The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Sergio Diaz ("Diaz"), 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
Diaz's motion to quash arrest and suppress evidence. In conjunction with
this motion Diaz requests an evidentiary hearing. For the reasons stated
below, the court agrees to hold an evidentiary hearing and defers ruling
on Diaz's motion to quash arrest and suppress evidence until such hearing
has been completed.
Diaz seeks to quash his arrest and suppress evidence on grounds that
his arrest was without a valid search or arrest warrant and was without
probable cause. In order for a suppression hearing to be held on such a
motion, Diaz has the initial burden of presenting "definite, specific,
detailed, and nonconjectural" facts that are both material and disputed.
United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir. 1995) (citations
omitted). This burden cannot be satisfied by mere vague or conclusional
allegations, See United States v. Randle, 966 F.2d 1209, 1212 (7th Cir.
1992). Under the United States' version of the facts in this case, Chicago
Police Officers Dob Vargas and Jesse Sandoval were on patrol in an
unmarked car during a crowded festival when a citizen approached and told
them that he had seen a heavyset man wearing a red shirt holding a gun
near 1651 S. Throop Street. At around this time, the officers allegedly
spotted a man in a red shirt (which was Diaz) about a block away and
began surveillance. According to the United States, Officer Vargas saw
Diaz standing on the sidewalk holding a large handgun. As Officer Vargas
watched, Diaz allegedly put the handgun in a brown paper bag and closed
the bag to fit around the shape of the gun. Officer Sandoval did not see
the entire gun but did see its butt protruding from the bag. Both
officers observed Diaz walk down into a recessed gangway in front of the
residence at 1651 S. Throop. When he emerged from the gangway, Diaz did
not have the paper bag. At this point the officers approached Diaz and
the two men with him, All three were arrested. Officer Sandoval went into
the gangway where Diaz had taken the paper bag and retrieved a brown
paper bag containing a steel blue .357 magnum revolver with four live
rounds of ammunition.
In his motion Diaz presents a much different account of the events that
took place. He maintains that he never possessed the firearm,
specifically denying that he ever placed it in his hand or in a paper
bag. He also claims that he did not walk into the gangway and did not
place any gun under a vaulted sidewalk. According to Diaz, he was standing
on the sidewalk and was violating no law when he was arrested by the
Chicago Police Officers. Moreover, Diaz also claims that one of the two
other men arrested, Angel Montemayor, states that Diaz was not in
possession of the firearm. The facts set forth by Diaz are certainly both disputed and material.
Whether the officers saw Diaz (1) holding the gun; (2) placing the gun in
a paper bag; and (3) walk into a recessed gangway with the gun and walk
out again without it are all material in determining whether either
probable cause or reasonable suspicion existed to arrest and/or search
Diaz. Moreover, the court does not view Diaz's allegations as vague or
conclusional. He states that he never had a gun and was merely standing
on the street corner when arrested. It is difficult to see how much more
definite, specific and detailed Diaz could get, and the United States
does not point to specific facts that are lacking. Diaz's version of the
events was certainly well within his personal knowledge.
Nevertheless, the United States argues that Diaz has not met his burden
for an evidentiary hearing insofar as he does not provide an affidavit
with personal knowledge. Some judges in this district have apparently
required such affidavits to be filed before an evidentiary hearing may be
held. E.g., United States v. Johnson, No. 96 CR 379, 1997 WL 124269, at
*1 (N.D. Ill March 18, 1997); United States v. Mallard, No. 93 CR 566,
1994 WL 22958, at *2 (N.D. Ill. Jan. 25, 1994); United States v.
Robinzine, No, 93 CR 486, 1993 WL 443394, at *3 (N.D. 111. Oct. 29,
1993). Others have not. E.g., United Slates v. Oliver, 142 F. Supp.2d 1047,
1050 (N.D. Ill. 2001); United States v. McNeal, 853 F. Supp. 1047,
1051-52 (N.D. Ill. 1994). The Seventh Circuit has never held that an
affidavit is required for a defendant to make the requisite showing
necessary for an evidentiary hearing.
After considering the above cases, and in light of the facts present
here, the court does not believe that Diaz was required to present an
affidavit in order for a suppression hearing to be held. As the court in
Oliver noted, the Seventh Circuit in Randle only required a submission by the defendant that there is a genuine basis for granting the relief
sought and that real tactual issues warrant an evidentiary hearing, 142
F. Supp.2d at 1051 ("There is nothing in Randle or its Seventh Circuit
progeny that requires anything more than a sufficiently detailed written
motion,"). And as the court in Oliver addressed, the concern that the
court would be overwhelmed by meritless evidentiary hearings is muted
insofar as (1) many motions fall short of the mark even if what is
alleged is true; (2) some motions raise legal issues only; and (3) some
motions are conclusional or "bare-bones." Id. at 1050-51. Diaz's version
of the events docs not fall under any of these categories. Indeed, if
Diaz's evidence is conclusional, then the government's must be also. The
United States presents a number of facts supporting its response which
are unsupported by any affidavit, including that the officers involved in
the arrest had been aware of Diaz's criminal history for many years when
they saw him in possession of the handgun.
Accordingly, since the parties present markedly different circumstances
surrounding Diaz's arrest, the court will hold an evidentiary hearing on
Diaz's motion to quash arrest and suppress evidence. See United States
v. Kunda, No. 01 CR 118, 2001 WL 1543519, at *3 (N.D. Ill, Dec. 3, 2001)
("Where the government and the defendant present `markedly different
versions of the events,' the court may order an evidentiary hearing,")
(quoting United States v. Sims, 808 F. Supp. 596, 605 (N.D. Ill. 1992)).
Ruling on Diaz's motion will be deferred until such hearing has been
held. The status hearing set for May 26, 2004 stands and a date for an
evidentiary hearing will be set at that time.
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