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United States v. Macias

April 19, 2007

UNITED STATES OF AMERICA,
v.
JULIO MACIAS, ANGEL FLORES, AND JOSE LOPEZ.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Defendants Julio Macias, Angel Flores, and Jose Lopez are charged with possession with intent to distribute, and conspiracy to possess and distribute, more than five kilograms of cocaine. See 21 U.S.C. §§ 846, 2. They have joined in each others' motions to suppress evidence, which the court denies in part and orders a suppression hearing on the remainder. The defendants have also filed various other pretrial motions, which the court grants in part and denies in part.

BACKGROUND*fn1

Defendant Julio Macias decided to use a shipping company to truck his van from California to Chicago. Unfortunately for Macias, the shipping company he chose was under surveillance by federal drug enforcement agents investigating another matter. The agents became suspicious when Macias showed up without a reservation and paid his shipping charge with cash. After Macias left, agents used a trained dog to sniff for drugs without first obtaining a warrant to do so. The dog did not detect drugs while sniffing the van from the outside, but when agents let the dog inside the van it alerted the agents to the presence of drugs in both rear quarter panels of the van. Based upon the dog's detection, the agents obtained a warrant and searched the van, where they allegedly found eleven kilograms of cocaine behind one of the rear quarter panels, and an additional two kilograms behind the other. Field tests allegedly confirmed that the drugs were cocaine.

Based upon their discovery, agents obtained another warrant, this time authorizing them to install a mobile tracking device inside the van, as well as electronic trigger devices that would signal them if the rear quarter panels were accessed. The agents installed the monitoring devices after the van arrived at the shipping carrier's facility in Frankfort, Illinois. As a precautionary measure, the agents also confiscated the cocaine and replaced it with fake cocaine.

After the van had been wired by agents, the shipping company called Macias to tell him that his vehicle had arrived. A few hours later, Macias showed up at the shipping company in a vehicle with two other individuals, later identified as co-defendants Angel Flores and Jose Lopez. Macias recovered his van and drove it from Frankfort to a garage behind a home on Keating Avenue in Chicago, trailed the entire trip by federal agents. Apparently Macias closed the overhead garage door behind him. Agents also trailed the vehicle driven by Flores and Lopez, which they allegedly observed drive around the blocks surrounding the Keating home several times before finally parking directly behind the door to the garage where Macias had parked his van. Initially all three defendants went into the Keating home. Later, agents observed Macias and Flores leave the home and go into the garage, where Macias' van was still parked. A few minutes later, the alarm for the trigger devices activated, signaling to agents that the rear quarter panels where the cocaine had been stashed had been accessed.

En masse, the agents drew their guns, stormed the garage, demanded that Macias and Flores open the overhead door, and eventually removed Macias and Flores from the garage, handcuffed them, and arrested them. In the meantime, other agents stormed the Keating resident where Lopez was. Agents arrested him, handcuffed him, and took him to one agent's vehicle for questioning. Agents who remained in the home obtained consent to search it from Evilia Avila, who lived there. The search yielded a rifle, a handgun, two scales, a heat-sealing device, and an unspecified quantity of cocaine and marijuana.

After their arrests, agents read to Flores, Macias and Lopez the warnings set forth in Miranda v. Arizona, 384 U.S. 426 (1966). Flores exercised his rights under Miranda and declined to answer agents' questions, but both Macias and Lopez gave post-arrest statements that incriminated themselves and their co-defendants.

The circumstances leading up to Lopez's incriminating statements are disputed. According to the agents, Lopez made the statements only after they obtained from him a written waiver of his rights under Miranda. Lopez acknowledges waiving his Miranda rights, but contends that the waiver was coerced. Specifically, he alleges that when agents arrested him inside the Keating residence, they threw him to the floor and kept him there for five minutes. After removing him from the residence, they allegedly threw him to the ground outside and put his face "atop several piles of dog excrement." They allegedly left him in the dog excrement for 20 minutes, and then put him into an agent's vehicle and attempted to question him. When Lopez declined to answer the questions and asked for a lawyer, one of the agents allegedly began hitting Lopez repeatedly in the jaw, face, and stomach. As a result of the alleged beating, Lopez suffered injuries to his eye and a cracked tooth. His injuries were noted by the Berwyn fire and police departments.

