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United States v. Carter

February 6, 2009

UNITED STATES OF AMERICA
v.
DAVID R. CARTER



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Defendant David R. Carter was arrested on suspicion of robbery of the Chicago Community Bank at 1110 W. 35th Street on February 20, 2008. Carter moved to suppress evidence resulting from the search of his apartment, his identification by employees of a neighboring food court, his identification by a bank teller working at the Chicago Community Bank, and his arrest, post-arrest statements, and the search of the residence where he was arrested, under the theory that the original search of his apartment had been unlawful and the subsequently discovered evidence was an illegal fruit of this first search. Via order dated August 12, 2008, the court found that Carter's Fourth Amendment rights had been violated during the search of the apartment, and suppressed evidence seized therein and the subsequent identification of Carter at the food court. United States v. Carter, No. 08 CR 149, 2008 WL 4874473, at *3--6 (N.D. Ill. Aug. 12, 2008). However, the court declined to suppress the other evidence because, although that evidence did result from the initial illegal search, the court concluded that it would have been inevitably discovered. Id. at *6--8.

Carter moved for reconsideration of the "inevitable discovery" portion of the August 12, 2008 Order. Carter's motion to reconsider is granted. On December 11, 2008, a hearing on this issue was held.*fn1 For the reasons stated below, Carter's motion to suppress is granted.

BACKGROUND*fn2

On February 20, 2008, at about 9:10 a.m., the Chicago Community Bank at 1110 W. 35th Street in Chicago was robbed. The lone robber, a white male in his late 40s to early-to-mid 50s, approached a teller in the bank, demanded money and stated that this was a robbery, and reached into his jacket as though to indicate that he possessed a pistol or other weapon. The robber took $1,050 in cash, including several pre-marked bait bills, and then fled the bank on foot.

The Chicago Police Department ("CPD") and the Federal Bureau of Investigation ("FBI") responded to the robbery. After obtaining a description of the robber from bank employees, a "flash" message was sent out via the CPD radio and computer terminal networks, advising of the robbery and providing the physical description of the robber. Officers canvassed the surrounding area. At a Chicago Food Court (the "food court") located close to the bank, employees reported that an intoxicated man had entered the food court the night before the robbery and demanded money. When one of the employees stated that she was going to call the police, the man threatened her, saying, "How about I blow all your brains out?" The man left shortly thereafter; however, the food court employees stated that the same man returned to the food court the following morning, stared at the register for a moment or two, and then left. The investigating officers came to believe at some period after beginning to investigate the bank robbery that this individual was likely the same man who robbed the bank later that morning.

Based on the "flash" message description, CPD Officer Alfred Thome ("Thome") believed that the description of the bank robber fitted that of an individual he recalled from a domestic violence incident occurring approximately two or three weeks prior to the robbery at 937 W. 34th Street, a short distance from the bank.*fn3 David Carter resided off and on with his girlfriend at the 937 W. 34th Street residence. Thome did not know the name "David Carter," but had a "hunch" from the "flash" that the bank robber and the man Thome had seen at the 937 W. 34th Street residence could be the same person. At approximately 10:50 a.m., Thome proceeded to the 34th Street address to see if he could locate and talk to the individual he remembered from the earlier incident.

The property at 927 W. 34th Street has three residences: a front unit facing onto the street with a back yard leading to a two-flat residential unit. Carter's unit was on the upper floor of the two-flat unit in the back (the "apartment"). Prior to entering the apartment, Thome spoke to Barbara Hunter. Hunter resided in the front building and was a girlfriend of the son of the landlord. Hunter escorted Thome to the apartment, but did not enter the apartment.

Thome entered the apartment, and while he was there he located a Cook County Inmate identification card (the "Cook County ID card" or "ID card"). The ID card bore the photograph of a white male and the name "David Carter." Thome recognized the photograph as being that of the individual he recalled from the prior domestic violence call, and whom he was seeking in the apartment. Thome testified that he first learned of the name "David Carter" upon seeing the Cook County ID card.*fn4

Around this same time, Thome received another "flash" message with the food court employees' description of the individual who had threatened them the previous night. Thome turned the ID card over to two other CPD officers who took it to the food court. The Cook County ID card was shown to food court employees, who stated that the photograph on the ID card resembled the man who had threatened them on the evening of February 19th, and who had returned on the morning of the 20th prior to the bank robbery. It is unclear exactly when this identification occurred, but the Cook County ID card was promptly returned to Thome at or in front of the apartment.

Special Agent Burke was the case agent for the FBI on this case. Burke was located at the bank during the morning, but sometime prior to noon he relocated to the apartment. It is unclear what prompted Burke to go to the apartment, but he went there only after Thome had located the Cook County ID card. Thome gave Burke the Cook County ID card shortly after Burke arrived at the apartment. Burke interviewed Mark Alvarado, who had previously spoken to Thome and who was an owner of the property and resident of the first-floor apartment below the Carter apartment. It is unclear whether Burke first spoke to Alvarado or first obtained the Cook County ID card, but the investigation was clearly focusing on Carter at this point, and the FBI statement summarizing the Alvarado interview states that Alvarado "confirmed" that Carter was living in the apartment. See Alvarado Stmt. (attached as Ex. D to Def. Mot. to Suppress Evid. (Doc. No. 15)). At the end of the interview Alvarado supplied Burke with a list of nine names of individuals who had recently received mail at the apartment. David Carter's name was on the list.

At about noon, Burke left the apartment and went to the Ninth District police station. He utilized the "CLEAR Database," a database that allows law enforcement officers to look up information about both people and addresses, to locate a recent photograph of David Carter. Burke searched within CLEAR by first entering the name "David Carter," which generated about 65 hits. Burke then selected the information specific to the David Carter who resided at 927 W. 34th Street. Burke did not do any other searches within CLEAR at that time, either with other names from the list given to him by Alvarado, or by searching just for the 927 W. 34th Street address and seeing what names might be produced. After locating Carter in CLEAR, Burke proceeded to generate a "photo lineup" using a photo of Carter located within CLEAR. From the time Burke left the apartment to the time a photo lineup was generated, approximately 45 minutes elapsed.

By about 1:00 p.m., Burke took the photo lineup to the residence of the eye-witness bank teller. The bank teller identified the photograph of David Carter as the person who had robbed the bank that morning.

Now armed with a photograph and eye-witness identification, the CPD hit the streets to find Carter. It did not take them long. Through street informants the CPD quickly located Carter at a different residence in the neighborhood. At about 4:45 p.m. the CPD officers knocked on the door of the residence and were given permission to enter by the person who opened the door.*fn5 The CPD officers located and ...


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