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United States. of America v. John Brandon

December 27, 2012

UNITED STATES. OF AMERICA, PLAINTIFF,
v.
JOHN BRANDON, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

On January 27, 2011, the grand jury returned a four-count superseding indictment against John Brandon ("Brandon"), charging two counts of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §841(a)(1), one count of illegal possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A), and one count of felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). (R. 21, Sup. Indict.) Defendant Brandon has filed two motions to suppress evidence obtained from a warrantless search of his residence and any illegal fruits derived thereform. (R. 46, Mot. to Sup.; R. 55, Supp. Mot. to Supp.) He argues that the law enforcement officers conducted a warrantless search of his apartment, that his girlfriend did not have authority to consent to the search, and that she did not consent. The Court conducted a hearing on the two motions to suppress on December 17, 2012 and heard arguments on December 20, 2012. For the following reasons, the Court denies both motions.

FACTUAL BACKGROUND

The government and Defendant Brandon agree on the following facts. On October 20, 2009, shortly before 9:00 p.m., Chicago Police Detective Patrick O'Donovan ("O'Donovan") and Officer Jack Dedore ("Dedore") (collectively, the "officers") responded to a call regarding a person with a gun at the 1900 block of South Sawyer, Chicago, Illinois. When O'Donovan and Dedore arrived at the intersection of 19th Street and South Sawyer Avenue they saw a man they now know to be Defendant Brandon coming out of a residence at 1902 South Sawyer Avenue, where Brandon resided in the first floor apartment.

O'Donovan and Dedore approached Brandon because he fit the description of the person with the gun. The officers conducted a patdown of Brandon. The patdown did not yield any weapons or other contraband.Brandon told the officers that he was leaving his residence and going to his car, a gold-colored Buick LeSabre parked a few feet away. Detective Donovan shined a flashlight into the car's interior and observed surgical gloves, a surgical mask, an electric grinder, tin foil, and Dormin sleep aid. Based on his experience as a police officer, Detective Donovan recognized these items to be items used for the packaging of narcotics. The officers then searched Brandon's jacket and recovered a baggie containing heroin and cocaine. The officers arrested and handcuffed Brandon and placed him in the back of a patrol car. At some point, Brandon stated that he could turn over a gun to the officers.

After the officers handcuffed Brandon, his girlfriend, Nequila Hearnes ("Hearnes"), exited the three-flat building at 1902 South Sawyer wearing a bathrobe. Hearnes then entered the rear of the patrol car so she could speak to Brandon. After speaking with Brandon, Hearnes told the officers that she would retrieve a gun from a safe in the apartment. Hearnes entered the apartment and retrieved the gun from the safe, which had a keypad combination lock. The safe also contained a bag of cocaine and approximately $19,000 in cash, which O'Donovan removed from the safe.

The government and Defendant Brandon disagree about whether Hearnes had the authority to consent to the search of Brandon's apartment and whether Hearnes gave consent. During the suppression hearing, the following witnesses testified: Detective Patrick O'Donovan, Sergeant Charles Daly, Sergeant William Bowden, Special Agent Michael Walsh, and Nequila Hearnes. 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. In addition, the Court admitted the following exhibits: Government Exhibit 3 - consent to search form; Government Exhibit 4 - evidence bag; Government Exhibit 7 - chain of custody report; Government Exhibit 10 - OEMC recording; Government Exhibit 11 -recorded telephone calls; and Government Exhibit 13 - copy of Brandon's license. The Court summarizes below the testimony of the witnesses regarding contested factual issues.

I. Detective Patrick O'Donovan's Testimony

In addition to providing testimony about many of the facts above, Detective O'Donovan testified that, after he shined the light into Brandon's car, he informed Dedore about the contents of Brandon's car. At that time, Dedore was standing by Brandon, who was approximately five feet from O'Donovan. Detective O'Donovan relayed the information in a normal tone of voice. According to O'Donovan, Brandon became visibly nervous and began speaking rapidly. Brandon then spontaneously told the officers that he did not know anything about a man with a gun but that he had a little dope in the left breast pocket of his jacket. After this statement, Officer Dedore reached into Brandon's left breast pocket and took out a baggie. Based on his over thirty years working for the Chicago Police Department and his experience with narcotics investigations, O'Donovan believed the baggie contained cocaine and heroin. The officers then placed Brandon in handcuffs and informed him of his Miranda rights. O'Donovan testified that Brandon stated that he understood his rights but wished to speak with the officers. Specifically, Brandon asked what he could do to help himself get out of the situation and suggested that he could provide the officers with a gun or information about other people involved with narcotics.

Brandon told the officers that his girlfriend could retrieve a gun from inside the apartment. At this time, he nodded his head towards the apartment where Hearnes stood on the porch in a bathrobe. O'Donovan allowed Hearnes to get into the back seat of the unmarked police car with Brandon to have a private discussion. When Hearnes exited the car, Brandon told the officers that Hearnes would go into the apartment and retrieve a gun. O'Donovan testified that he did not offer to let Brandon go free or promise Brandon anything in exchange for him turning over a gun. Additionally, O'Donovan adamantly testified that it was not his personal practice to make promises to potential arrestees in exchange for weapons and he did not believe this was a common practice within the Chicago Police Department.

