United States District Court, N.D. Illinois, Eastern Division
REPORT AND RECOMMENDATION REGARDING EVIDENCE OBTAINED DURING TRAFFIC STOP
JEFFREY COLE, Magistrate Judge.
Julian Martin seeks to suppress evidence obtained during what he insists was an illegal search and seizure on July 5, 2011. On that day, Chicago Police officers stopped Mr. Martin's Cadillac for what they claim was a failure to signal a lane change. It is the government's contention that as they curbed Mr. Martin's car, he, while seated in the car, made a furtive motion towards his waist, instead of immediately raising his hands as he and his passengers were ordered to do. The officers then immediately pulled him out of the car at gunpoint and ordered him to lie on the ground and proceeded to search him. The search revealed two pistols in a plastic bag tucked into the waistband of his pants. One of the guns was one quite large and would have made a visible outline under Mr. Martin's shirt. The other gun was much smaller and was found at the bottom of the bag. Mr. Martin, a twice-convicted felon, has been indicted for possession of the firearms in violation of 18 U.S.C. §922(g)(1).
Mr. Martin contends that he did not commit any traffic violation, and the police had no probable cause or reasonable suspicion even to stop him. He also contends that what occurred was an illegal arrest followed by an illegal search and seizure, requiring suppression on the weapons. Judge Bucklo has referred this motion to me for a report and recommendation. See Peretz v. United States, 501 U.S. 923, 937 (1991).
While the government contends that there was a traffic violation, which, standing alone, warranted the stop of Mr. Martin's car and the ensuing discovery of the weapons, according to the government, quite a bit more than a mere failure to signal occurred. The police knew, for example, that Mr. Martin was a twice-convicted felon and was a high-ranking member of the Imperial Insane Vice Lords, a notorious Chicago street gang. Court-authorized wiretapping of an even higher ranking member, Nathaniel Hopkins, led the police to conclude that Mr. Martin was transporting contraband on the day they stopped his car. In an intercepted call on April 12, 2011, Hopkins and Martin discussed making changes to the Vice Lords organization and leadership. Calls intercepted over additional target phones on June 17, 2011 - Target Phones 2 and 3 - provided additional evidence of Mr. Martin's involvement in criminal activity in his role as a member of the Vice Lords. And, during surveillance, Mr. Martin was observed at one of the Vice Lords' drug markets on numerous occasions.
On July 5, 2011, at approximately 3:14 p.m., investigators intercepted a call from J.L. to Mr. Martin, in which J.L. told Mr. Martin that "Bo Diddley" - known to investigators as J.W., a high-ranking member of another Vice Lords faction - was looking for Mr. Martin. Mr. Martin asked J.L. to text him J.W.'s number. After J.W. did so, Mr. Martin called the number and spoke to J.W., who asked to meet. At 7:18 p.m., in another call, Mr. Martin said that he was on his way to J.W., and J.W. told Mr. Martin to meet him at "Fats'."
About a half-hour later, investigators observed Mr. Martin park his car and leave it in the vicinity of Fats' residence. About twenty minutes after that, J.W. used Mr. Martin's phone to place a call to an unknown woman, telling her that Mr. Martin was coming to the house and cryptically instructed her to give Mr. Martin "both of them." J.W. explained that "both of them" were under the mattress. The woman agreed.
In another call at approximately 8:14 p.m., Mr. Martin told an unknown man that he would have "something" for the man to keep. The man, apparently understanding the coded references, asked no questions, said that he would put "them" in his drawer. Next, investigators observed Mr. Martin with two other men, including co-defendant, Torrie King, on foot in the area of J.W.'s residence just prior to that call. Mr. Martin then phoned the woman J.W. had spoken with earlier that day and told her he was at the door. Just after the call, investigators observed Mr. Martin return to his car.
Based on the intercepted phone calls and surveillance, investigators could reasonably conclude that Mr. Martin had obtained narcotics or firearms (or some other form of contraband) from J.W.'s residence. Office Marquez, an officer with 28 years on the Chicago Police force, testified that the references in the wiretaps were code words for some sort of contraband. This conclusion was based on the fact that the parties had been involved in illegal activity and that the words used by the participants to the call (i.e. "put something up") in his experience meant hide. See United States v. Garrett, 757 F.3d 560 (7th Cir. 2014); United States v. Dooley, 2013 WL 2548969, 21 (N.D.Ga. 2013)(a judge may consider an agent's interpretation of code words and language in determining whether probable cause exists). The content and circumstances of the conversations in this case reasonably supported the officers' interpretations of the calls.
The Chicago Police officers who stopped Mr. Martin's car testified that they did so because he made a lane change without first signaling. They said that Mr. Martin did not at first obey their instruction to raise his hands when they stopped the car, but instead made a furtive movement toward his waist which was below their line of sight. Mr. Martin was ordered out of the car. The officers testified that they saw a bulge in Mr. Martin's waistband and that during the ensuing pat down, they felt what appeared to be the butt of a gun. Ultimately, the officers secured two guns in a plastic bag from Mr. Martin's waistband. Officer Evangelites said that he first patted down Mr. Martin, found the guns, and then arrested him.
Mr. Martin and his witness, Mr. Shotwell, admittedly his best friend, told a very different story. Both were absolutely certain that Mr. Martin had not made any lane change that day without first signaling. In fact, Mr. Martin said that he had made plenty of lane changes earlier in the day but that each one was preceded by an appropriate signal. Mr. Martin also denied making any furtive movement toward his waistband, and Mr. Shotwell said he saw no such movement. Mr. Martin said an officer ordered him out of the car at gunpoint, forced him to the ground and then searched him. In his rendition of things, he was searched and then arrested.
Apart from this sharp conflict in the testimony, it appears to be undisputed that the officers then transported Mr. Martin to a police station where, after being given, and waiving, his Miranda rights, Mr. Martin explained that he had just gotten the guns five minutes before he was pulled over from a man he knew as "Ant." Mr. Martin told the officers that he was going to "put up" the ...