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United States of America v. Juan Rocha

February 15, 2011


The opinion of the court was delivered by: Judge James B. Zagel


I. Defendant's Motion

In the overarching case, several men are charged with drug conspiracy offenses. One of them, Juan Rocha, was arrested for a different offense, an effort to obtain, by credit card fraud, some construction materials from Home Depot located at Armitage and Cicero in Chicago. Rocha seeks suppression of any evidence obtained from him after his arrest.*fn1 He argues there was no probable cause for arrest.

The Chicago police officers who arrested Rocha had no personal knowledge of any facts establishing probable cause. They relied on the word of a security employee of Home Depot who had some personal knowledge of these facts*fn2 and a good deal of information received from personnel at Home Depot's corporate loss prevention division. Rocha argues that the police were not entitled to rely upon the word of the security employee in the circumstances here.

II. The Legal Background

There is some history behind the arguments here. For many years the Supreme Court adopted a step-by-step rule to determine whether police had probable cause based on information from a third person. A court would determine the validity of the informant's conclusion that there was a crime and, if that was so, the court would determine whether the person speaking to police was credible or reliable. The order in which these questions would be answered did not matter. This approach was, in time, referred to as the Aguilar-Spinelli test.*fn3

The lower courts developed a series of sub-tests to aid in the application of AguilarSpinelli. Some of the most elaborate were tests for determining credibility. Separate evaluation rules applied to confidential informants who received personal benefits from police in exchange for their information, to confidential informants who did not receive benefits, to ordinary citizens who spontaneously reported offenses that had just occurred in their presence, to persons who reported offenses and identified themselves to the police, to persons whose information was a declaration against their own interest, to persons who the police officers knew to be upstanding members of the community and other police officers from the same or different departments. This list may not be exhaustive.

The administration of Aguilar-Spinelli was well delineated by Judge Charles Moylan, a nationally recognized and influential authority on Fourth Amendment questions. See, e.g., Stanley v. State, 313 A.2d 847 (Md. Ct. Spec. App. 1974); see also Charles Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). His writing accurately described a highly sophisticated itellectualization of the "two pronged" standard of probable cause review. Judge Moylan neither attacked nor defended the standard. He described it accurately. The decision of the Supreme Court to abandon the "two-pronged test" may be viewed as a reaction to the elaborate nature of the probable cause analysis reflected in Stanley v. State. See generally Alexander P. Woolcott, Recent Development: Abandonment of the Two-Pronged Aguilar-Spinelli Test: Illinois v. Gates, 70 Cornell L. Rev. 316 (1985).

Illinois v. Gates, 462 U.S. 213 (1983) disapproved the "two-pronged test", holding that "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons." Id. at 232 (quotation omitted). The Gates Court noted specifically that the "two-pronged test" directs analysis into two largely independent channels--the informant's "veracity" or "reliability" and "his basis of knowledge." Id. at 233. The Court stated that such concepts "are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for . . . by a strong showing as to the other, or by some other indicia of reliability." Id. "Totality of circumstances" now reigns. Id.

III. The Facts

In an evidentiary hearing on the motion to suppress, I heard testimony from both the Home Depot loss prevention manager and from Chicago Police. This statement of facts is based on that testimony.

Damires Cortes is and has been employed by retail establishments to work in asset protection. At the time of hearing she works for Target to "catch shoplifters." At the time of the incident she worked at Home Depot, her employer for about 3 years. She did asset protection at Cub Foods for 4 years. Throughout her career she received training in asset protection, currently studies criminal justice in school and hopes for a career in law enforcement.

Her involvement in this case started when she was assigned to look into an order that had been placed at a different Home Depot and paid for with a suspect credit card. By the time the assignment had been made the order had already been picked up--an order for power tools and contracting supplies of a value of thousands of dollars.

Cortes subsequently looked at the surveillance video of the pick up and saw two Hispanic males (one tall, bald and stocky and the other shorter and slim) and an African-American male. She also asked Home Depot's investigation team to look into the credit card and received a report that the account was legitimate but the account holder had not authorized any order for the materials recently purchased. Nor had he authorized several other orders placed "throughout Illinois" and another state. There was one pending order in ...

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