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United States v. Aguirre

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

July 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO AGUIRRE, Defendant.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee United States District Judge.

         On January 28, 2016, law enforcement agents found 18.3 kilograms of cocaine in the course of conducting a warrantless search of Defendant Ricardo Aguirre's car. Shortly thereafter, Aguirre was charged and indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Aguirre has now moved to suppress the physical evidence of the cocaine on the basis that it was obtained in violation of his Fourth Amendment rights. In addition, he has moved to suppress certain post-arrest statements that he made, contending that law enforcement agents improperly elicited the statements through false promises. The Court held an evidentiary hearing on the motion to suppress. For the reasons that follow, the motion is denied.

         Factual Background[1]

         On December 9, 2015, police officer John Pacewic (“Officer Pacewic”) stopped a car in Elmhurst, Illinois, for committing a traffic violation. See Def.'s Mot. Suppress at 1-2, ECF No. 26. The car's occupants were Mario Ramirez-Guzman (“Guzman”) and Jose Manuel Salazar-Rico (“Salazar”). Id. at 2. During the stop, Guzman and Salazar told Officer Pacewic that they were on their way to Mexico from a car auction in Harvey, Illinois. See id.; Gov't Resp. at 3, ECF No. 28. They explained that they traveled to the auction every two weeks, sleeping in their car and driving straight from Chicago to Mexico each time. Resp. at 3. They also told Officer Pacewic that the car they were driving belonged to their employer, Francisco Avila. Id.

         Upon further investigation, Officer Pacewic and another law enforcement agent, Task Force Officer Victor Almaguer (“Officer Almaguer”), discovered that several of Guzman and Salazar's representations during the traffic stop appeared to be false. First, the officers learned that Guzman and Salazar's car was registered under the name “Jose M. Salzazar” [sic], rather than under the name “Francisco Avila.” Id. Second, a license plate database query revealed that the car had been parked several times at a hotel in Joliet, Illinois, which appeared to be inconsistent with Guzman and Salazar's claim that they always slept in their car or drove straight through to Mexico. See Id. at 4. The officers also developed doubts as to whether Guzman and Salazar had actually been traveling from Harvey to Mexico, given that Officer Pacewic had stopped them about thirty miles north of Harvey, rather than somewhere south of Harvey. See Id. at 3-4.

         After the traffic stop on December 9, 2015, Officer Almaguer contacted U.S. Immigration and Customs Enforcement (ICE) to further inquire into Guzman's background. Id. at 4. Officer Almaguer learned from ICE that Guzman had previously been stopped in El Paso, Texas, as an occupant of a vehicle containing a modified gas tank. Id. At the evidentiary hearing, Officer Almaguer testified that, based on his experience and training, [2] modified gas tanks are frequently used to transport contraband, narcotics, or narcotics proceeds.

         In light of Guzman and Salazar's apparent misrepresentations to law enforcement agents, as well as the information obtained from ICE, Officer Almaguer and other agents began to suspect that Guzman and Salazar might be involved in drug trafficking or other illegal activity. See Id. at 5; Def.'s Mot. at 1-3. Accordingly, the agents continued to surveil Guzman and Salazar over the course of the next several weeks. See Def.'s Mot. at 1-4. As part of these surveillance efforts, the agents obtained a court order permitting the installation of a pen register on Guzman's cell phone. Id. at 3.

         During the early morning hours of January 28, 2016, the agents were tracking Guzman and Salazar in a black pickup truck. Def.'s Mot. at 4. The pickup was traveling northbound on an interstate toward Chicago, Illinois. Id. At 5:40 a.m., while it was still dark outside, agents saw the pickup park in a residential area near the intersection of 44th Street and Komensky Avenue in Chicago. See id.

