The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America (the "Government") brought a one-count
indictment against Defendants, Eduardo Favela, Jr. and Aurora Alaya, for
conspiring to possess with intent to distribute marijuana, in violation
of 21 U.S.C. § 846 and 841(a)(1). Presently before the Court are
Defendants' motions to suppress identifications as evidence. For the
following reasons, those motions are granted as to Defendant Alaya but
denied as to Defendant Favela, Jr.
The facts, for the purposes of this motion, are as follows. On July 19,
2000, Officer Fernando Carvajal was assigned as part of an undercover
surveillance team to a controlled marijuana delivery with the Drug
Enforcement Agency. (Tr. at 4). In the early evening hours of that day,
Officer Carvajal, from his vehicle, observed a confidential source meet
with a woman in the area of 126th and Old Western Avenue in Blue Island,
Illinois, from a distance of two blocks away. (Tr. at 4, 55).
Officer Carvajal saw the confidential source give the woman a set of
keys to the van the confidential source had been driving, and he then saw
the woman drive away in the van.*fn1 (Tr. at 25-26). From his vantage
point, Officer Carvajal saw the woman's face and "pretty much her body
description" "from a long view." He also observed that the woman "was
short and kind of chubby" with "light brown hair." (Tr. at 6, 26).
However, Officer Carvajal failed to recall what the woman was wearing.
(Tr. at 26). Moreover, when the female drove away with the van on July
19, 2000, Officer Carvajal failed to take notes or write a report of this
observation or any description of the female. (Tr. at 26).
Officer Carvajal then followed the van and another vehicle that was
following the van to a nearby house. (Tr. at 6-7). While Officer Carvajal
was following these vehicles, he was never closer than two blocks away.
(Tr. at 56). When the vehicles reached the house, Officer Carvajal drove
past the house's garage and observed the van being backed into the
garage's northernmost bay. (Tr. at 7,50).
A few minutes later, Officer Carvajal made a second pass by the garage
and saw "the van inside the garage, and standing next to the van was the
female that drove the van there, with an older male Hispanic in the rear
of the van." (Tr. at 7-8, 28-30). The older Hispanic male was in his late
forties or early fifties. (Tr. at 20). The female was standing about a
foot away from the van on the driver's side; Officer Carvajal had a side
view of the female "looking behind like
towards the van." (Tr. at 30). The older Hispanic male was standing
in the rear of the van unloading a box from inside the van. (Tr. at 7-8,
After Officer Carvajal drove past the house a second time, he
established a surveillance point in a wooded prairie across the street
from the house. (Tr. at 9, 51). Officer Carvajal did not use binoculars
or cameras to improve his observation of the events occurring in the
garage. (Tr. at 92).
At some points, Officer Carvajal was about thirty-five to forty yards
away from the house while standing in the prairie. (Tr. at 11, 32). At
different moments, Officer Carvajal was about ten to twenty yards inside
the wooded prairie. (Tr. at 33). Officer Carvajal was about fifty yards
from the garage where the van was located. (Tr. at 52).
From his vantage point inside the prairie, Office Carvajal was able to
see a garage bay next to the one where the van was parked, (Tr. at 13).
He was also able to see "a gangway area that leads to the side of the
house" and "the whole northeast of the house." (Tr. at 13). However,
Officer Carvajal could not see anyone at the rear of the van unloading
the van inside the garage from his position in the prairie. (Tr. at 53).
While Officer Carvajal was inside the prairie looking at the house, he
saw a younger Hispanic male who was approximately thirty years old
"coming out from that gangway area and going into the house carrying two
boxes, two cardboard boxes." (Tr. at 13). About thirty minutes later,
Officer Carvajal observed the same person he saw carrying the two
cardboard boxes get into a "SUV-type vehicle" and drive "westbound on the
street that's just north of the house." (Tr. at 15). About ten minutes
later, Officer Carvajal heard, over his police radio, that Blue Island
Police Department officers stopped the SUV and identified the driver.
(Tr. at 17).
About twenty minutes later, Officer Carvajal saw the same driver return
to the house in the SUV. (Tr. at 17).
Later that evening, Officer Carvajal saw the older Hispanic male, who
Officer Carvajal had previously observed unloading boxes from the rear of
the van, walking back and forth and looking around while watering the
grass. (Tr. at 19). By the time Officer Carvajal saw this man, it was
"already starting to get dark." (Tr. at 21).
Officer Carvajal remained in the prairie until law enforcement
authorities executed a search warrant at the house. (Tr. at 36). Officer
Carvajal did not see any of these three people the female he saw
driving the van, the older Hispanic male, or the younger Hispanic
On May 29, 2003, Officer Carvajal was interviewed by Drug Enforcement
Agency Special Agent Joseph Moussiaux. (Tr. at 66). During this
interview, Officer Carvajal was not shown any pictures of the individuals
he allegedly observed on July 19, 2000. (Tr. at 42). Moreover, Special
Agent Moussiaux's report of this interview fails to show that Officer
Carvajal provided a description of the female. (Tr. at 81-82). Special
Agent Moussiaux's report also contains an account by Officer Carvajal
inconsistent with ...