The defendants move to suppress the evidence obtained by police during the search of Macias' car in California as well as the searches of the garage and home on Keating Avenue in Chicago.*fn2 In addition, Lopez moves to suppress his incriminating statements to police, which he contends were coerced. All three defendants have also joined in other pretrial motions in which they seek preservation of agents' notes, immediate disclosure of favorable evidence, and notice of the government's intent to use evidence of the defendants' other crimes. Finally, the defendants seek to sever their trials. The court addresses each motion in turn.

I. Motion To Suppress Evidence Obtained During Search of Macias' Car in California

Defendant Macias attacks the lawfulness of the search of his car in California on two fronts. First, he contends that agents lacked probable cause to enter his vehicle and search it with a drug-sniffing dog. The fourth amendment to the United States Constitution protects against "unreasonable searches and seizures," and requires that search warrants be issued only "upon probable cause." U.S. Const. amend. IV. However, the constitution protects against warrantless searches only where an individual has a legitimate expectation of privacy. See United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007). Therefore, in order to prevail, Macias bears the burden of establishing a legitimate expectation of privacy in his vehicle at the time it was searched. See United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006). An expectation of privacy is legitimate if: (1) the defendant exhibits an actual or subjective expectation of privacy; and (2) the expectation is one that society is prepared to accept as reasonable. Id.; see also Katz v. United States, 389 U.S. 347, 361 (1967).

As Macias correctly notes, the owner of a car normally has an expectation of privacy in the car's interior. See, e.g., United States v. Winningham, 140 F.3d 1328, 1331 & n.2 (10th Cir. 1998). However, the expectation is significantly less than the privacy expected in one's home or business. See United States v. Matthews, 32 F.3d 294, 299 (7th Cir. 1994) ("the pervasive regulation of automobiles creates a lesser expectation of privacy associated with them than, for example, a dwelling.") (internal citation and quotations omitted).

Although Macias has presented cases in which canine searches of car interiors constituted unreasonable searches, one crucial fact makes the instant search distinguishable-Macias had turned his car over to the shipping company before the search occurred. The bill of lading that Macias signed required him to provide the shipping company with the keys needed to access all areas of the van, advised him to remove all of his personal effects, disclaimed any liability for theft of items from the van, and advised Macias that other carriers or third-parties employed by the shipping company may be involved in transporting Macias' vehicle.

Based upon these circumstances, any expectation of privacy Macias had in the interior of his van was unreasonable. He had completely surrendered the van to the shipping company and gave the company the keys needed to access any area of the vehicle. Macias' agreement to do these things was much like the agreement signed by the defendants in United States v. Young, 350 F.3d 1302 (11th Cir. 2003), in which they gave Federal Express the right to inspect the package they had shipped. In light of Federal Express' right to inspect the package, the defendants in Young had given up their expectation of privacy, and agents' subsequent search of the package was not unlawful. Id. at 1307-08. Here, Macias gave more than just the right to inspect-he gave complete access not only to the shipping company but also to any other carrier or third-party they employed. As a result, like the defendants in Young, he gave up any reasonable expectation of privacy in the vehicle while under the shipping company's control. See also United States v. Ward, 144 F.3d 1024, 1033 (7th Cir. 1998) (passenger had no reasonable expectation of privacy in bag while it was being transported by Greyhound). Based upon the lack of any reasonable expectation of privacy, the agents' use of a dog to sniff the interior of his van was not an unlawful search.

Second, Macias contends that the warrant to search his car was invalid because it was not based upon probable cause. Specifically, Macias argues that in order to obtain a search warrant based upon a positive alert from a narcotics dog, the application for the warrant must detail the dog's reliability. See, e.g., United States v. Cedano-Arellano, 332 F.3d 568, 573 (9th Cir. 2003) ("a canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog's reliability.") Macias argues that the application for the warrant contains no ...


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