The opinion of the court was delivered by: George W. Lindberg Senior U.S. District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is petitioner Christopher Jones' ("Jones") motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in the underlying criminal proceeding, United States v. Jones, 05 CR 45 ("§ 2255 petition"). Jones requested and was granted an evidentiary hearing on his § 2255 petition. For the reasons set forth more fully below, the § 2255 petition is granted in part and denied in part.
On October 12, 2005, Jones entered a blind plea of guilty to a six count superseding indictment that included the following charges: one count of possessing with intent to distribute cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I); one count of using and carrying a firearm in furtherance of the drug offense charged in Count I, in violation of 18 U.S.C. § 924(c) (Count II); one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count III); one count of being a felon in possession of eight firearms, in violation of 18 U.S.C. § 922(g)(1) (Count IV); one count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (Count V); and one count of possessing cocaine base in the form of crack cocaine, in violation of 18 U.S.C. § 844 (Count VI).
Counts I, II and III stem from an incident that occurred on the evening of October 24, 2004 in an alley and adjacent vacant lot near the intersection of Cermak and Keeler on the west side of Chicago. Jones and the government agree that sometime after 7:30 p.m. on October 24, 2004, three Chicago police officers approached Jones in the alley or adjacent vacant lot near Cermak and Keeler. The police recovered baggies of crack cocaine, placed Jones under arrest, searched him, and found a gun in the right side waistband of Jones' pants.
At a suppression hearing before Magistrate Judge Levin on June 17, 2005, Jones and the government disputed the facts leading to Jones' arrest and the sequence of events just prior to his arrest. According to Jones, at around 7:30 p.m. on October 24, 2004, he received a telephone call from a "white guy" named Dan who wanted to buy two baggies of crack cocaine from him. At the time, Jones was at his home and he had the requested crack cocaine on-hand. Jones lived at 4119 W. 21st Street in a second floor apartment with his grandmother, Virginia Jones. The building is a two-flat owned by his great-grandfather, Tommie Jones. Tommie Jones lived on the first floor of the building.
After the telephone call, Jones took two baggies of cocaine and a gun, exited his home, got into his white car, and drove to the 2200 block of South Keeler. Jones parked his white car on Keeler near the alley between Keeler and Cermak. Then, Jones walked to his blue car, which was parked in the nearby alley or adjacent vacant lot. According to Jones, he went to the blue car to stash his gun before proceeding to meet Dan. Shortly after Jones reached the blue car, three police officers pulled into the alley in an unmarked squad car and approached him. At that time, Jones claims he was outside the blue car, looking under its hood.
According to Jones, one of the officers told him to put his hands up and then searched him. The officer recovered a gun from Jones' right side waistband. The officer also searched Jones' pockets and found cigarettes, a cell phone, and approximately $139 in United States currency. When the officers handcuffed Jones, he released the two baggies of cocaine that were in his hand. Then, the officers placed him in the back of their unmarked squad car. While Jones was handcuffed in the squad car, he managed to use his cell phone to call his girlfriend at the time, Waukena Williams, and asked her to come to the alley. Ms. Williams arrived at the alley a short time later, while Jones and the police officers were still there. According to Jones, there were no drugs behind the driver's side front tire of the blue car. At the suppression hearing, Jones claimed the officers lacked reasonable suspicion to conduct an investigatory detention of him under Terry v. Ohio, 392 U.S. 1, 22-27 (1968).
The arresting officers' testimony at the suppression hearing differed substantially from Jones' testimony. One of the arresting officers, John Tanaka ("Tanaka"), testified that he observed Jones conducting what, based on his experience, he believed to be two hand-to-hand drug transactions. According to Tanaka, while using his field binoculars, he observed Jones standing on Keeler, near the alley. He then observed an unknown black male approach Jones, engage in a brief conversation, and tender to Jones what appeared to be United States currency. Then, Jones walked towards the blue car in the alley, reached down behind the front driver's side tire, and retrieved a small item. Jones walked back to the unknown black male and gave him that item. A few minutes later a second individual approached Jones, engaged in a conversation, and handed Jones what appeared to be United States currency. Again, Jones walked toward the blue car, retrieved a small item from behind the front driver's side tire, walked back to the individual, and gave him the item.
Tanaka testified that he believed he had observed two drug transactions involving Jones, so shortly thereafter, he and two other officers approached Jones. According to Tanaka, when he approached Jones, Jones was seated in the blue car and the hood of the car was down. Tanaka ordered Jones out of the blue car and another officer recovered three baggies of crack cocaine from behind the front tire of the car. After the officers recovered the drugs, they placed Jones under arrest, searched him and found a gun in his waistband.
Counts IV, V and VI stem from a search of Jones' bedroom after his arrest. After the officers arrested Jones in the alley, they called a marked squad car to come to the alley, pick-up Jones, and transport him to the police station. Then Tanaka and the other two officers went to Jones' home, without a warrant, and searched his bedroom. In his bedroom, the officers seized eight additional guns, approximately 11 grams of crack cocaine, two bullet-proof vests, and other drug paraphernalia.
Both parties agreed that the suppression hearing boiled down to a credibility determination between Jones and the arresting officers. Jones claimed that he had not engaged in any hand-to-hand drug transactions and that the officers had no basis to approach him in the alley. The officers testified that they had both reasonable suspicion and probable cause to approach and search Jones. Magistrate Judge Levin found the officers' testimony credible and Jones' testimony not credible. Magistrate Judge Levin found that the officers had reasonable suspicion sufficient to justify a Terry stop, that the drugs recovered from the alley were in a public area, and that once the officers found the drugs, they had sufficient cause to arrest Jones. Magistrate Judge Levin further found reasonable consent to search Jones' bedroom, but did not elaborate on the basis for that decision. ...