United States District Court, N.D. Illinois, Eastern Division
December 2, 2004.
UNITED STATES OF AMERICA, Plaintiff,
KENYARDY WILLIAMS, Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Before us is defendant's Motion to Quash Warrant and Suppress
Evidence. The facts are not in dispute. On April 3, 2004,
pursuant to a search warrant issued on April 2, 2004, police
entered the residence located at 5535 South Normal Street in
Chicago, Cook County, Illinois and conducted a search of the
premises. Seized pursuant to this search were controlled
substances, guns, and other assorted contraband and evidence.
Defendant is now charged with possession of these items.
The search warrant complaint is somewhat unusual in that,
although it is written from the point of view of Officer Enrique
Pacheco, both the search warrant and the sworn complaint for the
search warrant name an anonymous informant denominated as "J.
Doe," as the complainant. The complaint for the search warrant is signed and sworn to by
the complainant, J. Doe. Defendant bases his motion to quash the
warrant on a lack of probable cause due to staleness of the
information in the warrant complaint. The complaint sets forth
that Officer Enrique Pacheco received information from J. Doe on
March 31, 2004. The information related to J. Doe's observations
which occurred sometime "in the past week". J. Doe related, under
oath, that on that occasion sometime in the past week he met with
Kenyardy Williams, in Williams' bedroom at the single family
residence located at 5525 South Normal, Chicago, Cook County,
Illinois and further, that the defendant was known to J. Doe to
have lived at that address for the past 15 years. While there,
the defendant and J. Doe smoked weed, and the defendant,
Williams, showed J. Doe two black 9 mm handguns which he placed
on the bed. Williams also showed J. Doe where he kept the weapons
under his mattress. J. Doe also stated that the defendant,
Kenyardy Williams, told him that he (Kenyardy Williams) keeps the
guns there for protection because he sells drugs on that block.
J. Doe identified an arrest photo of the defendant and also
identified the single-family residence located at 5525 South
Normal as the place in which his observations and conversation
occurred. Finally, Officer Enrique Pacheco conducted a criminal
history check of the defendant, and learned that the defendant
has a prior conviction for Aggravated Unlawful Use of a Weapon.
Based upon this information the judge issued a search warrant.
The warrant was issued on April 2, 2004. Defendant argues
incorrectly that the warrant establishes that Officer Enrique
Pacheco received his information on March 21, 2004 and that,
therefore, the events and observations related by J. Doe as
having occurred sometime "in the past week" might have occurred
as early as March 14, 2004, almost 20 days before the execution
of the warrant. However, the warrant complaint clearly establishes
that Officer Pacheco received the information from J. Doe on
March 31, 2004, not March 21, 2004. March 31, 2004 was a
Wednesday. A literal interpretation of the language, "in the past
week" in the warrant complaint would mean that some time in the
week before, which would be the week commencing March 21, 2004,
J. Doe made his observations. That means, that at most the
information upon which the warrant was based was 13 days old at
the time the warrant issued. The question before this Court,
then, is whether or not under these circumstances, such a period
of time renders the information stale. We think not.
Our duty here is simply to determine whether, based on all of
the evidence presented, the issuing Judge had a substantial basis
for concluding that the contraband described in the search
warrant complaint was to be found on the premises authorized to
be searched at the time the search warrant issued. Illinois v.
Gates, 462 U.S. 213, 238 (1983). Clearly a substantial basis
existed for this determination. First, the information was, at
most, 13 days old. Second, the contraband, two 9 mm handguns, was
not the type of object one would expect to be readily moved or
disappear overnight. Third, the information given in the sworn
complaint for search warrant was that this is where the weapons
were regularly hidden, not just where they happened to be seen on
that particular occasion. Fourth, the reason for keeping the
weapons, for protection of defendant's drug selling activities in
that very block, and the fact of the defendant's long time
residence at that location give reasonable cause to believe that
the weapons would still be there. There is no information in the
sworn complaint to lead one to the conclusion that the reason for
the guns to be at that location, i.e., to protect the defendant
in his drug selling activities on that very block, was likely to
have ceased to exist at the time the warrant was issued. The more reasonable determination is that the there was a reasonable
likelihood that the weapons were still being kept at that
location a few days later when the warrant issued. The issuing
judicial officer was well within the parameters of a practical,
common sense decision based on the specific facts and
circumstances before him. Id. Certainly, his decision can not
be deemed to be "clear error". United States v. Pless,
982 F.2d 1118, 1124 (7th Cir. 1992).
There is no plausible attack on the reliability of the
information in the search warrant itself or the credibility of
the informant. As pointed out in the government's response to the
motion, the complainant's observations were personal, detailed,
and included statements against his own self interest. The
identity of the defendant and the premises was independently
corroborated and the confidential informant, J. Doe, was present
and signed and swore to the complaint for the search warrant
before the issuing judge. Thus, the complaint does not rely on
hearsay, but rather it contains the sworn, first-hand
observations and knowledge of the complainant himself.
Even if the defendant were to establish that the warrant was
invalid for lack of probable cause, the good faith exception to
the exclusionary rule would apply. There is nothing in the record
before us to rebut the inference of good faith which stems from
the officer's decision to take his facts to a judicial officer
and obtain his approval in the form of a search warrant. The
officer's willingness to bring his confidential informant before
the judge to personally swear to the facts in the complaint is
further evidence of the officer's good faith. Absent evidence
that he knew, or should have known, that the warrant was illegally
issued, the officer was entitled to rely on the warrant.
Finally, we find that there is no Franks v. Delaware,
438 U.S. 154 (1978), issue in this case. The defendant's filings fail
to set forth definite, specific, detailed and non-conjectural
facts that would tend, if true, to establish that there is a
false or misleading statement or omission in the affidavit, or
that the agent or person swearing out the affidavit made any such
false statement with knowledge or reckless disregard for the
truth. Thus, there is no basis for an evidentiary hearing.
The motion to quash the search warrant and suppress the
evidence is denied.
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