The opinion of the court was delivered by: Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
Defendant, Victor Guzman-Cornejo, has been indicted on four counts: (1) one charge of illegally reentering the United States after having been previously deported and removed in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4); (2) one charge of knowingly possessing a firearm having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1); (3) one charge of knowingly possessing a firearm while being an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A); and (4) one charge of knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a). The second, third and fourth counts of the indictment are based on evidence seized during a July 30, 2007 search of defendant's apartment. On January 5, 2009, defendant moved to suppress the evidence discovered during that search and requested an evidentiary hearing to determine whether the it was within plain view. Defendant submitted an affidavit in support of his motion stating that the night stand drawer from which the evidence was seized was closed at the time of the search. Ruling that the evidence would not have been within plain view and would therefore be excludable if the facts asserted by defendant were believed, this court granted the request for the evidentiary hearing. The evidentiary hearing was held on April 7, 2009. For the reasons stated below, the defendant's motion to suppress [#17] is granted.
On July 30, 2007, a special response team of at least 12 deputy United States marshals and police officers was attempting to locate the defendant to execute an arrest warrant issued for violations of his supervised release. Kruchten obtained the assistance of the Joliet Police Department because he knew defendant to have been arrested in possession of a handgun and Joliet officers were "familiar with" the defendant. At a last known address on North Gage Street in Joliet, Illinois, Deputy United States Marshal Frank Kruchten ("Kruchten") questioned the defendant's ex-wife, Tracy (formerly Guzman) Bernal ("Bernal"). Bernal initially denied knowledge of the defendant's whereabouts but eventually took Kruchten to the defendant's current apartment on Clement Street, also in Joliet. When the team arrived at the Clement Street address, Kruchten knocked and announced their presence but after no one answered and he heard movement,*fn2 Kruchten and other members of the team entered the apartment.*fn3 Kruchten went into a bedroom, which contained several pieces of furniture, including a dresser, a chair, a TV on a stand, and a small night stand. The appearance of the night stand and its contents is the critical issue in dispute for the purposes of this motion.
The night stand was received (rather, is hereby received) in evidence (it was not offered but used by both parties). It is approximately two feet tall and 16" wide by 14" deep at the table surface. The drawer of the night stand appeared to be about six inches high, 12 inches wide and 10" to 12" deep. The court observed the appearance of the night stand with the drawer open three to four inches. In addition, counsel for defendant introduced Exhibit 8, a photograph of the night stand taken during a warranted search later that day. The photograph shows a Glad-brand sandwich bag box on top of the night stand containing opaque plastic bags, a large Folgers coffee container, a Windex glass cleaner bottle, and a cookie tin filled with change and other small items.
Kruchten demonstrated to the court how the gun appeared when it was found by placing it back inside the sock and positioning it on the ledge between him and the court as it appeared to Kruchten when he observed it in the night stand. The gun was small (.25 mm, about four inches in length) and fit loosely and completely within about half of the sock. The other half of the sock was folded underneath the gun. The object was flat and ovate.
The narcotics were inside of two layers of plastic bags. The inner bag was the original bag in which the narcotics were found but the outer plastic bag had been changed during the evidence-gathering process. At this time, the court observed that the original inner bag was sufficiently opaque that one could not observe what was inside it unless it was opened.
Deputy Kruchten testified that defendant's apartment was sparsely furnished, "not a mess." While walking through the bedroom, he noticed a photo ID of the defendant on the night stand.*fn4 Kruchten stated that the drawer of the night stand was open three to four inches, such that he could see everything in the front of the drawer. As he was picking up the ID, he noticed two other ID's in the night stand drawer. In addition to the other ID's, he saw a black sack that appeared to him based on his experience in the military and as a law enforcement officer to contain a gun.*fn5 Although the firearm was completely enclosed within the sack, Kruchten believed the sack contained a firearm because of its shape. He also expected that a gun might be present in the home because of defendant's prior arrest and because Bernal had told him that the defendant had carried firearms in the past and may have a firearm now. He also saw a white rock-like substance and a green leafy ...