pills seized from the Defendant's
residence on March 5, 2003.
The independent source doctrine allows the introduction of evidence
that is discovered initially during an unlawful search if the evidence is
discovered later through a source that is untainted by the initial
illegality. See United States v. May, 214 F.3d 900, 906 (7th
Cir. 2000) (May). For example, if the police discover items x
and y during an illegal search and later discover item z during an
independent legal search, item z is admissible because it was derived
from an independent source. See May, 214 F.3d at 906.
Furthermore, if during the untainted legal search, the police discover
not only item z but also rediscover items x and y, x and y as well as
item z are admissible. See May, 214 F.3d at 906.
A two-part test determines whether the evidence was obtained by
independent lawful means:
(1) whether the officer's decision to seek the warrant resulted
from what he had seen or seized during the unlawful search and (2)
whether the illegally obtained evidence caused the magistrate to issue
the search warrant. If the answer to both these inquiries is no, the
evidence need not be suppressed despite the fact that it was initially
unlawfully obtained. See May, 214 F.3d at 906. Here, there is no
evidence that the agent's decision to seek the warrant resulted from what
had been seen or seized during the unlawful search.
As to the second inquiry, the court generally determines whether
probable cause to search is established without the illegally obtained
evidence. See United States v. Markling, 7 F.3d 1309, 1316 (7th
Cir. 1993). There is no showing that the subsequent warrant was based on
facts obtained from the illegal search. Accordingly, those items that
were rediscovered in the subsequent legal search are not suppressed
pursuant to the independent source doctrine.
Lastly, the Defendant contends that the McLaughlin rule was
violated. As explained in Gerstein v. Pugh, 420 U.S. 103, 124-25
(1975), the Fourth Amendment requires that a "fair and reliable"
determination of probable cause be made by a judicial officer "either
before or promptly after arrest." Judicial determinations of probable
cause that are made within 48 hours of arrest are presumptively
reasonable, and such presumption can only be overcome if the defendant
can prove that his probable cause hearing was delayed unreasonably.
See Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)
Here, the Defendant was arrested in the late evening of March 5, 2003.
The complaint for this arrest was docketed as case number 03 CR 238. On
March 7, 2003, initial appearance proceedings were held and a preliminary
examination and detention hearing was scheduled for March 10, 2003. On
March 10, 2003, the magistrate judge determined that probable cause had
been established and dismissed the complaint against the Defendant.
That same day, the Government added details to its initial affidavit in
support of the complaint. These details were omitted from the initial
affidavit in an attempt to prevent the premature disclosure of the
existence of a cooperating individual in the investigation. Based upon
the supplemented affidavit, a different magistrate judge issued a
complaint upon a probable cause affidavit. This complaint was docketed as
case number 03 CR 251. The Defendant had his initial appearance on the
second complaint on March 11, 2003; at which time, a preliminary
examination was scheduled for March 14, 2003. On March 14, 2003, a
finding of probable cause was entered against the Defendant.
The above facts show that the Defendant had an initial appearance
within 48 hours of his initial arrest and the second complaint filed
against him. However, the probable cause hearing did not occur until 5
days after his arrest and 4 days after the second complaint. This delay
is a violation of the standards set forth in McLaughlin, and the
Government does not provide an excuse for such delay. See United
States v. Fullerton, 187 F.3d 587, 590-92 (7th Cir. 1999)
(Fullerton). However, while the delay in bringing the Defendant
before a magistrate to determine probable cause violates the rule
articulated in McLaughlin, the suppression of evidence is not
the proper remedy for this violation as none of the evidence that the
Defendant seeks to suppress was obtained pursuant to the
McLaughlin violation. See United States v. Fullerton,
187 F.3d 587, 590-92 (7th Cir. 1999) (finding suppression of evidence was
not the proper remedy for the McLaughlin rule violation).
Based on the above, the Defendant's Motion to Suppress Evidence is
granted in part and denied in part.
For the reasons stated above, Defendant's Motion to Quash Arrest is
granted. Defendant's Motion to Suppress Evidence is granted in part and
denied in part.