The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Aaron Williams is one of eleven co-defendants in this drug-trafficking case. He is charged with one count of possession with intent to distribute 500 grams or more of a substance containing cocaine. See 21 U.S.C. § 841(a)(1). Chicago police officers seized a kilogram of cocaine from Williams and co-defendant Ennis Howard's vehicle during a traffic stop on July 16, 2008, and Williams moved to suppress the cocaine as the fruit of an illegal search.
Williams's motion is in an unusual procedural posture. In its response to the motion, the government advanced two arguments: first, the officers developed probable cause to search the vehicle during the traffic stop; second, the search was justified on the basis of probable cause known to DEA (at whose request the officers acted) by virtue of an ongoing wiretap investigation and surveillance of Williams and Howard shortly before the traffic stop. The court conducted an evidentiary hearing on Williams's motion on July 31, 2009, at which the government focused entirely on the traffic stop. Williams submitted the first post-hearing memorandum, in which he naturally focused on the evidence brought forth at the hearing. The government then reiterated its wiretap-and-surveillance argument in its post-hearing response; thus, it has advanced this argument only in responsive briefing, and Williams has not had an opportunity to address it.
Accordingly, the court grants Williams leave to address the government's argument that the officers had probable cause to search the vehicle based on DEA's wiretap investigation and surveillance. Williams shall file his written memorandum within 10 days, and the government shall have 7 days to respond.
In the present memorandum opinion and order, the court resolves the issues that were raised at the evidentiary hearing. The court finds that Officer Simon's account of the traffic stop was not credible and that the officers did not have probable cause for the search based on a seatbelt violation and subsequent sighting of marijuana in plain view. A final ruling on the motion to suppress will issue after due consideration of the merits of the government's wiretap-and-surveillance argument.
On July 16, 2008, Aaron Williams and co-defendant Ennis Howard were arrested by Officers Joseph Simon and Slawomir Plewa of the Chicago Police Department. The arrest reports indicate that the officers "received information from a confidential source" that Williams and Howard's vehicle, a silver Chevy Suburban with Wisconsin plates, was seen departing from a narcotics transaction. The reports further indicate that the officers curbed the vehicle for "minor traffic violations" and that during the traffic stop, Officers Simon and Plewa observed a "loose green leaf like substance" on the center console and "two cigar like objects in the ashtray rolled up." Suspecting marijuana, the officers ordered Williams and Howard out of the vehicle and detained them. Officer Anderson arrived on the scene and recovered the suspected cannabis from the vehicle. Williams was then arrested, mirandized, and searched; two small bags of a "green leaf like substance" were discovered in his front left pants pocket. Following the arrest, the officers searched the vehicle and found a New Balance shoe box containing a "white powder like substance" in the center of the rear seat.
Williams was cited by Officers Simon and Plewa for possession of cocaine and cannabis, and for failure to wear a seat belt. All state charges were subsequently dropped, and Williams was charged in the present case.
Three witnesses testified at the suppression hearing: Officer Daniel Gutierrez, Officer Joseph Simon, and Defendant Aaron Williams.
Officer Gutierrez's Testimony
Officer Gutierrez is a Chicago police officer who was assigned to the DEA Task Force at the time of Williams's arrest. He testified that in 2007-08, DEA was investigating an alleged drug-trafficking organization involving Filiberto Hinojosa and other co-defendants in this case. Pursuant to a Title III warrant, DEA wiretapped various telephones used by Hinojosa and others. Officer Gutierrez testified that, based on telephone calls intercepted on July 15 and 16, 2008, DEA agents believed that a narcotics transaction would take place at Hinojosa's alleged stash house on the 2700 block of North Monitor St., on July 16, 2008-but Officer Gutierrez never listened to any of the intercepted calls on which DEA's belief was based.
On the morning of July 16, 2008, Officer Gutierrez met with Officer Simon and other CPD officers to apprise them of a possible narcotics transaction at the North Monitor location. He asked the CPD officers to set up surveillance near the North Monitor location, wait for a description of the vehicle that departed following the presumed transaction, follow the vehicle, and find a reason to stop and search the vehicle and its passengers. Officer Gutierrez never instructed the officers on the details of DEA's alleged probable cause, and the ostensible reason for the stop would be left entirely to their discretion. DEA had a tactical reason for asking the CPD to initiate a traffic stop and subsequent search on the basis of whatever independent probable cause they could "develop" on their own: DEA did not want to disclose that the source of its information was an ongoing wiretap.
Officer Gutierrez further testified that he was on surveillance near the North Monitor location on July 16, 2008. He saw a large silver or gold Chevy SUV with Wisconsin plates pull into the back alley. He heard, via radio communications from other agents, that two African American males exited the SUV, entered the house, returned to the SUV, and drove away. Officer Gutierrez repositioned himself to see the vehicle as it was leaving, informed Officer Simon of its ...