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United States v. Evans

April 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KIM EVANS, DEZMOND SWANSON, AND CORLEY SMITH, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Defendants Kim Evans and Corley Smith have filed motions to (1) quash Defendant Smith's arrest and (2) suppress evidence that law enforcement agents obtained from Defendant Smith and a car in which Defendants were traveling on February 20, 2009. The Court held a suppression hearing on March 18, 2010, during which the government presented certain documentary evidence, and three witnesses testified credibly: Federal Bureau of Investigation Special Agents Timothy Bacha, James Stover, and Craig Heidenreich, all of whom were present when Defendants were arrested and have extensive experience investigating bank robberies as members of the FBI's Violent Crimes Task Force. After closely examining the evidence presented in connection with Defendants' motions, including the demeanor and credibility of the witnesses who testified during the suppression hearing, the Court denies the suppression motions.*fn1

LEGAL STANDARD

If law enforcement agents conduct a warrantless search, "the government must show by a preponderance of the evidence that the search fell within one of the recognized exceptions to the warrant requirement." United States v. Zahursky, 580 F.3d 515, 521 (7th Cir. 2009) (citing United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)). Furthermore, courts uphold warrantless arrests if the arresting law enforcement agents "have probable cause to believe that the individual engaged in criminal conduct." United States v. Burnside, 588 F.3d 511, 517 (7th Cir. 2009). The Federal Rules of Evidence generally do not apply at suppression hearings. See Fed. R. Evid. 104(a); Fed. R. Evid. 1101(d)(1); United States v. Matlock, 415 U.S. 164, 173-74, 94 S.Ct. 988, 994-95 (1974); United States v. Severson, 49 F.3d 268, 271 n.2 (7th Cir. 1995).

FACTUAL BACKGROUND

According to eyewitnesses, at approximately 1:30 p.m. on February 16, 2009, four black males, including one who brandished a silver revolver, robbed the Suburban Bank & Trust located at 10350 South Cicero Avenue in Oak Lawn, Illinois ("Suburban Bank Robbery"). (R. 1-1, Heidenreich Aff. at ¶ 3.) After the robbers entered the bank and ordered everyone to the ground, two of the robbers appeared to stand guard, as the other two went behind the teller counter and ordered bank employees to put money from teller drawers into a bag. (Id.) One of the robbers reportedly wore a black hat with large white letters, including the last letter "Y." (Id.) Witnesses reported that the robbers fled in a two-door, turquoise-colored sedan that had been waiting for them. (Id.) This information from the eyewitnesses was provided to the FBI.

According to separate eyewitness accounts, at approximately 4:15 p.m. on February 16, 2009, four black males, including one who brandished a silver revolver, robbed the Chase Bank located at 4200 Dempster Street in Skokie, Illinois ("Chase Bank Robbery"). (Id. at ¶ 4.) After the robbers entered the bank and ordered everybody to the ground, two of the robbers appeared to stand guard, while the other two reportedly went behind the teller counter and ordered bank employees to put money from the teller drawers into a bag. (Id.) One of the robbers was wearing a black hat with several large white letters, including "ITY" as the last three. (Id.) This information surrounding the Chase Bank Robbery was provided to the FBI.

Surveillance images taken during the Suburban Bank Robbery and Chase Bank Robbery revealed that the robbers from both incidents appeared to be wearing the same clothes. (Id. at ¶ 5.) This, combined with the similar manner in which both robberies were conducted, led the FBI to suspect that the same robbers committed the Suburban Bank Robbery and Chase Bank Robbery. (Id.)

On or about February 20, 2009, an FBI informant notified law enforcement that the robbers responsible for the Suburban Bank Robbery and the Chase Bank Robbery were gang members who resided in the area of 7300 South May Street in Chicago, Illinois, and that they intended to rob another bank that day. (Id. at ¶ 6; Tr. at 83, 89.) The informant also told law enforcement that the robbers responsible for robbing the Suburban Bank and Chase Bank drove a dark green, two-door Cadillac sedan. (R. 1-1, Heidenreich Aff. at ¶ 6.) An FBI special agent told Agent Heidenreich before 6:00 p.m. on February 20, 2009, that he previously had worked for years with the informant, who had provided reliable information to law enforcement. (Tr. at 73-74, 91.)

At around 10:00 am on February 20, 2009, Agents Bacha, Hedenreich, and Stover attended a briefing that provided the following information that the informant had supplied to the FBI: (1) an individual by the name of Kim, a black male between thirty and forty years old, was a leader of a group involved in suburban-Chicago bank robberies; and (2) some members of that group resided in the area of 73rd and May Streets in Chicago. (Id. at 7-8, 38, 48.) After the briefing, the informant also conveyed to the FBI that (1) "Kim" was on home confinement and had recently cut off his electronic monitoring bracelet, (2) two males with nicknames of possibly Moncho and Smiley had been involved in the earlier bank robberies and were standing on the street near 73rd and May, and (3) "Kim" would soon be arriving there in a green Cadillac to pick them up and rob another bank. (Id. at 9, 36.) The FBI then identified "Kim" as Defendant Kim Evans, who had an outstanding warrant for a parole violation and was known to have been associated with the 7300 block of South May. (Id. at 10, 49.)

