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 to Suppress Evidence (#15) filed by Defendant, Freddell Bryant (Freddell). This court has carefully reviewed the transcript of the evidentiary hearing held on July 21, 2008, and has carefully considered the written submissions by the parties. Following this careful and thorough review, Freddell's Motion to Suppress Evidence (#15) is DENIED.
On April 4, 2007, Freddell was charged by indictment (#1) with: (1) knowingly and intentionally conspiring with others, from on or about October 2003 continuing through at least March 2007, to possess with intent to distribute and to distribute a mixture and substance containing cocaine and cocaine base ("crack"), both of which are Schedule II controlled substances, the conspiracy involving 500 grams or more of a mixture and substance containing cocaine and 50 grams or more of a mixture and substance containing cocaine base ("crack"), in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) & (B); (2) knowingly possessing, on or about July 12, 2004, 500 grams or more of a mixture and substance containing cocaine, a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(ii); (3) knowingly possessing a firearm in furtherance of the crime of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base ("crack") as charged in Count 1, in violation of 18 U.S.C. § 924(c); and (4) knowingly possessing a firearm after having been previously convicted in a court in the State of Illinois of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Freddell is represented by retained counsel, Robert L. Rascia, and has been detained pending trial. On November 16, 2007, this court granted defense counsel's oral motion for a psychiatric examination. On March 3, 2008, following receipt of the psychiatric examiner's report, this court found Freddell fully competent to assist counsel at trial.
On May 27, 2008, Freddell, through his counsel, filed a Motion to Suppress Evidence (#15). He argued that evidence seized from an apartment on July 12, 2004, should be suppressed. Freddell argued that law enforcement officers came to the apartment to execute an arrest warrant for his brother, Terrance Bryant (Terrance). Freddell argued that Terrance did not consent to a search of the apartment, either orally or in writing. Freddell contended that the search of the apartment was not lawful as it was not a valid search incident to the arrest of Terrance, was not conducted pursuant to a valid search warrant, was not conducted pursuant to valid knowing consent and was not based upon the presence of exigent circumstances. Freddell acknowledged that the Government claims that the warrantless search was justified by Terrance's oral consent, but argued that Terrance did not consent or, if he gave oral consent, his consent was not voluntary. Freddell stated that Terrance would testify that "[h]e submitted to the VMEG agents simply because they came, unannounced, without a warrant, arrested him, and gave him every reason to believe [that] he had no choice but to do everything they told him."
On June 17, 2008, the Government filed its Response to Defendant's Motion to Suppress Evidence (#16). The Government pointed out that Freddell's Motion did not affect all of the charges against him. The Government also argued that, based on the evidence, Freddell's Motion to Suppress should be denied.
A hearing was held on July 21, 2008. The Government called two witnesses, Lisa Crowder and Peter Miller. Crowder testified that, on July 12, 2004, she was employed as a special agent with the Vermilion County Metropolitan Enforcement Group (VMEG), a multijurisdictional drug task force. Crowder testified that, on that date, she was in a Kmart parking lot conducting a detail regarding the Townway Apartments, known as Danville Apartments. She was contacted by special agent Peter Miller who stated that he saw Terrance enter Building B of those apartments. Crowder testified that Terrance was known to VMEG as having an outstanding warrant for his arrest for a previous VMEG case related to an October 2003 search of an apartment in Danville. Crowder contacted the Vermilion County Sheriff's Department and requested that they send an officer so that Terrance could be arrested. Crowder testified that she knew which apartment in the complex Terrance was staying in, which was apartment B22, because she had been contacted by a concerned citizen in June 2004. The concerned citizen said that she had been staying at that apartment for the previous week and also said that Terrance was living there and had large amounts of cocaine and a couple of guns in the apartment. Crowder testified that, after she received this information from the concerned citizen, she looked into it and determined that the apartment was listed under the name of Ricky Spencer. Crowder testified that she had information that Terrance and Spencer had been involved in drug trafficking together.
Crowder testified that Miller and two Sheriff's deputies went to apartment B22 to arrest Terrance. Crowder testified that she was informed that Terrance and another individual, James Martin, had been arrested at the apartment. Martin was found on a couch during a protective sweep of the apartment and a loaded weapon was located on the couch or in the couch. Crowder testified that she attempted to obtain a search warrant for the apartment based upon the information she had received from the concerned citizen. Crowder and her boss, Sue Culp, met with Frank Young, the Vermilion County State's Attorney. Young asked Crowder to have a dog sniff the outside of the apartment door and also asked her to re-interview the concerned citizen. Miller arranged to have a trained narcotics detection canine sniff the outside of the apartment, and the dog alerted positively on the door. Culp and Crowder re-interviewed the concerned citizen. Crowder relayed this information to Young who said there was not enough information to obtain a search warrant. Crowder said she then went back to the apartment to arrange for transport for the two individuals who had been arrested.
Crowder testified that, after she returned to the apartment, she and Miller spoke to Terrance on the balcony at the back of the apartment. Terrance was handcuffed, but neither Crowder nor Miller had their weapons drawn. Crowder testified that Terrance said he would like to cooperate with them. She testified that she asked him if he would consent for them the search the apartment. Crowder testified that he "initially did not give consent, but he did not deny consent." Crowder testified that Terrance said "he wasn't sure if he wanted to do that at this time." Crowder testified that she asked him again if he wanted to give consent and he said, "Yeah. You can go ahead and search the place. I really want to cooperate." Crowder testified that Terrance "was not Mirandized or anything because we weren't actually questioning him on anything at that time, basically just asking him for consent."
Crowder testified that, after Terrance agreed to the search, Terrance and Martin were then transported to the Danville Public Safety Building. Crowder testified that they searched the apartment and located both powder cocaine and crack cocaine.
During cross examination, Crowder testified that Terrance was arrested at approximately 8:20 p.m. and was removed from the apartment around 11:20 p.m., approximately three hours later. She testified that Terrance was held at the apartment during that entire time period. Crowder also acknowledged that Terrance was not asked to sign a consent to search form and was not told that he did not have to agree to the search. Crowder testified that she did not have a consent to search form with her but that it would take very little time to write out the language included on a form on a piece of paper. Crowder also stated that, when she first asked Terrance for ...