United States District Court, N.D. Illinois, Eastern Division
August 18, 2005.
UNITED STATES OF AMERICA, Plaintiff,
KENYARDY WILLIAMS, Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
In his May 26, 2005 report and recommendation ("R&R"),
Magistrate Judge Keys recommended that the Court grant defendant
Kenyardy Williams' supplemental motion to suppress certain
evidence seized by the police. The Government has filed
objections to the R&R. For the reasons set forth below, the Court
overrules the Government's objections, adopts the Magistrate
Judge's R&R and grants the supplemental motion to suppress.
On March 31, 2004, a confidential informant told Chicago police
officer Enrique Pacheco that defendant had two handguns in the
house at 5525 S. Normal in Chicago and sold drugs on that block.
(R&R at 1.) Thereafter, Officer Pacheco obtained a warrant to
search the house for "[i]llegal firearms, ammunition, any
documents showing residency." (Id. at 1-2.)
On April 3, 2004, the police executed the warrant. (Id. at
2.) In a bedroom on the second floor of the house, the police
found men's clothing, as well as mail and a state identification
card bearing defendant's name. (Id.) In the same room, the
police found weapons, ammunition, drugs, drug paraphernalia, a
Mickey Cobra gang manifesto and a walking stick with a Mickey
Cobra insignia. (Id.) Defendant was subsequently charged with
possession of controlled substances and guns. (Id.)
In his supplemental motion to suppress, defendant argued that
the seizure of the manifesto and the walking stick exceeded the
scope of the warrant. The Government responded that the items
were properly seized as proof of residency of the bedroom in
which they were found and because they were in plain view.
Magistrate Judge Keys agreed with defendant and recommended that
his motion be granted. The government has filed timely objections
to the Magistrate Judge's R&R, urging the Court to reject it.
The Court must make a de novo determination as to the
portions of the R&R to which the government objects.
28 U.S.C. § 636(b)(1). The government's first argument is that defendant has
no expectation of privacy in the house at 5525 S. Normal and,
thus, no standing to contest the search. The government did not
raise this issue before the Magistrate Judge. Standing to contest
a search "is rooted in the substantive law of the Fourth
Amendment and not Article III." United States v. Price,
54 F.3d 342, 346 (7th Cir. 1995). As a result, the government can waive
its standing objection. Id. By failing to raise it before the
Magistrate Judge, that it is exactly what the government did.
See id. (government waived standing argument by failing to
raise it before the district court); Borden v. Sec'y of Health &
Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (affirming district
court's refusal to consider an argument that had not been
presented to the magistrate judge because appellant "was not
entitled to a de novo review of an argument [he] never
raised"). The government's standing objection is, therefore,
Next, the government argues that seizure of the manifesto and
walking stick, which bear the insignia of an all-male gang, was
authorized by the warrant. In the government's view, those items show that defendant, rather than his female relatives, occupied
the bedroom in which they were found. Thus, the government says
they fall into the category of "proof of residency," which the
warrant authorized it to seize. Like the Magistrate Judge, we
The police seized mail and an identification card with
defendant's name on them as proof of residency. Unlike those
items, the manifesto and walking stick do not bear plaintiff's
name. Consequently, they suggest that a male lived in the house
but not that this defendant was that particular male. Permitting
the police to seize those items, which identify gender and
nothing more, as proof of residency would gut the Fourth
Amendment's particularity requirement. See Maryland v.
Garrison, 480 U.S. 79, 84 (1987) (stating that the Fourth
Amendment's particularity requirement "ensures that the search
will be carefully tailored to its justifications, and will not
take on the character of the wide-ranging exploratory searches
the Framers intended to prohibit."); United States v. Reed,
726 F.2d 339, 342 (7th Cir. 1984) (noting that a warrant for proof of
residency "does not authorize a general search of personal
papers"). The Magistrate Judge correctly concluded that seizure
of the manifesto and the walking stick exceeded the scope of the
Even if those items fall outside the warrant, the government
says their seizure was authorized by the plain view doctrine.
That doctrine allows an officer to seize items not listed in a
warrant if: 1) he was lawfully present at the search site; 2) the
items were in his plain view; and 3) he had probable cause to
believe the items were linked to criminal activity. United
States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997).
Defendant concedes that the police were lawfully present at
5525 S. Normal and that the manifesto and walking stick were in
plain view. He argues, however, that the police did not have
probable cause to believe that those items were linked to
criminal activity. The government asserts that the "items [seized
were] linked to . . . the illegal possession of firearms and
narcotics trafficking," (Gov't's Obj. R&R at 3), but it does not
explain how a book and a walking stick indicate gun ownership or drug sales. Certainly, those items
suggest gang membership, but gang membership itself is not
illegal. Moreover, though evidence of gang membership may be
admissible to show motive or bias or to prove conspiracy, (see
Gov't's Obj. R&R at 3-4 (citing cases)), none of those issues is
present here. Defendant is charged with: (1) possessing with the
intent to distribute crack; (2) being a convicted felon in
possession of firearms that were transported in interstate
commerce; and (3) possessing a firearm in furtherance of a drug
trafficking crime. (See Indictment); 18 U.S.C. §§ 922(g)(1),
924(c)(1)(A); 21 U.S.C. § 841(a)(1). Defendant is not charged
with being part of a conspiracy, and motive is not an element of
the crimes with which he is charged. Absent some connection
between the manifesto, the walking stick and the crimes charged,
which the government has not provided, its plain view argument is
doomed. The Magistrate Judge correctly ruled that those items are
not admissible under the plain view doctrine.
For the foregoing reasons, the Court overrules the government's
objections to the Magistrate's May 26, 2005 R&R, adopts the R&R
in its entirety and grants defendant's supplemental motion to
suppress [doc. no. 52] the Mickey Cobra gang manifesto and the
Mickey Cobra walking stick seized from the residence at 5525 S.
Normal on April 3, 2004.
© 1992-2005 VersusLaw Inc.