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United States v. Sims

November 2, 2007


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


This case is before the court for ruling on the Motion for Suppression of Physical Items (#13) and the Motion to Suppress Statements (#15) filed by Defendant, John Eric Sims. Following this court's careful consideration of the arguments of the parties and the evidence presented at the evidentiary hearing held in this case, Defendant's Motions (#13, #15) are DENIED.


On May 3, 2007, Defendant was charged by indictment with knowingly possessing a firearm that had the manufacturer's serial number obliterated, namely, a Springfield Armory, Model XD 40, .40 caliber, semi-automatic pistol, said firearm at one time having been transported in interstate commerce, in violation of 18 U.S.C. § 922(k). Defendant is represented by appointed counsel, Michael J. Zopf, and has been detained pending trial.

On June 13, 2007, Defendant filed a Motion for Suppression of Physical Items (#13). On June 27, 2007, Defendant filed a Memorandum in Support (#14) and also filed a Motion to Suppress Statements (#15) which included a Memorandum of Law. In his Motions, Defendant argued that the search warrant issued by Circuit Judge Mitchell Shick of Coles County, Illinois, was insufficient for various reasons. Defendant argued that the firearm he was charged with possessing was seized pursuant to the invalid search warrant and must be suppressed. Defendant also argued, citing Wong Sun v. United States, 371 U.S. 471 (1963), that "should the court grant the motion to suppress physical items the court should similarly suppress a statement made by the defendant subsequent to his arrest where he was shown the firearm seized as a 'fruit of the poisonous tree.'"


On July 16, 2007, an evidentiary hearing commenced regarding the Motions to Suppress. The hearing was continued to August 21, 2007, and additional evidence was presented on that date. Defendant first presented the testimony of Officer Benjamin James Quick of the Charleston Police Department. Quick testified that he was asked to go to the residence of Larry Hall at 21 West Taylor Street in Charleston on April 15, 2007. He arrived at Hall's residence at approximately 6:09 p.m. At the residence, Quick approached the front door and noticed a grill on the front porch. He met with two women who identified themselves as Larry Hall's sisters. At that time, Hall was unconscious at the hospital following heart bypass surgery. The sisters wanted Defendant, who they said was living at the residence, evicted. Quick also met with an older woman who identified herself as the owner of the residence and garage at 21 West Taylor Street. The owner stated that she lived nearby, behind the residence, and stored items in the garage. She took Quick with her to look in the unattached garage of the residence because Hall's sisters were concerned that Defendant may have taken or damaged Hall's vehicles. While looking in the garage, Quick observed a pale yellow wire welder. Quick testified that the welder caught his attention because it was lying on a pile of items and did not appear to be stored properly. Quick testified that he told Hall's sisters and the owner that he could not force Defendant to leave the residence and that eviction would be a civil matter.

Quick testified that, later that same day, he received a call from Officer Austin Weinstock of the Toledo, Illinois, Police Department. Weinstock told him to detain Defendant. Quick went back to Hall's residence and verified that the grill on the porch was an Aussie grill, the same brand as a grill that had been reported stolen. Quick testified that he entered the residence to look for people and secure the residence for safety. Quick found Defendant and Rebecca Cline inside the residence. Quick testified that he took Defendant into custody pending a theft investigation. Rebecca Cline was placed on the front porch. Weinstock arrived at the residence with Brandon Glosser. Glosser identified the grill as his. Quick testified that Defendant was then placed under arrest. Quick testified that Defendant refused to consent to a search so Weinstock obtained a search warrant.

Defendant next presented the testimony of Larry Hall. Hall testified that Defendant has lived at his residence under an oral agreement. Hall stated that the owner of his residence is Imogene McClanahan and that he has rented from her for 13 years. Hall testified that he was admitted to the hospital on April 12, 2007, and underwent triple bypass heart surgery on April 15, 2007. He was in a coma until April 30, 2007, and was not at his residence at the time Defendant was arrested. Hall testified that Defendant gave him the Aussie grill as a gift and they assembled it from the box.

