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United States v. Fahey

January 29, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALEX FAHEY, DEFENDANT.



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Alex Fahey and Lisa Urbina are charged with conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and with using a telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b). Presently before the court is Fahey's motion to suppress evidence seized during the search of Apartment C at 230 Crystal Street in Cary, Illinois. The court has granted Urbina's oral motion to join in Fahey's motion to suppress. For the following reasons, Fahey and Urbina's joint motion to suppress is granted.

BACKGROUND

On April 13, 2006, Special Agent Daniel Thomas of the North Central Narcotics Task Force ("NCNTF") of the Illinois State Police applied to the Circuit Court of McHenry County, Illinois, for a search warrant for an apartment located at 230 Crystal Street in Cary, Illinois. A search warrant was issued that same day by Judge Gerald Martin Zopp. The search warrant commanded the search of: the premises located at 230 Crystal Street, Apartment D, Cary, McHenry County, Illinois being described as a multi-tenant, two-story apartment complex consisting of four apartments, with the entire building having grey siding with white trim and a roof with dark grey shingles, the main door to the building is located in the center of the south side of the building, and the numbers 230 are affixed to the building above the main entrance with apartment D on the left at the top of the stairs with the letter D affixed to the door.

Fahey's Mot., Ex. A, at FBI 009. This description of the premises is identical to that provided by Thomas in his affidavit in support of the search warrant and nearly identical to that provided by Thomas in his complaint for the search warrant.*fn1

In the affidavit, Thomas also described the undercover purchases of user quantities of cocaine by a confidential informant ("CI") who stated that, in two separate controlled buys, the CI "went to the apartment on the left at the top of the stairs and knocked on the door which was marked with the letter D." Fahey's Mot., Ex. C, at FBI 013--14. In his affidavit, Thomas also described how he traveled with the CI and undertook surveillance that allowed him to watch the CI enter and exit the apartment building.

The four-unit apartment building located at 230 Crystal Street is two stories high. A front door opens into a common area. Two first floor apartments, Apartments A and B, are accessible from this common area. A staircase accessible from the common area leads up to the second floor of the building, which contains two apartments, Apartments C and D. As one ascends to the top of the stairs, Apartment C is to the left whereas Apartment D is to the right. Apartment C was shared by defendants Urbina and Fahey. As discussed above, the search warrant identified the premises to be searched as "230 Crystal Street, Apartment D" but also described the apartment as being "on the left at the top of the stairs." Fahey's Mot., Ex. A, at FBI 009.

On April 15, 2006, officers of the NCNTF, assisted by officers of the Illinois State Police North Tactical Response Team ("N-TRT"), executed the search warrant. According to the officers' report, after entering the common area of the building, the executing officers proceeded up the stairs to the upper left apartment. One of the officers noticed that the apartment door was marked unit "C," which was contradictory to the "D" specified in the warrant. That officer told his fellow officers to stand by and requested Thomas. Thomas entered the lobby and pointed to the upper left door. The officers then executed the search warrant at Apartment C, knocking and announcing three times before forcibly breaching the door and entering the apartment.

The government submits that, if called as a witness, Thomas "would testify that he instructed officers to enter Apartment C notwithstanding the search warrant's reference to Apartment D because he was aware of information, not included within his Affidavit, that further proved the upper left apartment was the only intended premises." Gov.'s Resp. at 3. For example, Thomas would testify that he was able to observe that (1) "during both controlled buys, lights were on inside Apartment C during the time the CI was buying the cocaine"; (2) "the hanging window treatments in Apartment C sway[ed] in a manner consistent with air movement caused by the opening and closing of the apartment door at approximately the time the CI would have been entering and leaving the building"; and (3) "[d]uring at least one of the buys, the CI expressly pointed out to Agent Thomas the upper left apartment as the apartment in which the CI bought cocaine." Id. at 3--4.

Both Fahey and Urbina were inside Apartment C at the time of the search.*fn2 The search resulted in the recovery of numerous incriminating items of evidence, including a loaded revolver, cocaine, and marijuana.

ANALYSIS

Fahey's motion raises two separate constitutional issues: (1) whether the warrant satisfied the particularity requirement of the Fourth Amendment, and (2) even if the warrant did not satisfy the particularity requirement of the Fourth Amendment, whether the suppression of the seized evidence would be the appropriate remedy. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV (emphasis added). The Warrant Clause of the Fourth Amendment "categorically prohibits the issuance of any warrant except one 'particularly describing the place to be searched and the persons or things to be seized.'" Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed. 2d. 72 (1987) (quoting U.S. Const. Amend. IV). If "a warrant fails to describe with particularity the place to be searched, it is void." Jacobs v. Chicago, 215 F.3d 758, 767 (7th Cir. 2000).

In some circumstances, "[e]ven if a warrant is ultimately found to be unsupported by probable cause or lacking in particularity, searches conducted pursuant to the warrant may be valid under the good-faith exception." Jones v. Wilhelm, 425 F.3d 455, 464 (7th Cir. 2005) (citing United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1984)). This exception to the warrant requirement only applies, however, if the officers conducting the search "have manifested an objective good-faith belief in the validity of the warrant." Id. As the Supreme Court has explained, the good-faith exception "allow[s] some latitude ...


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