The opinion of the court was delivered by: Frederick J. Kapala, District Judge
MEMORANDUM OPINION AND ORDER
In October 2007, a jury found defendants, Brian D. Austin and Corvet T. Williams, guilty of two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), (d), and two counts of carrying firearms during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Austin and Williams were sentenced to prison terms of 648 months and 646 months' respectively. The Seventh Circuit reversed and remanded for a new trial, finding that the court abused its discretion in denying defendants' motion to continue the trial. United States v. Williams, 576 F.3d 385 (2009). On remand, Austin for the first time has moved to suppress any and all evidence the police seized from the apartment he shared with his girlfriend. The parties have filed written briefs and the court has held an evidentiary hearing. For the following reasons, the motion to suppress is granted.
On August 23, 2006, two armed men wearing ski masks and gloves robbed the Alpine Bank branch located within a supermarket in Rockford, Illinois. The shorter gunman jumped over the counter and removed $12,428 from the cash drawers while the taller gunman held bank employees and customers at gunpoint. On September 5, 2006, two gunman of the same description relieved the Associated Bank in Rockford of $13,777.48 under nearly identical circumstances.
At the evidentiary hearing on defendant's motion to suppress, Sergeant Kurt Whisenand testified that he was in charge of the investigation of the Associated Bank robbery. Whisenand explained that Officer Joe Danforth had received information from an informant that Christian Chandler's brother, who goes by "BJ," later determined to be Austin, and another person who goes by "Fat Trav," later determined to be Williams, were responsible for the robbery of the Alpine Bank. Whisenand assigned Detectives Howard Forrester and Kevin Ogden to surveil the apartment building at 2740 City View Court because they had information from previous investigations that Austin's girlfriend, Chianta Jefferson, lived there. Whisenand agreed that they had no information that Austin was actually present at the apartment building. Whisenand also assigned Detective Torry Regez to look up any old cases that had not been reviewed by the State's Attorney's Office to see if there were any charges that could be brought against the suspected bank robbers. Whisenand explained that they did not seek arrest warrants for Austin and Williams based on the bank robberies because they did not have enough evidence. In Whisenand's judgment they did, however, have good information that Austin and Williams had committed "two violent, middle of the day, takeover style robberies," and he felt that they needed to get these dangerous individuals into custody to prevent future robberies. Prior to September 6, 2006, Whisenand was not aware that Austin was on parole.
Detective Forrester testified that, on September 6, 2006, he and other detectives were assigned to conduct surveillance at 2740 City View Court and to attempt to locate Jefferson. At that time, Forrester was not aware that Austin was on parole and he did not know Austin's whereabouts.
Forrester and Ogden arrived at 2740 City View Court in an unmarked police vehicle. Detectives Scot Mastroianni and Mark Jimenez arrived in a second vehicle. Forrester observed a female who matched the description of Jefferson walk out to a Ford Explorer. Forrester and Ogden followed the Explorer and ran the license plate which came back registered to Chianta Jefferson of Bayliss Avenue, Rockford. Forrester and Ogden followed Jefferson's Explorer and executed a traffic stop. Forrester agreed that he did not observe Jefferson commit any traffic infractions, was not aware of any warrants for her arrest, and did not believe that she had committed, was committing, or was about to commit a crime. When asked what the reason was for pulling Jefferson over, Forester said, "[w]e wanted to speak to her about the incident involving an attempt to locate Brian Austin."
Forester approached the Explorer and told Jefferson that they wanted to talk to her in reference to an incident that had happened. Jefferson asked if she was in any trouble. Jefferson was informed that she was not in any trouble but that they needed her cooperation and for her to be truthful. Forrester and Ogden asked Jefferson if she would accompany them to the Public Safety Building (PSB) and Jefferson said that she would. The Explorer was left parked in a Wal-Mart parking lot and Jefferson rode with Forrester and Ogden in their police vehicle. Forrester testified that Jefferson was not placed in handcuffs and was not under arrest. Forrester or Ogden asked Jefferson who else was at the apartment, and she stated that Austin was there. At that point, Ogden called Whisenand and informed him that Austin was at 2740 City View Court. When Jefferson overheard Ogden on the phone, she said, "if it's Brian Austin you want to talk to, then I'll take you up to the apartment, I'll let you in, and you all can talk to him about anything you want." With that, Forrester, Ogden, and Jefferson returned to the parking lot at 2740 City View Court where Ogden filled out a consent to search form, read it to Jefferson, and Jefferson signed the form at 9:35 a.m.
Forrester denied telling Jefferson that if she did not sign the form they would go into the apartment anyway even if they had to break the door down. The consent form provides:
I, Chianta A. Jefferson, knowingly and voluntarily give consent to City of Rockford police officers to conduct a complete search of the following: . . .
Apartment/House, located at 2740 City View Court #301 . . .
These officers are authorized by me to seize property which they determine may pertain to a criminal investigation they are conducting. I understand and have been informed by at least one of the undersigned officers that I have a right to refuse this consent.
According to Forrester, Jefferson used her key to unlock the door of apartment 301, allowing approximately 6 or 7 officers to enter.
Detective Ogden testified that he and Forrester were assigned to surveil the apartment building at 2740 City View Court as a whole because they did not know which apartment belonged to Jefferson. Ogden testified that he may have known that Austin was on parole at the time, but he could not recall. Prior to pulling Jefferson over with the aid of his police car's lights, Ogden did not observe Jefferson commit any traffic infraction, and he did not think that she had committed, was committing, or was about to commit a crime. The traffic stop occurred at approximately 9:15 or 9:20 a.m. When asked why they pulled Jefferson over, Ogden said, "[t]o find out if it was Chianta Jefferson and interview her about this bank robbery the day before." Ogden said that Jefferson was asked if she would come to the PSB and she agreed. Ogden admitted that he learned at some point that Jefferson was on her way to pick up her sister and take her to school and was then going to a meeting for work. Ogden described the circumstance of Jefferson overhearing him say "B.J." and Jefferson informing them that if they wanted to talk to Austin he was at her apartment. Ogden said that he did not know which apartment Austin was in until Jefferson told him. Ogden also said that no one told Jefferson that they would break down her door or that there would be consequences if she did not give consent.
Detective Regez testified that on September 5, 2006, he reviewed police records and located a June 25, 2006 police report involving Austin. Regez became aware that Austin was on parole while checking records. Regez said that he did not know if he told the other detectives about Austin's parole status, but that he thought it was known to everyone because he was sure that other detectives ran Austin's name. On September 6, 2006, Regez reviewed the police report with an assistant state's attorney, after which a judge issued an arrest ...