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United States v. Zambrana

November 30, 2005

UNITED STATES OF AMERICA, PLAINTIFF,
v.
AMAD SHOJAEI ZAMBRANA, DEFENDANT.



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

MEMORANDUM & ORDER

Introduction and Procedural History

On April 19, 2004, this Court granted a suppression motion in favor of Defendant Amad Zambrana (see Doc. 42). The Government appealed that decision to the United States Court of Appeals for the Seventh Circuit. The case now returns to this Court on its second remand from the Court of Appeals.

The first remand occurred March 3, 2005 when the Court of Appeals granted a "Joint Limited Motion for Remand" filed by both parties. At that time, the Seventh Circuit ordered this Court to consider whether the credibility of the Government's main witness in the suppression hearing -- Collinsville, Illinois police officer Michael Reichert -- was affected by evidence that Reichert was under criminal investigation for allegedly selling counterfeit Oakley sunglasses. The information regarding that investigation did not come to light until after this Court entered its suppression order. After briefing and argument, this Court ruled its credibility assessment would not be affected by the undeveloped allegations against Reichert.The case was then returned to the Seventh Circuit.

The second and current remand results from that Court's opinion, dated October 31, 2005, in which the Seventh Circuit vacated this Court's decision suppressing evidence and statements and remanded this case for further proceedings. See United States v. Zambrana, No. 04-2311, slip. op. (7th Cir. Oct. 31, 2005).

Background

Charged in this Court with possession with intent to distribute heroin and possession with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), Zambrana pled not guilty. The charges were filed after a police search of the vehicle driven by Zambrana, in which co-Defendant Babar Shah*fn1 was a passenger, revealed heroin and cocaine.

At a suppression hearing held March 8, 2004, Zambrana moved to suppress the narcotics removed from the rental vehicle he was driving, statements made by Zambrana and Shah to the arresting police department, and any live testimony that Shah would have given at trial.

On April 19, 2004, this Court issued an Order (Doc. 42) granting in part and denying in part Zambrana's motion to suppress. This Court concluded that although the arresting officer, Reichert, had probable cause to stop Zambrana's car, Reichert did not have reasonable articulable suspicion to detain the car for a canine-unit sniff. Accordingly, this Court suppressed the narcotics, statements, and testimony resulting from this detention and search. As mentioned, the Government appealed this decision, and the Seventh Circuit has now vacated this Court's order and returned the case to this Court for further proceedings.*fn2

Specifically, the Seventh Circuit requests that this Court provide additional explanation concerning two aspects of this Court's April 19, 2004 finding. First, the Seventh Circuit notes that although this Court conducted a plenary hearing on the issue and carefully examined each factor relating to reasonable suspicion, the Seventh Circuit remains uncertain as to whether this Court actually evaluated the underlying situation from a proper "totality of the circumstances" perspective. Second, the Seventh Circuit requests more detailed and more explicit findings concerning this Court's suggestion that Officer Reichert was not a credible witness.

To comply with this task, this Court solicited briefs from the parties, reviewed the transcript of the suppression hearing, and reviewed its personal notes taken at that hearing.

Facts

The factual background has been delineated in the Seventh Circuit's opinion and does not need to be repeated here except to the extent necessary to comply with the remand order.

Analysis

When determining whether a police officer had reasonable suspicion to stop an individual, the district court must evaluate the "totality of the circumstances" to assess whether the detaining officer has a "particularized and objective basis" for suspecting illegal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002); Kaniff v. United States, 351 F.3d 780, 785 (7th Cir. 2003). Under this standard, a court cannot simply evaluate and reject each factor in isolation from the other factors. See Arvizu, 534 U.S. at 274. In light of this guidance, this Court realizes the difficulty that this Court's April 19, 2004 Order presents to the Seventh Circuit. In that Order, as the Seventh Circuit notes, this Court discussed individually each factor that officer Reichert cited as increasing his suspicion towards Zambrana, and referred to the relevance of these factors "in isolation." In doing so, this Court did not adequately illustrate the breadth or inclusiveness of its analysis of the underlying circumstances.

This insufficiency was the result of an inadequate articulation of this Court's "totality of the circumstance" evaluation, rather than a reflection of an inadequate "totality of the circumstances" analysis.*fn3 In spite of its lacking articulation, this Court did in fact "view the circumstances in their entirety" in determining whether a reasonable officer in Reichert's position would have believed that he had a "particularized and objective basis" for suspecting illegal activity. Id. In so doing,the Court carefully considered "the experience of [Officer Reichert] and the behavior and characteristics of [Zambrana]," United States v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995), as well as a multitude of additional factors that together comprised the "totality of the circumstances." Nonetheless, because of this Court's insufficient articulation, the Seventh Circuit lacks explanations vital to its decision on appeal. What follows, therefore, is this Court's better articulation of its basis -- which remains unaltered -- for its April 19, 2004 suppression Order.

