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United States v. Banks

May 26, 2009

UNITED STATES OF AMERICA,
v.
CLIFTON BANKS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

A grand jury issued an indictment charging Defendant Clifton Banks with unlawful use of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Currently before the Court are Defendant' s motion to suppress physical evidence and statements [24], Defendant' s motion to suppress physical evidence seized from vehicle and all statements subsequently made by Defendant [27], Defendant' s memoranda of law in support of his motions [26, 29], the Government' s consolidated response to Defendant' s motions [33], and Defendant' s consolidated reply in support of his motions [34]. In addition to considering the extensive briefing submitted by the parties, the Court heard oral argument from counsel on the motions. For the reasons stated below, the Court respectfully denies both of Defendant' s motions [24, 27].

I. Background*fn1

A. The Search Warrant

On February 16, 2008, Chicago Police Officer Joe Fernandez met with an informant who reported that on several occasions, including earlier that day, he had purchased "rocks" of crack cocaine from two African-American men at a house located at 6809 S. Throop in the Englewood neighborhood of Chicago. The informant provided a description of the men, but did not know their names.

On the basis of the information provided by the informant, Officer Fernandez obtained a warrant to search the home at 6809 S. Throop for crack cocaine, drug paraphernalia, money, and records relating to drug sales and occupancy of the residence. The warrant specifically authorized the search of an unknown black male, approximately 23 years old, 5' 10", 175 pounds, with dark skin and short black hair.

After the warrant was issued, a team of fourteen Chicago police officers including Fernandez assembled to formulate a plan for executing the warrant. The officers then left the police station in several unmarked police cars and one marked unit. At that time, the officers all were armed and wore "raid" jackets and protective vests.

At approximately 4:00 p.m., the officers arrived at the scene of the target premises. At approximately the same time, Defendant, a 47 year old African American male who stands 5' 7" and weighs 165 pounds, drove up in a gray Nissan Rogue and parked the vehicle in a nearby vacant lot. Defendant exited the vehicle and began walking quickly toward the 6809 S. Throop residence. Chicago Police Officer Ildefonso Chavez observed Defendant walk from the vehicle to the porch of the residence; Officer Fernandez saw Defendant knock on the door.

B. The Detention, Frisk, and Arrest of Defendant

Officer Chavez ordered Defendant to "get down." Defendant complied with the order, kneeling down on the porch and putting his hands on the railing. Chavez stood on the porch facing Defendant as other officers knocked on the door and, after hearing no answer, forced their way into the house to execute the warrant. As soon as the other officers entered the house, Chavez patted down Defendant and felt a large lump in the pocket of Defendant' s jacket. At the same time, Chavez smelled the odor of marijuana, with which he was familiar through his experience on the police force. Both Officer Chavez and Officer Fernandez commented that they smelled "weed" -- a slang term for marijuana -- and Chavez asked Defendant if he had weed. Defendant responded to the effect that the substance in his pocket was "weed," Officer Chavez then removed a clear plastic bag from Defendant' s pocket. A laboratory test later confirmed that the bag contained slightly less than one ounce of marijuana. After seeing the object, Chavez placed Defendant under arrest and handcuffed him. Chavez then conducted a further search of Defendant' s pockets and removed a car key.

Several minutes later, in the presence of Officer Chavez, Officer Fernandez asked Defendant what he was doing at the Throop residence. Defendant responded that he had come to that location "to buy a rock" -- which the officers understood to be a slang term for crack cocaine. Officer Fernandez then asked Defendant which car he had driven. Defendant gestured toward the Nissan Rogue, and Chavez pointed to that same vehicle, from which he previously had witnessed Defendant exit earlier in the afternoon. Officers Steve Lavielle and Daryl Smith were directed to watch Defendant' s vehicle as the search of the residence was being completed. After the warrant had been fully executed, officers transported Defendant to the Seventh District station house. The total time lapsed on the scene of the Throop residence was approximately 30 to 45 minutes.

C. The Search of Defendant's Vehicle

After the other officers and Defendant left the scene, Officers Lavielle and Smith remained behind to conduct an inventory search of Defendant' s vehicle. Both officers smelled a strong odor of marijuana in the car. On the driver' s side floor, Lavielle found a partially opened blue book-bag containing two baggies with a substance that turned out to be marijuana and a loaded Bryco model .32 caliber pistol. Defendant' s vehicle later was transported to the police station, where Lavielle again searched it and documented the vehicle's condition using a ...


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