O'Donovan testified that at some point it became apparent that Hearnes lived in the apartment at 1902 South Sawyer Avenue. He testified that Hearnes, who was in a bathrobe, told him that she had a child who was also at the apartment. O'Donovan, however, did not recall, asking Hearnes if she lived at the apartment, if she had a key to the apartment, whose name was on the lease or if she paid any bills for the apartment.

O'Donovan testified that he asked Hearnes if she was capable of handling a firearm safely, and she said no. O'Donovan then asked Hearnes to consent to him accompanying her into the apartment to retrieve the gun. She said that he could. At this point, despite the fact that he did not plan to search the apartment itself, O'Donovan retrieved a consent to search form from the trunk of his car. O'Donovan explained that he filled in the top portion of the consent form, which included Hearnes' name, the address of the residence, and the date and time of the consent. (See Gov't. Ex. 3, Consent to Search Form.) O'Donovan recorded the time as 21:05, meaning that he began filling out the consent form at 9:05 p.m. O'Donovan then handed Hearnes the form to review while the two stood on the porch. He gave her a few minutes to read over the form. He asked her if she understood the form and she acknowledged that she did. Hearnes then signed the consent form. (See Gov't. Ex. 3.)

After obtaining Hearnes' consent both orally and in writing, Detective O'Donovan entered the apartment directly behind Hearnes. Hearnes led him to a safe, which he described as a "fire box." O'Donovan watched Hearnes kneel down and punch in the combination to the safe. Hearnes then reached in, pulled out a gun, and handed the gun to O'Donovan. Detective O'Donovan stood behind Hearnes while she opened the safe. He testified that he could see into the safe once Hearnes opened it. As Hearnes reached into the safe to pull out the gun, O'Donovan saw a plastic bag containing what he believed to be cocaine and a bag containing U.S. currency in the safe. Hearnes told O'Donovan that the gun, drugs and money were not hers. O'Donovan brought the gun, drugs and money outside and showed them to Officer Dedore.

After exiting the apartment, Detective O'Donovan called his supervisor, Sergeant Charles Daly, to the scene. After Sergeant Daly arrived, O'Donovan observed Sergeant Daly speaking with Hearnes. It appeared that Sergeant Daly reviewed the consent form with her, though O'Donovan was not within earshot of their conversation. After this conversation with Hearnes, Sergeant Daly signed the consent to search form. (See Gov't Ex. 3.) At some point, Officer Dedore also signed the consent form. (Id.)

O'Donovan testified that he and Dedore transported the evidence, including the signed consent form, to the Homan Square police station. At the station, Office Joseph Chausse helped begin the inventory process. O'Donovan testified that Dedore placed the signed consent form into an evidence bag, filled out the information on the outside of the bag, and heat sealed the bag. (See Gov't Ex. 4, Evid. Bag.) Later that evening, sometime after midnight, Detective O'Donovan delivered the sealed evidence bag containing the completed consent to search form to the twenty-four hour desk, where the officers maintain evidence before it goes to the depository. At some point after midnight, O'Donovan returned Brandon's car to 1902 South Sawyer, giving the keys to Hearnes.

II. Sergeant Charles Daly's Testimony

Sergeant Charles Daly ("Daly") testified that he was Officer Dedore's and Detective O'Donovan's supervisor on the night of the incident. He arrived on the scene at approximately 9:15 or 9:30 p.m. after receiving a call from Detective O'Donovan. He arrived after O'Donovan had retrieved the gun, currency and drugs from inside the apartment. He testified that he interviewed Hearnes about the consent to search form. Hearnes told him that she had signed it. Daly testified that Hearnes did not tell him that either Officer Dedore or Detective O'Donovan made any promises to her or Brandon. Although Sergeant Daly testified that he could not recall asking Hearnes verbatim if she lived at 1902 South Sawyer, he stated that he was sure he asked her whether she lived there. He did not, however, ask her how long she had lived there, how long she had been there that day, or for any identification.

Sergeant Daly testified that it is standard practice to obtain an Event Number from the Office of Emergency Management and Communication ("OEMC") to record on the consent to search form. Based on a time-stamped tape of Sergeant Daly's call to OEMC, Daly testified that he called OMEC at 9:49 p.m. (See Gov't Ex. 10, OEMC tape.) Sergeant Daly acknowledged that the Event Number provided by OEMC on the tape was 18635, however, the Event Number he wrote on the consent to search form was 28653. (See id.; Gov't Ex. 3.) According to Daly, the Event Numbers do not match because he transposed the last two numbers and misread his own handwriting from where he initially wrote down the Event Number while speaking with OEMC.

Sergeant Daly testified that later that night, he signed a sealed evidence bag containing the signed consent to search form. (Gov't Ex. 4.) Daly also testified that Officer Dedore signed the heat-sealed bag as well. He recognized Dedore's signature on Government's Exhibit 4 based on years of supervising Dedore and approving his reports. Sergeant Daly acknowledged that no one had written the inventory number associated with the consent to search form on the outside of the evidence bag. Daly also admitted that there was a sustained disciplinary incident against him where, in a separate case, he had signed an ...


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