Austin Edward Weinstock was the next witness presented. Weinstock testified that he was a part-time police officer in Toledo, Illinois, in April 2007. Weinstock testified that, in April 2007, he was dispatched to a garage belonging to Gregory Glosser located in Toledo. A neighbor had complained that Defendant had created ruts in the grass of the neighbor's property when Defendant backed up a yellow Dodge pickup truck to Glosser's garage. Defendant returned to the property while Weinstock was there and repaired the damage to the grass to the satisfaction of the neighbor, thereby resolving the neighbor's complaint.

Weinstock testified that on April 15, 2007, at 4:41 p.m., he met with John Glosser, who is Gregory Glosser's brother, and Brandon Glosser, who is Gregory Glosser's son. They told Weinstock that they believed Defendant was taking items from Gregory Glosser's garage on a regular basis while Gregory Glosser was incarcerated.*fn2 Among the items reported stolen was an Aussie grill belonging to Brandon Glosser, numerous tools with the initials GAG (for Gregory A. Glosser) stamped in them, and multiple welding items, including a pale yellow wire welder. Weinstock testified that, around 6:20 p.m. that day, he observed a yellow Dodge pickup truck at Toledo Park. He and Edward L. Applegate, the chief of police for Toledo, Illinois, went to the park hoping to speak with Defendant. They found the truck, but Defendant was not there. The officers spoke to John Williams from Charleston, Illinois, who was near the truck. Williams told the officers that he had come to Toledo to recover the yellow pickup truck for Hall, who was unconscious in the hospital. Williams told them that Hall's sisters had asked him to recover the truck from Defendant, so Williams contacted Defendant and made arrangements to get the truck from him. Williams said that Defendant had just left Toledo in a white Lincoln Continental belonging to Hall and was returning to Charleston. Williams also told the officers that he believed that Defendant was in possession of stolen property at Hall's residence in Charleston, including a brand new Aussie grill on the front porch of the residence that did not belong to Hall. Williams also told the officers that Hall's sisters had previously had contact with Officer Quick in Charleston Weinstock called Quick, who told Weinstock he had seen the grill on the porch and the wire welder in the garage. Weinstock asked Quick to drive by Hall's residence to see if he could identify the type of grill. Quick did so and observed that it was an Aussie grill on the front porch. Weinstock then asked Quick to detain Defendant. Weinstock arrived at Hall's residence with Brandon Glosser and, after Glosser identified the grill as stolen from him, Defendant was arrested. Weinstock testified that, after Defendant refused to consent to a search, he obtained a search warrant to search for stolen property.

The search warrant, complaint for search warrant and affidavit, all prepared by Weinstock, were admitted into evidence. In the complaint and affidavit, Weinstock set out the information he had received regarding Defendant taking items from Gregory Glosser's property and the fact that some items identified as stolen from the Glossers had been located at Defendant's residence, including the garage area. Weinstock stated that he was seeking a search warrant for a single story ranch style residence commonly known as 21 West Taylor Avenue in Charleston, for a two-axle travel trailer parked in the driveway, for a single story detached garage located on the property, and for a 1996 white Pontiac Trans Am convertible parked in the driveway.

Based upon the complaint for search warrant and affidavit, a search warrant was signed by Coles County Circuit Judge Shick. The search warrant stated that "[u]pon examination of that complaint, I find that it states facts sufficient to show probable cause." The search warrant provided a detailed description of the residence, garage, trailer and convertible. The search warrant authorized law enforcement officers to search the four locations described. The search warrant did not include a description of any of the specific items discussed in the affidavit but just stated, as a description of the things to be seized, "[o]r any other evidence indicative of the criminal offense of Burglary, Theft or Possession of Stolen Property." The search warrant did not incorporate by reference either the complaint or affidavit.

Weinstock, Applegate and Charleston Police Officer Steve Englum executed the search warrant. Weinstock testified that they searched the residence first and then the garage. Inside the northwest bedroom closet of the residence, Weinstock found a camouflage bag that contained numerous guns and also appeared to contain an illegal silencer (which was later determined to be a suppressor). One of the guns was a Springfield Armory, Model XD 40, .40 caliber, semi-automatic pistol, with the manufacturer's serial number obliterated. Weinstock seized the pistol with the obliterated serial number, as well as the other firearms, to determine if they had been stolen. Weinstock also seized other property ...

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