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 ...