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U.S. v. VELA

April 1, 2004.

UNITED STATES OF AMERICA
v.
EDUARDO FA VELA, JR. and AURORA ALAYA



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.

BACKGROUND

  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). Page 2

  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 Page 3 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, 28-30).

  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). Page 4 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 male-again.

  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 ...


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