         Five minutes after the pickup had parked, Aguirre pulled up in a gray SUV and stopped behind the pickup. Id. Aguirre and Guzman then got out of the SUV and the pickup, respectively, and swapped places. Id. Specifically, Aguirre exited the driver's side of the SUV and entered the passenger's side of the pickup, while Guzman exited the passenger's side of the pickup and entered the driver's side of the SUV. Id. When Aguirre exited the SUV, he was carrying a white Gucci shopping bag. Id. It is unclear from the record whether Aguirre handed the shopping bag to Guzman before swapping cars with him, or whether Aguirre instead took the bag with him into the pickup.[3]

         After Aguirre and Guzman swapped places, the SUV and the pickup drove off in separate directions. Id. Agents lost track of the SUV, but they were able to maintain surveillance on the pickup (which, at the time, was occupied by Aguirre and Salazar). For about ten or fifteen minutes, agents surveilled the pickup as it turned down various roads in the vicinity of 44th Street. Resp. at 7-8. First, the pickup turned southbound off of 44th Street onto Karlow Avenue. See Id. It then turned eastbound on 47th Street, northbound on Pulaski Road, eastbound on 46th Street, northbound on Avers Avenue, westbound on 45th Street, southbound on Springfield Avenue, westbound on 46th Street, southbound on Keeler Avenue, eastbound on 47th Street, and northbound on Kedvale Avenue. Id. Finally, the pickup turned eastbound back onto 44th Street. Id.; see also id., Ex. A.

         Officer Almaguer, who was one of the agents surveilling the pickup, later described the pickup's route as circuitous, testifying at the evidentiary hearing that the pickup appeared to be driving in circles. He further testified that, based on his training and experience, the pickup's route indicated that its occupants may have noticed the agents and were deliberately attempting to evade their surveillance. Officer Almaguer also identified such circuitous driving as a technique that narcotics traffickers sometimes use to thwart surveillance efforts.

         Another agent on the surveillance team, Special Agent Billy Conrad (“Agent Conrad”), gave a similar description of the pickup's route. In particular, Agent Conrad testified that the pickup appeared to be conducting countersurveillance, given that it did not seem to be following a direct path to any particular destination. Agent Conrad also testified that, based on his experience as a narcotics investigator, [4] he believed that a driver might engage in such countersurveillance if the driver thought that police officers or other individuals were following or watching him.

         After driving around the neighborhood for about ten or fifteen minutes, the pickup returned to its original location on 44th Street, as did the SUV. See Def.'s Mot. at 4. Aguirre and Guzman then re-swapped positions: Aguirre exited the passenger's side of the pickup and returned to the driver's side of the SUV, while Guzman exited the driver's side of the SUV and returned to the passenger's side of the pickup. Id. Both vehicles then drove away again, with agents close behind. Id.

         At 6:10 a.m., agents conducted simultaneous stops of the SUV and the pickup. Id. at 4-5. The agents who stopped the SUV were Agent Conrad and Task Force Officer Rob Palos (“Officer Palos”).[5] Id. at 5. As members of the surveillance team, Agent Conrad and Officer Palos both had knowledge of the two car swaps that had just taken place, as well as the circuitous route that the pickup had taken in between the swaps. See Resp. at 8 n.2. Additionally, Agent Conrad and Officer Palos both had knowledge of the underlying investigation into Guzman and Salazar. Id.

         When Agent Conrad and Officer Palos stopped the SUV, it was on Pulaski Road, about to turn left onto an expressway. Aguirre was in the driver's seat, and a man named Salvador Navarro-Pamanes (“Navarro”) was in the front passenger's seat. See Def.'s Mot. at 5. After signaling the SUV to pull over, Officer Palos approached the driver's side of the vehicle and began speaking with Aguirre in Spanish.[6] Id. According to Officer Palos, he asked Aguirre to step out of the SUV and then asked whether Aguirre would consent to a search of the vehicle for drugs or narcotics. Officer Palos claims that Aguirre responded by granting him permission to conduct a search. Aguirre disputes this point, asserting in a terse affidavit that his consent to search the SUV was neither requested nor granted. Aguirre Aff. ¶ 12, ECF No. 26-1 (“The officer did not ask me if he could search my vehicle at the time I was stopped, and I did not tell him he could search my vehicle.”).[7]

