United States District Court, N.D. Illinois, Eastern Division
For Antonio Williams, also known as Dwayne Williams, also known as Tweet, Defendant: Paul Flynn, LEAD ATTORNEY, Federal Defender Program, Chicago, IL.
For John T Hummons, also known as Jake, Defendant: Steven Saltzman, LEAD ATTORNEY, Attorney at Law, Chicago, IL.
For Howard Lee, Defendant: John A. Meyer, LEAD ATTORNEY, Meyer & O'Connor, LLC, Chicago, IL.
For USA, Plaintiff: Philip N. Fluhr, LEAD ATTORNEY, United States Attorney's Office, Chicago, IL; Pretrial Services.
MEMORANDUM OPINION AND ORDER
Rubé n Castillo, Chief United States District Judge.
Antonio Williams and John T. Hummons (collectively, " Defendants" ) are charged with conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), conspiracy to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a crime of violence or a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm after having previously been convicted of a felony in violation
of 18 U.S.C. § 922(g)(1). Presently before the Court is Williams's motion to suppress audio and video recordings of his conversation with his codefendants while they were in the police squadrol and the incriminating statement Hummons made during interrogation, (R. 56, Defs.' Mot.), which Hummons has joined and adopted, (R. 52, Hummons's Mot. Adopt; R. 57, Min. Entry). The Court held an evidentiary hearing and heard testimony from Chicago Police Department Officer Daniel Conway, who is a task force officer detailed to the Bureau of Alcohol, Tobacco, Firearms & Explosives (the " ATF" ), and ATF Special Agent Christopher Labno. (R. 68, Min. Entry.) Pursuant to Federal Rule of Criminal Procedure 12(d), the Court now states its findings of fact and conclusions of law. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
RELEVANT FACTS 
The facts of this case will seem redundant to anyone familiar with the phony stash house scheme the ATF has used over the past few years. Over the course of eight days in November 2012, the ATF Chicago Field Division and the Chicago Police Department investigated Defendants. On November 7, 2012, a confidential source informed ATF agents that Williams had recently conducted armed robberies and was interested in conducting future armed robberies. Later that same day, the source arranged a meeting between Williams and the agent. On November 7 and 8, 2012, an undercover agent met with Williams to plan the robbery of a nonexistent narcotics trafficking organization's stash house. The undercover agent posed as a drug courier for the organization who was seeking assistance in robbing the house. Williams recruited Hummons and Lee to help. Over the course of the next week, there were additional meetings and communications between Defendants, Lee, and ATF agents related to their planned robbery of the phony stash house.
On November 14, 2012, Williams, Hummons, and Lee drove to a forest preserve in Lyons, Illinois to prepare for the robbery. Soon after their arrival, they were arrested and placed in the back of a Chicago Police Department squadrol or paddywagon. They were not given any Miranda warnings at this time. As each suspect was placed into the squadrol, he was asked his name and how to spell it, his address, and his birthdate. Officer Conway testified that these questions are asked in the squadrol so the suspects' voices may be identified on the audio recordings.
Hummons was also asked about the location of his cell phone. The arrestees answered the questions tersely without volunteering any additional information. The squadrol was well-marked as a Chicago Police vehicle. No officer accompanied the arrestees in the back of the squadrol; they were seemingly alone. Unbeknownst to them, the Chicago Police Department uniform shirt that was hanging in the back of the squadrol concealed a pinhole camera--a video camera that is smaller than a button. Another camera was hidden in the grating above the partition wall, and a microphone was also hidden. No ATF agent or Chicago Police officer sought a warrant to make these preplanned recordings.
Surreptitiously recording suspects in squadrols is a somewhat regular practice by the Chicago ATF. The recording equipment is provided by the ATF on an investigation-by-investigation basis. Although the recording equipment had the functionality to allow for simultaneous listening, that function was not activated. Thus, when the squadrol arrived at the station, the recordings had to be downloaded from the recording devices onto disks. Officer Conway testified that downloading each of the two video recordings would take approximately 35 to 45 minutes and that downloading the audio recording would take approximately 20 to 25 minutes. Officer Conway made copies of the recordings for the case agents; he testified that he had no interaction with the agents who were interviewing the arrestees.
The squadrol had three compartments: two separate rear compartments for prisoners and a separate cab compartment for the driver and passenger. Williams, Hummons, and Lee were placed in the middle compartment--the front prisoner compartment--directly behind the cab compartment. The bench on which the suspects were sitting was on the front wall of the middle compartment, so that the arrestees were facing backwards with their backs against the front wall. There were two windows covered by metal grating on the front wall of the middle compartment. One was slightly above eye level and behind the heads of passengers seated on the bench in the middle compartment and looked out over the cab compartment. The other was at hip level for seated passengers and looked into the cab right behind the headrests of the seats in that compartment. The windows were made of thick plexiglass, and the window that looked into the cab was not shared by the cab. The suspects were oriented back-to-back with the officers in the cab compartment, but there was space between the thick window of the back compartment and the window of the cab. Officer Conway testified that individuals in the cab compartment can see through the window into the back compartment, but they cannot hear through it, and vice versa.
Once the squadrol arrived at the ATF office, the suspects were taken into interview rooms. Special Agent Labno interviewed Hummons with two other agents. Agent Labno advised Lee of his Miranda rights at the start of the interview. Agent Labno read and explained the waiver of rights form to Hummons, who then signed it. Agent Labno did not believe that Hummons's responses were honest, and he left the room to speak with other agents to find out if there was any additional information about Hummons he could use in the interview. He was advised that Hummons's participation in the pre-robbery meetings had been taped. Agent Labno knew the squadrol was wired from his briefing earlier in ...