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United States v. Kelly

United States Court of Appeals, Seventh Circuit

November 26, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ERIC KELLY, Defendant-Appellant

Argued October 2, 2014

Page 1073

[Copyrighted Material Omitted]

Page 1074

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:12-cr-50049 - Frederick J. Kapala, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Kelly Greening, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For ERIC L. KELLY, Defendant - Appellant: Carol A. Brook, Attorney, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL; Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL; John C. Taylor, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL.

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

OPINION

Page 1075

Flaum, Circuit Judge.

Based on evidence recovered during a police search of his apartment, defendant Eric Kelly was charged with possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Although the search was authorized by a warrant, Kelly seeks to suppress the seized evidence on Fourth Amendment grounds. He contends that the government failed to establish probable cause to support the issuance of the warrant and that the search exceeded the warrant's scope. Because we conclude that the warrant was valid and that the officers' search was proper, we affirm the district court's denial of Kelly's motion to suppress.

I. Background

On April 4, 2012, Detective Mark Jimenez of the Rockford Police Department applied for a warrant to search the " upper apartment" of a " multiple family residence" located at 1522 Clifton Avenue in Rockford, Illinois, for cocaine and a wide variety of narcotics paraphernalia. Detective Jimenez, an investigator in the Narcotics Unit, submitted a supporting affidavit representing that he had been an officer with the Rockford Police Department for twenty-one years, during which time he had been involved in the execution of over 700 narcotics search warrants.

Jimenez's affidavit contained the following relevant information suggestive of criminal activity at 1522 Clifton: First, on February 9, 2012, a " concerned citizen" contacted the Rockford Narcotics Unit and complained that " the residence located at 1522 Clifton Avenue ... is dealing drugs on a daily basis." Approximately six weeks later, on March 28, 2012, the police department received a welfare check complaint from a woman named Patsy Ibarra. Ibarra advised Officer Amy Kennedy that Ibarra's daughter, Precious Love, " was possibly being held against her will" at the upper apartment of 1522 Clifton by a black male named " Eric." According to Ibarra, her granddaughter, Sherona Barnes, had knocked on the rear door of the building in search of Love. Kelly, holding a 9mm handgun, answered her knock and yelled, " You almost got yourself shot!" With Love standing behind him, Kelly slammed the door in Barnes's face and warned, " Go ahead and call the police, I'll shoot them too." [1] Ibarra's complaint prompted Officer Kennedy to visit the residence. Love greeted Kennedy at the building's rear door--which was outfitted with surveillance cameras--and denied that she was being held against her will. Officer Kennedy saw Love descend a set of interior stairs to reach the rear door, leading Kennedy to conclude that Love had come from the upper apartment.

Page 1076

Days later, Jimenez used a confidential informant to make a controlled purchase of crack cocaine from 1522 Clifton, " upper apartment." The informant--who had previously aided the police department in securing several drug convictions--called Kelly at his listed telephone number to arrange a purchase of crack cocaine, but when he met Kelly at the rear door of the building, Kelly told the informant that he would not sell drugs from inside the apartment. They later arranged to make the exchange down the street from 1522 Clifton. Officers observed Kelly walk from behind 1522 Clifton; enter a blue Buick, which was registered to him at a different address; and drive to the agreed-upon location. The informant entered the Buick, remained inside for less than a minute, and immediately returned to Jimenez's undercover vehicle. There, the informant revealed his purchase--a small plastic bag containing a rocklike substance that field tested positive for cocaine.

Jimenez asserted that, taken together, this information established probable cause that evidence of drug-related criminal activity would be found at the upper apartment of 1522 Clifton Avenue. Jimenez's supporting affidavit described the precise location to be searched as

1522 Clifton Avenue, upper apartment, Rockford, Illinois[,] ... a two story, white with red siding and red trim, multiple family residence, located on the east side of Clifton Avenue, with the numbers " 1522" located on the front of the residence, and the upper apartment is located on the second floor of this building.

Associate Judge Ronald J. White of the Circuit Court of Winnebago County promptly issued a search warrant.

On April 6, 2012, Detective Jimenez and a team of Rockford police officers forcibly entered 1522 Clifton through the building's rear door. Once inside the outer door, the officers encountered two staircases--one leading up to an upper interior door and the other leading down to a lower interior door, which opened into the basement. They climbed to the upper door, announced their presence, and forced the door open. They were then standing inside Kelly's apartment, where they observed Kelly at the top of another internal staircase, walking quickly from the apartment's north bedroom to the south bedroom. Upon Jimenez's order, Kelly exited the south bedroom and surrendered to the officers. According to Jimenez, it was at that moment that he realized that Kelly lived not in an " upper apartment" but rather, in a two-story unit at the rear of 1522 Clifton. Although the officers had correctly surmised that the building was divided into two apartments, they learned that it was in fact bisected into front and rear multi-story units--not upper and lower single-story units, as Jimenez had asserted in the warrant application.

Despite this realization, the officers continued their search of Kelly's apartment. In the north bedroom, Jimenez noticed that a vent cover had been removed from the wall, exposing a heating duct. Jimenez suspected that Kelly had thrown contraband down the duct in a frantic attempt to hide it from the officers. To determine where the duct led, one officer threw items into the shaft while another walked down to the building's basement in an effort to hear the items land on the other end. That officer entered the basement from the lower rear staircase and walked through an unlocked door dividing the rear of the basement from the front. In the front room--which contained a ...


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