At approximately 11:30 a.m. on February 20, 2009, FBI agents -- including Agents Bacha and Stover -- observed three or four black males drive away from 7301 South May Street in a dark green, two-door Cadillac. (R. 1-1, Heidenreich Aff. at ¶ 7; Tr. at 11, 13, 30.) At around 11:45 a.m., Agent Bacha received an email from another FBI agent containing two photos of Defendant Evans. (Tr. at 50; Gov't Ex. 2.) Over the next two hours, Agents Bacha and Stover, among others, surveilled the green Cadillac as it went to various locations in the general vicinity of 73rd and May. (Tr. at 12-13, 31.) At around 2:15 p.m. the surveillance team lost sight of the Cadillac and returned to the area around 73rd and May. (Id.) Prior to losing sight of the Cadillac, Agent Bacha understood that various individuals got into and out of the Cadillac. (Id. at 60.)

According to eyewitness accounts, at approximately 4:00 p.m. on February 20, 2009, three black males, including one who brandished a dark-colored handgun, robbed the Fifth-Third Bank located at 2240 Main Street in Evanston, Illinois ("Fifth-Third Bank Robbery"). (R. 1-1, Heidenreich Aff. at ¶ 8; Tr. at 13-14.) After the robbers entered the bank and ordered everybody to the ground, one robber appeared to stand guard, while the other two went behind the teller counter and ordered bank employees to put money from the teller drawers into a bag. (R. 1-1, Heidenreich Aff. at ¶ 8.) According to the Fifth-Third Bank Manager, a teller placed approximately $810.00 in United States currency in the robbers' bag. (Id.) Someone also placed a dye pack in the bag. (Id. at ¶ 10.) The robber who brandished the dark-colored handgun wore dark pants, a black mask, and a dark jacket with yellow sleeves and the letter "N" on the front-left side. (Id. at ¶ 9.) Another robber was wearing a black mask and a black, sleeveless, puffy jacket with a black "hoodie" underneath. (Id.) The third robber wore blue jeans, a black mask, and a white "hoodie" with a black stripe in the middle-back of the hood, a large black design on the back, and a smaller black design on the front-left side. (Id.) Shortly after the Fifth-Third Bank Robbery, Evanston Police Department officers noticed red-dyed United States currency and an exploded dye pack approximately two blocks from the Fifth-Third Bank. (Id. at ¶ 10.) The police officers reported details of the Fifth-Third Bank Robbery to the FBI. (Id.)

Between around 4:15 and 4:30 p.m., Agents Bacha and Stover received information that a bank robbery had taken place at the Evanston Fifth-Third Bank. (Tr. at 13, 51.) Just before 5:00 p.m., Agent Stover received an email from another FBI agent regarding the Fifth-Third Bank Robbery, which included an original alert containing a description of the suspects as three black males, all of whom were wearing "hoodies" and half masks and displaying handguns. (Gov't Ex. 1 at 1-2.) The original alert in the email also specified that one suspect was last seen wearing a black and yellow jacket, one was last seen wearing a white-and-blue-striped jacket, and one was last seen wearing a white jacket. (Id. at 2.) In addition, the email contained an "Update #1" that law enforcement had recovered an activated dye pack a couple of blocks from the Fifth-Third Bank and that an eyewitness in that location observed three Hispanic males leaving the area in an older brown Toyota. (Id. at 1.) Further, the email contained an "Update #3," which provided that, according to bank staff: (1) one suspect was a five feet, nine-inch-tall, thin, black male who was wearing black jeans, black shoes, a green backpack, a shirt with black-and-yellow sleeves with an emblem on the front-left chest, and a ski mask; (2) another suspect was a five feet, nine-inch-tall, thin, black male who was wearing black jeans, black shoes, a green jacket with no sleeves, a black hoodie, and black gloves; (3) another suspect was a five feet, nine-inch-tall, thin, black male who was wearing a black-and-white jacket with a crest on the back, a white hoodie, black shoes, and a red shirt; and (4) another possible suspect had unknown descriptors. (Id.) The email further provided, "All subjects considered armed and dangerous." (Id. (emphasis in original).) At around 5:40 p.m., Agent Heidenreich received an email that contained pictures of the Fifth-Third Bank Robbery. (Tr. at 77; Gov't Ex. 4.)

At approximately 6:00 p.m. on February 20, 2009, law enforcement personnel, including Agents Bacha and Stover, observed that the same Cadillac that they had surveilled earlier that day was driving south on May Street. (R. 1-1, Heidenreich Aff. at ¶ 12; Tr. at 13, 19, 52.) An FBI vehicle carrying Agents Bacha and Stover followed the Cadillac without its emergency lights activated and, as the driver of the Cadillac parked the car in front of 7340 South May Street, pulled in immediately behind the Cadillac. (R. 1-1, Heidenreich Aff. at ¶ 12; Tr. at 19, 52.) Agent Stover exited the car, drew and re-holstered his gun, saw that a person later identified as Defendant Smith had just exited the Cadillac from the back seat, and announced, "Police." (Tr. at 19-20, 52.) Agent Bacha also exited the FBI vehicle and yelled, "Police. Show me your hands," with which Defendant Smith complied. (Id. at 52-53, 69.) The Cadillac then sped away, and Agent Stover heard a collision. (R. 1-1, Heidenreich Aff. at ¶ 15; Tr. at 20-21, 53.) Defendant Smith, who had exited the Cadillac before it pulled away, was wearing a dark, sleeveless, winter coat, a black hoodie, and dark pants. (Tr. at 20-21, 44.) Agent Stover testified that all of Defendant Smith's clothing appeared to be black. (Id. at 44.) When Agent Stover reached Defendant ...


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