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United States v. Salgado

November 18, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LORENZO SALGADO, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

A Grand Jury charged Defendant Lorenzo Salgado ("Salgado") with knowingly and intentionally possessing with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1). Salgado moved to suppress the cocaine recovered from the basement and garage by Chicago Police Officer Earnest Cain ("Cain"), Chicago Police Officer Fernando Carvajal ("Carvajal"), Chicago Police Sergeant Armando Ramirez ("Ramirez") and Agent John Kennelly ("Kennelly") (collectively, the "officers") during a search of the house at 3417 North Keeler in Chicago, Illinois on November 17, 2005. Salgado also moved to suppress the statements he made at the time of his arrest on November 17, 2005. In his motion, Salgado claims that the officers forced entry into his home over the objection of both his sister, Yolanda Salgado ("Yolanda"), and his wife, Veronica Mendoza ("Mendoza"), and that they illegally searched the house and detached garage where they recovered the cocaine. Salgado claims that after the search, the officers forced Yolanda to sign a consent form that she did not understand because it was written in English. He further argues that Yolanda did not have authority to consent to a search because she did not live at the house. This Court heard testimony on the Motion on July 25 and 30, 2008 and August 5 and 18, 2008. For the reasons stated below, Salgado's Motion to Suppress is denied as to the cocaine found in the basement of the Keeler house and the cocaine found in the detached garage and granted as to his statement.

FINDINGS OF FACT

On November 17, 2003, DEA officers were investigating Jose Arreola ("Arreola"), who was later arrested in Berwyn, Illinois where 223 kilograms of cocaine were seized from his residence. 226:16-17.*fn1 The officers observed Arreola travel to the Keeler house and pull up in a nearby alley. 212:12-24; 225:1-5. Another individual, later discovered to be Salgado, came out of the Keller house, took two duffel bags from the individual and brought them into the house. 212:12-24; 225:1-5. After Arreola was arrested on November 18, 2003, the officers proceeded to the Keeler house where they arrived around 10:30 pm. 288:6-8; 227:2-3; 264:5-6.

The parties dispute the facts surrounding the search at issue. Officers Carvajal, Ramirez and Cain and Agent Kennelly testified that they approached the Keeler house, and Carvajal knocked on the front door. 264:22-24; 323:7. When they approached the door, they noticed a security camera outside the house. 274:5-13; 402:15-19. A child, now known to be Jesus Salgado, answered the door, and Carvajal asked to speak to an adult. 265:14-16; 404:24. A woman, now known to be Mendoza, Salgado's wife, came to the door, and Ramirez told her in Spanish that he was a police officer conducting an investigation and he believed there was a chance there were drugs in the house. 265:21-266:6; 405:1-4. Carvajal asked if they could come in, and she said she did not know and that there was nobody there. 266:7-12.*fn2

While Carvajal was speaking with Mendoza, Yolanda and her sister, Maria Salgado approached the house and asked the officers what they were doing there. 267:17-20; 289:13-14; 324:18-19; 405:24-406:21. Carvajal and Ramirez went to speak to the two women and told them in English that they were officers conducting an investigation and explained to them the danger of having drugs in a house including the risk of kidnaping. 267:21-268:11. Yolanda denied that there were any drugs in the house and told the officers that she owned the house and that she would let them in. 268:12-13; 305:17-23; 326:14-20; 406:4-6. Kennelly testified that in addition to saying she owned the house, Yolanda said she lived there. 325:11-13. Yolanda went up the stairs and spoke to Mendoza at the door in Spanish, and then the women let the officers in. 268:13-16; 326:23-327:10.*fn3

Yolanda Salgado provided a different account. According to Yolanda, when she was parking near the Keeler house, she was approached by officers who asked her to identify herself and asked if she knew Salgado. 50:12-20. The officers represented to Yolanda that they were looking for Salgado because he was a suspect in a kidnaping. 50:14-15. The officers walked Yolanda and her sister, who was with her, to the house. 50:23-24. When they arrived at the house, Officer Carvajal asked Yolanda to open the door, and she repeatedly refused. 51:10-14.*fn4 She admitted that she owned the house, but said that she was renting it out. 51:12-13. Mendoza also refused to let the officers in, but they charged the door and entered the house. 52:6-11.

The officers testified that upon entering the house, the officers spread out throughout the house to make sure that no other persons were hiding inside. 407:8-16. Ramirez stayed in the living room with the family. 407:8-16. Kennelly went upstairs where he found a child sitting on a bed watching television. 328:11-14. He looked in all the rooms but did not open any boxes or drawers. 363:23-363:4. Cain went to the basement where he observed a money counter, two duffle bags and a box containing brick-shaped items. 213:20-214:7. Meanwhile, the officers decided to get a consent to search. 407:19-408:2.

