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United States v. Aispuro

May 2, 2008


The opinion of the court was delivered by: Judge James B. Zagel


On November 29, 2006, a criminal complaint was filed against both Jose Luis Aispuro and Humberto Roman Hernandez, charging Defendants with violations of 21 U.S.C. § 846 on or about November 28, 2006. The grand jury returned a four-count indictment charging Aispuro and Hernandez with conspiring to possess with intent to distribute a controlled substance (Count 1), and with knowingly and intentionally possessing with intent to distribute a controlled substance (Count 2). Aispuro was charged in a separate count with knowingly and intentionally possessing with intent to distribute a controlled substance (Count 4).*fn1 Count 2 refers to the approximately twelve kilograms of cocaine found in the car that Hernandez was driving on November 28, 2006. Count 4 refers to the approximately 127 kilograms of cocaine found at 3401 N. Nordica and 3601 N. Nordica in Chicago, Illinois. Aispuro and Hernandez have filed motions to quash arrest and suppress evidence.

I. Factual Background*fn2

At 8:00 a.m. on November 28, 2006, agents from the Federal Drug Enforcement Agency were conducting surveillance on the residence of 3601 N. Nordica, Chicago, Illinois. Previously, the DEA obtained intelligence that a cellular telephone, registered to Miguel Anaya Fuentes of 3401 N. Nordica, was being used to facilitate illegal drug transactions. Further research revealed Fuentes also resided at 3601 N. Nordica in Chicago, Illinois. DEA Agents also had information that a white Ford Explorer registered to Ascencion Garcia at an address on Montrose Avenue in Chicago was linked to the drug transactions. At around 12:20 p.m. on November 28, 2006, agents observed a Hispanic male, wearing a red jacket and blue jeans and later identified as Defendant Jose Luis Aispuro, exit 3601 N. Nordica and enter into that white Ford Explorer. Agents observed Aispuro drive the Explorer two blocks and then park on the street outside the residence located at 3401 N. Nordica. At that time, Aispuro exited the Explorer and entered 3401 N. Nordica. Another car registered to Ascension Garcia, a green Monte Carlo, was also parked on the street in front of 3401 N. Nordica.

At approximately 12:58 p.m., agents observed Aispuro leave 3401 N. Nordica, enter into the same white Explorer, and drive southbound on Harlem Avenue. Agents followed Aispuro down Harlem Avenue and observed Aispuro talking on his cell phone as he approached North Avenue.*fn3 Aispuro entered the center turn as if to turn into the Sears parking lot on the left.

Another man, standing in the Sears Automotive parking lot across the street (to Aispuro's right), was gesturing towards Aispuro to turn that way instead. Aispuro turned out of the center lane, cut across Harlem Avenue, and turned right into the Sears Automotive lot. Agents noted that Aispuro had passed up two other entrances into the Sears Automotive lot before he eventually made the turn.

Once in the lot, Aispuro parked the Explorer and the individual who had been observed gesturing entered Aispuro's car. That individual was later identified as Carlos Labastida-Gayton. While inside the Explorer, Labastida-Gayton appeared to hand a small object to Aispuro before both men exited the car. Aispuro then walked to a nearby silver Jeep Cherokee, which agents learned was a rental vehicle from Enterprise Rental.*fn4 Labastida-Gayton joined two other men who were standing in the parking lot, later identified as Defendant Humberto Roman Hernandez and Manual Hurtado Miranda, and the three of them entered a black Jeep Wrangler. Aispuro left the parking lot in the silver Jeep Cherokee. He was again followed by agents, while other agents continued observation of the Explorer left parked in the Sears Automotive lot.

Aispuro drove the silver Jeep Cherokee back towards the 3401 N. Nordica address. At approximately 1:23 p.m., he parked the Cherokee near the corner of Cornelia and Sayre, about one block northeast of 3401 N. Nordica. After parking on the street, he exited the vehicle and started walking toward 3401 N. Nordica. Agents lost sight of Aispuro as he was walking, and they resumed surveillance of 3401 N. Nordica. Agents noted that street parking was available directly in front of 3401 N. Nordica.

Shortly thereafter, agents observed an unidentified Hispanic male carrying a heavy bag exit 3401 N. Nordica and enter the green Monte Carlo parked out front. Agents attempted to follow the Monte Carlo, but were unsuccessful because the driver conducted a series of unusual driving maneuvers, including driving extremely slowly and making four right turns. Agents concluded that such tactics were counter-surveillance measures. When they could no longer follow the Monte Carlo, the agents returned to 3401 N. Nordica. Immediately the agents observed that the silver Jeep Cherokee was no longer parked at Cornelia and Sayre. At this point, the agents ceased surveillance on Nordica and headed back toward the Sears Automotive lot to join the other agents stationed there.

One of the agents who had remained in the lot saw the black Jeep Wrangler previously observed heading northbound on Harlem Avenue with two individuals in the car. The agents also observed the same silver Jeep Cherokee as before traveling northbound on Harlem, observing that now the Cherokee was being driven by Hernandez. The agents testified that it appeared the two vehicles were being driven "in concert" when they both turned eastbound on Irving Park Road. Agents then stopped both vehicles.

Agent Asselborn approached the driver of the silver Jeep Cherokee and asked for identification. Hernandez provided his Mexican identification. After a short exchange, Hernandez consented to a search of the Cherokee. Hernandez was removed from the Cherokee and taken to the rear of the car near Agent Brian O'Neill. Agent Asselborn searched the Cherokee and found a duffle bag and backpack that contained in total twelve kilograms of cocaine, wrapped in children's clothing. At that point Hernandez was arrested. Hernandez told agents that he had received the key to the vehicle from a Hispanic male wearing a red jacket and blue jeans.

After discovering the twelve kilograms of cocaine and learning that a man matching Aispuro's attire had provided Hernandez with the key to the Cherokee, the agents returned to the area on Nordica where they had last seen Aispuro. Agents observed Aispuro walking from the north toward 3401 N. Nordica and enter that address. A few minutes later Aispuro exited 3401 N. Nordica and entered the white Ford Explorer. As Aispuro was driving away, and while he was in between the two Nordica addresses, Agents Asselborn and Gannelli stopped his vehicle. When it appeared that Aispuro did not understand English, the agents requested the aide of a Spanish speaking interpreter. While they were waiting for the interpreter to arrive, the agents removed Aispuro from the Explorer, patted him down, handcuffed him, and moved him to an area about a block east and out of sight of the Nordica addresses.

Very shortly thereafter Agent Williams, who speaks Spanish, arrived at the scene. Agent Williams conversed with Aispuro and provided Aispuro his constitutional rights. When asked where he lived, Aispuro responded 3401 N. Nordica. Agent Williams asked Aispuro for consent to search that address, to which Aispuro agreed. When Agent Williams read aloud to Aispuro the consent to search form, Aispuro expressed a concern that there were some rooms in the house that were rented out to tenants and that he did not want to be responsible for what was found in those rooms. Williams instructed Aispuro to write his concerns down on the form. As translated by a certified court reporter, Aispuro wrote on the form, "The room that someone is renting I do not take responsibility for nor for what they find in the house." A few minutes later Williams asked Aispuro for his consent to search the garage at 3601 N. Nordica. Aispuro again consented, this time writing on the form (as translated), "I do not ...

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