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U.S. v. PUNZO

October 18, 2004.

U.S.
v.
ANIVAL PUNZO.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Anival Punzo is charged with conspiracy and possession with intent to distribute more than five kilograms of cocaine. He has moved to suppress 191 kilograms of cocaine seized from his garage and inculpatory statements that he made on the date of the seizure and nineteen months later, on the ground that the seizure violated the Fourth Amendment and that the statements resulted from the illegal seizure. The Court held an evidentiary hearing on the motion. For the reasons stated below, the Court denies Punzo's motion.

Facts

  On April 25, 2002, a confidential source working with Immigration and Customs Enforcement agents made arrangements to transport 100 kilograms of cocaine. ICE obtained for the source a Ford Expedition with a global positioning system tracking device. On the morning of April 26, agents observed the Expedition travel to Cicero, where it traveled down an alley and pulled at least partly into the detached garage behind the home at 3239 South 54th Avenue.*fn1 Agents later observed the Expedition leave the garage. The Expedition was stopped by other law enforcement officers and was searched. It was found to contain ninety-seven kilograms of suspected cocaine.

  Surveillance was set up around the 3239 South 54th Avenue residence, including both ICE agents and local police officers detailed to a joint task force. Eventually the lead ICE agent made the decision to conduct a "knock and talk" to attempt to obtain consent to search the house and garage. Three officers approached the front door to the house. While this was taking place, an ICE agent, J.R. Estes, opened the door to the garage and looked in, observing several stacks of boxes which he suspected contained cocaine. This entry to the garage was indisputably illegal; Estes lacked a warrant or consent. The lead ICE agent, Lindsay (LaJoie) Murphy, observed what Estes was doing, and motioned to him to quit. No information regarding Estes' actions or what he observed was communicated to the officers who were at the front door to the house, and they were unaware of what Estes had done or seen.

  Chicago police officer Gerald Lau knocked on the front door, and a man answered. Lau had his gun drawn and was holding it down at his side. The man who answered was Manuel Punzo, the defendant's father. The versions of the events given by Lau and Punzo diverge sharply.

  Punzo testified that when he opened the door, several officers charged inside, with guns drawn and pointed at him, and pushed him onto a sofa, yelling, "where are the people?" While two officers stayed with him, others began to go through the house. Around twenty minutes later, Punzo said, he was told to sign a paper, without being told what it was. He did not have his glasses and could not read the paper but signed it anyway, feeling he had no choice.

  Lau testified that when the man answered the door, he and the other officers identified themselves as police officers, and Lau asked if they could come inside and talk to the man. The man agreed and allowed them into the house. Lau asked the man if he had any weapons and conducted a protective pat-down for reasons of safety, finding no weapons. The man identified himself as Manuel Punzo. They asked for identification, and he showed them a driver's license which gave a different address. In response to questions, Punzo said that the house was his son's house, that his son was at work, and that he was there to keep an eye on the house because his son expected a delivery of some sort. Lau testified that he asked if Punzo minded if they searched the house and garage, and Punzo replied that was all right. Lau obtained a consent-tosearch form and, without filling in the blanks, showed it to Punzo. The form had English text on one side and Spanish text on the other. Punzo signed in the space provided on the Spanish version. Lau and another officer, Charles Honore, both signed the form as witnesses. After this was done, the other officers were advised that consent had been obtained, and a search began. In the garage, boxes were found that contained 191 kilograms of suspected cocaine.

  Some time later — perhaps an hour or so — Guadalupe Punzo, the defendant's wife, arrived at the house. Before entering, she was taken to the side of the house, where she was confronted with the fact that the officers had found a large quantity of cocaine in the garage. Mrs. Punzo began to cry and was taken inside the house, where she, too, was asked to sign a consent to search form. By this time, however, the search was largely complete, and the cocaine had already been seized.

  Mrs. Punzo was asked to telephone the defendant to ask him to come home. After he did so, he was confronted with the seizure of the cocaine and is claimed to have made several admissions. In November 2003, the defendant was interviewed by agents in Arizona, where he was then living. He was again confronted with the seizure of the cocaine from his garage and is again claimed to have made a number of admissions.

  The consent forms evidently were completed later at the police station, likely by an officer other than Lau or Honore. The time-of-day entry on the form signed by Manuel Punzo was overwritten to show the time 1305 (1:05 p.m.). The time-of-day entry on the form signed by Guadalupe Punzo was originally filled in with 1430, but this was overwritten with the time 1330, and a small amount of opaquing fluid was used to cover up part of the number 4.

  Manuel Punzo testified that he had originally gone to the house earlier in the morning to give someone a ride, but the person never arrived. After waiting in his car outside for a lengthy period, he returned to his own home, which was nearby, and called the defendant to say that the person had not shown up. The defendant asked Mr. Punzo to return and wait longer. When Mr. Punzo went back to the house, he went inside, using a key that was in his possession. Mr. Punzo denied he had ever lived at his son's house but stated that he had had the key for several months, from a period when he was doing some work on the house and supervising other workers. He would use the key to let the workers inside to use the bathroom. Mr. Punzo admitted that he had been inside the home on other occasions when his son was not present.

  Guadalupe Punzo testified that Manuel had lived in the house for about six months at an earlier point in time and had his own set of keys. She denied ever asking Manuel to go to the house when she was not there ...


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