         After Aguirre exited the SUV, Officer Palos informed Agent Conrad that Aguirre had verbally consented to a search. Officer Palos then proceeded to conduct a search of the vehicle while Aguirre stood nearby.[8] In the SUV's rear compartment, Officer Palos found two five-gallon buckets labeled “O'Reilly's Motor Oil.” Upon shaking one of the buckets, he observed that the bucket seemed to contain a hard object, rather than oil or other fluid. Officer Palos and another officer who had arrived at the scene then opened the buckets and found kilo-shaped packages containing a total of 18.3 kilograms of cocaine. See Def.'s Mot. at 5.

         Agent Conrad's testimony corroborated Officer Palos's description of the stop and search of the SUV. At the hearing, Agent Conrad stated that he initially waited in a police van while Officer Palos approached the driver's side of the SUV to speak with Aguirre. Shortly after Aguirre stepped out of the SUV, Agent Conrad exited the police van, motioned for Navarro to step out of the SUV, and handcuffed Navarro for officer safety. At that point, according to Agent Conrad, Officer Palos told him that Aguirre had verbally consented to a search of the vehicle. Agent Conrad then waited with Aguirre and Navarro near the rear of the SUV while Officer Palos conducted the search. Agent Conrad also testified that, shortly after Officer Palos found the buckets of cocaine, Aguirre and Navarro were placed under arrest and escorted into the police van.

         Concerned about the busy traffic along Pulaski Road, Agent Conrad and Officer Palos drove Aguirre to a nearby parking lot at around 7:38 a.m. and read him his Miranda rights in Spanish. See Id. at 5-6. Officer Palos later testified that Aguirre then signed a consent form giving written permission to search the SUV. Next, Aguirre initialed an advice-of-rights form to acknowledge that he had received notice of his Miranda rights. According to Officer Palos, Aguirre became nervous while initialing the advice-of-rights form and asked whether he was going to be in trouble. Officer Palos claims that, in response to this question, he told Aguirre he would advise the state's attorneys of Aguirre's cooperation with law enforcement if Aguirre did, in fact, cooperate. Aguirre then finished signing the advice-of-rights form.

         Agent Conrad's description of the events in the parking lot was consistent with Officer Palos's. According to Agent Conrad, he learned at some point from Officer Palos that Aguirre was inquiring about benefits or guarantees for his cooperation. Agent Conrad told Officer Palos to ensure that Aguirre understood that no promises were being made and that only a judge could make a final determination regarding a prison sentence. After Agent Conrad and Officer Palos had this exchange, Officer Palos continued to speak with Aguirre in Spanish.[9]

         For his part, Aguirre describes the events in the parking lot somewhat differently. In his affidavit, he attests that an officer told him “he would talk to the judge if [Aguirre] signed the consent form.” Aguirre Aff. ¶ 19. He avers that he then “signed the consent form based on the assistance [he] was offered.” Id. Aguirre's affidavit makes no mention of the advice-of-rights form.

         At around 8:38 a.m., after he had signed the consent form and the advice-of-rights form (both of which were presented at the evidentiary hearing), Aguirre provided Agent Conrad and Officer Palos with oral and written statements. In those statements, Aguirre admitted to possession of cocaine with intent to distribute. Resp. at 9-10. Based on these statements, as well as the evidence found during the search of Aguirre's vehicle, Aguirre was charged by criminal complaint on January 29, 2016, with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

         Analysis

         Aguirre has filed a motion to suppress all physical evidence of the cocaine found in his vehicle on January 28, 2016, maintaining that the evidence was discovered pursuant to a warrantless search in violation of his Fourth Amendment rights. In addition, he has moved to suppress evidence of his post-arrest statements, arguing that the statements were improperly elicited by false promises from law enforcement ...


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