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United States v. Hester

October 22, 2010

UNITED STATES OF AMERICA,
v.
JOE HESTER,



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

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Joe Hester's ("Hester") motion to suppress evidence [135]. For the reasons set forth below, the motion to suppress [135] is respectfully denied.

I. Background

On July 31, 2007, Judge Adam Bourgeois of the Circuit Court of Cook County Judge issued a search warrant, authorizing the search of both Joe Hester and the third floor west apartment located at 1822 E. 73d St., Chicago, Illinois, and permitting the seizure of "a chrome finish semi-automatic handgun, any ammunition, and any documentation of Proof of Residency which have been used in the commission of, or which constitute evidence of the offense of UUW by felon, 720 ILCS 5/24-1.1(a)." The warrant was issued based on a complaint for search warrant (hereinafter "the affidavit"), signed by Chicago Police Officer Cedric Taylor as the complainant and submitted to Judge Bourgeois on July 31, 2007.

In the affidavit, Taylor stated that he had a conversation with a confidential informant regarding controlled substances sold by a black male known to the CI as "Joe," on the third floor west apartment of 1822 E. 73rd Street, Chicago, Illinois (hereinafter "the apartment"). Taylor stated that he had worked with the CI for the past nine weeks, during which time the CI had supplied Taylor and other officers with information regarding narcotics violations and weapons violations on at least eight occasions. Taylor stated that the previous information provided by the CI had been both true and accurate regarding the locations of narcotics and weapons recovered. The CI's information had on five occasions resulted in arrests after illegal contraband and weapons were recovered. Seven individuals in total were arrested as a result of the CI's information, and these arrests all resulted in criminal cases pending before the Circuit Court of Cook County at the time that the affidavit was drafted.

The CI told Taylor that a male black known as "Joe" sells heroin from the apartment. On July 30, 2007, the CI went to the apartment to purchase heroin from "Joe." The CI went to the address, walked up to the third floor, and knocked on the apartment door. The CI related that the door was answered by a black male known to the CI as "Joe," who brandished a chrome semiautomatic handgun in his right hand. The CI asked for a dime bag of heroin. "Joe" then took $10.00 from the CI and walked back into the apartment, returning to the front door without the handgun but with a large plastic bag in his right hand, containing approximately 40 smaller bags containing heroin, and handed the CI a small clear plastic bag which contained heroin. The CI then left the apartment. The CI indicated that he knew that the substance was heroin by the color and texture and also by the effect that he experienced after ingesting the heroin. The CI further related that this was the first time he had ever purchased heroin from "Joe," but that he was aware that he could thereafter purchase narcotics from "Joe" at the apartment at any time.

Taylor stated that he surveilled the apartment building on July 31, 2007, and observed a male black fitting the description given by the CI. The individual was consistent with a photo that Taylor had shown to the CI, and the CI had identified the person in the photo as "Joe." Taylor observed "Joe" sitting in a vehicle in front of the apartment building and saw him enter the apartment building, using keys that he had in his possession. Taylor verified the number 1822 on the door of the apartment building. Taylor stated that he went with the CI to 1822 E. 77th Street to confirm that this was the building in which the CI had encountered "Joe," observed the handgun, and purchased heroin.

The search warrant was executed on or about August 1, 2007. Inside the apartment, the officers encountered Hester and a female companion. During the search, officers recovered a loaded Smith and Wesson, Model 5903, 9mm pistol, serial number TDH4676; a loaded Gerstenberger and Eberwein, Model M322, .32 caliber revolver, serial number 28299; indicia of residency in the name of Joe Hester bearing the address of 1822 E. 73d St. #3, Chicago, Illinois; approximately 19.4 grams of crack cocaine; approximately 38.3 grams of powder cocaine; a small scale; and plastic bags.

As a result of the search, Hester, a convicted felon, was arrested and charged with violations of 18 U.S.C. §922(g) as well as 21 U.S.C. §841(a)(1). On February 17, 2009, a federal grand jury returned a three-count indictment charging Defendant Joe Hester with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to distribute [24]. On December 9, 2009, a grand jury returned a superseding indictment based on substantially the same charges [89].

II. Analysis

Hester argues that the facts alleged in the search warrant complaint were insufficient to establish probable cause because the affidavit did not include how the CI entered the building; it did not state that the Chicago Police Department had anyone purchase heroin on their behalf; the allegations concerning the CI's heroin purchase were conclusory and were uncorroborated by recordings or by officer eyewitness testimony; the affidavit did not state how the officer knew who the "Joe" referred to in the affidavit was; and the affidavit did not indicate whether the CI received any rewards for his information. Hester also contends that he is not known by the name "Joe" in the apartment building where he resides. Hester further argues that the CI's motives were questionable. He challenges the existence of the CI referred to in the affidavit and argues that the CI would not withstand examination by a judge. Finally, Hester notes that the arrest affidavit contains details that the search warrant affidavit did not contain. For these reasons, Hester contends that the affidavit in support of the search warrant failed to establish probable cause and that, as a result, the Court must suppress all of the evidence obtained through the execution of the warrant. In turn, the government argues that Judge Bourgeois' probable cause determination was sound because the CI's personal observations concerning "Joe's" activities and his possession of a handgun were sufficiently detailed; Officer Taylor corroborated some of the details provided by the CI; and the interval of time between the informant's buy and Taylor's warrant application was short.

The Fourth Amendment mandates that a warrant describe with particularity "the place to be searched and the persons or things to be seized." Case law has clarified that "[t]he level of specificity must be such * * * that the officers executing the warrant are able to identify the things to be seized with reasonable certainty." United States v. Sleet, 54 F.3d 303, 307 n. 1 (7th Cir. 1995) (internal quotation marks omitted). Supporting affidavits may supply the particularity required, as long as those affidavits are incorporated into the warrant. United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995). If evidence is obtained in violation of the Fourth Amendment, that evidence may be excluded (see, e.g., Arizona v. Evans, 514 U.S. 1, 11 (1995)), but it need not be, especially if evidence is obtained by officers acting in good faith on their belief that the warrant and their execution of it were valid. United States v. Leon, 468 U.S. 897, 919-21 (1984).

Before issuing a search warrant, an issuing officer must determine whether probable cause exists for doing so. United States v. Walker, 237 F.3d 845, 850 (7th Cir. 2001). "Probable cause is a common-sense, non-technical inquiry, and an affidavit submitted in support of a search-warrant application will be sufficient to support a probable-cause finding if, 'based on the totality of the circumstances, the affidavit sets forth sufficient evidence to induce a reasonably prudent person to believe that a search will uncover evidence of a crime.'" U.S. v. Dismuke, 593 F.3d 582, 586-87 (7th Cir. 2010) (quoting United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003)). Where, as here, the affidavit submitted in support of a search warrant relies on information supplied by an informant, the totality-of-the-circumstances inquiry generally focuses on the informant's reliability, veracity, and basis of knowledge. See United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005). Several factors inform the analysis, including: (1) the degree of police corroboration of the informant's information; (2) the extent to which the information is based on the informant's personal observations; (3) the amount of detail provided by the informant; (4) the interval of time between the events reported by the informant and the warrant application; and (5) whether the informant personally appeared before the warrant-issuing judge to present the affidavit or ...


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