The opinion of the court was delivered by: Hon. Amy J. St. Eve
MEMORANDUM OPINION AND ORDER
On July 22, 2010, Defendant Victor Garcia ("Garcia") moved to suppress evidence obtained from the search of his apartment, alleging violations of the Fourth and Fifth Amendments to the Constitution of the United States, Federal Rules of Criminal Procedure 2 and 12(b)(3) and rulings by the Supreme Court of the United States. For the following reasons, the Court denies Garcia's motion.
The government and Defendant Garcia agree on certain facts. On March 3, 2010, law enforcement agents arrested Garcia in connection with a drug investigation. After Garcia's arrest, law enforcement officers searched his vehicle and found a piece of paper listing the address of 1822 Green Lane in Palatine, Illinois. The officers then went to that address, which was the home of Garcia's sister, Raquel Garcia, and his niece, Monica Dominguez ("Dominguez"). Defendant's son, Victor Garcia Jr. ("Victor Jr."), was at that location when officers arrived late on the evening of March 3, 2010. Agents questioned Raquel Garcia, who told them that Victor Garcia lived nearby at 1846 Green Lane, Apartment 3B, in Palatine, Illinois. Dominguez then signed a consent form for the officers to search Garcia's apartment. Defendant's apartment was opened with a key. During their search of Defendant's apartment, law enforcement agents found thirteen individually wrapped packages that each weighed a kilogram and later tested positive for cocaine.
The government and Defendant Garcia, however, disagree on whether Dominguez had the authority to consent to the search of Garcia's apartment. On September 23, 2010, the Court held a hearing on Garcia's motion to suppress the evidence. The Court carefully evaluated the demeanor and credibility of each witness who testified at the hearing, including body language, tone of voice, facial expressions, mannerisms, and other indicative factors.
I. Officer Everett's Testimony
During the hearing, the government called as witnesses Officers Jason Everett ("Everett") and Robert Kotsianis ("Kotsianis"). Officer Everett has been a Drug Enforcement Administration ("DEA") task force officer for approximately three years. Prior to becoming a task force officer, he was an officer with the City of Rolling Meadows Police Department.
Officer Everett testified that on the night of March 3, 2010, he interviewed Raquel Garcia and Dominguez, who spoke fluent English and acted as a translator for her mother, Raquel Garcia, who spoke Spanish and only limited English. Officer Everett testified that Raquel Garcia -- through Dominguez's translations -- informed him that Dominguez was the primary babysitter for Victor, Jr. Everett further testified that Dominguez told him that Defendant cared for Victor, Jr. because the mother of Victor, Jr. was located somewhere in California and unreachable. As such, Dominguez told Officer Everett that she cared for Victor, Jr. because Defendant had to be out of the house both during the day and night for work. Everett further testified that Dominguez informed him that she made sure that Victor, Jr. Got to school in the morning, and sometimes waited for him at Defendant's apartment when Victor, Jr. came home from school. In addition, Everett explained that Dominguez told her that Defendant had given her a key to his apartment to use and to handle the needs of the apartment, including helping Victor, Jr. get clean clothes and get ready for school. She further indicated, according to Everett, that she had unlimited access to the home. Everett additionally testified that Dominguez told him that she was willing to let them search Defendant's apartment and that she thought she had permission to do so. Dominguez, according to Officer Everett, subsequently signed a consent form in Spanish, consenting to the search of Garcia's apartment. (Gov. Ex. 1.) Dominguez then led the officers to Victor Garcia's apartment, where she used a key to open the door for them.
II. Officer Kotsianis' Testimony
Officer Kotsianis also testified at the hearing. Officer Kotsianis has been a police officer with Palos Park, Illinois, for approximately ten years, and also has served as a DEA Task Force Officer for approximately four years. He was also involved in the controlled delivery to Defendant and the subsequent search of his apartment on March 3, 2010.
Specifically, Kotsianis testified that he went to 1822 Green Lane in Palatine after Defendant's arrest. When he and other law enforcement agents first arrived, they spoke with Raquel Garcia and Monica Dominguez, who assisted with interpreting for Raquel Garcia because Raquel Garcia only spoke fluent Spanish and broken English. Dominguez, according to Kotsianis, was fluent in both Spanish and English. Raquel Garcia explained -- through Dominguez's translation -- that she was Defendant's sister and Monica Dominguez was his niece. She further told Kotsianis that Defendant resided in the apartment at 1846 Green Lane. In addition, Kotsianis testified that Raquel Garcia told the officers that Victor, Jr. was Defendant's son and that she and Dominguez babysat for him.
Officer Kotsianis also testified about his conversation with Dominguez which took place in English. According to Kotsianis, Dominguez told him that she watched Victor, Jr. when Defendant was not around, which was often. She babysat for him at her apartment, but also had access to 1846 Green Lane in order to obtain whatever was necessary to care for Victor, Jr. Officer Kotsianis testified that Dominguez told him that she had a key to the apartment at 1846 Green Lane, and did not express that her access was limited in any way. He explained that Dominguez signed a consent form, although he did not personally witness her do so. Officer Kotsianis further testified that Dominguez led the officers to Garcia's apartment and used a key to allow them into the apartment. The officers searched the apartment, including the closet in the master bedroom which contained children's clothing and two book bags with kilograms of cocaine.
III. Monica Dominguez's Testimony
Defendant called Monica Dominguez as a witness at the hearing. She is Defendant's niece. Dominguez spoke fluent English at the hearing. She lives with her mother at 1822 Green Lane and ...