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United States v. Harris

September 21, 2009


The opinion of the court was delivered by: Judge James B. Zagel


I. Factual Background

In June 2008, the Federal Bureau of Investigation, working with a cooperating source ("CS"), conducted a controlled drug buy in connection with the ongoing investigation of Ernest Jones, a high-ranking officer in the Black P Stone Nation ("BPSN") street gang. On June 12, 2008, the FBI and its CS placed controlled telephone calls for the purpose of purchasing approximately four and one-half ounces of crack cocaine. The FBI recorded numerous telephone calls between the CS and Jones. These calls were for the purpose of coordinating a drug purchase.

At around 11:00 AM on June 12, 2008, FBI agents equipped the CS with an audio/video recording device to capture images and sounds of the drug purchase. FBI agents drove the CS to the intersection of North Hamlin Avenue and West Lake Street, in Chicago, Illinois, the area where Jones wanted to meet to conduct the transaction. Jones told the CS he would be in a white Chevy Corsica. Upon arriving at Hamlin and Lake, the CS exited the car, walked to Garfield Park, and entered the front passenger seat of the white Chevy Corsica. In addition to the concealed recording device on the CS, FBI agents were located strategically throughout the park for the purpose of surveilling the drug transaction.

Upon entering the front passenger seat of the Corsica, Jones asked the CS if he/she had the money. The CS handed Jones $3,400 which had been provided to him by agents. Jones advised the CS that they had to wait for the crack cocaine to be delivered. Specifically, Jones said that he was "waiting on them to come bring it to me." The CS informed Jones that he had to use the restroom and walked away from the car for a few minutes. When the CS returned to Jones' location, he/she sat down on the grass facing Jones in the car. Jones then exited the driver's seat and walked around to sit in the front passenger seat of the Corsica. While waiting on the delivery, the CS and Jones engaged in casual conversation about mutual acquaintances.

After a few minutes, a dark colored minivan, driven by a man later identified as Defendant Paris Harris, arrived and pulled up directly behind the Corsica. Jones got out of the Corsica and walked with the CS back to the van. The CS walked to the front passenger door of the van, where he/she observed two black males whom he/she recognized as members of the BPSN street gang, but did not know their names. The male in the passenger seat exited the van and the CS entered, at which time the CS was handed a plastic bag by the driver, Defendant Harris, that appeared to contain 4.5 ounces of crack cocaine. The CS placed the plastic bag in his/her pocket, exited the van, and walked back toward the intersection of Hamlin and Lake where he/she was picked up by the FBI agents.

The foregoing information was included in a complaint and supporting affidavit signed by FBI Special Agent William Noser ("Noser Affidavit"). The Noser Affidavit was based upon information provided by the CS, as well as by corroborating physical surveillance, the audio/video recording of the transaction, and the consensually recorded phone calls. On the basis of the Noser Affidavit, United States Magistrate Judge Ashman issued an arrest warrant for Defendant Harris on January 13, 2009.

On January 14, 2009, law enforcement agents executed the arrest warrant on Defendant at the home of his girlfriend, Kimiki Truss. The facts regarding the recovery of a handgun at the Truss residence are contested. The government's version is that during the course of a protective sweep, law enforcement agents observed a gun case on a table next to the bed containing what appeared to be pressed cocaine and a handgun under the mattress in the bedroom, where Defendant and Truss had been prior to the arrest. Subsequently, Truss consented to a search of the residence. During the course of the search, agents recovered the handgun from under the mattress in the bedroom. Defendant's version is that law enforcement agents seized the gun before obtaining consent to search. Both parties agree that later that morning agents brought Defendant to FBI headquarters, where Defendant was processed, Mirandized, interviewed, and where Defendant gave a post-arrest statement.

Defendant Harris now moves to suppress any evidence, including the gun, recovered during the search of the home where he was arrested, as well as any statements he made incident to his arrest and search of the home. Defendant makes three arguments in support of his motion:

(1) the arrest warrant issued was not supported by probable cause; (2) Truss' consent to search was coerced because law enforcement had already recovered the gun and showed it to Truss before she consented; and (3) in light of his first two arguments, Defendant's statement should be suppressed both because his arrest was unlawful and because agents allegedly coerced Defendant by mentioning the allegedly unlawfully obtained gun.

II. Discussion

A. Probable Cause Supported Defendant's Arrest

Defendant argues that the magistrate judge did not have probable cause to issue an arrest warrant. Law enforcement has probable cause to arrest an individual where the facts and circumstances within their knowledge and about which they have reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. United States v. Towns, 913 F.2d 434, 439 (7th Cir. 1990) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." United States v. de Soto, 885 F.2d 354, 367 (7th Cir. 1989) (quoting Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983)). The weight of evidence required to support a finding of probable cause is less than a preponderance. United States v. Limares, 269 F.3d 794, 798 (7th Cir. 2001) (citing Gates, 462 U.S. at 235-36). And when, as here, the affidavit is the only evidence presented to the warrant-issuing magistrate, "the warrant must stand or fall solely on the contents of the affidavit." United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002) (quoting United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967)).

Here, the information in the Noser Affidavit presented to the magistrate court was more than sufficient to show that there was "a probability or substantial chance" that Defendant was involved in criminal activity. The CS was searched before the meeting and provided with $3,400 by the agents. The CS met with Jones in Garfield Park, pursuant to directions given by Jones to the CS over the phone. After entering Jones' vehicle, the CS asked "are you ready?" to which Jones replied "I'm waiting on them to come bring it to me." The CS gave Jones the $3,400. The CS and Jones waited together until Defendant drove up in a dark van. Defendant's passenger got out of the van, and the CS got into the van and spoke to Defendant. The CS exited the van, left the ...

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