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U.S. v. OROZCO

February 25, 2004.

UNITED STATES OF AMERICA,
v.
JOHN OROZCO, Defendant



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Defendant, John Orozco ("Orozco") has been indicted by the United States of America ("United States") on a single charge of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Before the court is Orozco's motion to quash the search warrant executed at his residence and to suppress evidence directly and indirectly gained therefrom. For the reasons stated below, the motion is denied.

BACKGROUND

  The firearm that forms the basis of the charge leveled against Orozco was seized in a search of his residence that took place on December 5, 2002. In support of that search, on December 3, 2002, FBI Special Agent Ken A. Burress ("Agent Burress") filed an application and supporting affidavit with Magistrate Judge Arlander Keys for permission to search Orozco's home located at 1N367 Pouley Road in unincorporated Elburn, Illinois. Magistrate Judge Keys granted the application and issued the search warrant as requested, In his affidavit, Agent Buress stated the following:

  1. That he had been employed as an FBI Special Agent for over four years and had received specialized training and had made numerous narcotics arrests. Agent Burress also Page 2 explained that he had previously served as a Special Agent with the Tennessee Bureau of Investigation, thereby giving him nearly ten years of experience investigating illegal possession, distribution and/or manufacture of controlled substances and street gangs. (Aff. ¶¶ 1-3.)

  2. That based on his training and experience in drug and gang related investigations, persons involved in the street gang the "Latin Kings" are involved in the importation and distribution of controlled substances. Moreover, individuals associated with these types of street gangs keep detailed records/ledgers of their members, dues and transactions involving the amounts and types of drugs sold, the prices charged and monies received for those drugs and the names of the persons the drugs are to be distributed to. These documents and records were said to often be kept in the residences of higher ranking gang members, specifically the "Caciqua," or number two person in charge of the gang. Agent Burress also explained that he was involved in an ongoing investigation into the Latin Kings street gang in Aurora, Illinois called "Round Two." (Aff. ¶¶ 5-10.)

  3. That according to Juan Francisco Corral, an admitted member of the Latin Kings who has been indicted and is cooperating with federal investigators, Andres Ramirez A/K/A "Oso" or "Inca" is the leader of the Aurora Latin Kings street gang while Orozco, A/K/A "Big Turtle" served as the Caciqua or second in command. Corral also stated in later interviews that Jorge Alanis, A/K/A "Sharkey" is a close associate of Orozco's and that Alanis received large amounts of cocaine from Orozco. Corral further explained that he purchased 11 kilograms of cocaine from Orozco on or about June 24, 2002 and that he knew Orozco as "Big Turtle" since 1989. Corral explained that Orozco owns a large ranch near Durango, Mexico as well as other businesses such as bars and strip clubs in that area. He is alleged to receive marijuana and Page 3 cocaine shipments in semi-tractor trailer truck loads and sends the money back to Mexico in the same trucks. (Aff. ¶¶ 13, 16-17.)

  4. That a search warrant was executed on October 22, 2002 at the residence of Ramirez, who was identified by several individuals as the number one officer of the local Latin Kings street gang. The search of Ramirez's residence uncovered a list of gang members, and included on that list was the name "Big Turtle." (Aff. ¶ 14.)

  5. That according to Jose X. Hernandez, another admitted member of the Latin Kings who has been indicted and is cooperating with federal authorities, Orozco was the second in command or "Caciqua" of the local Latin Kings street gang. Hernandez informed law enforcement officers of his belief that Orozco sold approximately 100 kilograms of cocaine over a period of time. Hernandez further stated that Orozco also sells marijuana in amounts approaching 100 pounds at a time. Finally, Hernandez confirmed that Orozco is known amongst the Latin Kings as "Big Turtle." (Aff. ¶ 15.)

  6. That according to Jose Oliva, who has been indicted and is cooperating with federal authorities, he received cocaine at various times from Orozco during the first six months of 2002. Oliva also stated that "Big Turtle" holds the rank of "Caciqua" or second in command of the Aurora Latin Kings. (Aff. ¶ 18.)

  The above evidence was submitted by Agent Burress in support of an application to search a one story, white ranch-style house with an attached two car garage. The house was marked 1N367 and located on Pouley road in Elburn, Illinois. Public records indicated that the house was owned by Corina Torres, who Burress claims was married to Orozco. The United States Postal Service in Elburn, Illinois further stated that persons receiving mail at the house Page 4 were "Torres/Orozco." Burress stated in his affidavit that based on his investigation he had discovered that this was Orozco's residence and, because Orozco was the Caciqua of the Aurora Latin Kings, a search of the house would uncover "ledgers of drug trafficking activity and documents pertaining to gang activities, such as membership lists, photographs of gang members, identified gang clothing, [and] receipts of drug trafficking." (Aff. ¶ 22.)

  DISCUSSION

  Orozco submits that the search warrant obtained relating to his residence should be quashed and that any evidence seized from the search should be suppressed because the affidavit supplied by Burress did not provide a nexus between any alleged illegal activity or alleged contraband items and the residence. According to Orozco, because no nexus exists, the affidavit fails to establish probable cause to support the search and runs afoul of the Fourth Amendment to the United States Constitution. U.S. Const. Amend. IV ("no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.").

  In determining whether a search warrant should be issued,
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis" for . . . conclud[ing] that probable cause existed.
United States v. Lamon, 930 F.2d 1183, 1187 (7th Cir. 1991) (ellipsis and bracket in original) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). The affidavit must bring forth "specific facts and circumstances to allow the judge to reasonably conclude that the items sought to be Page 5 seized are associated with the crime and located in the place indicated." United States v. Koerth, 312 F.3d 862, 867 (7th Cir. 2002). However, "[i]f evidence is obtained pursuant to a search warrant unsupported by probable cause, it is nevertheless only suppressed where the magistrate abandoned his detached and neutral role, or where the officers seeking the ...

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