As the Seventh Circuit notes, "vital aspects of the overall determination of the reasonable suspicion issue are the prerogative and responsibility of the trial court; it has the institutional capacity to make findings of historical fact as well as all-important credibility judgments. See Zambrana slip. op. at 11. Indeed, because of its ability to view first-hand a witness's demeanor, and to listen to that witness's live testimony, a district court has a "superior institutional capacity" to make credibility judgments. Id.

This Court made significant determinations regarding the credibility of Reichert that it initially did not fully articulate in order to avoid publicly tarnishing the reputation of the officer. When credibility conclusions are drawn regarding individual witnesses, this Court employs great care and caution in the words it chooses and conclusions it draws. The law requires such an approach and the witness is entitled to it, especially since every word this Court places in writing becomes available on the internet. There was a time when Westlaw and Lexis honored this Court's request to not publish memoranda or orders, because they were non-precedential. This is no longer the case. Now, every docketed order becomes available to the public through PACER, and Westlaw and Lexis frequently publish orders and memoranda of the district courts. Conclusions and findings regarding a person's credibility can have far-reaching effects. The Government's admonition to this Court that "the District Court should be cautious and thorough when making such [credibility] determinations" (Doc. 109, p.3) is well-taken.

Nevertheless, this Court's credibility determination concerning Reichert is the most significant factor this Court considered in its "totality of the circumstances" review, and therefore requires thorough exposition. Reichert's lack of credibility as a witness influenced this Court's entire analysis. The bottom line is this: if a credible officer had testified to having witnessed the same facts and having drawn the same conclusions in this case as did Reichert, this Court may have been able to find that the totality of the circumstances supported a finding of reasonable suspicion. Largely because of Reichert's infirm credibility, however, the Court concludes the opposite here.

In the original Order suppressing evidence, this Court included a footnote describing Reichert as a "polished" witness. That was not meant to be complimentary. The original version of that statement -- which ultimately ended up on the "cutting room floor" -- described Reichert as a "polished performer." One reason this Court rejected Reichert's testimony as not credible was because it was so rehearsed, coached, and robotic as to be rote. It was a generic, almost default performance not dependent upon the facts of this case, but suitable for any case in which Reichert might testify to having found "reasonable suspicion." When questioning required him to temporarily stray from this rehearsed script, away from the security of his default testimony, he was caught off-guard. As an example, when asked a question unique to the facts of this case -- to identify the site of damage to the vehicle Zambrana was driving -- Reichert's answer was inconsistent with objectively verified facts.*fn4

Reichert's inconsistency regarding one of the few objectively verifiable facts of his narrative further increased this Court's doubt regarding the balance of Reichert's testimony -- which consisted primarily of facts that were not objectively verifiable. Reichert's conclusions from reading body language "thrown off" involuntarily from people "trafficking in narcotics" requires subjective interpretation that is not verifiable. This Court originally referred to Reichert's methodology as "acting as a human polygraph" and continues to view this practice cautiously due to its potential for misuse. Such methodology is wholly subjective and fraught with potential for guess, speculation, conjecture, and even deceit. That is not to say it is not an available tool in the arsenal of law enforcement, so long as its use is reliable. But in a case such as this -- when the credibility of the officer employing such methodology is suspect for several different reasons -- the Court is much more hesitant to give such conclusions significant weight.

Additionally, Reichert's recent criminal conviction in federal court negatively impacts this Court's credibility determination regarding his testimony. On August 30, 2005, in criminal case # 05-30129,*fn5 Reichert pled guilty to violating 15 U.S.C. § 13(a), "Selling of Goods in Commerce at Unreasonably Low Prices Eliminating Competition," a misdemeanor. The charges underlying Reichert's conviction arose out of allegations that he had been selling counterfeit Oakley sunglasses.

As mentioned above, this Court first became aware of those allegations after its April 19, 2004 ruling. On May 5, 2005, pursuant to the Seventh Circuit's instructions, this Court held a hearing to determine whether this Court's credibility determination as to Reichert would have been affected had it known of the investigation. The criminal charges had not been levied nor had he pled guilty at that time. The case was in the investigative stage, the allegations were unproven and not admitted by Reichert, and no formal charges had been filed. The court did not know if Reichert was going to be criminally charged locally, federally or at all. A variety of charges could have been filed, including felonies, misdemeanors, or petty offenses. Oakley, Inc., the victim, could have handled the matter solely from a civil standpoint. Given the immature status of these allegations, this Court ruled that the evidence against Reichert would not have affected its previous credibility determination.

However, Reichert's subsequent guilty plea, stipulation of facts and conviction have changed the landscape and developed the record on this issue, leading this Court to reconsider its May 5, 2005 decision. Faced with an immature and undeveloped investigation at the time of that decision, this Court was under the mistaken impression that Reichert's offense did not involve ...


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