Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Montoya-Pena

United States District Court, N.D. Illinois, Eastern Division

November 3, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
AURELIANO MONTOYA-PENA, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH U.S. District Court Judge

         Defendant Aureliano Montoya-Pena, a/k/a “Jesse Montoya, ” filed a Motion to Suppress [191] all evidence obtained from a search of a house on December 19, 2010. An in-court hearing was held, and the parties filed post-hearing briefs. For the reasons stated below, Defendant's Motion to Suppress [191] is denied.

         BACKGROUND

         On the night of December 18, 2010, agents from the Drug Enforcement Administration (“DEA”) entered Aureliano Montoya-Pena's (“Defendant”) house without a search warrant and located illegal drugs in an open storage container in a basement-bedroom closet. Early the next morning, at 1:25 a.m. on December 19, 2010, a DEA agent swore out a search warrant application before Magistrate Judge Arlander Keys. The house was searched and items seized, including the previously seen illegal drugs, pursuant to the warrant issued by Judge Keys.

         Affidavit in Support of Search Warrant Application

         Special Agent Jay Borns' affidavit of December 19, 2010, in support of the search warrant application contains a narrative of facts. (Dkt. No. 226-14.) The facts in support of the application, generally, are as follows. That since March 2010, DEA agents have been investigating a money laundering and drug trafficking cell associated with the Los Zetas drug-trafficking cartel (“Zetas”) operating in the Chicago area. DEA agents developed a cooperating source who, on December 17, 2010, notified the DEA that the Zetas intended to move a large amount of narcotics from the Chicago area to Mexico. The Zetas requested the cooperating source arrange for transportation of narcotics. On December 18, 2010, DEA agents provided a second cooperating source with a Chrysler Town & Country minivan (“Van”). Between 12:00 p.m.[1] and 2:30 p.m. on December 18, DEA agents maintained constant surveillance on the Van.

         At approximately 12:00 p.m., the Van entered a parking lot; and the cooperating source exited the Van and left the keys under the floormat. Then, an unidentified individual picked up the Van and drove it to 2536 S. Harvey, Berwyn, Illinois (“House”), [2] where the Van was driven into a detached garage behind the House at 12:30 p.m. At 12:40 p.m., DEA agents observed the Van leave the garage. Agents followed the Van to the area of South 48th Court between 29th and 30th Streets in Cicero, Illinois. At 12:50 p.m., agents observed someone park the Van at that location and exit the vehicle. Agents observed this individual enter a black Chevrolet Suburban truck (“Suburban”) that returned to the House and parked in the garage. The Suburban was registered to Jessie Montoya ‒ whose driver's license lists the address of the House.

         At approximately 2:30 p.m., DEA agents took custody of the Van, conducted a search and recovered approximately 130 individually wrapped brick-shaped objects concealed inside two Rubbermaid bins and a large duffle bag. The substance field-tested positive for cocaine.

         After the seizure of the 130 kilograms of cocaine, agents maintained surveillance of the House; and, for hours, agents observed no lights on inside of the residence. At 8:00 p.m., agents observed lights on inside, saw an individual open the curtain to look outside, and observed lights on in the basement. At 8:35 p.m.[3], agents observed an individual in the rear of the House (later identified as Oscar Montoya-Pena), who then moved to the front sidewalk. Agents questioned Oscar, who, according to the affidavit, was evasive in his answers to questions regarding who owned the House, how he arrived at the House, and whether anyone was inside the House.

         After questioning Oscar, DEA agents entered the House to determine if anyone was inside to prevent the potential destruction of evidence.[4] During the search, agents observed multiple packages consistent in appearance with the 130 kilos of cocaine seized earlier that day. No evidence was seized during the first entry into the House on December 18, 2010.

         Upon executing the search warrant on December 19, 2010, agents seized the 100 kilos of cocaine previously observed, 2 pounds of methamphetamine, a rifle, a handgun, drug ledgers, drug scales, a kilo press, currency and other miscellaneous items.[5] (Dkt. No. 191 at p. 2.)

         Procedural Posture of Criminal Proceedings

         On November 2, 2011, Defendant was indicted on two counts of conspiracy to distribute cocaine and possession with intent to distribute a controlled substance in violation of federal statutes. A bench warrant for the arrest of the Defendant was also issued on November 2, 2011. The case was placed on the fugitive calendar on April 3, 2012. (Dkt. No. 55.)

         On October 9, 2015, Defendant was taken into federal custody. On January 25, 2016, Defendant filed the Motion to Suppress, arguing that the search of his home without a search warrant on December 18, 2010, was an unconstitutional violation of his Fourth Amendment rights and that any evidence obtained from the search should be suppressed.

         Motion to Suppress Hearing

         On May 3, 2016, the Court held a hearing on the Motion to Suppress. At the hearing, two agents testified, Special Agent Timothy Oko (“Oko”) and Special Agent Jay Borns (“Borns”). Agent Borns, the affiant of the search warrant affidavit, testified that a decision had been made to seek a search warrant for the House the afternoon of December 18, as early as 3:00 p.m. on December 18. (Tr. 95.) Borns also testified that he had been working with Assistant United States Attorney Gregory Deis to obtain the warrant that afternoon. (Tr. 89-96.) The warrant was not issued until 1:25 a.m. on December 19 ‒ after the agents entered the House the night before, on December 18, which was characterized as a “protective sweep.” (Tr. 9, 61, 82, 94-96).

         For the most part, Oko provided testimony consistent with the facts set forth above in the affidavit signed by Borns.[6] There were some minor discrepancies. For example, Oko testified that the Suburban was silver (Tr. 21, 23-24); whereas, the affidavit states that the Suburban was black. (Dkt. No. 226-14 at p. 6, ¶ 21.)

         Oko also provided additional testimony regarding several events taking place between 1:00 p.m. and 8:30 p.m. on December 18, 2010. (Tr. 33-50.) None of this additional testimony was contained in Borns' affidavit. Specifically, Oko testified that at the time that agents seized the Van, the Cicero Police informed the DEA agents that they had received a call from an unidentified woman[7] who said she observed suspicious activity involving the Van. (Tr. 35.) She stated that individuals were “messing” with a brick-shaped package in the rear of the Van; the package fell to the ground, white powder came out of the package, and then the individuals parked the Van on 48th Court. (Id.) However, the surveillance team did not see any activity as described. (Id.)

         Oko also testified that, at 1:12 p.m., surveillance officers saw a woman and a man (later identified as Raymundo Echeviarra) exit the House and enter a four-door Mercedes Benz. (Tr. 41.) The agents followed the Mercedes and watched as it drove slowly by the Van still parked on 48th Court. (Tr. 42.)

         Also at 1:12 p.m., agents saw the Suburban, driven by Defendant, exit the garage of the House and drive to a house in Milwaukee, Wisconsin. (Tr. 41-43.) At one point, at the request of the agents, Milwaukee County Sheriff conducted a traffic stop of the Suburban and found a T-Mobile receipt for a phone that had been purchased days earlier; the phone bore the same phone number the unidentified woman used to call the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.