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United States v. Garecht

United States District Court, Seventh Circuit

October 11, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
NATHANIEL GARECHT, Defendant.

REPORT AND RECOMMENDATION

BYRON G. CUDMORE, Magistrate Judge.

This matter comes before the Court for a Report and Recommendation on Defendant Nathaniel Garecht's Pretrial Motions (d/e 11) (Motion). Defendant Garecht is charged with: Distribution of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 1); Possession of Cocaine with Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 2); and Possession of a Firearm in Furtherance of a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Indictment (d/e 6).

On May 6, 2013, Garecht was arrested pursuant to a state-issued arrest warrant. He had cocaine and a firearm on his person at the time of the arrest. On the same day, Garecht's residence was searched pursuant to a state-issued search warrant. His wife made inculpatory statements at the time of the search and consented to the search of a rental storage unit. Cocaine and other evidence were found at the residence and in the storage unit. Garecht also made inculpatory statements. Garecht concedes that agents provided him with Miranda warnings before he made any statements. Memorandum in Support of Defendant's Pretrial Motions (d/e 10) (Garecht Memorandum), at 2-4.

The warrants were based primarily on information secured through a confidential informant (CI). The CI obtained cocaine from Garecht during a series of transactions over several days. The CI wore a recording device during these transactions. Law enforcement officials did not secure a court order authorizing the recordings. The recordings were inadmissible in state court because Illinois law requires judicial supervision of recordings unless all parties being recorded consent to the recording. 725 ILCS 5/108A. Federal law allows recordings without judicial supervision if one of the parties being recorded consents. 18 U.S.C. § 2511(2)(c).

Garecht moves to suppress the evidence on the grounds that: (1) the search warrant was improperly issued and not based on probable cause; (2) the statements he made were involuntary; (3) the arrest was not based on probable cause; (4) the recordings violate state law; and (5) the statements and other evidence are inadmissible as the fruit of a poisonous tree. Motion, at 1-2.

The Court conducted a limited evidentiary hearing on October 4, 2013. Garecht appeared personally at the hearing and by his attorney Michael Costello. The Government appeared by Assistant United States Attorney Timothy Bass. The Court heard testimony regarding the voluntariness of the Defendant's statements to law enforcement officials after his arrest. The Court also heard testimony regarding the federal law enforcement officials' involvement in the investigation, and in particular, in the recording of transactions between the Defendant and the CI. Garecht's counsel conceded at the hearing that the CI consented to the recordings.

After careful consideration of all the evidence, the submissions and arguments of the parties, and the applicable law, the Court recommends that the Motion should be DENIED.

STATEMENT OF FACTS[1]

On May 6, 2013, Sangamon County, Illinois, Sheriff's Department (Department) Deputy Kenneth Karhliker presented a Complaint for Search Warrant and supporting Affidavit to a Sangamon County, Illinois, Circuit Judge. Government's Response to Defendant's Motion to Suppress (d/e 13), attached Warrants, Complaint for Search Warrant and Affidavit. Karhliker executed the Affidavit under oath in front of the Circuit Judge. The Affidavit stated that on April 26, 2013, members of the Department's Narcotics Unit and officers of the Drug Enforcement Agency (DEA) met with the CI. The Affidavit stated that the CI had pending criminal charges and he was cooperating for consideration on those charges. The CI stated that he had known Garecht for a couple of years. The CI stated that Garecht combined his money with an individual named Eddine Curry to purchase cocaine in Chicago. The Affidavit stated that the CI identified Curry and Garecht from photographs.

The Affidavit stated that the CI agreed to wear a recording device when he met with Garecht. He wore this device several times. On April 30, 2013, the CI wore the recorder when he met with Garecht in a parking lot in Springfield, Illinois. Garecht told the CI that Curry was in Chicago purchasing the cocaine, and Garecht would have cocaine when Curry returned.

On May 2, 2013, the CI wore a recording device when he met with Garecht at Garecht's residence at 417 W. Reynolds, Springfield, Illinois (the Residence). The Affidavit stated that at that meeting, the CI received 29.2 grams of cocaine from Garecht. Garecht "fronted" the cocaine to the CI. The Affidavit stated that the CI was obligated to pay Garecht for the cocaine at a later time. The CI observed Garecht loading cocaine into plastic bags. The CI stated that Garecht had ten ounces of cocaine on his bedroom floor.

The Affidavit stated that the CI met with Garecht again on May 3, 2013, at the Residence. The CI again wore a recording device. The CI paid Garecht $1, 450.00 for the cocaine he received the day before. Garecht told the CI that he did not have any cocaine at his home, but would be getting some in an hour.

The Affidavit stated that on May 5, 2013, the CI again met Garecht at the Residence and again was wearing a recording device. The CI secured 29 grams of cocaine from Garecht. Garecht again fronted the cocaine to the CI.

The Affidavit stated that before each encounter, officers searched the CI and his vehicle, placed the recorder on him, watched the CI go from the designated location to the Residence, watched as he returned to the specified location, searched the CI and his vehicle, debriefed ...


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