Within minutes, Cain and Ramirez brought Yolanda into the kitchen and gave her a consent to search form. 214:11-19; 215: 12-13. Cain explained the form to her in English and she appeared to understand. 215:3-7, 14-17; 216:4-8; 408:4-9. During this conversation, Yolanda again said she was the owner of the house and that she lived there with her brother. 215:23-24. She never said that she did not have keys or that she did not have authority to consent. 273:15-274:4. Yolanda denied any knowledge of the items in the basement and asked if she was going to be arrested if she signed the consent form. 216:14-20. Ramirez and Cain told her that she would not be arrested. 420: 22-25. Yolanda asked if she would be arrested if the officers got a search warrant, and Cain told her that it would not be within his control because a lieutenant, rather than the current sergeant, would then be in charge, and Cain could not speak for the lieutenant. 217:16-20. At first she did not want to sign the form, and she asked many questions about it, and Cain explained to her that if she did not, they would have to get a search warrant for the house. 217: 5-15; 408:11-15; 420:6-17. Yolanda never asked to have the form translated into Spanish. 247:22-248:11; 412:13-16. Regardless, a Spanish translation of the entire consent to search form was on the back of the form. 412:17-413:11. Within five minutes, Yolanda read and signed the consent form. 216: 21-24; 408:17-23.

After Yolanda signed the form, Cain returned to the basement and opened the duffle bags, where they found brick-shaped objects that appeared to be cocaine. 239:22-240:12. Kennelly began to search upstairs, where he found a handgun and two plastic bags containing large amounts of money in the master bedroom. 329:4-5. He spotted a trapdoor leading to an attic above the bed in the child's room, and when he climbed on the bed to reach it, he found that the mattress was strangely lumpy. 329:9-14. He called downstairs to Carvajal, and the two of them lifted the mattress to discover Salgado hiding beneath it. 329:16-330:5.

The officers handcuffed and patted down Salgado and brought him downstairs. 270:17-19; 330:12-17. At that time, the officers did not know who Salgado was. 271:6-7; 331:15-25; 411:11-17. When Cain emerged from the basement with the cocaine, Carvajal asked Salgado if he knew what it was.*fn5 271:25-272:2; 331:3-9. In response, Salgado said, "You got my stuff. I have nothing to say. I want a lawyer." 272:2-4; 339:11-12. In asking that question, the officers intended to elicit who was the owner of the drugs. 355:14-17. At that point, Carvajal advised Salgado of his Miranda rights. 272:7-12. Carvajal and Kennelly acknowledged that Salgado was not free to leave when he made his statement. 313:21-22; 354:22-23.

In addition, during the search, Kennelly testified that he found several large pieces of luggage in the dining room of the house. Yolanda said they belonged to her and indicated that she had just come home from Mexico. 334:3-20. One of the bags contained personal documents with Yolanda's name on them. 335:5-6.

Again, Yolanda's account differs. She testified that the police sat the family in the living room and she heard slamming around the house. 53:4-8. One of the officers then shouted that he found Salgado, and he was brought down the stairs in handcuffs. 55:23-56:3. The police then continued to look around the house, and an officer came up from the basement with some bags. 56:4-7. Yolanda further testified that after the police had been in the house for an hour, Cain and Ramirez brought Yolanda into the kitchen and asked her to sign a consent to search form. 56:20-57:19. She testified that she could not completely understand the form because it was in English, but was unable to identify what she could not understand. 88:19-22; 89:10-93:3. She testified that she told the officers she would like it translated into Spanish, but that they refused. 94:22-25; 8-11, although she had difficulty remembering whether she did or did not make this request during her live testimony. See, e.g., 117:12-20. Yolanda stated that she told the officers that she did not want to sign the form, but that the officers said they could get a search warrant anyway and that she may be arrested if she did not sign the consent form.

It is uncontroverted that the officers found a detached garage behind the Keeler house and searched it and two vehicles contained therein. 332:4-6. The vehicles were not registered to anybody at the Keeler address. 332:11-13. Ramirez agreed that he and Cain did not inform Yolanda of their intention to search the garage when she signed the consent to search form. 420:3-5. Cain admitted that the officers never specifically asked Yolanda for permission to search the garage. 255:6-8. Indeed, the signed consent form specifically states that the officers were authorized to search "3417 N. Keeler (house)."

DISCUSSION

Salgado argues 1) that the cocaine found in the house should be suppressed because Yolanda did not have the authority to consent to either the officers' entry or the search and that even if she did have authority, her consent was not effective; 2) that his statement should be suppressed because he was not properly advised of his rights; and 3) that the cocaine found in the ...


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