The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Thursday, 31 March, 2011 03:47:21 PM
Clerk, U.S. District Court, ILCD
On June 9, 2010, Defendant, Todd Sutton, was indicted on one count of possession of 50 grams or more of a mixture and substance containing cocaine base (crack) with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii). On November 22, 2010, Defendant filed this Motion to Suppress (#21) and an evidentiary hearing was held before the court on January 28, 2011. Defendant filed his Statement of Facts and Conclusions of Law (#26) on February 11, 2011. The government filed its Response (#27) on March 9, 2011, and Defendant filed his Reply (#29) on March 25, 2011. For the following reasons, Defendant's Motion to Suppress (#21) is DENIED.
At the evidentiary hearing, the only witness presented by either side was government witness Kristopher Lombardi, a Special Agent with the Kankakee Metropolitan Enforcement Group (KAMEG). He testifies as follows.
On May 2, 2010, KAMEG Special Agent Lombardi received information from a confidential informant (CI) that the CI had recently seen one ounce of cocaine possessed by "Cap" inside apartment 1W at 1525 West Station Street, Kankakee, Illinois. The CI was working with KAMEG to obtain leniency on pending state drug charges and had previously provided information that led to the seizure of cocaine and arrest of one individual. The CI was familiar with cocaine and its packaging because the CI had sold cocaine in the past. Lombardi drove the CI past the apartment building and the CI identified the building as the one where he saw the defendant in possession of the cocaine. Lombardi ran the name "Cap" through the Kankakee County New World Records Database and the name came back as Defendant, Todd S. Sutton. Lombardi showed the CI a picture of Defendant and the CI identified the Defendant as "Cap." Based on information received from the CI, Lombardi believed that Nikaya Foster was Defendant's girlfriend. Lombardi ran Foster's name through the Database and her address came back as apartment 1W 1525 West Station Street in Kankakee. It was later learned, after Defendant's arrest, that Foster was Defendant's cousin, not his girlfriend.
On May 2, 2010, Lombardi took the CI before a judge in Kankakee County to sign a "John Doe" affidavit in support of the issuance of search warrant. The affidavit read, in pertinent part:
"Within the past 10 days from May 2nd, 2010. I have seen approximately one ounce of cocaine inside the residence located at 1525 West Station St. Apt. 1W, Kankakee, IL. I am familiar with cocaine and the way it is packaged for sale because I have sold cocaine in the past. I am not currently under the influence of alcohol or drugs.
At this time, I am a Confidential Informant Source for KAMEG. I am using an assumed name for fear that may receive bodily harm for the information that I have provided for KAMEG."
Lombardi filled out his own affidavit in support of the issuance of a search warrant, reiterating (1) CI's information about witnessing drugs at the apartment in the past 10 days; (2) that CI is an informant with KAMEG working for consideration on a pending criminal charge who has provided reliable information in the past six months that has led to the arrest of one individual and the seizure of cocaine; (3) that on May 2, 2010, CI identified the premises to KAMEG as being 1525 W. Station, Apt. 1W, and that the person who CI had seen in possession of cocaine in the residence is a black male known as Cap, who was revealed by the Database to be Todd S. Sutton, Defendant, and who was identified as such by CI via a Kankakee County mugshot; and (4) that Lombardi knows Cap's girlfriend to be Nikaya Foster, whose address is revealed to be 1525 W. Station St., Apt. 1W, Kankakee. The judge issued the warrant at 8:40 pm, May 2, 2010, and it was executed that same evening.
Prior to executing the warrant, agents observed Defendant drive a white Chevy Caprice and park it in front of the apartment building at 1525 West Station St. Agents observed Defendant get out of the vehicle and begin walking towards the building. They then arrested him for driving on a revoked license. They informed Defendant they had a search warrant for the apartment (1W) and Defendant told them "I don't live here." A search of Defendant incident to arrest found keys that unlocked apartment 1W. During the search of the residence, agents located: (1) 63 grams of crack in a plastic bag on the top shelf of the closet of the northwest bedroom; (2) a digital scale with white powder residue in the kitchen and items that are frequently used in baking powder cocaine into crack; and (3) a handwritten letter on the kitchen table referring to Defendant as "Cap"; and (4) in the living room, on the computer, which they searched for drug dealing related documents, a video depicting Defendant in the living room of the 1W apartment.
Upon his arrest and transport to Jerome Combs Detention Center, Defendant provided agents with Foster's telephone number and requested they tell her they had searched the apartment. Upon contacting Foster, she ...